The Ethics Commissioner, Mario Dion, concluded Prime Minister Trudeau contravened the Conflict of Interest Act because of communications with the former Attorney General (AG) related to the decision to not offer SNC-Lavalin a remediation agreement or Deferred Prosecution Agreement (DPA). The Ethics investigation was instigated by two NDP MPs but Mr. Dion could not justify it as requested so he chose to open a review of his own based on Section 9 of the Conflict of Interest Act (the Act). The Commissioner had access to testimony from a previous proceeding before the Justice Committee as well as his own interviews. His conclusion is not consistent with the requirements of Section 9. Thus it is suspect, and I consider, mistaken. To demonstrate that in a way that covers all the bases requires a fairly lengthy treatment and that can be found at my web site seekingobjectivity.ca. Here I will focus on the specific shortcomings in the Commissioner’s report that I believe demonstrates that Mr. Dion failed.
I will begin as Mr. Dion could have but didn’t, by setting out section 9 (which he also did at paragraph 246) along with a definition that conditions the interpretation of section 9 (which he deferred until 288).
246 No public office holder shall use his or her position as a public office holder to 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 [emphasis added].
The Definitions section of the Act specifies that,
288 “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 [emphasis added].
Mr. Dion made two very significant choices in his treatment of the issues.
a) He chose to limit consideration of the details surrounding the legislation that established Remediation Agreements or Deferred Prosecution Agreements (DPAs). He justified this by saying the decision as to whether to offer a DPA is strictly a prerogative of the AG (correct but irrelevant to his task of assessing the behaviour of others).
b) He separated by 6 pages the definitional clause that conditioned the meaning of private interests for purposes of the Act, from the text of section 9. This de-emphasized the importance of that phrase in his subsequent analysis, and led to his inappropriate conclusion.
Thereafter, he was surprisingly careless in often referring to “interests” instead of “private interests” and “furthering another person’s interests” instead of “improperly furthering another person’s private interests”. This thoughtless language, contained in a lengthy and convoluted discussion about subsidiary aspects of the controversy eventually enabled his flawed analysis and conclusion.
At 287, Mr. Dion laid out a proper approach to the analysis, correctly stating that it required two steps. Step 1 was to determine whether Mr. Trudeau had sought to influence the decision of the former Attorney General (AG). If the answer was yes, Step 2 would be to determine whether or not that influence was intended to improperly further another person’s private interests (in this case SNC-Lavalin). If the answer in step 2 was also yes, he would conclude that Mr. Trudeau was in contravention of the Act. If the answer was no in either step Mr. Trudeau would be exonerated.
Step 2 is crucial, and here Mr. Dion erred in largely disregarding the clause that says ‘private interests don’t include an interest in a matter of general application. That clause is important because the new legislation on DPAs establishes a policy regime that is of general application to all companies (all public policy is inherently of general application). The inclusion of a condition on how the Act defines “private interest” is logically intended to, or at least serves to, ensure that government employees cannot be accused under Section 9 as having a conflict of interest when the matter at issue involves broad public policy. In other words, there is a proper way one can further the interests of another person; namely through broad public policy such as the DPA legislation. In spite of Mr. Dion’s injudicious circumvention of this, a straightforward interpretation of the Act makes it difficult or impossible to assess step 2 in a way that would reasonably support a finding that Mr. Trudeau contravened it.
Step 1 was also problematical but even if he was able to show, in this first step of his two-stage process, that the Prime minister sought to influence the decision of the Attorney General, he acknowledged at 287 that was not sufficient to reach his conclusion that the Act was contravened. That is because in the Conflict of Interest Act, seeking to influence a decision is not the problem. Rather it is seeking to influence a decision in order to achieve some benefit that is frowned upon. In any case, he was able to reach the conclusion relating to step 1 (seeking to influence the decision) only by largely ignoring the new legislation that established remediation agreements or DPAs as an alternative for criminal prosecutions. That let him avoid the core of the policy disagreement. He thereby also ignored the legitimate interest other members of government had in understanding how the new legislation was evaluated when the choice between prosecution and a DPA was made. And finally, that allowed him to interpret any discussion, questions or suggestions as attempts to influence the AG’s decision. So in my view, his decision at step 1 is flawed.
Looking at step 2, Mr. Dion concludes at 351.
351 … Because SNC-Lavalin overwhelmingly stood to benefit from Ms. Wilson-Raybould’s intervention, I have no doubt that the result of Mr. Trudeau’s influence would have furthered SNC-Lavalin’s interests (both improperly and private are omitted).The actions that sought to further these interests were improper since the actions were contrary to the constitutional principles of prosecutorial independence and the rule of law [emphasis added].
Note he refers to furthering SNC-Lavalin’s interests, rather than private interests. The Act has precluded using private interests in this case. Avoiding the term merely misleads, it does not justify a claim that the Act was contravened. He then uses his own definition of ‘improper’ in an apparent attempt to imply his argument meets the crucial requirements of step 2. However, even that broadened definition can only be applied to his perception that there was an attempt to seek to influence the decision (step 1). This is misleading. It seems to imply that the ‘improper’ act of trying to influence the prosecutor’s decision would establish an improper intent to further the private interests of SNC-Lavalin. It does not. Step 1 was flawed, but step 2 is clearly incorrectly decided. As a famous quote in a somewhat more serious incident goes, “it was worse than a crime, it was a blunder.