Parsing between conflict and perception of conflict

PM may be clear legally, but appearances can pose ethical problems

It wasn’t about a conflict of interest, but about the perception of one.

On Friday, that’s what Prime Minister Justin Trudeau said was behind his move to delay a May 8 cabinet decision on WE Charity administering $544 million in federal grant money for students.

Trudeau has apologized for not recusing himself from the discussion around the deal — a decision that’s now being examined the office of the federal ethics commissioner — but only because of a “perception” of a conflict of interest created by his family’s ties to the organization. He insists he was not, in fact, conflicted.

If that turns out to be true, Trudeau is legally in the clear, former ethics commissioner Mary Dawson says.

“Either there is a conflict of interest or there isn’t, and that will be a matter of applying the relevant provisions to the facts as determined,” she said.

However, it’s always best for politicians to err on the side of caution, Dawson says.

If there is confusion for public office holders, Dawson said it’s a “sensible thing” for them to consult with the ethics commissioner’s office if they feel like there might be a conflict over a decision they’re making.

“Everybody’s assigned an adviser,” said Dawson, who served as the federal ethics commissioner from 2007 to 2018.

“There’s always somebody they can go to and they can always go to the commissioner, if need be.”

The prime minister’s family ties to WE Charity includes his wife’s volunteering work and his brother and mother’s speaking engagements at WE Charity events, for which they were paid a total of $282,000 between 2016 and 2020.

But Trudeau said on Friday he didn’t feel the need to consult the ethics commissioner after he learned for the first time on May 8 that the Canada Student Service Grant proposal included WE Charity as the preferred third party to run it.

“The ethics commissioner had already cleared my wife for working in an unpaid basis with the WE organization through a podcast and through events, where they covered her travel related expenses, but did not pay her,” Trudeau said.

Jennifer Quaid, a law professor at the University of Ottawa, said even an appearance of conflict, though it may not rise to the level of illegality, poses ethical problems.

In politics, she says, appearances matter, and people get upset and lose trust when it looks to them like a politician has acted improperly — even if they haven’t done so with wrongful intent.

“Part of what makes people upset,” Quaid said, “is if you to stand back and look at it, you have path A and path B, maybe both will fit within the rules, but there’s clearly one that has less problems.

“We’d like you to pick that one.”

It’s common for ethics codes to prohibit actions that create the appearance of conflict.

The code, for instance, that applies to federal public servants explicitly prohibits such actions. Meanwhile, in his 2015 mandate letters to ministers, Trudeau wrote, “The arrangement of your private affairs should bear the closest public scrutiny,” an “obligation not fully discharged by simply acting within the law.”

As for whether Trudeau’s family ties to WE Charity constitute a conflict or merely the appearance of one, that’s a determination for Ottawa’s current ethics watchdog, Mario Dion, to make. And Quaid says that job won’t be easy.

“It’s very hard once you start getting into the nitty gritty of what exactly was right or wrong,” she said.

“You’re trying to break it down into a little black and white decision. It’s not really that simple.

“But you step back and think, ‘My goodness, didn’t you think about this?’ ”