Evidence of meeting #109 for Access to Information, Privacy and Ethics in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was question.
A recording is available from Parliament.
Liberal
Anthony Housefather Liberal Mount Royal, QC
Thank you very much, Mr. Chair.
Gentlemen, thank you for being here today.
Mr. Dion, I have a question for you. It's a little bit of an esoteric one.
Section 9 of the act reads:
No public office holder shall use his or her position as a public office holder to seek to influence a decision of another person—
That's clear.
—so as to further the public office holder's private interests—
That's clear. That makes all kinds of sense.
—or those of the public office holder's relatives or friends—
That also makes lots of sense, but then it goes on to add:
—or to improperly further another person's private interests.
That lumps the other person into something that would directly benefit the public office holder or his or her family or friends in the same breath. Do you believe the wording should be equivalent in this case?
I'll come to it from the perspective that a public office holder is frequently, as you know, seeking to push government to deliver funding or grants to companies in their riding. They're not doing it for themselves; they're doing it for the benefit of their constituents or their community. How is that equivalent?
In this case we're talking about Mr. Trudeau and SNC-Lavalin. Nobody is alleging Trudeau has any private interest in SNC-Lavalin or that he's benefiting personally or financially from anything that goes to SNC-Lavalin. How are these concepts intertwined? Would it be better if there were some language that related to one's own personal benefit and another clause that dealt with improper dealings related to a third party?
I don't know if you understand the question, but it's been on my mind for a bit.
Former Conflict of Interest and Ethics Commissioner, As an Individual
I do understand the question. I've never actually asked myself the question, so I therefore cannot offer an improvised answer.
Section 9 was the subject of parliamentary debate. It was part of the Accountability Act. I assume the drafters of the act knew what they were doing.
My role was to implement section 9 as it exists. I'm sorry that I don't have a view at this point, because I've never thought about it.
Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Maybe I can help you.
Liberal
Commissioner, Office of the Conflict of Interest and Ethics Commissioner
You are overlooking the word “improperly”.
The section deals, first of all, with using influence to further somebody's private interests or the private interests of their friends, etc., and then, when you're talking about unrelated third parties, it is “improperly” furthering them.
Obviously, part of your job is to further the interests of your constituents, etc., but to do it properly and not improperly. That's the distinction in the act.
Former Conflict of Interest and Ethics Commissioner, As an Individual
There are reports from the office going back several years that deal with that. It's only when you go outside of accepted avenues that it becomes improper.
Liberal
Anthony Housefather Liberal Mount Royal, QC
I understand.
I've read the “Trudeau II Report”. In it you gave a detailed analysis of how you arrived at the idea that it was improper in terms of crossing the Shawcross doctrine. I do understand that.
However, even though it's improper, one of them relates to your own personal interests and your own benefit and the other relates to the benefit to a third party. I just thought it might be—
Former Conflict of Interest and Ethics Commissioner, As an Individual
I'll add, Mr. Chair, that in the document we do indicate that the Prime Minister or one of his assistants, Monsieur Bouchard, mentioned that there would be an election one day and that it's important to win an election, and this matter could have an impact on Mr. Trudeau's electability in Papineau.
That was mentioned by the witness, so maybe there was also some interest on the part of the Prime Minister.
Liberal
Anthony Housefather Liberal Mount Royal, QC
I'm reading your report and I understand.
I'm trying to get to another question.
In terms of the entire interaction here, was it because Ms. Wilson-Raybould was in this capacity of Attorney General that you looked at it differently from the way you would have if it had been a different minister—if she had been acting in her capacity as Minister of Justice, for example? Was it because of the very different rules related to the Attorney General?
Former Conflict of Interest and Ethics Commissioner, As an Individual
Yes. The central issue of the Shawcross doctrine, of course, was related to her role as Attorney General. It played a very important role.
Liberal
Anthony Housefather Liberal Mount Royal, QC
If the same interactions had happened.... We don't know if anybody in the Prime Minister's Office at that time understood the Shawcross doctrine and if they really understood that there should be a difference in the way they treated the Attorney General versus another cabinet minister. If this had been, for example, the Minister of Health and it had been a decision related to health care, would you have treated it in the same way? Would there have been that impropriety?
Former Conflict of Interest and Ethics Commissioner, As an Individual
Again, it's hypothetical. I don't know if there is any doctrine that exists in the sphere of health. I frankly don't have any idea.
I would like to add that Ms. Wilson-Raybould, on several occasions, tried to explain the very specific nature of her role as Attorney General to those who were trying to influence her. They had an opportunity to reflect on that. That's one of the first things you learn in criminal law—the independence of the prosecution. I know that when I was at the Department of Justice, this was sacred.
She tried to explain that, but maybe they didn't understand.
Conservative
Bloc
René Villemure Bloc Trois-Rivières, QC
Mr. Dion and Mr. Finckenstein, I'm going to ask you the same question. Remember I only have two and a half minutes.
Based on your experience as a result of your mandate, during which you had to consider cases involving cabinet confidences, do you believe that there should be more clarification on the circumstances in which access to documents could be obtained? Should there be a special procedure, in a similar investigation involving a minister or the prime minister, that would allow you to investigate fully? When there is more light by which to see, sometimes a different conclusion can be drawn. Indeed, your comments in this regard were quite accurate.
After listening to the previous witnesses, I get the impression that that they considered the presence of cabinet confidences to be problematic. I feel, on the contrary, that it's a good thing. Should any changes be made here?
Former Conflict of Interest and Ethics Commissioner, As an Individual
I don't think that's necessary. It's possible to manage each situation under the current legal framework. Recourse to the federal court of appeal or the federal court is always an option.
Former Conflict of Interest and Ethics Commissioner, As an Individual
So it's sufficient to respond to emerging needs. This was the first time such a collision has occurred since the Office of the Conflict of Interest and Ethics Commisioner was created 18 years ago.
Bloc
René Villemure Bloc Trois-Rivières, QC
So, it wasn't worth wasting three years and spending $2 million.
Former Conflict of Interest and Ethics Commissioner, As an Individual
Exactly.
