The civil service must be obeyed, but ethics laws are apparently optional

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He had no option.

The Prime Minister, Justin Trudeau, buttressed by his chief of staff, Katie Telford, went before the House of Commons finance committee Thursday to tell the same implausible story he has told for weeks: The civil service made him do it.

The novelty in their testimony was the assurance, never heard before, that neither Mr. Trudeau nor Ms. Telford – the two top officials in a notoriously top-down government – had any clue that WE Charity was even being considered as the vehicle for the new Canada Student Service Grant until May 8, more than two weeks after the program was announced.

Moreover, the Prime Minister said, he had been so troubled by the optics of handing control of the $912-million program to an organization with which he had been so closely involved over the years – and that had paid hundreds of thousands of dollars to various members of his family, though he insisted he had been unaware of the amounts – that he “pushed back” on the idea, withdrawing it from cabinet consideration for further “due diligence” by the civil service.

Mind you, he was not so troubled as to recuse himself from the decision when it came back before cabinet on May 22. This puts a different colour on the affair. Until now it had been widely assumed, in the words of former federal ethics commissioner Mary Dawson, that the Prime Minister has a “blind spot” on ethical matters: that, notwithstanding two previous brushes with the ethics laws, it simply did not occur to him that awarding such a large contract, untendered, to an organization that had been so helpful to him and his family might raise the odd red flag.

We now have it on the Prime Minister’s own authority that he was fully aware of these concerns – and voted to award WE the contract anyway. But what, he protested, could he do? The civil service, he said, had presented the government with a “binary choice”: either WE ran the program or there would be no program. WE wasn’t just the best choice – it was the only choice.

There are any number of things wrong with this explanation. One, even if cabinet had no option, as the phrase has it, but to approve the WE deal, it doesn’t explain why Mr. Trudeau didn’t recuse himself from the vote. Two, ministers did in fact have an option: to borrow another phrase, they could have said no. They could have told the civil service to find someone else to run the program or they could have nixed it altogether. Civil servants are supposed to take orders from ministers, not the reverse.

The Prime Minister’s defence of his conduct would appear to be rooted in the idea that the obligations of public office holders under the Conflict of Interest Act are essentially optional – that ministers should avoid conflicts of interest in the design and implementation of government programs unless the program is really important to them or unless the civil service has assured them the organization in which they have an interest is the only organization available. These are not interpretations of the act with which I am familiar.

But then, the Prime Minister contends he was not in an actual conflict of interest but only a “perceived” one. This is debatable enough, but in any case it’s a distinction without a difference. A perception of a conflict is a conflict – as the Prime Minister knows full well. It’s right there in Open and Accountable Government, the 2015 document that is supposed to guide members of his cabinet: ministers “must avoid conflict of interest, the appearance of conflict of interest and situations that have the potential to involve conflicts of interest.”

But back to that other startling claim – that neither Mr. Trudeau nor Ms. Telford knew about any of this until May 8. How plausible is this? Consider the goings-on in the days and weeks prior to that date. WE had communicated with at least three ministers in his own cabinet about it. The matter had been discussed by a bevy of senior civil servants and approved by a committee of cabinet. There had, by Ms. Telford’s account, been a “handful” of contacts between the charity and officials in the Prime Minister’s Office, including one on May 5, the day WE began work on the program.

All these people, all that time, on a file of this magnitude, and no one breathed a word to the Prime Minister or his chief of staff? And this is the first we’ve heard of that? The Prime Minister takes the extraordinary step of pulling it from cabinet, and no previous witness, including the Minister of Finance, Bill Morneau, and the minister responsible for the program, Youth Minister Bardish Chagger, thinks to mention it?

What sort of “due diligence” did the civil service perform that resolved the Prime Minister’s doubts? Apparently it did not unearth just how much WE had paid the Prime Minister’s relatives or the presence of the Finance Minister’s daughter on its payroll or the exotic trips it provided him and his family. Neither did it turn up any of the charity’s many uncharming quirks, from its byzantine organizational structure to its vast real estate holdings to its mounting financial difficulties to the recent departures of its chair and most of its directors.

Still less did it appear to delve into the issues raised by the program itself: the proposal to pay students to “volunteer,” to pay teachers to recruit them and to run the whole operation out of a shell foundation set up to hold real estate. It was on the basis of that sort of due diligence that the civil service allegedly recommended not only that the program proceed as planned but that WE was just the organization to run it.

And it was on the basis of their recommendation, and their recommendation alone, that the Prime Minister overcame his natural reservations and awarded the contract to the organization that hired his mom. After all, what choice did he have?

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