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Chrétien was right: The Ethics Commissioner job is a mistake

It's not spelled out in her office's mandate, but federal Conflict of Interest and Ethics Commissioner Mary Dawson knows that a big part of her job is to serve as Parliament's ethical laundromat. The government drops its dirty clothes off at her door, and when the opposition complains about how filthy the Cabinet looks, everyone gets to yell at the cleaning staff.

But despite rising concerns about the advice she's been giving the government, the problem isn't with Ms. Dawson herself, it is built into the structure of the position she holds. And the more it becomes clear that she's going to be blamed by all sides for the deepening mess over Bill Morneau's financial arrangements, the more it looks like her office should never have been created in the first place.

It's worth tracing the convolutions of how we got here. In its 1993 Red Book election platform, the Liberal Party promised to restore integrity to government by appointing an independent ethics counsellor who would report directly to Parliament. But once in power, Jean Chrétien appointed Howard Wilson as a counsellor who reported not to Parliament but to the prime minister himself, on the grounds that he (Chrétien) alone was responsible for the ethical conduct of his government.

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Except by the late 1990s, federal politics was a toxic blend of Liberal arrogance and feckless opposition. With Parliament looking "Gritlocked," the idea took hold that it was beset by a clutch of institutional and electoral problems known as the "democratic deficit." In reality, the democratic deficit was little more than opposition code for Liberal hegemony, so fixing the democratic deficit meant limiting or hindering the power of the federal government. What the opposition could not do through normal political means it would do through the back door of institutional constraints and quasi-judicial oversight bodies.

Enter the idea of the Ethics Commissioner, who would be something like the Auditor-General, an independent officer of Parliament who could serve as a sort of forensic ethical accountant. They would investigate the government for all manner of moral transgressions, naming and shaming violators and enforcing sanctions.

What happened instead was the role was almost immediately turned into a parliamentary scold, serving first one partisan interest, then another. Recall what happened to Ms. Dawson's predecessor, Bernard Shapiro: After Stephen Harper became prime minister in 2006, he declared that he would not co-operate with Mr. Shapiro's investigation of David Emerson's day-after-the-election defection from the Liberals to the Conservatives. This led to howls from the media and commentariat for Mr. Shapiro's resignation, on the grounds that he had become hopelessly politicized.

In 2009, Ms. Dawson herself was served a blizzard of complaints about Conservative MPs using taxpayers' money for partisan purposes by putting their own names and – on at least two occasions – party logo on giant novelty stimulus cheques. "It is an ethical matter," thundered then-Liberal leader Michael Ignatieff.

Exactly. But as Ms. Dawson had to remind Parliament at the time, while her title contains the word "ethics," the government's ethics are actually outside of her mandate.

Jeffrey Simpson argued long ago in his book Spoils of Power whether certain forms of patronage or partisanship are ethical or not can't be decided by explicit rules or codes, but will instead have "much to do with the eye of the beholder, conditioned by the political culture of the country or the province," or even by the relative popularity of the government at a given moment.

That is why our traditional mechanism for holding governments accountable for their ethical behaviour is not independent oversight by officers of Parliament, but the adversarial cut and thrust of parliamentary debate. Through responsible opposition, we ensure responsible government. The Ethics Commissioner was designed from the beginning to serve a political function. The commissioner's role was to serve as a sort of proxy opposition, a way of checking a Liberal government that had no effective political counterweight.

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But Gritlock was instead cured by the rather obvious device of a united Conservative Party, and no one talks about the democratic deficit any more. Parliamentary government is unfolding as it should. The Ethics Commissioner is both an unnecessary intervention into the political process and a reminder of one of the most unpleasant periods of recent Canadian democracy. Jean Chrétien's first instincts were correct, and the position should be re-established as an ethics counsellor as soon as possible.

Andrew Potter is an associate professor at the McGill Institute for the Study of Canada.

Bill Morneau fights back as ethics accusations continue (The Canadian Press)
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