Ruby Dhalla and the ethics commissioner: looks like a dead end

Ruby Dhalla and her lawyer suggest new layers of complexity and even conspiracy in the story of allegations about caregivers her family employed. But don’t hold your breath waiting for the federal Conflict of Interest and Ethics Commissioner to step in to settle the matter.

At her news conference today, Dhalla’s lawyer again referred to her request for the commissioner to review the allegations against her. It certainly sounds like the sort of thing that would make sense. The problem is that MPs took steps last year to make sure the commissioner doesn’t have any clear mandate to look into this sort of affair.

The commissioner, Mary Dawson, has the power to hold inquiries into cases where MPs might have used public office to benefit their private interests. But the emphasis is squarely on conflict of interest—not the general ethical tone or, for that matter, the legality of an MP’s behaviour.

The Conflict of Interest Code for Members of the House of Commons details how an MP is prohibited from using public office to “further his or her private interests.” There’s no conflict of this sort suggested in any of the claims about how the Dhalla family’s former caregivers were treated.

Dawson’s office would only confirm to me that she is considering Dhalla’s request, and wouldn’t offer any help interpreting of how the code might—or might not—apply in this case. So I called Duff Conacher, the tireless head of Democracy Watch, who knows more about the conflict code than anybody else I know.

Conacher confirmed that there’s no obvious way for Dawson to take up Dhalla’s plea for an impartial inquiry into the matter. He points out an interesting wrinkle, though: up until last spring, when MPs changed the rules, Dawson just might have had leeway to examine a case like this one.

Here’s why. Before the code gets down to details, it opens with more general sections on “purposes” and “principles.” One of the principles spelled out is that MPs are expected “to perform their official duties and functions and arrange their private affairs in a manner that bears the closest public scrutiny, an obligation that may not be fully discharged by simply acting within the law.”

Now, a plain reading of that principle would suggest that Dawson might have conducted an inquiry to see if Dhalla’s private affairs stand up to such scrutiny.

Might have, that is, except that MPs on the House procedure committee last year added a clause to the code limiting the way the purposes and principles sections can be applied. Here’s the new part: “In interpreting and applying [MPs’] obligations under this Code, the Commissioner may have regard to the purposes and principles in sections 1 and 2.”

That means the purposes and principles are meant only to guide the commissioner in figuring out whether an MP might have violated the more precise conflict provisions spelled out in the “rules of conduct” part of the code. Violating a principle cannot itself be the subject of an investigation.

According to Conacher, then, the Dhalla case might have fallen under the code, had MPs not removed those principles from “the scope of the ethics commissioner’s investigation powers.” Why did the MPs do it? “They argued that [the principles] were just too vague,” he said. “Well, yes, some of them were. But they should have just amended them and taken out the vague wording.”

If Conacher is right, and it sounds to me like he probably is, then the Dhalla case might expose a glaring weakness in the code. If it does not allow for an investigation when an MP’s actions raise serious ethical questions, but which don’t happen to fit the definition of conflict of interest, then perhaps the code needs to be strengthened.

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