THE ETHICS CZAR’S LIMITED TOOL BOX,

Critics say Dion’s mandate not broad enough

O T T AWA • Can Canada’s ethics commissioner get to the bottom of what happened in the SNC- Lavalin scandal?

The Liberal- dominated House of Commons justice committee is also investigating what happened, but has so far declined to invite many of the key players in the scandal, including the chiefs of staff to Prime Minister Justin Trudeau and former justice minister Jody Wilson-Raybould.

Instead, Liberal MPs and government officials have been arguing that Conflict of Interest and Ethics Commissioner Mario Dion, as an independent officer of Parliament, is best positioned to examine whether WilsonRaybould was politically pressured to interfere in the prosecution of SNC-Lavalin.

“Canadians need to know that we have an officer of Parliament who is tasked with a specific role to make sure that in questions where there are disagreements amongst politicians, amongst elected officials, there is an arbiter who is empowered to be like a judge, who is an officer of Parliament, who will make a determination in this issue,” said Trudeau on Thursday.

Privy Council Clerk Michael Wernick made a similar argument when he testified to the Commons justice committee. “If you strip away all of the hyperbole and the rhetoric, it’s about whether a minister felt inappropriate pressure,” he said. “And that can be traced to specific conversations and meetings, and I think the ethics commissioner could get to the bottom of this fairly quickly.”

Yet many critics of this approach contend Dion’s mandate does not allow him to fully examine the scandal. Dion’s job is to apply the Conflict of Interest Act for public office holders (including cabinet ministers and their staff ), and the Conflict of Interest Code for MPs. The office is designed to look into specific conflicts of interest, as opposed to broader issues of ethical conduct.

“I agree that the ethics commissioner should continue his work, but the ethics commissioner can only look at a violation in respect of someone furthering a private interest,” said Conservative MP Michael Chong during Commons debate on Thursday. “He cannot broaden his scope to include the broader constitutional principles at play here, principles concerning the rule of law and the division of power between the judicial and executive branches of government.”

The Conservatives have been urging the RCMP to investigate the matter (the RCMP has not commented on whether it will do so), while the NDP have called on the government to launch an independent public inquiry.

The scope of Dion’s examination will come down to what he considers to be “private interests,” as the phrase is used in the Conflict of Interest Act.

When Dion started his examination of the SNC- Lavalin scandal, he said in a letter to NDP MPs Charlie Angus and Nathan Cullen that he had reason to believe Section 9 of the Act was contravened.

“Section 9 prohibits a public office holder from seeking to influence a decision of another person so as to improperly further another person’s private interests,” Dion wrote.

However, the Act does very little to define what a private interest is; instead, it lists a few things that are not included. “Private interest does not include an interest in a decision or matter ( a) that is of general application; (b) that affects a public office holder as one of a broad class of persons; or (c) that concerns the remuneration or benefits received by virtue of being a public office holder,” the Act says.

Dion’s predecessor in the office, Mary Dawson, went further in defining the term.

“In considering the meaning of ' private interest’, I have concluded that it does not include political interests such as enhancing a political profile or gaining partisan advantage,” she wrote in a submission to a parliamentary committee reviewing the Act in 2013.

Dawson noted that when it comes to what the legislation requires public office holders to disclose as interests, it is “having to do with the individual’s assets, liabilities, outside activities, gifts, etc.”

“If it is intended that the Act cover political interests, this should be made explicit,” she wrote. “Otherwise, I do not believe that a positive definition of ‘private interest’ is necessary.”

The committee never did make changes to the definition of “private interest” in the Act. The phrase is generally understood now to mean personal economic benefits. So far, there has been no allegation that any of the people allegedly pressuring Wilson- Raybould stood to benefit financially.

All of this means that Dion’s investigation will be constrained in what it can look into.

It is still possible that in interviewing all of the key players involved and producing a public report, Dion’s investigation will indeed help discover the truth. Yet even here, there’s a catch.

Dion’s letter to Angus and Cullen said he was initiating his own investigation under section 45(1) of the Act. This section does have a clause that allows for the investigation to end with no report.

“The Commissioner, having regard to all the circumstances of the case, may discontinue the examination,” the Act says. “Unless the examination is discontinued, the Commissioner shall provide the Prime Minister with a report setting out the facts in question as well as the Commissioner’s analysis and conclusions.”

Where do we go from here? It is important not to get ahead of ourselves. Opposition calls for the prime minister to resign over the SNC- Lavalin affair, or for the RCMP to investigate, are premature at this point. However compelling Wednesday’s testimony before the Commons justice committee by the former minister of justice and attorney general, Jody Wilson- Raybould, may have been, all of the facts are not in.

It is still open to the government to provide those missing facts, and still possible to hope they may prove exculpatory. That they have done their level best so far to provide none, alas, strongly suggests the contrary. Even in response to WilsonRaybould’s detailed, documented account of the many and sustained ways in which he and officials in his government attempted to interfere with a criminal prosecution, to the point not only of threatening her job but, it would seem, of carrying out the threat, the best that Justin Trudeau could offer was that he “disagreed” with it.

The prime minister prevented Wilson- Raybould from speaking for as long as he dared, and is still insisting she may not discuss potentially significant con-

Mario Dion