Morneau should watch his back in light of RCMP investigation
Bill Morneau would be well advised to watch his back now that the RCMP has confirmed that it is “examining” the federal government’s now infamous decision to award WE Charity control of a $543.5-million federal student grant program.
The RCMP, as they like to say, always gets their man. And that man might just be Canada’s former minister of finance.
Recently released documents and emails paint a picture of an overly cozy relationship between Morneau and his “besties“ at the WE organization. But this was no surprise. We already knew that the web of connections between the WE organization and Morneau ran deep.
Former WE employees say they were told to attend Morneau’s political events. One of Morneau’s daughters was a paid employee of the charity. His other daughter wrote a book about her volunteer work for WE that received an endorsement from Mark Kielburger. And Morneau was front and centre in 2019 when the government announced a $3-million “investment” in WE so it could “help young entrepreneurs.”
So, when cabinet was considering handing control of hundreds of millions of dollars to WE, Morneau shouldn’t have been anywhere near the decision.
Morneau didn’t recuse himself from the cabinet decision and later offered the weakest of apologies, saying, “Given the fact that my daughter works for the organization in an unrelated branch, I now realize I should have [recused myself] in order to avoid any perception of conflict. I apologize for not doing so, and moving forward, I will recuse myself from any future discussions related to WE.”
Morneau’s conflict was more than just perception.
Besties shouldn’t award besties half-billion-dollar contracts.
All of this is unseemly, and it won’t be a surprise if Morneau is found guilty of unethical behaviour under the Conflict of Interest Act and receives the maximum penalty: a $500 fine.
If simple bad ethics was criminal, Parliament Hill would turn into a prison camp.
It appears, however, that Morneau may be guilty of more than bad ethics.
The most damning evidence of potential criminality came from Morneau himself.
While testifying at the House of Commons committee hearing, Morneau disclosed that in 2017 he and his family traveled with WE to Kenya and Ecuador. Morneau says that he paid for his own expenses but was “unable to locate receipts for any expenses related to WE programming, including accommodation.”
Morneau went on to claim he had always intended to pay back the money and simply forgot. His apologies and explanations sounded more and more like a confession.
Section 121(1)(c) of the Criminal Code makes it a crime for a government employee or official to accept a benefit of any kind from someone who has dealings with the government.
The broad wording of this criminal offence is intended to prevent even the appearance of impropriety.
As the Ontario Court of Appeal said when considering section 121, “Canadian courts have repeatedly recognized that s. 121(1)(c) exists to preserve both the integrity of the public service and the appearance of integrity of the public service. The government’s business must be free from any suggestion of ‘under-the-table’ rewards or benefits made to those who conduct business on behalf of the government by those who stand to gain from those dealings.”
There doesn’t need to be quid pro quo or corrupt intent. The mere fact a benefit was received is enough.
WE had business dealings with the government, and Morneau appears to have received benefits from WE.
Long story short, there are reasonable and probably grounds to believe that Morneau broke the law.
Politicians must be held to a higher standard, as the Supreme Court of Canada found in í.
“In my view, given the heavy trust and responsibility taken on by the holding of a public office or employ, it is appropriate that government officials are correspondingly held to codes of conduct which, for an ordinary person, would be quite severe,” wrote Justice Claire L’Heureux-Dubé. “For the public, who is the ultimate beneficiary of honest government, it is not so easy to sort out which benefits are legitimate and which are laden with a sinister motivation. Moreover, it is inefficient for a government to be paralyzed by rumour and innuendo while an inquiry is made into the motivation behind a certain benefit or advantage conferred on an official.” [emphasis added]
If nothing else the WE scandal has paralyzed the government and shaken the public’s faith in the democratic process.
The appearance of integrity is not a laughing matter that can be dismissed by the three-year-late reimbursement. The democratic process can be harmed just as easily by the appearance of impropriety as by impropriety itself.
There may well be defences available to Morneau, but this is a matter for the courts to weigh.
Section 121 allows officials to accept benefits if they have the written permission of the head of the branch of government with which the dealings take place.
Maybe Morneau could have given himself written permission for the benefits he and his family received. But he didn’t; that would have required reflection and transparency at the time the benefits were received, which Morneau seems incapable of in his entanglements with WE.
Maybe Morneau could claim that he never intended to receive a benefit. But this defence hangs on Morneau’s credibility, which is seriously in question.
Recent history has shown that criminal convictions for misconduct by government officials are very difficult to obtain. Senator Mike Duffy was found not guilty of a similar allegation because his money man, Nigel Wright, didn’t have “business dealings” with the government.
The same can’t be said for WE.
The case against Morneau is stronger than it was against Duffy, and if there were grounds to charge Duffy there are certainly grounds to charge Morneau.
The next time Morneau gives testimony may very well be at his own criminal trial.
This opinion first appeared in Canadian Lawyer