Democracy Watch is calling on the members of the committee today not only to recommend many changes to prevent conflicts of interest in government decisions with regard to spending but also to work together and actually draft and propose a bill, and to introduce it in the House of Commons this fall. Hopefully it will pass by the end of the year in this minority government.
You could easily work together to sponsor a bill that would lower the political donation and loan limit to $100, as in Quebec, to stop the unethical influence of big money in Canadian federal politics and to close loopholes that allow for secret, unethical lobbying, excessive government secrecy, spending without competitive bidding, and politicians and top government officials profiting from their decisions in secret. The bill must also strengthen enforcement by establishing an independent commission to appoint our democracy and good government watchdogs; requiring the watchdogs to audit everyone regularly and issue public rulings on all questionable situations instead of making secret rulings or ignoring complaints; allowing anyone to challenge the rulings of any watchdog in court; extending whistle-blower protection to everyone in federal politics, including political staff and the staff of political parties; and imposing high fines for ethics violations, including dishonesty.
Secret and unethical lobbying, excessive government secrecy, unethical big-money influence campaigns, and unethical decision-making and spending are all legal in federal politics and generally across the country. Canadians are more likely to get caught parking their car illegally than politicians are to get caught violating key ethics rules and spending rules. Incredibly, across the country, the penalties for illegally parking your car or vehicle are higher than are those for serious ethics violations by federal politicians and top government officials.
This dangerously undemocratic and corrupt system is the scandal, and it's not surprising that it encourages dishonest, unethical, secretive, unrepresentative and wasteful decisions by politicians and government officials. It must finally be cleaned up by closing all the loopholes, increasing transparency, strengthening political ethics and spending rules and their enforcement, and increasing penalties.
I have been before this committee about 15 times in the last 20 to 25 years. I'm not going to say anything very different from what I said those other 15 times, but I'm going to go through a few of the details, based on the summary I just gave, of the six key areas that need to be cleaned up in order to actually prevent conflicts of interest.
First of all, stop big money in politics. Stopping big money in politics is key because the favours organizations and their lobbyists can do for parties and candidates by funnelling and bundling donations unethically influence the decisions of cabinet ministers and other decision-makers in the federal government. Clinical testing by psychologists worldwide has shown that even small gifts and favours have influence and are the best way to actually influence someone's decisions. The only way to stop the unethical influence of big money in politics is to stop big-money donations and loans, as Quebec has, to ban gifts, including sponsored travel, which it is illegal for MPs to accept even from lobbyists as the lobbying commissioner ruled last year, and to restrict and require disclosure of all favours, including volunteer help on campaigns.
There are many other detailed changes that would democratize our political finance system. Democracy Watch issued a news release today, which has also been submitted to the committee with all the links, including one to the testing done by clinical psychologists showing that giving gifts and doing favours, including making donations, is the best way to influence someone's decision because it creates a sense of obligation to return the favour. That's why it's deeply unethical and has to be stopped through lowering the donation limit and banning gifts, including sponsored travel.
Stopping secret, unethical lobbying is the second of the six key areas.
The House ethics committee—this committee—recommended some of the changes back in 2012 to close secret lobbying loopholes, but not all of them. They need to be closed.
If even some of the loopholes that allow for secret lobbying had been closed years ago, everyone at WE Charity would have been prohibited from lobbying the 's Office and the 's office and department, because of their connections to those ministers. However, because the loopholes are open, not only did they not have to register the lobbying for this funding that they received, but it's also legal for them to be giving gifts, doing favours, campaigning and helping on political campaigns for any federal politician. Only registered lobbyists have to follow the lobbyists' ethics code. If you don't stop secret lobbying, you will not stop unethical lobbying because those who can still legally lobby in secret will also be able to lobby unethically.
Secret lobbying is only a part of the excessive federal government secrecy. The Trudeau Liberals promised that government information would be open by default and promised to apply the Access to Information Act to ministers' offices. Neither promise has been kept. Past governments have also not kept their open government promises.
