This past week Canada’s Ethics Commissioner, former McGill Principal Bernard Shapiro, told a House of Commons Committee that he, frankly, was “struggling” with the problem of connecting the theory and the actual practice of holding our public officials accountable to an ethical standard. It was a stunning admission. If Shapiro can’t grasp the basic concepts he must enforce, it begs the question of why he was appointed in the first place. But then since the Ethics Commissioner is really under the control of the Prime Minister and not Parliament, why should we be surprised. This is just the kind of mindset any Prime Minister would wish for. A “Bambi on ice” as the National Post’s John Ivison so pithily wrote. What better metaphor for the True North’s public protector.
But there are still many of us who happen to have an idea of what that responsibility entails. Many of us who still engage in public affairs and vigorously advocate that Parliamentarians stop surrendering their imperatives to publicly unaccountable judges and bureaucrats. Many of us who bear a very important title in this land – that of Citizen – and demand that the sovereignty of our suffrage over our government remains secure and is not subverted by the tyranny of the mediocre. As Herbert Spencer wrote so long ago, “The ultimate result of shielding public officials from their own folly is to fill our society with fools.” It is to be hoped that Canadians have retained enough pride and purpose to resent being taken for fools.
Public ethics must be guided by three overriding principles. The first is that public officials should strive to achieve the greatest good for the greatest number. The second is that their actions be devoid of special consideration to privilege or preference. The third is that while acting for the benefit of the greatest number, they protect the rights of the smallest dissenter. Is that clear enough Mr. Shapiro?
Shapiro, named ethics czar by the Liberals last year, has been asked in recent months to look into at least two cases of alleged conflict of interest in the Liberal cabinet. He has not released final reports in either case. In addition, he has admitted that there is no excuse for the nine month long delay in his report on Ministers and MP’s financial disclosure statements. He is either a bumbling foot-dragger or a totally manipulated pawn.
The NDP charges Shapiro has declined to expand an inquiry into the controversial Grewal tapes affair to include the Prime Minister. They have demanded an explanation, and Ed Broadbent says he will formally call for Shapiro's resignation. He has also criticized Shapiro's failure to establish criteria for investments the Prime Minister can make, exempting ex-ministers for lobbying and misleading the House of Commons in the Judy Sgro affair.
Conservative deputy leader Peter MacKay threw his weight behind the growing push to oust the commissioner. "Mr. Shapiro seems to be demonstrating daily that he's just as anemic as his predecessor," MacKay said. "He's a wet noodle. And yes, I think he should resign. I think we should have someone there who's competent, independent and prepared to hold to account government officials that were involved in what appears to be a vote-buying exercise in return for cabinet positions." MacKay said the fact Shapiro doesn't see any merit in launching a probe of the Prime Minister shows he has a "very convoluted view" of what's ethical.
Disdain for Shapiro's performance is not limited to opposition MPs. The National Post has reported that Duff Conacher, spokesman for the public interest group Democracy Watch, is even more critical. "I think it's generous to say incompetence when it amounts to bias." The group plans to press Shapiro to step aside while his work over the last year is independently reviewed. If he refuses, Democracy Watch will ask a court to order such a probe by the end of July. Conacher told the Post that Shapiro has shown a disturbing tendency to protect public officials rather than investigate legitimate complaints of rule-breaking.
Conacher’s comments bear a special weight because Democracy Watch won the first-ever court challenge of a Canadian government's ethics enforcement system. The Federal Court decision in Democracy Watch v. Office of the Ethics Counsellor (July 9, 2004), questioned not only the rulings of the federal Ethics Counsellor, but the very structure of the Ethics Counsellor office itself.
At the House Committee hearing, MPs grilled Shapiro for nearly two hours and in another remarkably revealing statement he said that, "I'm learning as I go along." He also seemed to do an about face suggesting he was now prepared to investigate Martin’s Chief of Staff Tim Murphy on possible vote buying irregularities in the Grewal Affair.
It is time Mr. Shapiro began to recognize some harsh realities.
If his boss, Prime Minister Martin, was “mad as hell” about the sponsorship mess, there are a lot of Canadians out there just as mad about other abuses. There are just as many, just as mad, about an administration that will not hesitate to usurp rule of law and cast aside Charter protections of fundamental justice, just to deflect from its own conflicts of interest. Just as many, just as mad about an administration that is now being recognized more for its subservience to the privileged than for its service to the people. Just as many, just as mad about an administration that will not hesitate to break rule and regulation, compromise law and legislation, and damage people and principle, in its transparent desperation to hold power for power’s sake. And just as many, just as mad about an administration that has centralized executive authority to such an extreme that our elected representatives have become impotent.
We have focused so much attention on the sponsorship affair, just as this administration planned, that we are in danger of missing the real threats that may yet turn Canada from a controlled democracy into a real banana republic run by corporate oligarchs. Dirty money is a problem in political life that will always be something to guard against. But every liberal democracy in the west has a money scandal going on at any given time. They seem to survive them quite well.
The real danger is not recognizing, and not acting upon, the quantitative and qualitative differences between specific government initiatives exploited by greed and waste during their execution, and continuing and systematic patterns of manipulation of the instruments of the legal order on the basis of rule, not exception. The latter is what we are seeing now and the latter is what Bernard Shapiro is failing to protect the commonweal from.
The hidden agenda of this administration - its very own “democratic deficit” - corrupting the foundational principles of our democracy, is what really threatens our Northern Dominion. And the actions of this administration will have a greater systemic destructiveness than any monetary malfeasance that may have been uncovered in the Gomery Inquiry.
Justice William O. Douglas once wrote that “In a civilized society the means are all important. It may seem inconsequential that ends are accomplished through questionable means, but in the sweep of history a country that accepts indiscriminate practices as normal, has no claim to a position of moral leadership among the nations.” This is the crux of what Bernard Shapiro needs to understand in his search to reconcile “the theory and practice” of what constitutes ethical behaviour.
How Bernard Shapiro, or any successor, responds to this challenge will determine much of Canada’s fate. In times of crisis such as these, no man in Shapiro’s position can be allowed to get away with saying he is learning as he goes along. The anti-Nazi German philosopher Kurt Tucholsky put it quite succinctly. “The condition of all human ethics can be summed up in two sentences: We ought to. But we don't.” Let’s all make sure Shapiro and his bosses do.
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