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Ian Stedman: After more than a year of foot-dragging, the Trudeau government has finally appointed an ethics commissioner

Commentary

Editor’s Note: Since this article’s publication, on the eve of their deadline, the federal government made interim Conflict of Interest and Ethics Commissioner Konrad von Finckenstein permanent, with a term of seven years. His appointment had the support of opposition parties.

Today, Konrad von Finckenstein, Canada’s acting Conflict of Interest and Ethics Commissioner (CIEC), will see his term expire. He’s been in the role since August 2023 after the position sat vacant for several months. Canada has now been without a permanent commissioner for more than a year. The previous interim ethics commissioner was effectively forced to step down after it came to light that she was the sister-in-law of Liberal cabinet minister Dominic LeBlanc.

Anyone who follows Canadian politics knows that Prime Minister Justin Trudeau (and his ministers) have found themselves on the wrong side of the ethics rules several times during his tenure. In fact, the two previous commissioners both concluded the prime minister had breached the rules on separate occasions—once over his vacation at the Aga Khan’s private island in the Bahamas and then again over influencing then justice minister Jody Wilson-Raybould over SNC-Lavalin. Recent questions about a Jamaican vacation gifted to him by a friend have also raised eyebrows. The findings of commissioners do not seem to be discouraging our politicians from behaving badly. Regardless of party, naming and shaming does not appear to be working. 

At the time of writing, the government has not yet announced the current interim commissioner’s successor. The media and opposition parties are increasingly inquiring about when von Fickenstein’s mandate ends. 

This context of heightened interest and attention is an opportune time to discuss how the appointment process works and whether it should be improved. It is also a good time to talk about the job of Conflict of Interest and Ethics Commissioner itself, which seems to be getting increasingly more difficult to fill. 

Why should we care?  

The primary job functions of the CIEC are to provide advice about the Conflict of Interest Act and Code for Members of the House of Commons, investigate and make determinations about alleged contraventions, and administer the rest of the Act and Code. 

Yet, despite the CIEC’s “independent” role and its relationship to Parliament, the appointment process has tended to be openly partisan. The position is posted online as a matter of good practice but it’s unclear how many applications, if any, are received. Von Finckenstein, for instance, told a parliamentary committee he didn’t even apply for the job. Instead, he was contacted directly by the Prime Minister’s Office.

This approach raises questions about the appointment process for the CIEC, including how the government fulfills its legislative expectation to consult with opposition parties to find the right person for the job.

It must also be noted that even in instances where these consultations occur, it’s still the case that if the governing party has a majority of the votes in the House (whether directly or because of an agreement, etc.), it can effectively hand-select a commissioner and appoint them with an easy resolution. 

The key point here is that being consulted does not mean the other parties have to approve the proposed candidate. As long as the governing party can whip the votes needed to pass a resolution, they can effectively appoint whomever they like the most. This is precisely what happened with both the current and the previous commissioner.

How should the appointment process work?

The impending appointment of a new commissioner represents an opportunity for parliamentarians and the broader public to scrutinize the appointment process and consider better approaches, which could allow for something closer to real independence. 

One option would be to strike a parliamentary committee comprised of members from every official party with the expectation that they reach a unanimous agreement on the individual selected. If the appointment must pass through cabinet and be made by the Governor in Council, then it is also essential that the custom be for a quick approval rather than renewed partisan scrutiny. 

Given the CIEC’s responsibility for ensuring MPs comply with disclosure and transparency requirements, critics have also called for the CIEC to disclose their outside financial interests. I’m not convinced this disclosure needs to be publicly available (we don’t want MPs under investigation to make donations to the CIEC’s favourite charity, for example), but I do think there must be a mechanism in place to ensure that the CIEC does not have any real or apparent conflicts of interest that could impact them in the performance of their official duties. An all-party appointment committee could perhaps be charged with overseeing compliance with any such rule(s) before an appointment is made.

Is a better appointment process all that is needed?

