The commissioner's selective ethics

Today's column. Just to pick up on the point made in the first graf: at the time all this was going on, a lot of sophisticates rolled their eyes as if to say, what's the big deal? People have been crossing the floor -- and been rewarded for it -- for eons. Shapiro has at least made clear that this sort of thing is not on -- that if it ever was "politics as usual," it should stop.

That's what makes the rest of his report so baffling. Or leave Grewal aside. We know that Belinda Stronach's defection took several days of negotiations to arrange. And sure enough, the day she crossed the floor, she was given a cabinet post. Are we to believe there was no connection between the two? What were they negotiating, if not the precise "reward" she would receive? What did she bring to the table, but her vote on the confidence motion? Why was that not also the subject of an inquiry? -- AC

Give Bernard Shapiro credit for one thing: his inquiry into the Gurmant Grewal affair has established, as a general principle, that it is “an extremely serious breach” of the conflict of interest rules to offer any “reward or inducement” to a member of Parliament in exchange for crossing the floor. Otherwise the report is a travesty from start to finish.

To read the report, you might come away thinking the only person who did anything wrong in the whole affair was Mr. Grewal himself: not the former Health minister, Ujjal Dosanjh, and not the former chief of staff to the prime minister, Tim Murphy, his negotiating partners for several long sessions last spring. Certainly that is how it is being spun: Mr. Dosanjh is now threatening legal action against unnamed persons, although he allows he is in a mood for “forgiveness.”

First point: Mr. Shapiro did not vindicate Mr. Murphy, because he was not a subject of the inquiry, indeed “could not be.” This in itself is debatable. Under the Parliament of Canada Act, the commissioner is required “to administer any ethical principles, rules or obligations .. for public office holders,” including “a person, other than a public servant, who works on behalf of a minister of the Crown or a minister of state.” Mr. Shapiro instead preferred to rely on that section of the Act confining him to investigating “ministers of the Crown, ministers of state and parliamentary secretaries” for breaches of the Conflict of Interest Code.

Whether it is possible to “administer” the code as it applies to ministerial staff without the odd bit of “investigating” is I suppose a judgment call. Perhaps the law should be amended, Mr. Shapiro says, but “I am not in a position to unilaterally exceed my legislated mandate.”

Fair enough. Except that’s what he does for the rest of the report. Mr. Grewal is convicted of offences that appear nowhere in law, but which violate Mr. Shapiro’s personal sense of what is “appropriate.” Mr. Grewal’s surreptitious taping of his conversations with Mr. Dosanjh and Mr. Murphy, he writes, “is neither an illegal act nor a contravention of a specific Rule of Conduct.” However, “I believe such conduct is inconsistent with the Principles of the Code,” notably that which requires members to “fulfill their public duties with honesty and uphold the highest standards so as to avoid real or apparent conflicts of interest.”

Again, fair enough -- except, why was the same standard not applied to Mr. Dosanjh? Mr. Shapiro finds that Mr. Dosanjh did not offer any “specific” reward to Mr. Grewal: the basis for Mr. Dosanjh’s claims of vindication. Yet he also finds that the case “presents all parties to the events in an especially unattractive light,” that “they at least appeared to have very little interest in principle,” that they engaged in “a conversational dance in which each was trying to ascertain what, if anything, the other was offering.” Yet only Mr. Grewal is held to account for this “inconsistency.”

What “specific” offence, then, did Mr. Grewal commit? Mr. Shapiro is unsure. Either he intended “to actually seek such a reward or inducement,” or he intended “to entrap Mr. Dosanjh and Mr. Murphy into offering” one. Mr. Shapiro has no way of knowing Mr. Grewal’s intent either way, you understand, but it must have been one or the other. Or rather, it might have been. “If Mr. Grewal had sought to entrap Mr. Dosanjh into offering him a reward for changing his vote, he would have induced Mr. Dosanjh into committing an extremely serious breach” of the Code. “This clearly would have been a reprehensible conduct.” [Emphasis added.] This is groundbreaking stuff: Mr. Grewal is guilty of a hypothesis.

In Mr. Grewal’s case, Mr. Shapiro’s inability to read his mind leads to a finding of guilt. In Mr. Dosanjh’s case, the same inability leads to exoneration. If he engaged in the same conversational dance as Mr. Grewal, it could only have been because Mr. Grewal was trying to “entrap” him. Now, entrapment is a subtle legal concept, and difficult to prove. The victim must be pressured or persuaded to do something that would never have occurred to him otherwise. How does Mr. Shapiro know this?

How, when it is not even clear that he listened to the tapes. “[F]rom the outset of this inquiry,” he writes, “I wished to proceed on the basis of obtaining the direct testimony of all of the parties involved before deciding whether it would be necessary to rely on the tapes as primary evidence.” In the event, he “did not consider it necessary … to rely on the contents of the tapes in reaching my conclusions.”

Of course, we can’t be sure. But if Mr. Shapiro did listen to the tapes, he would have heard Mr. Dosanjh say, at one point, “you have to be able to say that I did not make a deal. That’s very important. That’s why these kinds of deals are not made in that fashion.” He would have heard him say at another that “nobody will make you totally blunt promises,” but that “if the chief of staff says that certain conduct ought to be rewarded in due time that trust is kept 99.9% of the time.”

He would have heard him say, “I’m sure rewards are there at some point, right. No one can forget such gestures but they require a certain degree of deniability.” And then he would have heard him laugh.

But that’s just a hypothesis.