Thread by @DavidHamer_1951

Here’s a lawyer’s very long thread on much that’s wrong with the Ethics Commissioner’s report, assembled after a very close reading.
#cdnpoli @JustinTrudeau

Top lines:
▪️Result-selective reasoning
▪️Conflict of Interest Act misinterpreted
▪️Shawcross misinterpreted
▪️Irrelevant facts considered, relevant ones ignored

First, some principles:

The Conflict of Interest Act is meant to prevent the improper furthering of private interests by elected politicians, not to govern interactions between politicians and Attorneys General

Interactions between AG's and politicians are governed by Shawcross, and not by the Act at all. Shawcross says:

It is the duty of an AG in deciding whether or not to authorise [a] prosecution, to acquaint [her]self with all the relevant facts, including … the effect which the prosecution ... would have upon public morale and order and with any other considerations affecting public policy.

Shawcross specifically allows politicians to engage in conversations with Attorneys General about public policy factors at play in particular prosecutions.

Shawcross prohibits politicians from directing Attorneys General to make given decisions in relation to particular prosecutions or applying ‘pressure’ in relation to same.

Shawcross explicitly recognizes the rare possibility of an Attorney General unreasonably refusing to consult with her Cabinet colleagues about a prosecution where she ought to. Unfortunately, Shawcross does not supply an explicit answer on what to do then.

To quote Sir Hartley Shawcross: ‘[s]he may, although I do not think [s]he is obliged to, consult with any of h[er] colleagues in the Government; and indeed, as Lord Simon once said, [s]he would in some cases be a fool if [s]he did not.’

And as Shawcross also said, and AG: ‘should absolutely decline to receive orders from the Prime Minister, or Cabinet or anybody else that [s]he shall prosecute. I would add to that that [s]he should also decline to receive orders that [s]he should not prosecute.'

This last is the true mischief at which the Shawcross doctrine strikes. The doctrine was never meant to pre-censor speech by untutored politicians to their Cabinet
colleague the AG or to lead to detailed parsing of their comments after the fact.

Rather it was meant to give the AG the power of independent decision, regardless of what consultations with Cabinet colleagues may have contained, which power (and duty) includes disregarding all partisan political considerations that might have come up.

Now to the report, and its result-selective reasoning. The only way in which the author could make a finding against the Prime Minister was to find a breach of the Conflict of Interest Act, which he was asked to do by a couple of opposition MP’s.

Having determined that their request was made under the wrong section of that Act, he took it upon himself to investigate under a different section, s. 9:

9. No public office holder shall ... seek to influence a decision of another person so as to further the public office holder’s private interests or those of the public office holder’s relatives or friends or to improperly further another person’s private interests.

The word ‘improperly’ is key - it modifies the words ‘further another person’s private interests’, not the phrase ‘seek to influence a decision’.

This may sound like lawyerly hairsplitting, but it’s not. Virtually all discussions within government involving public policy concerns will suggest furthering or not furthering particular private interests.

The Act catches only ‘improper’ furtherance of such interests, and never purports to target the discussions themselves.

That is why the section is worded so that decisions that would further the politician’s own private interests or those of his relatives and friends are caught regardless of whether the ‘furtherance’ would be improper.

At para. 296-301, the Commissioner parses at length the proper definition of the word ‘improper’, but nowhere does he actually pay attention to the context within which the word appears in section 9.

Instead, the Commissioner’s analysis effectively moves the word ‘improperly’ so that it modifies the words ‘seek to influence’.

It is as if the statute actually read: ‘‘No office holder shall use his position to seek improperly to influence a decision so as to further another person’s private interests’.

He then finds (incorrectly) that the communications between the PMO and the AG ‘seeking’ to influence the AG were improper under Shawcross rather than that the furtherance of SNC’s private interests would have been improper - see his para. 351 - manufacturing a breach of the Act.

In brief, to get to a negative finding against the PM, he misinterprets the Act, and then conflates that misinterpretation with Shawcross to find a breach. In law school we were taught to regard this as result-selective reasoning, or ‘bootstrapping’.

Next to Shawcross. The Commissioner’s misinterpretation of the doctrine is fatal to his report, even without his misinterpretation of the Act.

He ignores completely the situation obliquely contemplated by Sir Hartley, of an AG who unreasonably refuses to consult with her Cabinet colleagues, or to use Shawcross’ term, plays the ‘fool’.

