Why I voted against concurrence in the Ethics Commissioner’s Maloney ReportFebruary 19, 2021
Today, MPs voted on a motion, which was introduced in the House on December 11, that a report of the Conflict of Interest and Ethics Commissioner, released in November and titled The Maloney Report, be concurred in. The report, which is linked HERE, concludes that Mr Maloney failed to comply with subsection 20(1)(i) of the Conflict of Interest Code for Member of the House of Commons, which imposes the following mandate on MPs:
A member shall file with the commissioner a full statement disclosing the member’s private interests and the private interests of the member’s family within 60 days after the notice of his or her election to the House of Commons is published in the Canada Gazette.
I voted against concurrence in this report.
Why I have chosen to write this essay.
Given the unusual nature of this vote, it seems appropriate for me to offer a rationale for my vote.
This is the first occasion on which the House of Commons will be voting on a sanction against a Member of Parliament, as recommended in a report of the Conflict of Interest and Ethics Commissioner, acting in his capacity as the enforcer of the Conflict of Interest Code for Members of the House of Commons. The Commissioner acts as a kind of court, and the House of Commons is, in essence, the court of appeal for his decisions.
All MPs are, therefore, acting in the role of judges in that appeal court, and it is normal for judges in appeal courts to offer reasons for their rulings. That is what I am doing here.
Summary of my reasons for voting ‘No.’
- An apology has already been offered to the House. Hence, this entire debate is moot.
- The Code gives no guidance as to what constitutes an “appropriate sanction.”
- Forced apologies are inappropriate and unparliamentary.
- No sanction should be meted out by the House without the matter being first submitted to the appropriate committee for proper investigation.
- The content and structure of the Maloney Report gives some indication that the Commissioner may be acting out of vindictiveness.
First reason for voting ‘No’:
The Debate, and the vote thereon, is moot.
On November 19 (the same day on which the Maloney Report was issued), Mr. Maloney rose in the House of Commons and offered the following apology:
Mr. Speaker, I rise on a point of order. The purpose of my intervention this afternoon is to address the House on the report tabled today by the Conflict of Interest and Ethics Commissioner. Throughout my 25 year career as a lawyer and my time as a member of Parliament, I have always taken my ethical and disclosure obligations seriously. I understand and accept the commissioner’s report that finds that I filed my complete disclosure statement past the required deadline. My initial disclosure statement was filed in January of this year with additional information provided more recently, and I apologize for not fully completing all of my disclosure obligations when I filed in January. I assure the House that it was not my intention, nor did I withhold any information.
This, then, is the first reason why I am voting against concurrence in the Commissioner’s report: The proposed sanction has already been executed, and the entire debate is moot.
Second reason for voting ‘No’:
The Conflict of Interest Code gives no guidance as to appropriate sanctions for breaches of the Code.
As Gilbert and Sullivan remind us in The Mikado, when an offence is committed, the punishment should fit the crime.
A quick review reveals that the Conflict of Interest Code contains no advice whatsoever as to what form or forms sanctions should take, other than that they should be “appropriate”. The absence of any definition of the word “appropriate” means that any recommended sanction whatsoever, regardless of its form or its severity, is inherently problematic. This is not the Commissioner’s fault. The failure is inherent in the Code itself, and is a reflection of the fact that the Code is still new enough that a punishment has never before been applied, to sanction a breach of subsection 20(1)(i). Circumstances have therefore left it to the Commissioner to invent a proposed sanction de novo, and to offer this sanction to the House of Commons for its consideration.
In part, therefore, my vote against concurrence is my way of weighing in on the question of whether, in the abstract, it is appropriate for a Commissioner to recommend to the House that a Member be instructed to apologize—or indeed, to recommend to the House any other category of sanction, from fines to expulsion, for any other breach of the Code.
I propose that this abstract question should be considered dispassionately—which is to say, without reference to
- this particular Commissioner;
- this particular Member; or
- this particular act of non-compliance with an obligation under the Code, as there are many other aspects of the Code, in addition to subsection 20(1)(i), which a Member might be found to have breached.
