What Don’t You Understand About Apprehension of Bias?

This post is a detour from my series on section 3 of the Canadian Charter of Rights and Freedoms and the Superior Court of Justice and Court of Appeal Working Families decisions (see here and here (SCJ) and here (ONCA)). (See those posts here, here, here and here). In this post I provide some thoughts about a way to think about “the special rapporteur affair”.

Several years ago I had a somewhat mystifying conversation with an American friend who owned his own law-related business. We somehow began talking about unethical behaviour, something close to conflict of interest. He had mentioned a board member of an organization who had sold his product to the organization. I was aghast. To him, though, this apparent self-dealing just made sense. The board member benefitted because he made money and the organization benefitted because they knew the guy and were able to get a good deal on the product. The conversation was mystifying because my friend and I had such different takes on the same issue, one I thought had pretty clear parameters.

We seemed to be talking at odds with one another and at some point, I realized that we really were at odds. Despite his legal training, he was thinking like a business person, while I was thinking like a person trained in law.

Our conversation has resurfaced in my mind as I try to understand why former Governor General (and Dean of Law) David Johnston and Prime Minister Justin Trudeau just “don’t get it”: “it” being why there is so much criticism of the latter’s selection of the former as special rapporteur into foreign interference in Canadian elections.

My friend was simply doing what anyone in business would do, while for me the same behaviour would raise serious ethical concerns. For him, benefitting from a friendship (business or personal) was what you did (especially if your friend seemed to be above reproach), whereas for me, depending on context, it might well raise at least the perception of a conflict or a reasonable apprehension of bias regardless of reputation.

The legal world is helpful in understanding how conflicts or reasonable apprehension of bias might arise and in appreciating the values that underlie the rules. Thinking about the rules in a general sense might be helpful in understanding the mayhem surrounding Trudeau’s appointment of Johnston as the “special rapporteur” to investigate the apparent foreign interference in Canadian elections.

The Law Society of Ontario’s definition of “conflict of interest” is as follows:

the existence of a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person.

For example, a lawyer moving from one firm to another might find herself expected to participate in a case in which she was involved in her former firm; this might raise questions of confidentiality, as well as adherence to other law society rules (R. v. Neil; Rules 3.4-17 to 3.4-23 of the Law Society of Ontario’s Rules of Professional Conduct [“LSO’s Rules”]). The rule against representing both parties in a family proceeding or against representing more than one accused once it becomes clear that the accuseds’ interests are opposition is also founded in avoidance of a conflict of interest (Rule 3.4-1 of the LSO’s Rules).

A review of Rule 3.4-1 indicates how complex identifying, avoiding and keeping on top of possible conflicts can be. But Rule 3.4-2 permits some of these circumstances if informed consent is obtained.

Reasonable apprehension of bias may arise in relation to an adjudicator. The test in Committee for Justice and Liberty et al v. National Energy Board et al remains the standard for determining whether an adjudicator has a reasonable apprehension or reasonable likelihood of bias warranting recusal. Chief Justice Laskin stated it this way: that there is “a reasonable apprehension, which reasonably well-informed persons could properly have, of a biased appraisal and judgment of the issues to be determined” (p. 391).

However, the generally accepted formulation of the test was by Grandpré J. (in dissent) at p.394:

…[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the [Federal] Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the adjudicator], whether consciously or unconsciously, would not decide fairly.”

Furthermore, strikingly, the person described in the test is not someone with a “very sensitive or scrupulous conscience”: rather, it is someone who is informed, realistic and practical”. (This is a delicious distinction, I think.) The standard does not demand too much of someone facing the possibility of being in conflict.

All these various requirements in law come down to representing the client appropriately, not being torn between different demands and promoting a fair hearing.

In law, failure to observe these requirements might mean removal from a case, having a judicial decision overturned or more. The sanctions are designed to emphasize how important abiding by the rules is.

In reality, things are not always as straightforward as rules imply. Reasonable people can disagree on whether a particular situation or set of facts does create a conflict or even a perception of a conflict. And the reason for the impugned conduct might matter (or not).

As for the Prime Minister, he is subject to the federal Conflict of Interest Act, which is designed to address conflicts of interest in relation to the “private interests” of various office holders.

“Private interest” is defined by exclusion; it “does not include an interest in a decision or matter (a) that is of general application; (b) that affects a public office holder as one of a broad class of persons; or (c)that concerns the remuneration or benefits received by virtue of being a public office holder.”

