Information & Ethics Committee on Aug. 10th, 2020

[Dr. Chris MacDonald]

As soon as you're involved in the decision-making process or as soon as there's judgment to be made, you are in a conflict of interest.

Again, the question then is, as I said in my presentation, so far, so good. So far there's nothing blameworthy. The question is, what do you do once you're in that conflict? The conflict is something you can proudly proclaim. I've done it myself in committee meetings. I've said, “No, I have to step away from this. I'm in a conflict.” I don't feel bad about that. The thing to feel bad about would be if I mishandled it after that point.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Going back to my example, I'd like to know whether you would be comfortable proclaiming that you weren't in a conflict of interest if you had to oversee the funding of an organization that hired your mother, brother or spouse?

[Dr. Chris MacDonald]

It would depend on the details, but it sounds like a conflict of interest and so would require recusal.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Now I'll turn to my last question.

Before a contract is awarded, the usual process is this: put out a request for proposals, review x number of bids and objectively decide who to award the contract to, usually according to predetermined criteria. Now, in an emergency situation, when a request for proposals isn't put out and objective criteria aren't established for evaluating the bids, isn't it even more important to be on guard for possible conflicts of interest than during the usual process?

[Dr. Chris MacDonald]

If we're talking about the inability to do due diligence because we're moving quickly, for example, then sure, we would want to be as careful as possible. For one thing, just practically, we want to say this is an important decision. We don't want something like committee hearings to have to happen. We'd rather get it right from the start, and yes, I would think, as you say, raise the bar, which I would like to see fairly high to start with.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

If I was able to limit my involvement in the process—in other words, participate in the decision as to whether X or Y is a good idea, in this case, setting up a program, but not participate in the decision regarding who to award the program administration contract to—wouldn't that be the least I could do to avoid a conflict of interest like the one before us?

[Dr. Chris MacDonald]

It sounds like what you're describing is a course of action. One key thing about ethics is there is very seldom a point in time at which a decision is made and it's final. I receive some information and I make an initial judgment. Some more information is received. I get further into conversations. What we want to see is at what points along that timeline would the relevant individual have the relevant information to say, “Okay, I'm definitely out of this.”

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Very well.

Madam Chair, do I have enough time to ask Mr. Czerny a quick question?

[The Chair, Conservative, Rachael Thomas]

I'm sorry, Mr. Fortin. You have already taken almost seven minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Madam Chair.

[The Chair, Conservative, Rachael Thomas]

Thank you.

We'll move on. Mr. Green, you have six minutes.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you.

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 Prime Minister, 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?

[Dr. Chris MacDonald]

Am I in favour of boondoggles? I think you're going to need to talk to a lawyer at some point about interpretation of legislation at that level, and about the differences in particular kinds of legal agreements. That's just beyond my expertise. I'm not a lawyer, so I'm not sure I have the expertise to answer that.

No one is in favour of boondoggles once you call them that, but—

[Matthew Green, NDP, Hamilton Centre, ON]

Okay, so I'll set that aside and say, hypothetically speaking, you are putting together a conflict of interest act that clearly lays out all of the parameters that we've talked about over the last hour here, and then it seems that there's an appearance or a habit of conducting your business in a way that circumvents the parameters of the act itself. Are, by design, the systems of procurement as they've been laid out not an example of avoidance related to this act?

[Dr. Chris MacDonald]

I'm not sure that I have enough of a grasp of the details of the particular case to know whether that's an act of avoidance. All legislation requires interpretation, that much is clear, so there's no amount of written.... A classic problem with the relationship between ethics and law is that laws can never be complete enough to outline all the things that might be forbidden, which is in part, of course, why we have the Conflict of Interest and Ethics Commissioner and an ethics committee.

[Matthew Green, NDP, Hamilton Centre, ON]

I guess I'll put it to you in a more direct way.

You've referenced—I think it's even on your site—in a roundabout way, the Nixon test: What did you know, when did you know it and what did you do about it?

If we have found time and time again—“The Trudeau Report”, “Trudeau II Report”, now we're in the third scenario, and it's the same thing with Morneau—that there is this culture of ethical permissiveness, what would be your recommendation to help offset that, through way of consequence? There's really no consequence. We've determined that there's no experiential learning, that we don't have to have training modules. We have findings of fact that they've been in breach and yet there's been no learning.

If you're entering into, hypothetically, a conversation with the House of Commons, what would be your recommendations to offset these ongoing breaches and this culture of ethical permissiveness?

[Dr. Chris MacDonald]

Without attaching myself to any particular description of what's gone on, we all know there's a very serious challenge quite generally worldwide when it comes to elected political leaders because they can't be censured in quite the same range of ways that we would in the public sector. When I'm teaching my students business ethics, the list is there. It has to do with someone having the relevant authority and it's less clear with an elected—

[Matthew Green, NDP, Hamilton Centre, ON]

Okay, less abstract. I've got 30 seconds left. I'm going to put it to you this way. Are there any places around the world that have legal criminal repercussions for government corruption when it is deemed to be such?

[Dr. Chris MacDonald]

For corruption? Absolutely, they can be found in all kinds of places.

[Matthew Green, NDP, Hamilton Centre, ON]

Do you believe our code of conduct is strong enough or is in keeping with the parameters you put out in your work? Is it up to date?

[Dr. Chris MacDonald]

I think there's room to improve the Conflict of Interest Act but I haven't compared it internationally. It stands in need of some revision just on the face of it, without comparing it internationally.

[Matthew Green, NDP, Hamilton Centre, ON]

Do you think all employees—

[The Chair, Conservative, Rachael Thomas]

That's your time, Mr. Green. Thank you.

[Matthew Green, NDP, Hamilton Centre, ON]

I'm from Hamilton, and we deserve 30 seconds extra.

[The Chair, Conservative, Rachael Thomas]

I can appreciate that you're from Hamilton. I gave you an extra 20 seconds.

Moving on to the next round, members have five minutes for questions, starting with Mr. Gourde.