So I recommend that the Commissioner call upon the assistance of the Procedure and House Affairs Committee, to which all commissioners report as a matter of course. The committee could consider some options (including any which the commissioner might choose to recommend for the committee’s consideration), and could give him useful guidance.
The committee could even, if it chose to do so, present a report on possible sanctions to the House, and if the House were to concur in that report, there could be no further question as to the appropriateness of the sanctions thereby recommended.
Third reason for voting ‘No’:
Forced apologies are inappropriate and unparliamentary.
Were it the case that the Procedure and House Affairs Committee were presently seized with the task of suggesting appropriate sanctions under the Code, I would offer the following thoughts on the subject of forced apologies such as the one that the Commissioner has asked us to demand from Mr Maloney.
Forced apologies are, in my view, always a bad idea. A genuine apology is always offered freely and without compulsion, and signals sincere remorse or contrition, based upon the individual’s belief that he or she acted in a manner that violates his or her own personal code. The apologizing individual accepts that he or she has acted wrongly by the standards of this internalized code.
But a forced apology—which is what is here being proposed—is a very different thing. An individual who may not believe that he or she has acted in a manner that is morally wrong is required to proactively state that his or her own moral code has no objective validity. In the case of Mr Maloney, he is required to agree that in taking an action which seemed not to be wrong at the time, he or she was not merely out of step with the formalized Code that is enforced by the Commissioner, but also that a degree of moral guilt is added to the mix.
A Member thus sanctioned can, I suppose, refuse to make the apology, but presumably the punishment for this is the moral disapprobation or shunning that comes with the creation (via the unmet demand for an apology) of a new, secondary offence of having failed to act as instructed by the House.
This would be Mr. Maloney’s situation, if:
- a majority were to vote in favour of the demand for an apology; and
- he had not already made an apology.
But of what value is an apology, wrung from a Member (or, for that matter, wrung from a recalcitrant child who has been ordered by a parent to say sorry to little Johnny or little Jane)?
The extracted words are essentially a mandatory post facto plea of guilty to a charge, which amounts to a further admission that the Member’s previous attempts to plead not guilty were given in bad faith. It is, therefore, a way of forcing the person into silence. After all, how can one speak openly, and provide context or defence in the court of public opinion, when some prior court has forced the individual into a grovelling and insincere admission of guilt?
Forced apologies are best understood as acts of power, in which the powerful force those under their thumb to enter into an overtly hypocritical act of self-condemnation which relegates them to an inferior moral status. This is done as the price of avoiding further punishment. Demands for forced apologies exist only because the hypocrisy of the powerless party in the transaction, who admits guilt to save his skin, is more obvious than the hypocrisy of the person demanding the apology, whose real purpose, as often as not, is precisely to create this humiliating conundrum for his or her victim.
But, considered from a moral perspective, the hypocrisy of the powerful is always more deserving of contempt than that of the cringing victim of such abuse.
For this reason, Parliament simply does not engage in the practice of asking its members for apologies (although I note that in the House of Commons, apologies are routinely voluntarily offered—I have voluntarily apologized to the House on more than one occasion, and so have an untold number of other members; two members of the House voluntarily apologized to the House immediately following the very vote about which I am writing, for their behaviour toward one another during the vote itself). But demanding an apology is simply not done.
Members who use unparliamentary language, for example, are not asked to apologize for their words. Instead, they are asked to withdraw their words. It is sufficient to say, “Mr. / Madam Speaker, I withdraw the offending words,” and order is restored. To ask for apologies is traditionally seen, in the House of Commons, as a demand for public humiliation, which has the effect of heightening confrontational emotions rather than of restoring an emotionally-balanced environment in which debate can continue.
Fourth reason for voting ‘No’:
No sanction should be meted out by the House without the matter being first submitted to the appropriate committee for proper investigation.