There are many loopholes in the Access to Information Act. It really should be called “the guide to keeping information secret act” because that's really what it is—it's so full of loopholes. Those loopholes must be closed to end the culture of excessive secrecy that often hides wrongdoing and wrongdoers in the federal government.
The fourth area is to stop unethical decision-making. It is legal under the Conflict of Interest Act for ministers and top government officials to profit from their decisions. As long as the decision applies generally, which 99% of their decisions do, they are not required to step aside when they have a conflict of interest. They are actually allowed to have a financial conflict of interest and still participate in making the decision. This was proven most recently by , who introduced a bill that would have helped his own family's pension management company make more money. Since he was a shareholder at the time, Mr. Morneau would have made more money. The Ethics Commissioner ruled that this was all fine because of this giant loophole in the Conflict of Interest Act. That loophole also exists in the MPs' ethics code and in the Senate ethics code.
The Conflict of Interest Act is a key law that protects the public's money and protects our democracy. The Supreme Court of Canada ruled in 1996 that if it is not strictly and strongly enforced, along with other laws like the Criminal Code anti-bribery provisions, we do not have a democracy. This key law does not apply 99% of the time to decisions made by the most powerful people in the federal government. This loophole must be closed and everyone in federal politics must be prohibited from participating in any decision-making process when they have even the appearance of a conflict of interest.
As well, a rule requiring honesty should be added to the federal ethics law and to the codes, to ensure that politicians and government officials are penalized if they mislead voters about anything, including their own wrongdoing.
Unbelievably, the rules and codes that cabinet ministers have imposed on the lowest level of government employees in the federal government, who have very little decision-making power at all, prohibit those employees from participating in all decisions if they have even a potential or apparent conflict of interest, even when the decision applies generally. Those lower-level employees are also required to be honest and to provide honest advice. They can be suspended or fined if they break those rules.
This is a truly perverse system, where the lowest level, least powerful people in the federal government and in federal politics are the ones who actually have the highest ethics standards and the highest penalties.
As well, so-called blind trusts must be banned, as was recommended by the 1984 Starr-Sharp report, as well as the 1987 Parker commission. The person who sets up a trust knows what they put in it, so it's not a blind trust. It's a complete sham. It's a facade. Instead, politicians and government officials should be required to sell their investments while in office, as again the Parker commission recommended.
Conflict of interest screens should also be banned because they are smokescreens that hide whether someone is actually stepping aside from decisions when they have a conflict of interest.
Then the last two areas—areas five and six—are, first, to stop questionable sole-source spending. There are far too many loopholes that allow for sole-source spending. A way to check them is to close some of them, but also to require, if it is significant spending, that the institution doing the spending check with the Auditor General and do a little compliance check before it actually initiates the spending process. Then the Auditor General could say, “No, you can't do that. You have to have a competitive bid or I'm going to rule when I audit it five years from now and find that you've broken all the rules.”
Finally, we need to strengthen enforcement. The watchdogs are hand-picked by the cabinet ministers and top government officials they watch over. They usually don't have the power to impose penalties. They're allowed to do secret rulings, and, as a result, it's not surprising that they have acted like lapdogs, letting many people off the hook. Everyone needs to be able to challenge their rulings in court. They need to be chosen by an independent commission. They must be required to conduct audits and issue public rulings on every questionable situation, and they must be empowered to impose high fines for violations of these key good government rules.
Finally, whistle-blower protection, as I mentioned, must be extended to everyone who works as political staff or for political parties. A House of Commons committee unanimously recommended in June 2017 several key changes to strengthen the whistle-blower protection system. The government ignored those recommendations, as they ignored this committee's recommendations to strengthen the Access to Information Act, and as the Harper Conservative government, back in 2012, ignored the recommendations made by this committee to close many of the secret lobbying loopholes.
