Justin Trudeau’s mandate letters to ministers reminds them that they must be honest, impartial and maintain the highest ethical standards, including avoiding even the appearance of a conflict of interest.
However, the prime minister’s accountability guide, which sets out the above standards, is not legally binding. Neither the letters nor the guide set out any penalties for violations. Nor do they say the prime minister will suspend or demote, let alone fire, any minister who violates the rules.
The federal Conflict of Interest Act (which covers ministers, ministerial staff and cabinet appointees, including deputy ministers) also contains no penalties for violating its ethics rules. Even worse, the act directly contradicts the accountability guide — it is full of loopholes that, among other things, allow ministers and the others to be dishonest. The loopholes also mean the act doesn’t cover them when they make general policy decisions (an overwhelming portion of the decisions they make).
As a result, the law actually allows them and their family members and friends to have an unethical financial stake in, and profit from, 99 per cent of their decisions. Combined with weak enforcement by the ethics commissioner, the law should really be called “The Almost Impossible to be in, or be penalized for, a Conflict of Interest Act.”
In contrast, the ethics codes for federal government employees (all of whom have less power than ministers and senior government officials) not only contain the same strict rules as the ministers’ accountability guide – without any loopholes – but also say violators can be penalized, including being fired.
Trudeau’s letters to his ministers also say “you can count on me to support you every day in your role as minister.” This sends the wrong message. He must make it clear he will not support dishonest, unethical actions. He should add his accountability guide’s strict ethics rules to the Conflict of Interest Act as soon as possible, and add strong, clear, mandatory penalties (up to and including being removed from cabinet).
He should also require Ethics Commissioner Mary Dawson to do regular, unannounced audits of ministers’ activities and communications (she has the power to do such audits but has negligently refused to do them). This will ensure everyone knows there is a high chance of getting caught and that there are definite legal consequences for violations – consequences the prime minister cannot stop the ethics commissioner from imposing.
The prime minister should also strengthen the federal whistleblower protection law and extend it to cover cabinet ministers’ and MPs’ staff. Currently, only federal government employees who blow the whistle on wrongdoing in government institutions can be protected from retaliation by the federal integrity commissioner.
These changes would make the Canadian government’s ethics enforcement system meet international best-practice standards, and finally fulfil the commitments the government made a decade ago under the United Nations Convention Against Corruption.
If Trudeau doesn’t make these changes, it will encourage violations and break the trust he is trying to forge with voters. Much of what is legal in federal politics is not viewed by the public as ethical. And as many scandals in the past decade have shown clearly, anyone who tries to excuse unethical actions will lose voter support faster than they can say “All the rules were followed.”
Finally, Trudeau would be wise to make public similar mandate letters for the deputy ministers he appoints. His mandate letters to ministers say that the role of their deputy minister is “to support you in the performance of your responsibilities.” In fact, their role is to support their minister only if the minister follows honesty, ethics, transparency and waste-prevention rules and laws (and all other rules and laws), and they are required to report any wrongdoing to the proper authorities. His letters should remind deputy ministers that loyalty to the rule of law comes before loyalty to their minister, and that they will also be penalized for violations.
These changes would be good first steps to ensure Trudeau keeps his commitment to “an open, honest government that is accountable to Canadians, lives up to the highest ethical standards, and applies the utmost care and prudence in the handling of public funds.”
They are big words — and many big changes will be needed to ensure everyone walks in step with the prime minister’s big ethics talk.
Duff Conacher is co-founder of Democracy Watch and a visiting professor at the University of Ottawa.