Making a mockery of rule of law
On December 20, the outgoing federal Conflict of Interest and Ethics commissioner (to give her her full title), Mary Dawson, delivered a report finding the prime minister, Justin Trudeau, in violation of sections 5, 11, 12 and 21 of the federal Conflict of Interest Act, in the matter of his acceptance of free vacations on the Aga Khan’s private island in the Bahamas.
At the time, she found, the Aga Khan had ongoing official business with the government of Canada, from whom he was seeking funds for various projects — indeed his foundation was registered to lobby the Office of the Prime Minister. The prime minister was in a position to help him in this regard, whether or not he in fact did so.
The Aga Khan’s gifts to Trudeau and his family, she ruled, could therefore reasonably be seen as an attempt to influence him “in the exercise of an official power, duty or function.” By accepting these gifts, the prime minister was in multiple violations of the Act; by failing to recuse himself from discussions regarding the Aga Khan’s requests, he was in further violation.
As to Trudeau’s defence, that he was an old friend of the Aga Khan’s, and that therefore the gifts were within the law, the commissioner was unsparing: but for a single encounter at the funeral of his father in 2000, they had had no personal or private dealings with each other in 30 years.
Ordinarily, when you break the law, there are consequences: a penalty of some kind. There are consequences, even if you failed to inform yourself of the law, or thought you had a good excuse. It is not ordinarily sufficient to avoid those consequences that you express contrition afterwards, or vow not to do it again.
What have been the consequences of the prime minister’s law-breaking? That much is clear: none whatever. Neither can there be, as things stand: while Parliament did pass a Conflict of Interest Act forbidding ministers, their advisers and other public office holders from accepting such gifts, it provided only the most trivial fines for offenders.
What, on the other hand, should be the consequences? On this, the prime minister’s view is equally clear: none. On the day that the report was delivered, he made a show of appearing before the press, looking vaguely contrite, or as close to it as he is able. He even said he was sorry, albeit for the “mistake” of not having “cleared” the free vacations with the ethics commissioner. As for the commissioner, she told the Commons ethics committee Wednesday the bad publicity — a year after the story broke, in a report delivered just before Parliament rose for the Christmas break — was punishment enough.
And that, remarkably, would appear to be that. The prime minister — the head of government — the person to whom we entrust the maintenance of a system founded on the rule of law, is found by the responsible authority to have broken the law on multiple occasions, and not in a minor way but by accepting valuable gifts from a billionaire seeking to influence government policy, and … nothing happens. Not only does he face no legal penalty but, thanks to his party’s control of Parliament, no serious political penalty either. An opposition motion this week to call him to answer questions before the ethics committee was defeated on a party-line vote.
This is not only a demonstration, yet again, of the toothlessness of our laws and the failures of our systems of accountability. It appears to reflect a belief that the prime minister, as the single most powerful person in the country, should be held, not to a higher standard than others, but a lower one.
Had any other cabinet minister, still less a public servant, been caught behaving the same way (I use the word “caught” advisedly: had the National Post not got wind of the story, it is doubtful the public would have learned of any of it), it is likely he or she would have been fired forthwith.
Neither would that necessarily have been the end of their troubles. As Peter Sankoff, professor of law at the University of Alberta, has pointed out, Trudeau’s acceptance of the Aga Khan’s beneficence would appear to run afoul, not only of the Conflict of Interest Act, but of the Criminal Code.
Section 121 (1) (c) of the Code makes it an offence for any official or employee of the government to accept “from a person who has dealings with the government a commission, reward, advantage or benefit of any kind.” Doesn’t matter what kind of benefit, doesn’t matter whether there’s a quid pro quo, doesn’t matter whether they’re old friends: the prohibition is absolute. And, unlike the Conflict of Interest Act, offences under the Criminal Code come with real penalties attached: in the present case, up to five years in jail.
If it were any lesser official in similar circumstances, there would seem to be at least grounds for investigation, if not charges. Is the prime minister being investigated? What do you suppose? Even in the United States, with its more formalized mechanisms of accountability, it is an enormously fraught step to investigate a sitting president, as Robert Mueller is no doubt discovering. In the case of a prime minister of Canada, it is virtually unthinkable. That predates the current prime minister, of course. But nothing about his conduct or demeanour suggests any greater eagerness to be held accountable.
At the very least, it is clear the Conflict of Interest Act needs amending: to provide meaningful penalties for violations, and to remove the exception for friends. More broadly, the culture that dispenses a special sort of droit de seigneur to the prime minister has got to change. It is called the rule of law, singular: not one law for the prime minister and another law for the rest.