Three ways in which conflicts of interests are recognized under the Act are when the office holder exercises “an official power, duty or function” which would provide an opportunity to further their private interests or those of relatives or friends (section 4); when the office holders uses information gained as an office holder to further their or their relatives’ or friends’ private interests or “another person’s private interests” (section 8); and when the office holder uses their position “to seek to influence a decision of another person” to further their or their relatives’, friends’ or “another person’s” private interests.

While the prime minister has had his brushes with the Conflict of Interest Act, the current situation does not appear to fit into the recognized categories, primarily because on the face of it his conduct does not appear related to his private interests. One might argue that he would like a result that absolves his government from any wrongdoing or carelessness in handling information about such meddling. He might have an interest in an outcome that doesn’t interfere with the re-election of the Liberals and himself, ultimately as prime minister. But there is nothing to suggest, even seriously by his opponents, that he has a personal or private interest in the outcome of the investigation in a more direct sense.

However, like “the law rules” the Conflict of Interest Act reflects broader or more general values that help to guide behaviour. It can be summarized briefly as ensuring that those who are in positions of public trust do not abuse that trust in how they conduct themselves.

I return to the rules in the practice of law.

None of the situations to which the law rules apply has a bearing on the situation of the special rapporteur’s investigating foreign interference in elections and particularly the apparent Chinese actions intended to help the Liberals win. Mr. Johnston is not an adjudicator, although he must reach conclusions. And he and Mr. Trudeau are not in a “solicitor-client” relationship.

But the situations that arise in law all require asking oneself some questions that go beyond law: can I do my job without worrying about obligations – explicit or implicit — to someone else? will people assessing what I’m doing trust that I’m not being persuaded by inappropriate considerations? will what I’m doing invalidate or at least make people question my decision or my analysis of the task before me?

It seems to me that my friend of some years ago didn’t feel the need to ask these questions (although he may well have felt compelled to ask others, such as “am I being honest” or “does taking into account inappropriate factors risk my doing an incompetent job”?). And it occurs to me that neither the Prime Minister when he asked Mr. Johnston to undertake the investigation nor the former Governor General (except initially) when he accepted asked them very seriously, either.

Now, Mr. Johnston told us that he had requested a legal opinion from former Supreme Court of Canada Justice Frank Iacobucci, who advised him that there wasn’t a conflict problem. We don’t know what the basis of that determination was, nor what facts Mr. Johnston told Mr. Iacobucci to form a basis for the opinion. But perhaps Mr. Iacobucci thought that Mr. Johnston’s reputation was so free of taint that no done would ever think he might be at risk of being thought biased. Except perhaps those wishing ill will to the Prime Minister and after all, under the circumstances, those whose motivation was political mischief were not reasonable. In any event, Mr. Iacobucci did neither Mr. Johnson nor Mr. Trudeau (or perhaps himself) any favour when he advised that the appointment passed muster.

The increasingly loud rejection of the appointment derives from the relationship Mr. Johnston has had with the Trudeau family and his membership on the board of directors of the Pierre Elliott Trudeau Foundation.

Mr. Johnston has downplayed the relationship between himself and his family and the Prime Minister and his family, including with the Prime Minister’s father and brothers. Effectively, he has said whatever minor relationship existed was with Pierre Elliott Trudeau and between the Trudeau and Johnston children. Yet both he and Justin Trudeau have made more recent comments suggesting a more friendly relationship (see CBC News story here).

Regardless of how one characterizes the personal relationship, the other element of the special rapporteur’s public service seemingly raises a serious concern. There have been questions about the Foundation because of a donation from a Chinese donor with connections with the Chinese government (it may not have been fully paid and may have been returned — or not). (See CBC News story here.)

Mr. Johnston did not join the board until 2018 after a portion of the donation was made in 2014, but was a member when the donation had become a source of denunciation and mixed messages; he did not resign until Mr. Trudeau appointed him the special rapporteur.

The former Governor General and current Special Rapporteur appears to be affronted that anyone would question his integrity or impartiality, given his record of public service, the diversity of his contributions and appointment not only by Prime Minister Justin Trudeau but also by former Prime Minister Stephen Harper. And indeed at the beginning of the questioning about whether he was the right person for the job, most commentators went to some length to state that whatever concerns they had had nothing to do with Mr. Johnston’s integrity.

If we were applying the “law rules” to this situation, we would ask whether a reasonable person, knowing the nature of the relationship between Johnston and Trudeau (and families) and Mr. Johnston’s connection to the Trudeau Foundation, taking a realistic and practical approach and not being overly sensitive to ethical issues or having too “scrupulous” a conscience about these things would believe there was a perception of possible bias in how Johnston may have approached or assessed the information available to him about the election meddling.