I welcome your questions about any of these six areas. All of these changes are needed to close the loopholes and to stop conflicts of interest in government spending decisions. I hope committee members will work together to draft a bill, propose it in the House and, in this minority government, recruit your colleagues to pass it this fall and finally clean up this undemocratic and corrupt—
:
Thank you very much, Chair.
Thank you, Mr. Conacher, for being here. I've had the occasion to hear your testimony at other committees as well, including government operations and so on, so I'm well aware of your dedication and your many years of work in this area.
I think you're aware of the motion that we have before us today and what we're looking at. I'll just read out the first paragraph, which states:
That, pursuant to Standing Order...108(3)(h), the Committee review the safeguards which are in place to avoid and prevent conflicts of interest in federal government procurement, contracting, granting, contribution and other expenditure policies.
On that, I want to highlight the fact, as you mentioned in your opening remarks, that we're actually due for a statutory review of the Conflict of Interest Act. I think in that regard, since we are here, the kinds of remarks that you're bringing to us today are very pertinent.
For those who are watching and listening to us, briefly, with regard to the Conflict of Interest Act, the Conflict of Interest and Ethics Commissioner has a dual mandate. He is responsible for both public office holders and members of the House of Commons. In that mandate, for public office holders there are the following four points: providing confidential advice to the Prime Minister; providing confidential advice to individual public office holders; examining and reporting on possible contraventions of the act; and administering the disclosure regime.
Just to summarize, any parliamentarian can request an investigation or the commissioner himself can conduct such an examination; he or she reports such investigations to the Prime Minister; and the reports are made public, although particular types of information must be kept confidential.
This comes to my question to you. What are your top three recommendations to this committee to improve the Conflict of Interest Act? Also, what elements of the act are working, as far as you're concerned?
:
I'd say, unfortunately, not very much at all is working, although there was one improvement made by the new Ethics Commissioner, Mario Dion. The old Ethics Commissioner, whom you will be hearing from later today, Mary Dawson, had ruled, although it doesn't say this in the Conflict of Interest Act, that private interests are only financial interests, that they do not include political interests or social interests. There is nothing in the act to suggest that at all. In fact, the MP's code says that private interests are only financial interests, which points to the fact that if something wasn't included in the Conflict of Interest Act then Parliament didn't intend to limit it.
Thankfully, Mario Dion, with his ruling on the SNC-Lavalin scandal last summer, reversed that and said that interests include political, social and financial interests and there's a very broad definition. So that's a step forward but it's kind of an arbitrary step forward that could be reversed by the next commissioner. The definition of private interests, specifically, should be put in the act. Other than that, I don't think much is working.
You're going to hear from Mary Dawson. She let 85% of the people she reviewed off the hook, with secret rulings most of the time. The rulings do not have to be made public if she decides to drop an investigation, as she decided, for example, to drop the investigation into Nigel Wright and his financial conflicts of interest. We learned about that only because a reporter chased after her for a year until she finally admitted that she had just dropped that investigation. There are zero penalties for violating the key rules. Even for violating the administrative rules of disclosing your assets and liabilities accurately and on time, the maximum penalty is $500, which is not much incentive to a cabinet minister who is making more than $200,000 and a Prime Minister making more than $300,000.
I don't see much working at all. There is no statutory five-year review of the act required, but it should happen. A review of the Lobbying Act by this committee is now three years overdue. Both acts need to be reviewed together, and both need to be strengthened in the ways that I've outlined. You can see all the details in the—
:
Thank you, Madam Chair.
Thank you for being with us today, Mr. Conacher.
As we speak, ethics in Canada has taken a serious beating—anything having to do with conflicts of interest, apparent or real, involving members of Parliament, ministers, even the Prime Minister. As Canadians, we are looking for the safeguards, but few, if any, exist.
I'm going to tell you a little story about ethics. Fifty years ago, in my small municipality, the fellow who owned the local store became mayor. He sold the municipality a wheelbarrow and lost his job as mayor over $3.25. That's what you call ethical. Here we are, today, and the government is awarding $40-million or $50-million contracts. We are talking about the appearance of a conflict of interest. The word “appearance” is paramount, because what we're witnessing is the sponsorship scandal, version 2.0.
