Exonerated

Ethics Commissioner Bernard Shapiro's report on David Emerson's crossing the floor to stay in Cabinet has cleared all involved, but at least he finally demonstrated some grasp of competence in identifying the real reason for the upset at the appointment:

My conclusion from the preliminary inquiry is that neither Mr. Harper nor Mr. Emerson contravened any of the specific Sections of the Members’ Code. I am satisfied that no special inducement was offered by Mr. Harper to convince Mr. Emerson to join his Cabinet and his party. In addition, there is no reason, and certainly no evidence, to contradict Mr. Emerson’s own claim that accepting Mr. Harper’s offer seemed, at least to him, a way to better serve his city, province and country. I therefore find no reason to pursue these matters further.

That having been said, I believe that the discontent expressed by Canadians on this matter cannot be attributed merely to the machinations of partisan politics. Fairly or unfairly, this particular instance has given many citizens a sense that their vote – the cornerstone of our democratic system – was somehow devalued, if not betrayed. Relative to the Office of the Ethics Commissioner, this disquiet is reflected in the gap between the values underlying the principles of the Members’ Code and the detailed conflict of interest rules within the Code itself. While I can administer the rules, the gap can only be addressed through rigorous political debate and the development, through the political process, of the appropriate policies to address it.

In other words, it's not up to Shapiro to decide about the propriety of floor-crossing, only to decide if the Code of Conduct was broken during the process.

And it wasn't:

All three members who requested an inquiry in relation to Mr. Harper have alleged that Section 8 of the Members’ Code has been breached:

“8. When performing parliamentary duties and functions, a Member shall not act in any way to further his or her private interests or those of a member of the Member’s family, or to improperly further another person’s private interests.”

For this Section to have any application in relation to Mr. Harper, one would have to conclude that in selecting the members of his Cabinet, the Prime Minister designate was actually performing a parliamentary duty or function. If this could be established, it would have to be determined whether on a balance of probabilities, Mr. Harper improperly furthered the private interests of another person in doing so. However, based on the separation of powers between the executive and legislative branches of government, it is clear that Mr. Harper, in his capacity as Prime Minister designate, was performing a constitutionally recognized executive function, and not an activity associated with his legislative duties or functions. I have therefore concluded that there is no contravention of this Section by Mr. Harper.

In the case of Mr. Emerson, the issue of whether he was performing parliamentary duties and functions must also be addressed. As well, one would have to consider whether it was Mr. Emerson’s intent to further his private interests in engaging in a discussion with the Prime Minister in relation to an appointment to Cabinet.

Each individual, on appointment to Cabinet, receives additional salary and benefits associated with the office (e.g. car, driver and ministerial staff). The increase in salary and benefits alone cannot be considered as an improper inducement. If it was, the appointment of any person to Cabinet could be considered suspect. However, what is important is the intent and the purpose associated with an offer to join Cabinet. Clearly, if the Prime Minister were to approach a member with an offer of a Cabinet position with the sole intent and specific purpose of acquiring that member’s vote directly linked to a parliamentary proceeding existing at that time, such conduct would be inappropriate and unacceptable. Conversely, if a member of the House were to approach the Prime Minister indicating that, in exchange for a Cabinet position, his or her vote could be acquired for the sole intent and specific purpose that is directly linked to a parliamentary proceeding existing at that time, that too, would be inappropriate and unacceptable.

In the present case, the activities of the 39th Parliament have not yet commenced. There were therefore no parliamentary proceedings at the time. Mr. Harper initiated and approached Mr. Emerson to join the new Cabinet. I am satisfied that the purpose and intent of the offer from Mr. Harper was not to acquire Mr. Emerson’s vote directly linked to an existing and specific parliamentary proceeding. Therefore, I have concluded that the conduct of Mr. Emerson did not contravene Section 8 of the Members’ Code.

Simply put: appointing a Cabinet is the Prime Minister's executive function, not legislative, and thus fell outside the ambit of the Code of Conduct. And the perks of office are not a sufficient inducement to sell one's vote, a vote which Emerson did not have to sell at the time.

But this sentence is the kicker:

Clearly, if the Prime Minister were to approach a member with an offer of a Cabinet position with the sole intent and specific purpose of acquiring that member’s vote directly linked to a parliamentary proceeding existing at that time, such conduct would be inappropriate and unacceptable.

Sounds like an oblique condemnation of the Belinda Stronach defection last spring. We underestimated Shapiro's willingness to gauge which way the wind's blowing, even for a Liberal partisan.

Source: Office of the Ethics Commissioner