It could be a House of Cards political thriller: A high-ranking elected official and his family are wined and dined by a rich and powerful foreign agent who does business with the government.
It could be a House of Cards political thriller: A high-ranking elected official and his family are wined and dined by a rich and powerful foreign agent who does business with the government. The official and his family are whisked away in a private aircraft to a luxurious private island for lavish vacations. All of this was, of course, done in secret with only whispers about its impropriety until a crack reporter breaks the story wide open.
But that plot is too eye-rolling and on the nose to ever make it off the writers’ room floor, except that it all really happened. We are, of course, talking about Justin Trudeau, the Prime Minister of Canada and the Aga Khan.
On Dec. 20, 2017, the Office of the Conflict of Interest and Ethics Commissioner released The Trudeau Report, finding that the prime minister had breached multiple sections of the Conflict of Interest Act. It was lamented by some that the toothless legislation allows Trudeau to escape without any consequences. Although it is true that Trudeau’s offences may go unpunished by the ethics commissioner, there may still be consequences — and as first raised by law professor Peter Sankoff, it may be wise for Trudeau hire a criminal lawyer.
The bottom line is that a government official simply can’t take personal benefits from people who do business with the government. That’s a crime. Yes, get ready for Mike Duffy, Part II. Only this time, the case against Trudeau seems like it may be stronger than it was against the ’Ol Duff.
Let’s take a step back and look at the black-letter law. Section 121(1)(c) of the Criminal Code makes it a crime for any official of the government to directly or indirectly accept an advantage or benefit of any kind from a person who has dealings with the government.
Duffy was charged under this section for accepting the now-infamous $90,000 cheque from Nigel Wright to repay his dubious housing claims. But at Duffy’s trial, the court found that Wright, as Steven Harper’s chief of staff, did not have true business dealings with the government and that the real benefit (avoiding political embarrassment) flowed not to Duffy but to the Prime Minister’s Office and the Conservative Party. Duffy was found not guilty of the charge.
The Duffy affair was a convoluted mess of backroom deals and political tactics, which made the investigation and prosecution difficult. Unfortunately for Trudeau, his potential offence is much more straightforward and the ethics commissioner’s report could lay out a road map for the RCMP and prosecutors.
So, let’s break down the potential offence using the ethics commissioner’s report.
Did Trudeau receive a benefit from the Aga Khan? It sure seems like he did. The ethics commissioner’s report found that not only did Trudeau and his family spend their 2016 Christmas break on the Aga Khan’s private island but he had also vacationed there in December, 2014 and members of Trudeau’s family had accepted another vacation there in March, 2016. Clearly, Trudeau accepted a gift, in the form of multiple lavish vacations, from the Aga Khan. These gifts were not small trinkets or mere tokens and, unlike in Duffy’s case, the benefit flowed directly to Trudeau and his family.
Did the Aga Khan have dealings with the government? There could be some debate here. It is true that everyone has dealings of one kind or another with the government, but the Supreme Court in the case of Hinchey defined the term “dealings” narrowly to only include commercial dealings. The Aga Khan is not the typical commercial businessman, but the ethics commissioner’s report does provide grounds to suggest that Trudeau may be on the wrong side of the law.
The ethics commissioner found that the evidence “clearly shows that there was ongoing official business between the Government of Canada and the Aga Khan.” An important factor in that finding may be the fact that the Aga Khan Foundation is registered to lobby the Office of the Prime Minister. There can be no doubt that, as the commissioner finds, there was a “long-standing mutually beneficial relationship” between the Canadian government and the Aga Khan.
So, the question is: Would charitable work be a form of commercial dealing when the Government of Canada has funded projects of the Aga Khan Foundation to the tune of nearly $330 million? In this context, the Aga Kahn’s dealings with the government sure look more business-like than Nigel Wright’s did.
There is no requirement that there was any quid pro quo. There is no requirement that Trudeau participated in any debate or votes in the House of Commons related to the Aga Khan or was actually influenced by the benefits. There is no requirement of ill motive on Trudeau’s part. The Supreme Court put it very plainly: “[I]t is appropriate that government officials are correspondingly held to codes of conduct which, for an ordinary person, would be quite severe.” Criminal damage is done when the benefit is conferred and not as the Supreme Court says, “after an ex post facto analysis which demonstrates that no harm was intended.”
Trudeau has claimed that the Aga Khan was his friend — it does not matter. It may be said that Trudeau did not know he was committing a criminal act — ignorance of the law is not a defence. It may be argued that the law is an ass — in this case, that may be true (hint: it’s time for the government to revive the Law Reform Commission to review and modernize the Criminal Code).
But none of these arguments is a legal defence. Make no mistake, a prosecution of Trudeau may not be appropriate and certainly would not be a slam dunk. There are many technical arguments that could be raised at trial.
For example, s. 121(1)(c) of the Criminal Code does have a safety valve — a benefit can be received if the employee gets written permission from their boss. It has been suggested that Trudeau could have written his own get-out-of-jail-free card. This would have provided a transparent and immunizing self-accounting of why Trudeau took the trip and why he thought his actions were appropriate. This was the type of transparency promised during the election campaign — but so far there is no indication that any such letter was ever written.
The purpose of s. 121(1)(c) is to deter those in positions of power from accepting benefits that could create an appearance of impropriety. That is also precisely the same rationale behind s. 11(1) of the Conflict of Interest Act. In finding Trudeau violated s. 11(1) the Ethics Commissioner said that “the vacations accepted by Mr. Trudeau or his family might reasonably be seen to have been given to influence Mr. Trudeau.”
The findings of the ethics commissioner are not the findings of a criminal court. Trudeau is presumed innocent and may well actually be innocent of any criminal wrong-doing. There could be arguments that it is not in the public interest to lay criminal charges in this case. This may be a case of a technical breach of an outdated law that is badly in need of reform. Or maybe not. Every case is different, but it is clear that Trudeau is not Mike Duffy and the Aga Khan is not Nigel Wright.
But the question needs to be asked: If there were grounds to charge Duffy, are there not grounds to charge the prime minister?