Ministers, appointees should face stiffer sanctions for ethics breaches, says former commissioner

Public office holders who violate the ethics rules should face stiffer penalties, a former federal ethics commissioner told a parliamentary committee Thursday.

Testifying before the House of Commons ethics committee, Mario Dion questioned whether the penalties under the Conflict of Interest Act are sufficient.

“I have expressed the view in the past that maybe the issue of penalties should be looked at,” Dion told MPs. “There is an absence of direct penalty in relation to the act. It should be looked at in terms of the credibility of the system. It would help if there was a possible sanction to be recommended by the commissioner but to be imposed, potentially, by the House or by another upper authority.”

The Conflict of Interest Act applies to more than 2,700 public office holders, such as cabinet ministers, their staff members and a wide range of appointees. Members of Parliament are governed by the Conflict of Interest Code.

Recently appointed ethics commissioner Konrad von Finckenstein said the most significant penalty for someone who is found to have violated the act is the fact that the violation is made public.

“The main penalty for breaching the act is that you basically get certified that your reputation is not what you are holding it up to be, that you don’t understand your job and that you acted in conflict,” von Finckenstein told the committee. “That’s a pretty bad penalty for an elected official.”

Von Finckenstein said he was only appointed recently as the full-time ethics commissioner after serving as interim commissioner. While he has ideas about how the rules can be improved, he said he will express them later.

In January, von Finckenstein appeared before the same committee to discuss Prime Minister Justin Trudeau’s most recent vacation to Jamaica, a free stay at a luxury resort that some have estimated was worth $84,000.

Von Finckenstein said the trip did not violate the ethics rules that govern travel and gifts because they make an exception for gifts from friends and family members and the owner of Prospect Estate and Villas, Peter Green, was a long-time friend of the Trudeau family.

Asked about the trip Thursday by NDP ethics critic Matthew Green, von Finckenstein said the act only covers actual conflicts of interest — not apparent conflicts of interest.

“You’re talking about the Jamaica trip. For instance, should there be a ceiling on gifts?” he said.

“Right now there is a complete exception for gifts from a friend. You can say, well, that’s fine. But if the gift is too large it could create the wrong appearance and maybe we should have a monetary limit on it.”

The comments came as the committee continued its study into the decision by the RCMP not to launch a criminal investigation into the Trudeau government’s handling of the SNC Lavalin affair.

In August 2019, Dion found that Trudeau violated section nine of the Conflict of Interest Act by pressuring then-Attorney General Jody Wilson-Raybould to have prosecutors grant SNC Lavalin a deferred prosecution agreement, also known as a remediation agreement, to settle criminal charges it faced — something that Wilson-Raybould refused to do.

“I found that Mr. Trudeau used his position of authority over Ms. Wilson-Raybould to seek to influence, both directly and indirectly, her decision on whether she should overrule the director of public prosecutions’ decision not to invite SNC-Lavalin to enter into negotiations towards a remediation agreement,” Dion wrote at the time.

On Thursday, Dion recounted how his investigation was hampered by the refusal of Ian Shugart, clerk of the Privy Council, to let him view documents mentioned by witnesses that were considered cabinet confidences. Dion said his office had been allowed to view cabinet documents in the past and Shugart’s refusal marked the first time in the history of the ethics commissioner’s office that it had been refused access.

“There were several instances during my five years where … lawyers who work at the office were able to gain access to cabinet confidences in a very practical, informal way,” said Dion, who worked for a year in the Privy Council office in the unit that handles cabinet documents. “This was actually the first time that we were opposed with a written, ‘No, you will not gain access to additional documents.'”

Dion said he contemplated taking the government to Federal Court to gain access to the documents but concluded it would have taken three years and $2 million to fight the case.

Dion said that, in the end, he concluded he had enough evidence to proceed with his decision without them.

Dion said he was not surprised by the RCMP’s decision not to pursue a criminal investigation.