Loopholes, Lapdogs, and the PMO

Nigel Wright’s appointment as Harper's chief of staff was only possible because of a loophole in the ethics law and a series of lapdog ethics commissioners.

How is it that a senior executive who owns shares in a huge conglomerate corporation could serve as chief of staff in the prime minister’s office and still take part in policy decisions on many issues that affect the corporation?

Simple. Loopholes in the federal government’s ethics law – the Conflict of Interest Act – allow Cabinet ministers, their staff, appointees, and senior government officials to take part in any decision that applies generally to a broad group of people or organizations – even if they or their family members or friends have a personal financial interest in the decision.

This loophole was added to the ethics law by Paul Martin in his first days as prime minister, in December 2003. Before this change, the law prohibited Cabinet ministers and the other senior officials from being in an apparent conflict of interest (a rule that many violated as far back as 1986, when the rules were first enacted).

However, both Prime Minister Brian Mulroney and Prime Minister Jean Chrétien – with his lapdog ethics counsellor Howard Wilson – had ignored the “apparent conflict” standard and allowed several officials to take part in general application decisions even when they had a financial interest in the decision.

Because Wilson was a political adviser, not a quasi-judicial decision-maker, his rulings letting Cabinet ministers and others off the hook for alleged apparent conflicts of interest could not be challenged in court.

Martin changed the rules just as the ethics counsellor position was changing into the ethics commissioner position, and the commissioner could be challenged in court because he was a quasi-judicial decision-maker. Because of his rule change, Martin could sell his company to his sons and still be involved in decisions "of general application" that affected the company.

Of course, Martin did not have to worry about the new ethics commissioner, Bernard Shapiro, ruling against him because Shapiro was picked by Martin and continued Wilson’s well-established record as a lapdog who couldn’t recognize a conflict of interest if it slapped him in the face.

However, Martin had to worry about someone filing a complaint with Shapiro against him and then challenging Shapiro's ruling in court. In fact, Democracy Watch did challenge several of Shapiro's rulings in court, but Shapiro resigned in spring 2007, which nixed the case.

In their 2006 election platform, the Harper Conservatives promised to "close the loopholes that allow ministers to vote on matters connected with their business interests." But they broke that promise, and they also put a measure in the Conflict of Interest Act to prevent the public from filing complaints that the ethics commissioner is required to investigate (only MPs and senators can force an investigation).

In summer 2007, the Conservatives hand-picked their own ethics commissioner, Mary Dawson, and also changed the law to prohibit anyone from challenging Commissioner Dawson's rulings in court for errors of fact or law. As a result, she has all the powers and immunity of an actual ethics czar.

Unfortunately, Commissioner Dawson has continued the lapdog tradition. So far she has let more than 20 Conservative Cabinet ministers and MPs off the hook for very questionable reasons even though they were involved in equally questionable activities – likely in part because none of her rulings can be challenged in court.

However, because of the loopholes in the law, even if Commissioner Dawson were a strong watchdog she would have no choice but to allow Wright to take part in decisions “of general application” that affect his own, and Onex’s, financial interests.

If you think about it, you quickly realize that 99.9 per cent of decisions made by Cabinet ministers, their staff, appointees. and senior government officials are decisions “of general application.” Every law, regulation, tax, subsidy, and government program is of general application, applying not just to one person or corporation but to many of them.

As a result, any Cabinet minister or senior official can own shares in any corporation and take part in decisions changing any rule that affects that company, as long as it is a general rule that also applies to other companies.

In other words, the only thing the Conflict of Interest Act prohibits is Cabinet ministers taking part in decisions about handing a contract to a specific person or company in which they have an interest.

So the "ethical wall" that Commissioner Dawson is setting up for Wright will actually be full of holes, and therefore more like an open door.

If we want government decisions that are in the public interest, the apparent conflict of interest rule must be put back in the federal ethics law (as it is in many provincial ethics laws) to ensure that policy-makers are prohibited from making decisions that give them an opportunity to further their own and/or their associates’ personal financial interests.