Of course, a better appointment process isn’t the only reform that ought to be considered to the federal ethics regime. Every CIEC has either published a list of recommendations for ethics law reform or made suggestions directly to parliamentary committees (for example: 2013, 2015, 2022, and 2024). There has been palpable frustration among the CIECs (e.g., 2018, 2023) with respect to Parliament’s lack of interest in modernizing the Act and Code. The current commissioner even appeared before the Standing Committee on Access to Information, Privacy and Ethics (ETHI) and told members that their criticism of “sponsored travel” is a problem of their own making. Commissioners have long asked that rules around sponsored travel be tied to acceptability standards, yet members have outright refused. This disinterest in improving the Act and Code has left the CIEC mostly toothless, yet subject to constant criticism by a general public that feels the office should be doing more to hold officials accountable when they violate the rules.

Konrad von Finckenstein during a conference in Dartmouth, N.S. on Friday, May 29, 2009. Andrew Vaughan/The Canadian Press.
We need to care more about our ethics watchdogs

With a general election due in 2025, now is the time to really amplify the concerns many of us have been expressing about public sector ethics rules. If Liberals promise to make changes, Conservatives will follow suit, and vice-versa. The promise of ethics reform worked for Stephen Harper in 2006, and even though the laws he put in place were not perfect, forward momentum, however incremental, is better than simply continuing to stand motionless in the sludge we find ourselves in now. 

Currently, the commissioner can only deliver a maximum “administrative monetary penalty” of $500 dollars against a public office holder (as defined under the Act) who fails to meet a filing requirement. No monetary penalties exist for violating the actual ethics rules. 

Without reform, the job risks becoming too thankless and undesirable for anyone with the right credentials to want to take on. Why subject yourself to the constant barrage of criticism in order to administer ethics regimes that are toothless, and that clearly no longer help support and enforce standards that meet the public’s expectations? 

While MPs should not leave the position vacant again for an extended period of time, they will continue to have a hard time filling it if they do not actively commit to modernizing both the appointment process and the ethics rules in a way that is clearly non-partisan and that rises above blind self-interest. We must return to a period of integrity in public office, where there is a culture of accountability among MPs who hold themselves to high standards, rather than our modern-day culture of compliance.

Howard Anglin: The unimportance of being earnest

Commentary

If it seems strange to review a play about Joe Clark that has already closed, it’s no stranger than writing a play about Joe Clark’s premiership in the first place, let alone staging it for an Off West End audience in London. Watching the breezy production of 1979 at the intimate Finborough Theatre, two thoughts competed in my mind. How many staff can there be at the Canadian High Commission? And what must the English theatre-goers whose tickets aren’t being comped by GAC make of it? Joe Who? Indeed.

Conscious of its obscure subject, the play keeps the audience up to date with a barrage of surtitles identifying the secondary characters (two quick-changing actors alternating as Pierre Trudeau, Stephen Harper, John Crosbie, Allan Lawrence, Flora MacDonald, Brian Mulroney, Maureen McTeer, and Jenni Byrne) and providing relevant, sometimes wry, historical background. What is gained by these crib notes, however, is lost in the distraction of reading about the results of the 1976 PC leadership convention or Brian Mulroney’s progress through the ranks of the Iron Ore Company of Canada while the play’s action continues below.

The surtitles are also unnecessary, as the only characters who matter are the only three the audience is likely to recognise: Clark, Trudeau, and “Steve” (a not-at-all-disguised Stephen Harper). Everyone and everything else is filler: Crosbie storms in to provide updates on the budget vote count; MacDonald flits in and out to remind us what’s going on in the real world (the Iran Hostage crisis, as it happens); Mulroney arrives to push for last-minute patronage appointments (quelle surprise); and Maureen McTeer shows up to stiffen her husband’s, er, resolve.

Clark is written sympathetically. Among the traits that we are supposed to admire are his priggish earnestness and the fact that he had the grace to lose before he could do anything too conservative. Canada’s youngest prime minister may listen to rock music in his office, but only to drown out the fun the Liberal caucus is having celebrating Trudeau’s retirement down the hall. He drinks a little, but he doesn’t swear (a string of constipated “frigs” makes it hard to take his emotional outbursts seriously). He’s smart, but not smart enough to postpone a confidence vote he knows he is going to lose. 