There is a technical sense in which the House of Commons is, and always has been, a court. But a review of the history of the ancestor of Canada’s House of Commons (I speak, of course, of the Parliament in Westminster), shows that legislative bodies function poorly as courts of law. The long history of the use and misuse of Bills of Attainder to obtain convictions for treason provides all the evidence to this effect that could be wished for.
However, we are a collegial body. This means that the House of Commons nonetheless must find some way of acting as a court in matters respecting the behaviour of its Members.
The best way that seems to present itself is for the House to refer all such matters to some subsidiary agent or body. In the case of investigations, that agent is the Commissioner. In the case of any sanctions suggested by the Commissioner, it would seem most appropriate to submit the suggestion to a committee of the House of Commons. I suggest the Standing Committee on Procedure and House Affairs.
There are several reasons for making this suggestion.
First of all, a committee can determine whether or not it is appropriate to seek out additional information, including testimony from the Commissioner and the relevant Member, prior to endorsing or rejecting the sanction suggested by the Commissioner. In the case of the Maloney Report, it is clear that some additional information would definitely assist in making an informed decision, which the House cannot obtain except by means of reference to a committee.
Secondly, the Procedure and House Affairs Committee is in a position to go in camera (i.e. in private) to discuss elements of the decision—including considerations such as the ones that I am unwillingly forced to discuss openly in the section following this one—while protecting all those concerned. As a practical matter, the House of Commons is never in a position to go in camera.
Thirdly, this particular committee is better able, than the House as a whole, to operate on a non-partisan manner. A vote on partisan lines, on a matter of discipline, is undesirable. The Procedure and House Affairs Committee sometimes operates as a partisan body, but there are other cases where it operates in a non-partisan manner. In fifteen years serving on this committee, I learned that this was a source of great strength.
Fifth reason for voting ‘No’:
The Commissioner may be seeking this apology out of vindictiveness.
The content and structure of the Maloney Report gives some indication that the Commissioner may be demanding an apology to the House out of vindictiveness.
While the evidence does not definitively prove this hypothesis, I cannot concur unless and until the hypothesis has been proven to be in error. Such vindictiveness is a particular danger in an office which combines the investigatory / enforcement roles (which in our criminal and civil justice systems are functions left to the police) and the adjudicative function (normally carried out by the courts).
The existence of such an inherent internal conflict is obviously not the fault of the Commissioner himself, but of the way in which the Conflict of Interest Code is designed. But, as was revealed back in 2005 by the mess caused by a previous commissioner’s bungled investigation into our former colleague Deepak Obhrai, the potential for miscarriages of justice is much higher under this kind of hybrid process than under our tried-and-true civil and criminal judicial systems. The Commissioner’s Obhrai Report is linked HERE. Deepak Obhrai’s comments in the House of Commons, about the then-commissioner’s misuse of his powers is linked HERE. The report of the Committee on Procedure and House Affairs, finding that the Commissioner had violated the Code, and thereby had committed a contempt of the House, is linked HERE.
The parallels between that situation and this one are obviously not direct, and I am not accusing Commissioner Dion of having breached the Code, but I submit that the reasons for concern are not unrelated.
The Commissioner’s report was issued on November 19, 2020, and is the culmination of an investigation that the Commissioner instigated several months earlier, into the failure of Liberal MP James Maloney to comply with his obligations under subsection 20(1)(i) of the Conflict of Interest Code for Members of the House of Commons. This subsection states that all MPs must submit a completed “disclosure statement” of their financial assets within sixty days of their election or reelection to the House of Commons. (The Code is linked HERE.)
In the Maloney Report, the Commissioner states, “My inquiry found that Mr. Maloney had failed to file a complete Disclosure Statement within a reasonable time after his extended deadline for doing so had passed.” [see Executive Summary] Citing his authority under subsection 28(6) of the Code to “recommend appropriate sanctions,” the Commissioner concludes his report [at para. 59] by stating,
I recommend that the House require Mr. Maloney to present it with an apology for having failed to fulfil his obligations as a Member in the context of his initial compliance process under the Code.
