Evidence of meeting #11 for Access to Information, Privacy and Ethics in the 43rd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was rules.
A video is available from Parliament.
Conservative
Michael Barrett Conservative Leeds—Grenville—Thousand Islands and Rideau Lakes, ON
Okay. What do you make of that distinction, when an individual says, “You know what? I didn't actually have a conflict. In fact, it was just the appearance of a conflict”? The implication there is that it's not serious.
Can you speak to that argument?
Associate Professor, Ryerson University
Sure, yes.
There's a valid distinction to be made, because in some cases the perception of conflict of interest is based on some observer's misunderstanding of the facts of the case, and where that is true, then the solution is different. When it really is a mere perception, then one of the things you want to try to do is to fix the misperception and clarify the facts of the matter, but it doesn't mean that the perceived conflict is in no way interesting from an ethical point of view, because it does still need to be dealt with because it stands to erode public confidence or the confidence of stakeholders.
Something needs to be done, but it's going to be a different something than it would be in the case of an actual conflict of interest.
Conservative
Michael Barrett Conservative Leeds—Grenville—Thousand Islands and Rideau Lakes, ON
In that case, would you say that once one becomes aware of the potential for a conflict or for the perception of a conflict, then in the list of steps that one can take—avoidance, disclosure, removal—have we now passed the point where we're able to avoid in that case? Is recusing oneself from a discussion at that point, once you've identified the conflict, the appropriate step to take in the list of steps that you outlined?
Associate Professor, Ryerson University
If you're talking about a perceived conflict of interest, then presumably there's nothing to remove yourself from, so recusal doesn't make sense at that point. Some other form of verbal distancing may be helpful.
Conservative
Liberal
Élisabeth Brière Liberal Sherbrooke, QC
Thank you, gentlemen, for being here this afternoon.
It's clear from your CVs that you are quite the experts in your field.
I'd like to follow up on Mr. Barrett's last question. What's a better way to define a conflict of interest, or what elements should a definition include?
Associate Professor, Ryerson University
I assume that's for me.
As I outlined in my presentation, again I'm differing from the act because while I think the act is certainly relevant to the operations of the committee, the act is slightly out of sync with the best scholarly work in this area. A conflict of interest is a situation in which a person has a private or personal interest sufficient to at least appear to influence the objective exercise of his or her official duties. That usually has to do with something like making a decision or offering advice.
Liberal
Élisabeth Brière Liberal Sherbrooke, QC
Thank you.
Most people think they're able to recognize a conflict of interest, no problem. They think it's easy, but when they're asked to define a conflict of interest, they can't.
Can you tell us why that is?
Associate Professor, Ryerson University
I feel you may have been reading some of my work. This is actually a finding from a study I did with a couple of colleagues a few years back, but it's also common experience. Almost everybody knows that conflict of interest is a problem, but very few people can offer more than a very thumbnail definition. They often can offer an example. They might be able to come up with an example like my judge example.
I think we can point to two things as reasons. One is that conflict of interest is a modern concept. The term “conflict of interest” didn't appear in the English language until the 1950s and didn't enter law dictionaries, for example, until the 1970s, so it's a relatively novel concept.
The other thing is that because it's rooted in professional and business contexts, it's not part of the everyday texture of most people's lives. Most of us grew up with parents who taught us right from wrong, as in “don't hit your siblings”, “don't take other people's stuff”, “clean up your own messes”. Very few people's parents taught them about conflict of interest. It's not something that we're brought up knowing about. We may have some sense that some fairness issues are related to it, but that's why organizations need to do a lot of work, in some cases highly specific work. If you look at the conflict of interest policies of banks, for example, they offer extremely detailed, extremely specific guidance on how to deal with what for many people are quite novel situations.
Liberal
Élisabeth Brière Liberal Sherbrooke, QC
Thank you.
In a 2002 study you co-authored on conflicts of interest in charitable organizations, you make recommendations for situations where decision-makers can't recuse themselves. The country's top public servant said a few weeks ago that, given the size of the program, not informing the Prime Minister of what was going on was not an option. One of the solutions you recommend is using an honest expert, someone with experience, to ensure impartiality.
Do you think the public service fits that description?
Associate Professor, Ryerson University
One of the standard ways to mitigate the effect of conflict of interest, if you can't make it go away, is to involve more people in the decision-making. If you're the only relevant expert in some field and you need to be part of this adjudicating committee, then, if we can't remove you, what we need to do is bring in additional people so that more people are party to the decision.
No one is going to think that's a perfect situation, but it might be the best we can do in a given situation.
Liberal
Élisabeth Brière Liberal Sherbrooke, QC
Mr. MacDonald, you mentioned that conflicts of interest are unique from a moral standpoint. Can you talk more about that?
Associate Professor, Ryerson University
That's a dangerous question to ask a philosopher, because I could go on at great length.
The concept of conflict of interest basically has to do with the fact that in modern life we often have people making important decisions on our behalf or advising us on important decisions when we don't necessarily have either the proximity or the knowledge to monitor them, and so we need to be able to trust them, yet all decision-makers, including professionals and political leaders, have rich and complex lives that bring other factors to bear, so there's every chance in all kinds of situations that when you're entrusted with making a good decision on behalf of your employer, on behalf of the public or on behalf of your institution, other factors can intervene. What we want to do in those cases is try to figure out, given the necessity of this role, how we mitigate the challenges that might occur, including things like conflict of interest.
Conservative
The Chair Conservative Rachael Thomas
Thank you.
The next person is Mr. Fortin. You have six minutes.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Madam Chair.
Good afternoon, Mr. MacDonald.
In my previous practice, meaning, before I became a member of Parliament, I always thought the golden rule when it came to ethics and conflicts of interest was this: as soon as you start wondering whether you're in a conflict of interest, pull yourself out of the discussion so you avoid the trap.
Isn't that the golden rule when it comes to ethics?
Associate Professor, Ryerson University
I'm not sure I've ever heard it put that way.
We were kind of talking about the gut reaction test, and certainly if you have that kind of gut reaction, that might be reason to pause. That's not necessarily reason to definitively remove yourself from an entire conversation, because it might be that the conflict isn't what it seems or it might be that once the conflict is disclosed, the relevant decision-makers might still want you to be part of the decision-making because of your perspective or insight or expertise.
Certainly, yes, we want to say that people should have enough of a sense of what these issues mean that if it smells like it might be a conflict of interest, their initial reaction should be to put on the brakes, take a step back, talk to the relevant parties and then figure out whether you can go forward.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
If I think I may have a conflict of interest, it means that, deep down, my conscience is telling me I'm not free to do as I please, I'm limited in what I can do.
Instead of looking at conflict of interest as a broad abstract concept, shouldn't it be applied to each individual? As soon as I think my decision could be influenced, shouldn't I abstain from the decision-making process?
Associate Professor, Ryerson University
Yes and no. To some extent, even if you don't have that intuition—
Associate Professor, Ryerson University
How about maybe?
In part, your own reactions are important if you feel that there's something to worry about. If your own reaction is that there's nothing to worry about, then don't trust your own reactions. Really, at the end of the day, it's the reactions of external stakeholders that we need to worry about the most. What we want decision-makers to have are the kinds of sensibilities that will help them anticipate whether people are going to be worried about a particular situation or not.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
I'll give you a real-life example.
If I'm considering awarding a contract on behalf of an organization that I run and the company at the heart of the decision hired my mother and paid her hundreds of thousands of dollars, and paid my brother and my spouse tens of thousands of dollars, aren't I in a conflict of interest, objectively speaking?