Why I voted against concurrence in the Ethics Commissioner’s Maloney ReportFebruary 19, 2021
Why I am voting against concurrence in the Ethics Commissioner’s Maloney Report
Today (February 19, 2021), the House of Commons voted on a motion (which had been 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 Liberal MP James 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.
(The Code is linked HERE.)
Today I voted against concurrence in this report. This essay explains why.
Why I chose to write this essay.
Given the unusual nature of this vote, it seems appropriate for me to explain why I voted No.
This is the first occasion on which the House of Commons has voted on a recommendation of the Conflict of Interest and Ethics Commissioner to sanction against a Member of Parliament. When the Commissioner acts in his capacity as the enforcer of the Conflict of Interest Code for Members of the House of Commons, he performs a role roughly akin to that of a court.
The House of Commons is, in essence, the court of appeal for his decisions. All MPs therefore find themselves acting in the role of judges in that appeal court. 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 empowers the Commissioner to recommend “appropriate sanctions,” but gives no guidance as to what constitutes an “appropriate sanction.”
- Forced apologies are unparliamentary. Therefore they are not an appropriate sanction.
- 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 voted 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. Subsection 28(5) and 28(6) of he Conflict of Interest Code says the same thing, less musically:
(5) If the commissioner concludes that a member has not complied with an obligation under this code but that the member took all reasonable measures to prevent the non-compliance, or that the non-compliance was trivial or occurred through inadvertence or an error in judgment made in good faith, the commissioner shall so state in the report and may recommend that no sanction be imposed.
(6) If the commissioner concludes that a member has not complied with an obligation under this code, and that none of the circumstances in subsection (5) apply … the commissioner shall so state in the report and may recommend appropriate sanctions.
A quick review reveals, however, 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 to the Commissioner that he 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 unparliamentary. Therefore they are not an appropriate sanction.
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.
Forced apologies are, in my view, always a bad idea.
A genuine apology is always offered freely and without compulsion. An apology, when given without compulsion, signals sincere remorse or contrition. This contrition is an outward expression of the individual’s sincere belief, upon reflection, that he or she has acted in a manner that violates his or her own personal code of behaviour. The apologizing individual accepts that he or she has acted wrongly by the standards of this internalized code. In making the apology, the individual publicly condemns the previous action or the state of mind that led to the action. He or she does not self-condemn. Thus, the individual’s moral standing in the community is enhanced, rather than degraded, by the apology.
But a forced apology—which is what is here being proposed—is a very different thing. An individual may not, at the moment that the apology is extracted, believe that he or she was in the wrong. Thus, in making the apology, he or she is required to proactively state, in effect, that his or her own moral code has no objective validity.
In the case of Mr Maloney, the Commissioner’s recommendation would force him to publicly agree that he was morally in the wrong in taking an action, with regard to his obligations under subsection 20(1)(i) of the Code which did not seem to him at the time to be wrong. He would be forced to say, in front of us all, that he violated the terms of the Code, but to agree with the Commissioner’s opinion that he did so in a way that is not excusable on the basis of one of the three grounds listed in subsection 28(5) of the Code. (The three saving conditions, as noted in the subsection, which is quoted above, are that the offence is trivial, that it occurred through inadvertence, or that it was due to an error in judgment made in good faith.)
Leaving aside the rather material consideration–which I will explore below–that the facts of this case lead me to believe that Mr. Maloney’s non-compliance may well be excused on the basis of all three of these mitigating factors, it is clear that the expectation that he apologize ignores the possibility that he himself sincerely believes that he did no wrong.
Note that this problem does not arise in a circumstance in which no apology is expected, and the person who has been found guilty of violating the Code is expected to pay a fine, or to face some other form of entirely external sanction. I can pay a parking ticket or even serve a jail term while still protesting my innocence. My right to do so is a very significant right, and is essential to my dignity.
After being thus sanctioned Mr Maloney or someone else in his situation could, I suppose, refuse to make the apology. But presumably this refusal triggers a new punishment in the form of 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. For an MP seeking reelection, this could prove fatal.
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 Guilty plea. This amounts to a forced admission by the Member that his or her previous attempts to plead Not Guilty were given in bad faith. It is, therefore, a way of stripping away the Member’s ability to say that there’s another side to the story, or even (as ought to be his or her right) to continue to maintain that he or she isn’t guilty at all. We don’t take this right away from persons convicted of murder. Why, then, force an MP who may have failed to comply with subsection 20(1)(i) of the Conflict of Interest Code for Members of the House of Commons into a grovelling and insincere admission of guilt?
It may be the case that forced apologies are meted out by officials who purport to enforce rules of justice. But forced apologies have nothing to do with justice. They are best understood as acts of power. The person with the power forces the unfortunate person under his or her thumb to enter into an overtly hypocritical act of self-condemnation which is intended to relegate that person to an inferior moral status in the eyes of the community. The victim of a demand to apologize complies, as I have noted above, only because this is the only way of avoiding further de facto punishment.
I will go further: Demands for forced apologies can exist at all only because the hypocrisy of the powerless party in the transaction, who admits guilt to save his skin, is obvious, while the hypocrisy of the person demanding the apology is not. But, considered from a moral perspective, the hypocrisy of the powerful is, always and invariably, more deserving of contempt than that of the cringing victims 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, in the name of the House of Commons itself, 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 for the MP who has given offence 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. All members are honourable members, and are always referred to as such. We rely on each other’s sense of honour, and each of us relies upon the continued respect of our colleagues. This balance has worked well for a very, very long time, in dozens of Westminster-derived parliaments across the globe, and it improves with age. We should not upset it.
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.
Nonetheless, 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 (which, as I suggested earlier, could also assist in providing general guidelines for the Commissioner’s use).
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 for the committee.
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 towards Mr Maloney.
While the evidence does not definitively prove this hypothesis, I could not concur in the Commissioner’s report unless and until the hypothesis had 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 Maloney Report was issued on November 19, 2020, and is the culmination of an investigation that the Commissioner had instigated several months earlier, into Mr Maloney’s failure 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.
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 the report’s 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:
(1) 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]. This means that Mr Maloney 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, as well, to have been in advance of many MPs from other parties;
(2) 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];
(3) 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];
(4) At the same time, the Commissioner’s office began reminding Mr Maloney regularly, via email, that he had not submitted his information in a satisfactory manner. [para. 17]
The House is not privy to this email 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 he had failed to submit only a single 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 to Mr Maloney what it was looking for. 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.
(5) 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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