If members of our government can trade in favours to benefit their families, either directly or indirectly, what does that say to you, a long-time and well-placed observer of ethics? Where is Canada heading, in the face of something like this?
:
One thing they didn't mention was this notion of conflict of interest screens, which has been in the news with regard to the 's chief of staff, again, over the weekend. These conflict of interest screens were created by ethics commissioner Mary Dawson. They're not authorized by the act. Democracy Watch challenged them in court. Unfortunately, the Federal Court of Appeal said they were a reasonable enforcement tool.
They really aren't. Anyone who has a screen who is a minister...then their staff, who serve at their pleasure, are supposed to enforce this screen and tell them what to do, and tell them not to go to meetings or take part in phone calls or whatever when they have a conflict. Then they learn what decision or meeting is going on, because they're told they can't go and why. Who's to stop them from intervening or telling their staff, “Thanks very much for your input, but you serve at my pleasure, and if you want to keep your job, you'll keep your mouth shut”?
What's required in the act is recusal. The recusal has to be declared publicly with the reasons for the recusal within 60 days. The screens should be banned. It would be a step forward, as it would be for the recusal system to go forward, as former ethics commissioner Bernard Shapiro recommended back in 2006 because he saw so many problems with using screens.
That's one key thing, but I think another one is that, as I mentioned, when you initiate a spending process, there should be a compliance check with the Auditor General right up front. The Auditor General would be able to flag a lot of things very early on. That wouldn't work for all decision-making processes, but strengthen the rules, close the loopholes, strengthen enforcement and penalties and everyone would have much more incentive to follow the rules, with a higher chance of getting caught and penalized than they have now. The current system is a scandal. It's really a sad joke. It's no surprise at all that there's scandalous behaviour as a result.
It was alluded to earlier that perhaps the forgot that he hadn't paid $40,000, which I think raises the question of competence, particularly in a finance minister. It's a pretty material oversight. However, we have so far admitted to the travel, which is section 12; the duty to disclose, which is section 31; and section 23, which is gifts.
Particularly with regard to the travel, with the private trip essentially, we don't know whether it was chartered or whether it was a public flight. We don't have those details yet. If that was the case, would that then cross the threshold into bribery? Would that then become material enough that we would have a breach of trust in a way that—and I should be reminded, because you brought this up earlier, that this is for the public service—a public servant who does not comply with the requirements of this code is subject to the appropriate disciplinary action, up to and including the termination of employment. This is what we set for the public sector, yet right from the top we have a slippery slope that could go from potential conflict of interest, which I think, given some of the admissions that have already been made publicly, there's no real need for an investigation into at this point; they've already admitted to this.
If it comes back that this was on private chartered flights, regardless of the disclosure or failure to recuse, and it comes back that all these other subsections have been violated, do you think this would then be the prime opportunity to talk about them having lost the public trust and, therefore, being required to step down?
Or—I'll go further, Madam Chair—do you think that part of the reforms should include that the act—and you'll note the act is very weak on enforcement—should forget about the $500 and have this actually as an outcome of the enforcement on this criteria?
Mr. MacDonald and Mr. Czerny, again, thank you so much for your patience. We appreciate you bearing with us. We will do our best to make good use of your time here today.
As you know, this committee has undertaken a study that pursuant to Standing Order 108(3)(h), the committee review the safeguards that are in place to avoid and prevent conflicts of interest in federal government procurement, contract granting, contribution and other expenditure policies.
You have been asked to come today and comment on this motion and answer any questions that those around this committee table would have for you.
In just a moment, I will give you each 10 minutes for your opening remarks. We will then proceed to questions from the members. Of course all parties around the table will have an opportunity to engage with you.
As you answer questions, I would just ask that you be mindful of time. The members are often trying to make it through as many questions as they possibly can, so efficiency is certainly of the essence.
