Professor Lori Turnbull made a critical distinction between soft and hard approaches to ethics regulation, arguing that the concept of an apparent conflict of interest belongs in a code of conduct, not in legislation. She told the committee:
Enforcing that into a law is a different thing. I think the appearance of conflict of interest is problematic. It can cause a trust problem with the public. There's a reason to enumerate that in a code. Enumerating it into a law starts to create problems in terms of back and forth around whether there's really an appearance. How do you get into the legalities of that? If you're going to start fining people in terms of administrative monetary penalties, that's messy to me....
This is legislation, not an aspiration, and the consequences of getting it wrong are severe.
Scott Thurlow pointed to the fundamental difficulty of proving the appearance of conflict objectively and warned that including apparent conflicts of interest in the act would “create more problems than it solves.” Michael Wernick, with a decade of experience at the highest level in the public service, cautioned against the concept as well, stating he doesn't think we can describe potential issues of perceived conflicts in the future in a way that can be supported, including in principle, and believes extending the act to include apparent conflicts would make it harder to apply.
On the general application rule and the recommendation of narrowing the exclusion for a decision of general application, particularly as it applies to prime ministers and the parliamentary secretaries, this recommendation, if implemented, could render senior members of the executive unable to govern.
On the blind trust, let's start with the fact that the federal Ethics Commissioner has confirmed that the Prime Minister is in full compliance, with assets in a blind trust, no communication with the trustee and a rigorous conflict of interest screen operating exactly as it should. The two administrators of the screen, who are the most senior civil servants, Michael Sabia and Marc-André Blanchard, are not minor figures. These are two of the most senior and experienced people in Canadian public life. Mr. Blanchard described the system as “one of the most comprehensive and rigorous” he has seen in his entire career. Mr. Sabia said it is “every bit as rigorous as any screen [he has] in the private sector, pretty much ever.”
The commissioner himself confirmed to the committee that the screen is working well, and then there are the provincial commissioners. Ontario's integrity commissioner, Cathryn Motherwell, was unequivocal. She has described the blind trust as an essential tool and told this committee she has not seen evidence, in her experience thus far, that indicate that trusts do not work. We had Quebec's ethics commissioner. She had the same opinion. She has been working in her jurisdiction and suggests that blind trusts do...and noted that additional compliance measures can be added if we need them.
If that isn't enough, the Federal Court of Appeal, the highest court in this land, has confirmed that the conflict of interest screen is a lawful and reasonable exercise of the commissioner's authority. This is a settled law.
Let's be honest about what's happening here. The opposition had before it the federal Ethics Commissioner, two sitting provincial commissioners, the Federal Court of Appeal decision and two of the most respected administrators in the country all pointing to the same thing: The system we have is very rigorous. Our friends on the opposition continue to ignore all of those facts.
Professor Lori Turnbull drew a very clear distinction, saying apparent conflicts of interest belong in a code of conduct, not in legislation. Her words were direct: “Enumerating it into a law starts to create problems in terms of back and forth around whether there's really an appearance.”
Michael Wernick, the former clerk of the Privy Council, cautioned that perceived conflicts cannot be described in legislation “with a lot of clarity.” Scott Thurlow warned that this would “create more problems than it solves.” Perhaps the most telling story came from Guy Giorno, the former chief of staff to former prime minister Stephen Harper, who supported the idea in principle. He conceded that extending the act to an apparent conflict would make it “harder to apply”.
Then there's the practical reality that Professor Andrew Stark put squarely on the table. An ethics commissioner could find themselves compelled to rule on allegations effected by political opponents on social media in a parliamentary system built on adversarial debate. This is not a hypothetical issue. This is a certainty that my friends continue to push for.
We believe this recommendation would put vague and highly subjective legal standards into federal legislation, and the unintended consequences of getting that wrong are serious.
Let's be clear about what the general application exemption actually is. It's not a loophole. It's a foundational feature of ethics legislation that exists in virtually every regime across Canada. The federal Conflict of Interest and Ethics Commissioner's own legal counsel confirmed this to the committee directly. Scott Thurlow pulled apart the practical, consequential penalty when he asked, “if we don't have a general application rule, will parliamentarians ever be able to vote on anything? Where do we draw the line with something in front of Parliament that is important for the country to keep going?” He went further, pointing to trade agreements like CUSMA, the federal budget and the countless other matters on which a parliamentarian's past experience will enlighten and have bearing.
Professor Andrew Stark acknowledged that the Prime Minister, in that way, would simply be unable to govern effectively. Michael Wernick recommended against expanding the concept of private interests in this direction, noting that many policies, including the federal budget, have implications that touch virtually everyone.
What the opposition is proposing is so narrow that this rule, specifically for the most senior decision-makers in the country—the Prime Minister and the cabinet—would not strengthen accountability. It would create an unworkable regime at the exact level of the government where effective decision-making matters the most.
We, with my friends on the opposite side, talked about tax havens. Let's start with what Canada's leading tax law scholar, Professor Allison Christians, told the committee. The chair of law at McGill University was categorical when she said, “A tax haven is not a technical term,” and “Every country could be accused of being a tax haven”. She doesn't recognize that term and she couldn't use it for us.
A lot of Canadian taxes are even lower than those in the U.S., and Canada could be considered a tax haven. Are we telling the world that investing in Canada is wrong because Canada is a tax haven? This is the philosophy my opponents are trying to spread.
Scott Thurlow was very blunt when he said, “I don't like the term ‘tax haven’. I think there is a pejorative aspect to it.” When Andres Knobel of the Tax Justice Network acknowledged that declaring a jurisdiction as a tax haven is often politically driven and inconsistently applied—