I supported the motion to invite the Ethics Commissioner to discuss his report in the interests of transparency and accountability, and because his conclusions are legally flawed and I wanted to ask him questions about his legal mistakes.
I have given a lot of thought to what happened, read what feels like a neverending set of materials and coverage, and here are my own conclusions, a number of which I’ve shared publicly before.
First, I think it is both true that the then Attorney General did not exercise sufficient due diligence AND that the Prime Minister’s Office exerted pressure that should not have been exerted.
The Shawcross doctrine states that an AG “may, but is not obliged to consult with colleagues in the government, and indeed, would in some cases be a fool not to.”
A 2014 General Directive states: “it is quite appropriate for the AG to consult with Cabinet colleagues before exercising his or her powers under the DPP Act in respect of criminal proceedings. Indeed, sometimes it will be important to do so to be cognizant of pan-government perspectives.”
McLellan’s recent report is clear that the AG could have engaged in conversations with the DPP, asked for more information, and solicited a second opinion.
To understand all public policy considerations here, an economic impact analysis of some sort should have been requested from Finance or a third party. It is obvious that some employees would be affected, but remains an open question of how many.
And while Commissioner Dion was right that these considerations should not bear on his strict analysis under the Act, they do colour the overall situation, and the Deputy Minister’s comments in testimony to Dion raise similar concerns.
At the same time, Dion’s report and its factual findings make clear that the PMO exerted pressure that should not have been exerted. Shawcross is clear that the government is not to pressure the AG at all, for any reason, and McLellan’s recommendations to establish new protocols for existing standards are themselves an acknowledgment that what took place should not have taken place.
It is important that the Prime Minister has acknowledged mistakes were made, and I trust that McLellan’s recommendations will be implemented.
Third, the reaction and outrage has been disproportionate to these original mistakes of improper pressure. I say this for three reasons:
a) In my view, a DPA should have been more seriously considered. Organizations are made up of people who do good and bad things, and so long as the individuals who committed the crimes in question are punished to the fullest extent of the law, and so long as the organization reforms its internal practices, it makes no sense to punish innocent employees.
b) Given this was a new law and the AG has never intervened under the DPP Act, a second opinion from former Chief Justice McLachlin makes sense to me. This was where the bulk of the pressure was directed, and contrary to Dion’s finding of a pre-determined outcome, there is no evidence that McLachlin’s advice was, in any way, pre-determined.
c) There would always have been a great deal of transparency even if the AG had changed her mind. McLellan notes that, with the creation of the DPP in 2006, the federal justice system has undergone the most significant organizational change in the last half century.
Any decision by the AG to intervene must be in writing and public. Again, McLellan notes that “its use would bring a high degree of public and political scrutiny.”
Lastly, and related, I do not accept Dion’s finding that there was a conflict of interest. That conclusion is legally incorrect.
The Prime Minister and his staff were standing up – albeit making mistakes in doing so – in the public interest. At no time were they improperly furthering a private interest under the Act. There was a breach of Shawcross, but not a conflict of interest.
A conflict would occur if, as a public office holder, I furthered a family member’s interest, a friend’s interest, my own interest, or (reading the Act together as a whole, with reference to its purpose) similarly furthered some other interest I should not properly further.
Conflicts are inherent. They demand recusal. They are unchanged by proper or improper pressure.
The Commissioner’s analysis and conclusions are, in my view, legally wrong on this point. Again, there was a breach of Shawcross, not a conflict.
To the extent partisan considerations were brought to bear, it’s important to state that no one should have ever brought these concerns forward and that McLellan’s protocol would prevent any politically exempt staff from participating in any conversations going forward.
It is not so clear cut that partisan interests were at play when the Prime Minister said “I am the Member for Papineau.” According to Dion’s report, “Mr. Trudeau explained that the mention of this role came from his understanding, in his early days as a Member, of the impact government decisions have on Canadians.”
If Andrew Scheer stands up for dairy farmers, or I stand up for animals, or better yet, if I said to Bill Blair that “I’m the MP for Beaches-East York” as I call for action on gun violence, or one said “I’m the MP for Oshawa” as one calls for action to protect GM jobs, it is not at all clear that there are strictly partisan considerations at play.
As McLellan cites from one respected scholar: “in many instances, the approach that is taken may benefit the public while also serving partisan interests” and that “public opinion will be the final arbiter of whether the primary motivation is non-partisan.”
In my view, the primary motivation in this instance was to protect jobs in the public interest.
The public interest was pursued improperly, but at no time did the Prime Minister improperly further a private interest. The Commissioner is legally wrong.
Click here for an article in the National Post providing more details.