With that said, I will have to interrupt you once the maximum time limit has been reached. I don't do so to be rude, but just to keep us on track, so please bear with me.
With that, Mr. MacDonald, I would invite you to take the floor with your opening remarks. You have 10 minutes.
:
Thank you, Madam Chair. I'd like to thank the members of the committee for this chance to speak to you today.
My goal today is to provide a scholarly point of view. In what follows, I'll lay out the key elements of conflict of interest and the reasons that conflict of interest is important.
First, let's look at how it is defined in Canada's Conflict of Interest Act.
Section 4 of the act says the following:
For the purposes of this Act, a public officer holder is in a conflict of interest when he or she exercises an official power, duty or function that provides an opportunity to further his or her private interests or those of his or her relatives or friends or to improperly further another person's private interests.
This definition from the act is flawed in one key way—namely, in its reference to exercising official power. Under this definition, the conflict of interest doesn't exist unless the official actually takes action in an improper way. This fails to correspond to the view of leading scholars in this area, according to whom conflict of interest is a kind of situation, not a kind of action.
According to this expert consensus, a conflict of interest exists as soon as the official finds herself in a certain kind of situation, namely one in which she has the opportunity to act in a way that puts biases into action. Such an official is already—blamelessly—in a conflict of interest, so a more suitable definition would be this: a conflict of interest is a situation in which a person has a private or personal interest sufficient to appear to influence the objective exercise of his or her official duties as, say, a public official, an employee or a professional.
According to this definition, all that's required for a conflict of interest is the existence of a certain kind of professional duty, one that is in tension with some personal interest that stands to affect judgment.
Next, why is conflict of interest considered a problem? Two reasons are generally recognized. First, conflict of interest is considered a problem because we worry that if the professional or official goes ahead and renders judgment or offers advice in spite of an unremediated conflict, her decision may fail to serve those she has sworn to serve. A judge, for instance, in adjudicating a case involving a family member, might impose a sentence that isn't a just one, or a manager might end up making a hiring decision that fails to serve the interests of the organization.
Perhaps more important is that where conflict of interest is not dealt with properly, there is the possibility that confidence in the decision-maker and indeed in the institution in which decision-making occurs will be shaken. Seen from this perspective, the problem with the conflicted judge is not just that she may make a bad decision but that citizens will lose faith in the judiciary. The problem with the conflicted manager is not merely that a bad hire may result but that stakeholders will lose faith in the company's hiring process.
This is in fact the moral crux of conflict of interest. Trust is imperilled if people even suspect that experts or office-holders, who are inherently difficult to monitor, might be in a position to improperly profit from their privileged status.
It's crucial to point out that, properly understood, conflict of interest itself is not and cannot be an accusation. Conflict of interest can arise entirely innocently, as when the judge finds that a close relative has been charged with a crime and brought into her court. The judge here has done nothing wrong, but she is clearly in a conflict of interest. She has a personal interest—namely, an interest in not seeing her relative go to jail—and that interest could be expected to interfere with her judgment. In this situation, the judge is not to be accused of conflict but simply needs it pointed out if she hasn't noticed it already. If she handles the situation badly—for instance, if she goes ahead and presides over the case—then she is rightly to be criticized for that.
What should the individual do when she finds herself in a conflict of interest? First, note that the fact that conflict of interest is not an accusation implies that the integrity of the individual is not a solution. When a true conflict of interest exists, it is insufficient for us to encourage the individual to take care and it's insufficient for her to insist on her own integrity. It's beside the point.
Most experts recommend three key steps in dealing appropriately with conflicts of interest: One, avoid them when you can; two, disclose conflicts to relevant individuals; and three, remove yourself from decision-making.
