Information & Ethics Committee on Aug. 10th, 2020

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

With your understanding of the ethical questions before us, regarding the questions around the Canada summer student grant, would you feel that this is one of those cases where it's just simply too big a question?

[Dr. Chris MacDonald]

I'm not sure I'm very well qualified to comment on that. I certainly have seen well-informed commentators on both sides, someone who said, no, this was a very, very central piece of public policy during the COVID-19 era and therefore the Prime Minister had to be involved, but I also think there were very respectable opinions on the other side. It doesn't seem like a clear case.

Mr. Czerny, would you have—

[The Chair, Conservative, Rachael Thomas]

Mr. Kurek, I'm so sorry, that is your time.

Moving on to the next round, we have Madam Shanahan for five minutes.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Thank you, Chair.

Thank you so much to our two witnesses today for giving us a broader framework to work with. It certainly is very educational.

Mr. MacDonald, you brought up COVID-19. It is a thing and it is happening. For my part, it's been a very intense session with all the new programs that have been rolled out in various ways and forums.

In a context like that, or we can think of another example, thinking about conflict of interest, is that something that is affected by the situational context in which the decision-makers are acting? There's especially this idea that good people can honestly believe they're doing good things and not necessarily be aware or have some sort of cognitive bias about what they're doing.

[Dr. Chris MacDonald]

Certainly, this is the kind of situation where one of the standard difficulties for senior leaders and other kinds of decision-makers in organizations is the feeling of “My mission comes first: I've got to get this thing done.” Sometimes, or often, that is entirely well intentioned. There's the perception that they're trying to get something important done. Of course, that is precisely why we have things like the Conflict of Interest Act, as reminders that we need to take a moment and say that it's not just what we get done but how we get it done.

That's what makes this kind of complicated and interesting from an educational point of view. Thinking that a mistake was made here doesn't require thinking that the decision-makers were bad people, and thinking that things went perfectly in this case doesn't require thinking that the people involved were angels. It's a lot more complicated.

I have the luxury of saying “interesting”, because it's interesting from an academic point of view, but it's challenging for you folks.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Certainly, that's why this committee is meeting. Our motion before us is looking at the safeguards that are in place exactly for these kinds of situations, because we do want to do better. It's important to realize that even in the case of a perceived conflict of interest versus an actual conflict of interest, it's the trust in our institutions that is important.

Mr. Czerny, with regard to the public service, in the context of a perceived versus an actual conflict of interest, do you think there are things we can do as a committee that would help the federal public service do a better job of avoiding those situations? Do you think we need a thicker rule book?

[Robert Czerny]

I think the general reaction on the rule book is, the thicker it is, the less useful it is, because you want people to make ethical decisions. The more you complicate life, you end up pretending you have perfect or almost perfect foreknowledge of all the permutations that can arise, and that you've got rules and sub-rules to deal with each one of them. Then it's more or less a mechanical process, expedited nowadays by using keywords, for example, and you find the right sub-sub-sub-rule for the extremely rare circumstance, that nevertheless, despite its rarity, you were able to anticipate.

You can tell from my involved sentence with long words, I don't think a lot more rules are necessary. I think that people operate better and more maturely when they're challenged to understand principles, and then go through enough iterations of applying those principles. We can look, for example, at the kinds of simulations that Mr. MacDonald talked about. They should be very rich simulations and not just a few sentences about “if this arises, what do you do; if that arises, what do you do”. They should be the sort of thing that a good playwright would give you in a one-act play. You do a lot of those, and then you become sophisticated in how to think of principles and ideals. Then you'll come up with the best possible answer.

It's a grey world, and it's not as if at the end of this somebody else has the correct answer and is going to check whether you got it or not. No, you have to have a really good answer and really plausible reasons why you brought it up, and somebody else has to do a darn fine job of coming up with a better scenario than you did.

[The Chair, Conservative, Rachael Thomas]

Mr. Czerny, thank you very much.

Moving on then to our last two questioners, Mr. Fortin, you have two and a half minutes.

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

Thank you, Madam Chair.

Mr. MacDonald, you said earlier that I had a duty to avoid placing myself in a conflict of interest, a duty to disclose if I did have one and, in that case, a duty to recuse myself. According to you, I am duty-bound to take those three steps when it comes to a conflict of interest.

Let's say I have a conflict of interest like the one before us and an adviser tells me not to worry about it because the decision I'm about to make is the right one. Let's assume that's the case in the scenario before us. In other words, the public service is telling me not to worry about it and to award the contract to WE Charity.

Does that exempt me from my duty to avoid the conflict of interest, disclose it and recuse myself?

[Dr. Chris MacDonald]

Technically, the rightness of the decision is not relevant. I mean, it matters, but it doesn't negate the requirements.

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

Thank you, Mr. MacDonald.

Mr. Czerny, do you agree with Mr. MacDonald, or do you have a different answer?

[Robert Czerny]

Yes, Mr. MacDonald is correct. There is always a process that has to be followed, and you have to have a good reason to avoid a step.

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

Ethically speaking, if the person with the conflict of interest is the model for his or her colleagues at the table, doesn't that person have an even greater duty to be on guard for possible conflicts of interest precisely because they are an influencer, a model for their colleagues? In keeping with our previous scenario, let's say the person is the Prime Minister of Canada and those at the table are the members of cabinet.

[Robert Czerny]

Mr. Fortin, we both have white beards.

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

Yes. That's not what I was hoping to hear.

[Robert Czerny]

Certain people have gravitas, regardless of their official position. Yes, generally speaking, the big boss has more influence than the little boss.

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

In that case, shouldn't you be more careful when it comes to a conflict of interest?

[Robert Czerny]

Yes, as I am.

[The Chair, Conservative, Rachael Thomas]

Mr. Fortin, that's your time. Thank you.

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

Thank you, Mr. Czerny.

[The Chair, Conservative, Rachael Thomas]

Mr. Angus, you have two and a half minutes.

[Charlie Angus, NDP, Timmins—James Bay, ON]

This has been fascinating, Mr. MacDonald. I think the issue of your saying that ethics is a situation is very profound because whenever government gets in trouble, they really demand that we have to be coming into the room as the body hits the ground and the smoke is leaving the gun. Even then, they say, “Well, you didn't actually see it happen, so you're not sure.” So we have to trust in the act.

The part of the act I'm interested in is section 6, about the public office holders recusing themselves and making a decision whether they “reasonably should know that, in the making the decision, he or she would be a conflict of interest.” It's the “reasonably knowing” part.

The situation we're in is Mr. Bill Morneau was flown to some very exotic places by WE, to the tune of at least $40,000; and I think he paid back more than $51,000, so maybe it's close to $100,000, when the gift limit is $200. His daughter gets hired by WE, as he's making announcements in his riding about WE getting contracts.

Mr. MacDonald, would you say that would meet the test that someone should reasonably know that those kinds of gifts would put him in a conflict of interest?

[Dr. Chris MacDonald]

I'm not fully versed in the details of that case and the extent to what was given back, were they gifts or some other form of financial transaction.

[Charlie Angus, NDP, Timmins—James Bay, ON]

So, it's between $40,000 and $90,000. Would that put you in a perceived conflict of interest based on the act, in your reading of it?

[Dr. Chris MacDonald]

It's not just the dollar amount that's relevant. Certainly that is a scale that is enough to raise eyebrows. The details of the transaction are going to affect whether it falls into the relevant subsection of the act.