I think there is actually a way forward. I think you set out the dilemma quite well. The way forward again is looking for the principled middle ground. One that comes up a fair bit in this accountabilities sphere is the idea of advanced judgments. So you say, look, I want to take on this role and can I get an advanced ruling from you the commissioner on whether I'm running afoul of the rules? I get my precision and predictability. The commissioner gets a chance to lay out, again, a principled foundation of what is going to, and not going to, offend the provisions, and then can do better. The commissioner can report in annual reports and otherwise on the aggregate kind of advice that she's giving so that others get the benefit of seeing how these rules are developing.
Without violating confidentiality of an advice-giving, without having to wait until ex-post judgment that you thought you were okay but you weren't, there's a way to give predictability, coherence, and fairness. I know a lot of the former ministers simply go to former ethics commissioners who are now in private practice, get an opinion letter from them on how the legislation would be read in their context, and then they keep that in their back pocket as some kind of insurance for what they're about to embark on.
Why create this facsimile or proxy for something that can be a much more direct relationship with someone who has that statutory mandate acting in a non-partisan sense in the public interest being able to say, here is an advance judgment based on these available facts? Again, if you don't share all the necessary information, and if that information changes, then of course a different outcome may occur. But if you look at these issues.... I had the chance to testify as part of the Mulroney trial, or the Oliphant inquiry, where this was a key issue in much of the discussion. It's hard to think of scenarios in which you can go wrong where you ask for advice, receive it, and rely on it where the advice giver is the statutory office holder with jurisdiction over the act.