We can be confident that if asked to elaborate, Sir Hartley would have said something like, ‘But of course the PM is in entitled to raise the matter with the AG himself, so long as he confines the conversation to consultation and does not demand a particular decision of the AG.’

On the facts found by the Commissioner here, it was entirely reasonable for the PM and his Cabinet colleagues to take the view that they had an unreasonable AG on their hands and that they were entitled, under Shawcross, to speak up within Shawcross bounds.

It was clear that this AG didn’t like the new DPA legislation before or after it was passed by parliament - see para. 44, describing her refusal to participate in the processing of the bill through Cabinet or parliament.

Even before the legislation came into force, she had her staff tell the PMO one day after receiving the DPP’s decision that she would not issue a directive overriding it, for the ridiculous reason ‘since no AG had ever issued a directive in a specific case’ - see para. 57.

Then when the suggestion of obtaining independent legal advice for the AG was raised, the AG focussed on the question of whether this had ever been done before - see para. 78-9. This is relation to the new DPA legislation that had itself never been used before in Canada!

In addition, the AG raised silly objections that an external legal advisor would need to be ‘trusted to safeguard information of a sensitive nature’ - see para. 80. As if solicitor client privilege would not exist between the AG and, say, former Chief Justice Beverley McLachlin?

People will debate til eternity whether the PMO’s communications with this AG amounted to Shawcross ‘pressure’ or mere ‘consultation’. Knowing this, the Commissioner finesses the issue by calling them ‘tantamount to political direction’ - see para. 325

This is the most outrageous stretch in the whole piece. Knowing that Shawcross draws hard-to-define distinctions among consultation, pressure, and direction, the Commissioner just ignores them, and calls it all ‘political direction’

This, despite his admission in the very same paragraph ‘that Ms Wilson-Raybould was not directed to intervene’ - see para. 325

The final defect in the Commissioner’s Shawcross analysis is his treatment of the AG as passive victim. He ignores entirely the AG’s true role as quasi-judicial recipient of input who is entrusted with screening out the merely partisan from true public interest concerns.

That is the AG’s whole job in Shawcross situations and the doctrine was never intended to compel other Cabinet officers to apply rigid self-censorship in their comments during consultation. See para. 325-334.

And last of all to irrelevant and relevant considerations. The report is full of atmospheric narrative calculated to predispose the reader to accept its deeply flawed analysis of the true merits.

For example, the Commissioner tells us at length about the legislative history of the new DPA provisions and SNC’s lobbying in relation thereto, which have nothing to do with whether the PM breached the Conflict of Interest Act many months later - see para. 44-50

Apart from allowing himself to cast the saintly AG as a lone opponent of the new legislation and casting shade on it as having been rushed, there was no reason for the Commissioner to recite this history.

Having set the tone, the Commissioner baldly refuses to take into account anything about the manner in which the AG conducted herself in reaching her so-called final DPA decision or in interacting with her Cabinet colleagues - see para. 249-251.

He thereby forestalls any consideration of whether, under Shawcross, the government found itself faced with an AG acting foolishly. Result-selective again.

On this analysis, AG’s are entitled to act as unreasonably or foolishly as they wish, refusing to consult with anyone, and be protected by an absolute discretion in relation to prosecutorial decisions.

Perhaps the most egregious example of atmospheric technique comes with a flat-out error of fact:

In irrelevantly criticizing staffers for obtaining legal opinions from two former Supreme Court judges, the Commissioner claims that the suggestion of independent advice from former CJC McLachlin was made to the AG ‘all the while knowing the advice that would be given’ -para. 278

In fact, there is no evidence whatsoever that the former CJC had given any advice at all - the only known advice came from former Justices Iacobucci and Major, and not from Justice McLachlin at all - see para. 272

In summary, a flawed legal analysis, a one-sided review of the facts, and enough consideration of irrelevant factors and dismissal of relevant ones to give rise, in the mind of a right-thinking person, to a reasonable apprehension of bias.

Addendum - Here is the UK Hansard report of Sir Hartley Shawcross’ speech laying down his famous doctrine. Note that it was in response to a question, and that in his answer, he actually explains some of his prosecutorial decisions publicly. #cdnpoli
api.parliament.uk/historic-hansa…