NOTES FOR A PRESENTATION
(Presented by the Delegation of Canada)

Notes for a presentation by Howard R. Wilson Ethics Counsellor to the OAS Symposium on Enhancing Probity in the Hemisphere.
Santiago, Chile November 4, 1998

In setting up this symposium, we were each asked to talk about our domestic practices in the field of ethics. A number of you may be familiar with my office but to give you a snapshot, the position of Ethics Counsellor was created four years ago by Prime Minister Chrtien. The mandate of my office is to deal with conflict of interest and other ethical issues for members of the federal cabinet, including the prime minister, ministers political staff and all senior public service appointments. In addition my office has responsibility for the Lobbyists Registration Act and the Lobbyists Code of Conduct.

I first want to address why we in Canada have established a special office. What is the harm we are trying to avoid? I very specifically did not use the word "evil". This is because corruption in its more traditional form: bribery, influence peddling; has been well covered for many years by our Criminal Code. This statute, which applies across the country, sets out appropriate penalties, including jail, for those outside government who attempt to suborn a public official or for those public officials who are prepared to betray criminally the public trust. Our police forces, prosecutors and the courts have a good record in dealing with these crimes. And this year bribery linked to activities abroad will be added to our powers because of our commitments to ratify both the Inter-American Convention against Corruption of the Organization of American States (OAS) and the Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions of the Organization for Economic Cooperation and Development (OECD).

In Canada and elsewhere criminal penalties were, in the past, considered totally sufficient to guarantee the protection of the public interest, but no longer is this the case. In Canada, as has happened elsewhere, there is a high degree of cynicism about the real objectives of those in public life. Questions are frequently raised about their integrity and concerns are expressed that decisions are more commonly influenced by private interests than by the public good. A democracy will not thrive and its public institutions will be severely weakened if governments cannot deal with this sense of mistrust; this cynicism about the motivations of public officials. It is in this sense that ethics in the public sector must be seen as a governance issue, affecting dramatically the ability of a government to maintain and enhance public confidence. This is the harm which must be addressed.

One extremely important lesson that we have learned from practice is that unless we can deal not only with actual but also apparent conflicts of interest, the system will fail. In political life, the appearance of a conflict is the reality. Failure to deal adequately with this can expose a public office holder to allegations which may be unfair or unsubstantiated but, in the absence of a convincing explanation, can be as damning and career limiting as an actual conflict. In a number of jurisdictions there is concern that attempting to deal with appearance is not only difficult but may be legally impossible. I have argued how essential it is to deal with this challenge and I believe, not just in common law countries, there is ample precedent in administrative law. The courts have had no difficulty in overturning the decisions of administrative tribunals if they find "apprehension of bias" on behalf of a tribunal member.

Our experience is that dealing with both actual and apparent conflicts can only be achieved through a proactive process or system which focuses on avoidance or prevention in advance of any perceived conflict - whether this involves economic or other private interests. This in simple terms means anticipating the areas of likely conflict and eliminating them so that any subsequent allegation cannot be sustained.

But setting up rules and procedures is not the way to begin. Some rules and procedures are clearly necessary. All successful systems, for example, will begin with disclosure. But these rules and procedures must be seen in a context. The public wants a clear indication of what is expected of those in public life. Public office holders themselves need a set of principles essential to provide broad guidance and direction; in other words a framework for decision-making.

In the case, our Code begins with a set of principles from which certain limited rules and procedures have been derived. There is a debate about whether ethical systems should be integrity-based versus compliance-based; an accent on principles versus an accent on rules. This is a false debate if these are seen as exclusive alternatives. They are not. There is a continuum but our experience in Canada is that it is absolutely fundamental and essential that Codes and other ethical systems be shaded to the integrity end of the spectrum.

We have attempted to do this by stating in our first principle that public office holders shall act with honesty and uphold the highest ethical standards so that public confidence and trust in the integrity, objectivity and impartiality of government are conserved and enhanced. This is taken a bit further by the second principle which states that public office holders have an obligation to perform their official duties and arrange their private affairs in a manner that will bear the closest public scrutiny, an obligation that is not fully discharged by simply acting within the law." The third principle goes on by saying that on appointment to office, and thereafter, public office holders shall arrange their private affairs in a manner that will prevent real, potential or apparent conflicts of interest from arising but if such a conflict does arise between the private interest of a public office holder and the official duties and responsibilities of that public office holder, the conflict shall be resolved in favour of the public interest."

From these three specific principles and the several others set out in our Code, we have established a limited set of rules and procedures. First, there is disclosure, primarily confidential, but some information must be publicly disclosed. Second, we set out a range of outside activities and investments which cannot be entered into by a public office holder. You may have noticed that I have said little about enforcement. In order to have a system where individuals feel free to openly disclose confidentially their private interests, we have found that the separation of an enforcement role versus an advisory or counselling role facilitates both the individual and the public interest in identifying in advance any problem areas.

Thus it is through the process of disclosure, the avoidance of certain activities, and the divestment of a range of assets that we have been able to respond to allegations of both real and apparent conflict. Most importantly, however, this has been in the context of a set of broader principles which are designed to instill in the public mind that those in public life must follow the highest possible public standards.

To sum up, the most important lesson we have learned from experience is that we must have the capacity to address the appearance as well as the reality of a conflict; that the key is to deal with these potential problems in advance and to do so within a framework which accents the importance of principles and not rules.

I would like to conclude with some comments about the Inter-American Convention Against Corruption. It is difficult to over emphasize the importance of this Convention to which Canada attaches a very high priority. The steps we are taking collectively against criminal activity including the bribery of foreign officials are essential. I do not, however, want us to forget the antecedents of this convention in Miami which put good governance at the centre of our concerns.

In the preamble of the Convention this is stated clearly:

CONVINCED that corruption undermines the legitimacy of public institutions and strikes at society, moral order and justice, as well as the comprehensive development of peoples;

CONSIDERING that representative democracy, an essential condition for stability, peace and development of the region, requires, by its nature, the combating of every form of corruption in the performance of public functions, as well acts of corruption specifically related to such performance;

PERSUADED that fighting corruption strengthens democratic institutions and prevents distortions in the economy, improprieties in public administration and damage to a societys moral fiber.

As important as dealing with criminal activity is, the value of the Convention will at the end be its assistance in achieving our final goal, the strengthening of the integrity of our democratic institutions. This is recognized in the opening comments of the Secretary General of the OAS, Csar Gaviria, when he placed emphasis on the establishment of an inter-American network to enable us to exchange information and achievements so that we can collectively obtain our goal.

This, I hope, will be one of the concrete results of the Symposium.