Is the Ethics Commissioner correct in sanctioning the Prime Minister?

Prime Minister Justin Trudeau has been roundly condemned by Canadian media, punditry, and political parties since the Ethics Commissioner Mario Dion published a report on August 13^th concluding that the Prime Minister has breached Section 9 of the Conflict of Interest Act. 

Section 9 reads, “No public office holder shall ... seek to influence a decision of another person so as to further the public office holder’s private interests or those of the public office holder’s relatives or friends or to improperly further another person’s private interests.”  The Commissioner concluded that the Prime Minister had a vested political interest in protecting SNC Lavalin’s private interest in avoiding a conviction of fraud, and that the Prime Minister “improperly” furthered this interest with political intimidation of the then Attorney General Judy Wilson-Raybould and other power plays behind her back.  Conservative Party attacks have framed Justin Trudeau as the only Prime Minister to ever be found guilty of violations of the Conflict of Interest Act.

Some lawyers have disputed the accuracy of the Commissioner’s report.  Errol Mendes, President of the International Commission of Jurists, Canada, argues that the Commissioner did not adequately consider a public interest rationale in the declared government pretense of saving 9000 jobs.  Retired lawyer David Hamer has argued that it was indeed appropriate for the Prime Minister to “consult” an allegedly unreasonable Attorney General under pretense of the Shawcross Doctrine.

I have a different middle-ground take to offer: the Ethics Commissioner identified a pattern of Prime Ministerial indiscretion that rightfully deserves condemnation, but that this indiscretion may not be a violation of the Conflict of Interest Act.  Or the Act was technically breached, but the breach itself is not a meaningful revelation.

For background, consider this Oxford Dictionary definition of “conflict of interest”: “a situation in which a person is in a position to derive personal benefit from actions or decisions made in their official capacity.”  The allegation is that the Prime Minister’s Office perceived itself to have political interest in SNC Lavalin escaping charges, an allegation supported by the PMO’s communications with Judy Wilson-Raybould expressing concern for political fallout from a conviction against SNC Lavalin. 

Accepting that the Prime Minister’s Office was furthering its own self-interest by improperly furthering a Liberal-friendly corporation’s private interest, the resulting implication is not especially unprecedented or exciting.  So another politician used their office to pursue short-term personal gain?  Any cynic of overall Canadian politics would respond, “Tell us something new!”

If we accept that the Ethics Commissioner has the mandate to assess whether any public office holder has sought to “improperly further another person’s private interests”, then the role of the Ethics Commissioner has ultimately become that of a general political commentator.  What about when MPs lobby the bureaucracy in favour of individual constituents?  What about when the Prime Minister’s Office under any Prime Minister has imposed self-serving discipline upon MPs of their party?  What about when a previous Prime Minister used omnibus legislation to advance environmental law changes sought by an oil industry considered to be close to that Prime Minister’s electoral base?  What about countless other examples of office holders seeking to “improperly” protect a private interest?

A “conflict of interest” is usually the most scandalous when the conflicted party veils its private self-interest in taking a side in an argument about the public good.  But in PMO communications with Judy Wilson-Raybould, the self-serving political interest was nakedly visible: “I am the MP for Papineau, in Quebec”, as the Prime Minister had reminded the Attorney General.  That the Prime Minister now claims that all along he had a public interest in “protecting jobs” is not veiling a conflict of interest in an ongoing policy debate, but is simply a distortion of the actual record.

For all these reasons, there is no real “conflict of interest” scandal involving the Prime Minister here.  If the Conflict of Interest Act was violated, it was done so in a manner that many other elected official could be said to have also done.  But there does remain other meaningful scandals involved here: (a) that the Prime Minister sought to undermine prosecutorial independence, (b) that a self-proclaimed “feminist” Prime Minister sought to make a strong woman feel self-insecure in her decision rather than change her mind with new evidence, (c) that former Supreme Court judges were apparently perceived as likely puppets for the PMO to give cover to political interference in the fraud charges, (d) that the PMO solicited advice from these judges behind the Attorney General’s back, (e) that there is no evidence that 9000 jobs were ever at stake in SNC Lavalin escaping conviction, (f) that the law would have been explicitly violated had a Deferred-Prosecution Agreement been granted for “economic” reasons, and (g) that despite a barrage of criticism, Prime Minister Justin Trudeau cannot admit to a single act of self-error identified by his critics.  That’s more than enough to warrant shame.