Each of these steps, however, poses difficulties. Avoidance, for example, is sometimes impossible, because sometimes professionals find themselves thrust into conflict of interest through no doing of their own. Disclosure too poses difficulties. Disclosure sometimes allows professionals to feel as though that's all they needed to do when additional steps were in fact needed. Further, disclosure may leave stakeholders wondering just what to do with the information that has been disclosed. Finally, removing oneself from decision-making is sometimes impossible due to relevant roles and responsibilities, and in some cases, recusal may not even be effective.
Imagine, for instance, the situation of a corporate board member who declares a conflict of interest on some matter and then steps out of the boardroom while a vote is taken. The other members of the board may well find their own decision-making influenced nonetheless by the disclosed interest of the colleague who has left the room. On the other hand, it might be said that while the practical value of disclosure is unclear, interested parties still have the right to know that an individual in whom they are placing their trust is in a conflict of interest.
Briefly, what does all of this imply for the Canadian Conflict of Interest Act? Time doesn't permit a full analysis, but let me make just a couple of points.
First, the act certainly has the ingredients to point public officials in the right direction with regard to conflict of interest. Under the act, public officials are properly obligated to arrange their own affairs in a manner that will prevent them from being in a conflict of interest. They are also obligated to abstain from decision-making regarding matters in which they have a private interest. Setting aside quibbles outlined above about how the act defines conflict of interest, the act does provide decent basic guidance to public officials seeking to satisfy the main requirements of ethical behaviour in the face of conflict. It exhorts officials to avoid conflict; to disclose conflicts, including in writing, to the commissioner, who then posts them on the commissioner's office website; and to recuse themselves from decisions regarding which they have a conflict.
However, one important implication of what I said above might be worth noting. One section of the act allows for exceptions to be made to some of its requirements “if the Commissioner is of the opinion that the contract or interest [involved] is unlikely to affect the exercise of the official powers, duties and functions”, but as I suggested above, whether the conflict will have an impact on decision-making is only half the point, and perhaps the smaller half at that. The key is really whether participation in a decision will reduce public confidence in the relevant decision-making process.
Finally, a key challenge with regard to conflict of interest really lies in what's not in the act—namely, the process by which government officials come to know the requirements of the act and hopefully to internalize its real meaning. There is clear consensus in the relevant scholarly fields that simply having a clear set of rules accomplishes relatively little. Individuals need to understand the values underpinning those rules. They need training. Reading a piece of legislation is not training. Training on ethical issues is a tricky thing, and unfortunately too often gets done in kind of a check-box manner. Ideally, training should be experiential. Individuals need to experience the relevant ethical challenges in order to both appreciate their seriousness on an emotional level and to practise—to develop the habit of—doing what the rules require.
One of my own research projects, IN.Lab, provides an example of what I mean. That project, which is online at www.interactives.ca, involves immersing individuals in realistic scenarios, simulated online, to allow them to engage in ethical decision-making in real time. Federal government training on conflict of interest doesn't need to look exactly like that, of course, but it illustrates what is possible in going beyond the typical annual sign-off approach to training on ethics and conflict of interest.
Thank you.
Thank you for this opportunity to address you on important matters of proper relationships and conduct of work in Canada's national government.
My strong interest in federal government matters dates back nearly half a century. I was a public servant from 1973 to 1994. After that, much of my work as a management and communications consultant was for federal government clients, including Parliament itself. I have been very active at the Ethics Practitioners’ Association of Canada for the last 10 years, including five years as president. We have workplace and retired members from the public and private sectors, and our educational activities have been much appreciated by public servants wishing to reflect on the ethical dimensions of their work.
This background allows me to highlight various dimensions of ethical conduct of public servants in relation to Parliament, ministers and cabinet, but I'm not an expert in conflict of interest legislation, structures and procedures or in the details of the present case. Rather, I hope to elucidate the context of the work done by public servants in a professional and ethical manner.
I'll end with five recommendations.