Did he, for example, seek a relatively innocuous explanation of communication practices among Liberal ministers compared to a more damning one of a coverup or deliberate failure to treat CSIS information seriously? did he decide this was all a systemic problem because that avoided naming names? did he believe “plausible deniability” underlying why no one in government seems to read their emails let people off the hook? did he just not have an open mind that his friend, assuming they are friends, might have been involved in something more nefarious? and is he keeping hold of the investigation because he wants to maintain control (despite offering the opposition leaders the opportunity to see what he has seen) because he really believes he is the only person who can do this job or because he worries what someone else might determine?

It’s not that Mr. Johnston hasn’t had all kinds of help in researching and apparently writing his interim report, as well as in dealing with the press and, one gathers, communications more generally. He is allowed as special rapporteur “to incur necessary expenses” and he has done so. He has hired Navigator, a crisis communications firm, to assist him; he has retained Torys LLP (apparently more broadly than for Mr. Iacobucci’s conflict opinion and retaining Tory partner Sheila Block as counsel) for “’legal, investigative and drafting support’”; and a second communications company RKESTRA; Johnston’s spokesperson is the founder and CEO of RKESTRA and she has also worked previously for a minister of the Trudeau government. (See CBC News story on this issue here.) (I note Ms Block has now become enmeshed in the integrity questioning game because of her contributions to the Liberal — and only — Liberal Party and her attendance at a private zoom fundraiser for the Prime Minister (see National Post story here and Globe and Mail story here).

There are two reasons (at least) why someone would not – should not – give in to allegations of bias or even perceived bias, whether in the law context or otherwise. One is if the allegations are intended to stymie the endeavour at issue, let us say are ill-motivated. This may arise if those making the allegation are concerned about the outcome and want to steer the proceeding in another direction. And the allegations might be an unsubstantiated personal attack, either based on flimsy evidence or really no evidence at all. A simple allegation, however often repeated, is not a reason to recuse oneself or for a regulator to impose sanctions.

From the opposite perspective, the “law rules” have the objectives of ensuring (or “maximizing”) fairness in proceedings or observance of other “law rules” (such as proper representation of one’s client in the law practice context). While the individual is in a certain way central to an assessment of whether there is a perception of conflict or bias, it is the proceeding or other circumstance that also plays a major role. Allegations of bias, as I’ve indicated, may actually be attacks on the system, but failure to (for example) recuse oneself when there is a reasonable apprehension of bias also risks denigrating the system and invalidating the proceeding or decision, even if it may be correct. Sometimes, perception is all, right or wrong.

Mr. Johnston has been adamant that he won’t step down, stating he was appointed to do a job and he’s going to finish doing it.

But even if his motivation is honest, Mr. Johnston has to ask himself whether his pride in his career and prior reputation is worth risking that the report he writes after hearings will be dismissed by the public and opposition and perhaps (deep down, anyway) even by some Liberals because of the questions swirling about him. It is already too late for, really, to save his interim report. And the Prime Minister needs to consider whether he genuinely believes his decision not have a public inquiry was an appropriate one and whether he’s prepared to throw Mr. Johnston to the wolves simply because he can’t back down.

But never mind all that. In the end what matters is the price of both Trudeau’s and Johnston’s determination to maintain the current arrangement, regardless of reasons, to the assessment of Chinese interference in the election? The questions about the interference have been “answered” in the interim report; what remains for the rest of the mandate are public hearings about other matters, such as the effect on the diaspora and how to address the poor communication practices in government.

What we are left with is a rather murky assessment about foreign interference: and with the knowledge that “murky is as murky does”.

It is ironic that when the investigation is about the integrity of Canadian elections, the process for determining that is shrouded in a miasma of questioning abut the integrity of the major players. The problem for Mr. Trudeau and Mr. Johnston is that there is enough of a seed of perception of bias or conflict of interest that it can support justifying the conclusion that the Prime Minister should have proceeded differently and, even if he didn’t, the former Governor General should have said no. Now it is difficult, I’m sure, for Mr. Johnston to resign in the face of what he believes are unfair and no doubt “politically motivated” attacks on something that clearly matters to him. It is not, in that sense, about him, however: it is about the process and what we can learn about foreign interference in our elections.

I do not know how my friend would think about the situation, but even someone who thinks it’s okay for a board member to sell their product to the organization of which they are a director knows when public agitation warrants a different course.

As this debacle winds on, perhaps the concern about whether the Prime Minister appointed Mr. Johnston to be the special rapporteur because they are good friends is answered by the Prime Minister’s insistence on staying the course despite the tattering of Mr. Johnston’s reputation: after all, is this any way to treat your friend?

The post What Don’t You Understand About Apprehension of Bias? appeared first on Slaw.

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