This Clark is so naïve that when Trudeau, taking a break from the Liberal revels to check in on his successor, realises just how guileless he is, he reverses his retirement plans on the spot. Oozing predatory charm and (bizarrely) wielding a toy chainsaw, Trudeau judges Clark deficient in both cunning and charisma and—crucially—not up to the task of matching René Lévesque in a political street fight over the fate of the country. If that’s what really changed Trudeau’s mind, then he was probably right.

Clark’s conversation with Trudeau is one of the play’s two extended discourses on the nature of power. The other is between Clark and “Steve,” the future prime minister appearing anachronistically as a parliamentary errand boy. In an exchange that could have been (and perhaps was) cribbed from Paul Wells’ The Longer I’m Prime Minister, Steve explains to Clark that real political power, the only kind worth pursuing, is the kind that changes a country’s culture. But change takes time—something a prime minister who is willing to lose office rather than exploit the flexibility of parliamentary procedure will never have. Clark indulges his precocious lecturer, alternately amused and appalled by his zeal, but chooses to follow his principles to defeat.  

Like most of the play, the scene is lively but forgettable. The dialogue is superficially entertaining in a CanCon-Sorkin sort of way, but it’s also just…superficial. The play’s understanding of politics is too shallow to say anything important or memorable. Steve’s enthusiasm for Margaret Thatcher was probably one of the few references that the London audience caught, but it’s cheap literary shorthand, a substitute for character insight. And while we are supposed to sympathise with Clark’s commitment to principle over expediency, the play never explains why the principles he chooses matter. Unshakable loyalty to the House’s standing orders is a thin thread on which to hang a moral.

Intentionally or not, the play succeeds in showing why Clark failed as prime minister. This Clark simply doesn’t understand the qualities that make a good leader. He is overwhelmed by his onstage office, his brown corduroy suit merging with the wood panelling behind him. He literally fades into the woodwork as more successful politicians impose themselves on him. Clark thinks he has to choose between being decent and effective, and that ruthlessness is incompatible with good government. But these aren’t opposites, and in politics you rarely have the latter without the former. The meek might inherit the earth, but they won’t hold the PMO. 

External Affairs Minister Joe Clark and Pierre Trudeau, both former Prime Ministers meet briefly at a luncheon, Thursday in Montreal in 1985. CP Photo.

1979’s sharpest, though hardly original, insight is that the Liberal Party’s real success has been the way it has achieved cultural “hegemony” (a word the play repeatedly uses and misuses). Steve illustrates this for Clark by pointing out the Liberal red in the flag that Pearson forced through parliament. The play doesn’t get into all the ways in which the Liberals managed to capture the country’s major political and cultural institutions, but Steve at least doesn’t think the damage is irreversible—if only a Conservative prime minister has the mettle to try. It is ironic then, that a common criticism from conservatives of the real Harper’s premiership is that he didn’t do enough to remake the country’s institutions.

There is something to the charge, though; if you examine each decision Harper made in context you will usually find that what is criticized as incrementalism was really going as far as possible under the circumstances. Where change could be swift and permanent, like abolishing the Wheat Board or the Firearms Registry, that’s what he did. But where change risked national or party unity, his reforms were more cautious and limited—more conservative. Looking back, it is easy for today’s “Steves” to focus on what was left undone, but if that means the Conservatives still have a sense that there is much still to do, then that’s not a bad thing. Parties out of power should be ambitious and impatient.

Right now, there is much more public appetite—demand even—for change than there was at any time during Harper’s governments. If the general feeling that the Trudeau government is not living up to its promises and that many of our national institutions are no longer fit for purpose persists when the next Conservative government takes over, then today’s young “Steves” will be very pleased with what the new prime minister is able to remove, rebuild, and replace. And I’m sure the real Joe Clark’s reaction will remind us, as the play does, why the old Progressive Conservative remains every progressive’s favourite conservative.