First, trust is essential to a successful public service. The public must trust the government in order to have smooth, constructive relationships between government and society. Without trust, you can't have peace, order and good government any more than you can have an efficient commercial marketplace. This is why it is essential to keep private interests out of government decision-making and operations. Conflict of interest, whether real or merely potential or apparent, can destroy the public's trust in the government to act in its interest. Therefore, avoiding the appearance of conflict of interest is no less important than avoiding its actual occurrence.
Second, non-partisan public servants and elected representatives must collaborate in the work of government. There needs to be clarity about their complementary roles and operating principles. That relationship was articulated in a careful and inspiring manner in “A Strong Foundation”, a 1996 report on public service values and ethics. Besides stating values that you want to find in every workplace and pursuit, such as integrity and respect, it sets out what it means to be a professional in public service within Canada's democratic system.
Third, key mechanisms have grown in this area since that time. There are, for instance, mechanisms for accountability, conflict of interest of both politicians and public servants, and protecting individuals who disclose wrongdoing from reprisal. There is also a solid set of best practices to encourage ethical conduct in organizations. Some of these are the articulation of values and codes of conduct; training and dialogue; counselling and mediation services; and how to manage conflicts of interest in, for instance, small communities where officials frequently have to deal with friends and relations. Ethics officials throughout the federal government have a network through which they share insights on all of this. Our association gives them the opportunity to do the same and to learn from the experiences of those in other sectors.
Fourth, an organization can have a code of conduct, a statement of values, or both.
Codes of conduct spell out a bottom line of rules and norms. Compliance is the issue, and we ask if this or that behaviour passes or fails a norm, if it obeys or contravenes a rule, and what the sanctions or consequences are for transgressions.
Statements of values, on the other hand, articulate the aspirations of an organization. The right questions to ask for these are about how well this or that behaviour embodies our ideals, and how we could do better. This is the realm of learning, improvement and celebrating excellence.
To my mind, an organization needs both. Being serious about ethics requires having a bottom line of acceptability and sanctioning what falls below that line, but organizations must aim higher than mere legality; otherwise, they won't inspire initiative and excellence in their personnel.
Fifth, what happens in an organization reflects its culture. Culture exists at all levels and is constantly shaped by behaviour at all levels, but the key factor is leadership, the tone at the top. Culture cascades; the ethics of senior leaders is signalled by their actions even more than by their words, and it filters down throughout the organization.
Sixth, a key spot where the ethics rubber meets the road is in speaking up, in raising an issue that could meet with resistance and could make the speaker unpopular or worse. A teacher and researcher in the United States named Mary Gentile discovered that people often know what's right and want to do it, but feel awkward about speaking truth to power even if the culture accepts it. Her “giving voice to values” practice involves a person reflecting on their moral courage, developing personal scripts for speaking up, and then rehearsal and practice. Her approach has a worldwide following, including in some business schools and in other uptake in Canada. The capacity to speak truth to power is needed at every level from junior staff with supervisor problems to interaction between a minister and his or her deputy. By the way, I have nothing personally to gain in publicizing her work.
Seventh, speaking up is necessary for cleaning up. Secrecy allows things like bullying and fraud to continue in the dark. However, secrecy is entirely different from confidentiality. Confidentiality is an absolute necessity for public servants to be able to give honest advice to ministers and for ministers to seek it.
Now I will share my five recommendations. The first two are specific to conflict of interest.
Number one, lest conflict of interest ever be overlooked, it should be standard procedure for all cabinet meetings that the chair of the meeting begins by raising the issue of conflict and inviting recusal.
Number two, there could be a similar process at the departmental level. When helping the minister to prepare for a cabinet meeting, the deputy minister's written or personal briefing of the minister could include a reminder along the lines of “please assure yourself that you are not in conflict of interest regarding these agenda items”. This should be seen as part of the deputy's support to a minister.
Number three, requests to a department from a minister or cabinet can be as broad as “provide feasible options for achieving x”, but the request can also be as narrow as “conduct due diligence on choice y for achieving x”. In order to give the best possible advice, in order to speak truth to power and protect ministers from possible risks, the deputy's response to a narrower request could add any other pertinent intelligence that departmental staff can generate.
