Ethics and Conflicts of Interest

AuthorCraig Forcese - Aaron Freeman
Pages418-460
418
7
Ethics and Conflicts of Interest
So far, this book has focused largely on the “procedural” aspects of demo-
cratic accountability: mechanisms for rendering elected and unelected off‌i-
cials accountable, ultimately to an electorate. The Canadian system accepts
that good governance depends not only on procedure, however, but also on
adherence to certain substantive standards of behaviour that fall under the
“ethics” umbrella. If electoral politics and responsible government are the
process by which off‌icials are held accountable in a democracy, ethical rules
answer this question: “Democratically accountable for what?” The answer is
honesty and integrity, producing governance in the public (rather than the
private) interest.
Thus, while rules governing elections, responsible government, and the
legislative process outline the structure, composition, and form of govern-
ment, ethics standards have the most direct impact on day-to-day decisions
made by government off‌icials. These standards act as a front-line safeguard,
helping to ensure that taxpayer dollars are spent effectively, citizens are
treated fairly, and public trust is not abused.
Ethics standards for Canadian public off‌icials are contained in a perplex-
ing variety of sources, including the Parliament of Canada Act, the Criminal
Code, the Federal Accountability Act (which enacts a Conf‌lict of Interest Act),1
a Conf‌lict of Interest Code for Senators, the Standing Orders of the House of
Commons, the Values and Ethics Code for the Public Service, the Canadian Ju-
1 Parliament of Canada Act, R.S.C. 1985, c. P-1; Criminal Code, R.S.C. 1985, c. C-46; Fed-
eral Accountability Act, R.S.C. 2006, c. 9; Conf‌lict of Interest Act, S.C. 2006, c. 9, s. 2.
Ethics and Conflicts of Interest 419
dicial Council’s Ethical Principles for Judges, and common law sources. Each
of these sources, and their interplay, is discussed in this chapter.
A. ETHICS AND THE ALLURE OF PUBLIC SERVICE
There has been much debate in recent years about the need for better eth-
ics rules and the potential impact of these rules on Canadian politics. Some
observers suggest that stringent ethics rules may discourage people of merit
from seeking public off‌ice,2 a concern that has become more acute in the
wake of the 2006 Federal Accountability Act.3 Underlying this argument is
an implicit assumption that “merit” is def‌ined primarily in terms of suc-
cess in business — it is most often private business interests at the centre of
conf‌lict-of-interest issues. Yet, in our view, merit to hold public off‌ice comes
in many different f‌lavours, not just in the form of material achievements in
the business world.
Further, there is no empirical basis for the complaint that ethics rules
deter business candidates. As Table 7.1 below illustrates, those from the
senior ranks of business are already greatly overrepresented in Parliament,
and this proportion has been steadily rising over the past several decades.4
Consider, too, that the United States has the strictest ethics standards for
2 In 2003, responding to demands that he divest from his shipping company Canada
Steamship Lines, Paul Martin declared, “I do not think it is advisable to discourage
entrepreneurs from making a contribution to public life.” This sentiment was echoed
by a number of commentators, as well as by the then-ethics counsellor. Newspaper
columnists warned that if Martin was forced to divest “only those who have failed to
make it in the real world need apply for the top political job in the land.” John Ibbitson,
“Martin Should Stick to His Guns — and ShipsGlobe and Mail (27 February 2003) A3.
See discussion in Aaron Freeman, “Don’t Become Rt. Hon. Member from CSL” The
Hill Times (10 March 2003) [Freeman, “Don’t Become”].
3 See David Mitchell, president, Public Policy Forum, Trust: The Critical Element in Private
and Public Relationships (March 2009), online: www.ppforum.com/sites/default/f‌iles/
SPEECH%20David%20Mitchell%20_Trust_Mar2009.PDF. See also the positions
taken by David Mitchell, Mel Cappe, president of the Institute for Research on Public
Policy, and the Right Honourable Joe Clark in their presentations to the Commission
of Inquiry into Certain Allegations Concerning the Business and Financial Dealings
between Karlheinz Schreiber and the Right Honourable Brian Mulroney [Oliphant
Commission], Transcripts (22 June 2009) at 5571 et seq.
4 Table 7.1 ref‌lects a continuing trend of overrepresentation of senior businesspeople in
Parliament. In the 37th Parliament, one-quarter of MPs were from the senior ranks
of business, more than from any other occupation, and nearly twice the number that
came from the legal profession. Business representation has been steadily increasing:
in the 1950s, just 4 percent came from senior management; in the 1970s, it was 16
percent; in the 1980s, it was 22 percent. See Freeman, “Don’t Become,” above note 2.
LAWS OF GOVERNMENT420
senior off‌icials, but still has a large portion of the executive drawn from the
business sector.5
Table 7.1 Professional Backgrounds of MPs in the 39th Parliament6
Occupation Number of MPs
Management — Senior Managers 122
Management — Middle Managers 59
Lawyers 50
Business and Finance Professionals 45
Arts and Culture Professionals (incl. Journalists) 31
Farmers 21
Natural and Applied Science (Professional, e.g., Enginnering,
Information Technology)
16
Health 10
Arts and Culture — Technical and Skilled 9
Primary Industries Other Than Farming (Fishing, Logging, Oil,
Trapping)
6
Natural and Applied Science (Technical) 3
Processing and Manufacturing 1
Trades, Construction, and Related 0
B. CORE PRINCIPLES OF CANADIAN ETHICS RULES
Impartiality — that is, acting in the public interest, without a predisposition
coloured by personal interests is a key principle featured in ethics rules.
5 For example, forty-one members of the George W. Bush Administration had ties to the
oil industry before entering government, including the president, Vice-President Dick
Cheney, and National Security Advisor Condoleezza Rice, who was a former Chevron
director. See ibid. For a formal academic discussion of ethics rules and their impact on
participation in public life in the United States, see, for example, Beth A. Rosenson,
“The Impact of Ethics Laws on Legislative Recruitment and the Occupational Compos-
ition of State Legislatures” (2006) 59 Political Research Quarterly 619–27 [Rosenson].
Dr. Rosenson’s conclusions on ethics rules and deterrence are ambiguous; they neither
show that ethics rules deter candidates nor demonstrate that they do not. Moreover,
to the extent that deterrence existed, Dr. Rosenson acknowledged that this may ref‌lect
genuinely undesirable candidates from seeking off‌ice: “It is arguably a bad thing if
the laws deter well-qualif‌ied individuals who do not have serious potential conf‌licts of
interest simply because they do not want their private affairs publicized. On the other
hand, if the laws mainly drive away individuals who do possess serious potential con-
f‌licts that might impair their judgment, the deterrent effect is not necessarily undesir-
able.” Ibid. at 625.
6 Data derived from Library of Parliament data, August 2008; some smaller categor-
ies excluded. Several MPs are listed under more than one category, so numbers listed
exceed total number of MPs.

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