I have doubts as to the compliance of the foregoing sentence with the rules of grammar. But what the Commissioner appears to be attempting to say is this: “Mr Maloney refused to comply with his reporting requirements under the Code until I told him I was going to launch an inquiry. Then he carried out his reporting obligations, as required under subsection 20(1). So he’s now in compliance with this requirement. But I think he should be sanctioned for his initial intransigence.” The Commissioner’s recommended sanction for this intransigence is that the House require Mr. Maloney to apologize.
To my ears, the Commissioner’s words (thus translated into a comprehensible sentence) sound vengeful and petty—particularly when one learns that:
- Mr Maloney submitted what he believed to be complete records to the Commissioner’s office, in the form of paper copies of all relevant records, on January 23 [at para. 11] (which was only seventeen days late, and which was at least a month in advance of five other Liberal MPs [at para. 18] and which seems likely to have been in advance of many MPs from other parties as well);
- The very next day, in an early stage of what became a protracted dispute between the Commissioner and Mr Maloney, the Commissioner’s office (through what was clearly an act of incompetence rather than malice) effectively made all of Mr. Maloney’s personal and private records public by scanning them electronically and then sending them to a non-private email address [at para. 11];
- When Mr Maloney requested a personal apology from the Commissioner, the Commissioner refused to meet with Mr Maloney, sending only written communication, and this only from underlings, rather than from the Commissioner himself [at para. 14, 15, 16];
- At the same time, the Commissioner’s office began reminding Mr Maloney regularly that he had not submitted his information in a satisfactory manner. [para. 17] The House is not privy to this correspondence, which is known only to the Commissioner and to Mr Maloney. So it may or may not be the case that Mr Maloney was made aware that there was only a single missing piece of information: “a missing financial statement for an account held by his spouse, which he had disclosed during his previous tenure as a Member.” [at para. 33] In other words, the Commissioner’s office expected Mr Maloney to provide an up-to-date statement for a single account that may or may not have contained a substantial amount of assets, and it may (or may not) be the case that the Commissioner’s office failed to disclose the precise nature of the missing document to Mr Maloney. Until I know that the facts in the case show the Commissioner’s office to have been fulsome in the disclosure of the missing information, I must accept that it is possible that Mr Maloney was sincere in his repeatedly-stated belief that he believed that he had made a full disclosure back on January 23.
- Other than this single statement (the absence of which may not have been made known to Mr Maloney until August), it appears that the dispute was over what the Commissioner characterizes as “five items of missing information.” [para. 16 & 20].
This choice of words appears to me to be artful, and may even be deliberately deceitful. Mr. Maloney indicated to the House on December 11th that in fact, the dispute was entirely over the fact that Mr Maloney had not ticked the ‘Yes’ or ‘No’ boxes for five ambiguously-worded questions on one of the many pages of the Commissioner’s disclosure form. Mr. Maloney claims that he refused to do so because he was uncertain which response would be correct—in short, he was anxious not to casually slip into lying in a written statement to a commissioner of the House. Mr Maloney may just be inventing this story, but as MPs, it is our custom to accept that all Honourable Members are telling the truth, and so I accept Mr Maloney at his word, and invite him to make public the evidence that would bear out his story.
I note that if it is the case that Mr Maloney was worried that the Commissioner might return to this five-question page at a later date and subject the disclosure statement to further scrutiny, then Mr Maloney had every reason to worry about the consequences of giving a definitive answer to an ambiguous question, which would provide the Commissioner with all the ammunition needed to make a future accusation that Mr Maloney was deliberately making a false statement.
Many MPs are puzzled by the forms sent to us by the Commissioner’s office, which are not always written as clearly as one might wish. Frankly, we all have reason to be worried on this count.
Of course, I do not actually assert that the Commissioner acted vindictively—merely that this is a viable hypothesis, for which additional evidence, one way or the other, could be provided only if the subject-matter of the Commissioner’s finding were turned over to the appropriate committee of the House of Commons.
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