Number four, public servants sometimes feel inappropriately pressured when making decisions or providing information or analysis. Of course, they should respect their values and ethics code and resist pressures to contravene it. At the same time, other parties should also respect the code and not try to have public servants deviate from it. A statement should be added to the code addressed to anyone who deals with the public service to the effect that “it is a violation of this code to pressure a federal public servant to contravene it.” This is compatible with current instructions to ministers and ministerial staff.
Number five, an ethical culture is sustained by constant dialogue concerning “the good” as well as specific instruction on norms, values, structures and processes. Senior leaders should provide the tone from the top by supporting and participating in such dialogue and training constantly.
In conclusion, I believe that Canada's public service has the capacity to provide expert and ethical service. If that is what parliamentarians want, they should support it, they should insist on nothing less, and they should never ask for anything else.
I'm going to put some direct questions to you, Mr. MacDonald, and I'm going to ask if you could try to provide some direct answers.
We've had, over the last couple of hours, in fact weeks, plenty of opportunities to kind of unpack what's been transpiring here. The previous witness made a statement that the system is the scandal. With the previous witness, I also began the line of questioning around avoidance and anti-avoidance clauses, specifically section 18, which says,
No public office holder shall take any action that has as its purpose the circumvention of the public office holder’s obligations under this Act.
I'm stuck on this, because we've had in previous reports.... If I recall correctly, the , in a previous finding of guilt, said that it wasn't a private plane because it wasn't fixed wings; it was a helicopter. It was this type of legal finagling where the ethics are separated from the actual word of law, aside from the spirit of the law.
I look particularly at the contribution of awards. You brought up something, which I think the other witness did as well, around the culture of ethics—the ethical culture—and the behaviour and the habitual pattern of ethics breaches and violations. I'm wondering if you can comment on this particular aspect as it relates to this idea of sole-sourced contracting, which in the private sector would be a thing and I'm sure you can find a parallel.
We have seen that over the last few years, in fact four or five years, there is this idea of knowing that the law says the threshold is x and delivering a contract at a dollar under x, or having a big project scope broken up into small contracts in order to be under the radar. Yet, when it comes to this massive project, it has been made clear that cabinet determines when the transfer payment programs are the most appropriate policy instrument. Cabinet also determines the objectives and outcomes to be achieved by means of a transfer payment. This is the idea of setting up programs and processes outside of typical procurement, so it's not sole-sourced, it's not a contract, it's a contribution agreement.
In your philosophical opinion, would you care to comment on whether or not setting up these types of boondoggles in this way are in fact in themselves a violation under section 18 in the anti-avoidance clause?
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Thank you, Madam Chair.
My question is for both witnesses, so they can each answer, beginning with Mr. MacDonald.
There's one thing in this whole affair that bothers me. When you run for office, you're telling Canadians that you're the best choice for them. Canadians are the ones who decide, but elected officials have a responsibility. That responsibility is even clearer at a ministerial level, because the decisions flow from the Prime Minister and ministers.
The and the knew they had a conflict of interest. They admitted that they should have recused themselves. They admitted to their mistake. The finance minister even repaid more than $40,000 because the media got wind of the story and he felt obliged to do so. He has some responsibility.
What bothers me the most is that the Prime Minister pinned the blame on public servants. He said public servants advised him to make the decision he did. The Prime Minister seems to be forgetting that he is the one who should have made the decision. It was his responsibility. He is the one Canadians elected to make the tough decisions.
This wasn't a tough decision, in my view. I'll give you an example of a tough decision. When we sent the military into Afghanistan, we knew there would be fatalities. We voted to do so in the House, knowing that Canadians would die because of our decision. That's a tough decision. Refusing to recuse yourself when you know that your family is in a conflict of interest and that you, personally, may have a conflict of interest is not a tough decision. It's a judgment call.
Mr. MacDonald, did the Prime Minister deny his responsibility in the face of this easy decision?