David Johnston is a man of high integrity. But as rapporteur? We should be in high dudgeon

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David Johnston is a remarkable Canadian, a model of integrity and decency throughout a lifetime of personal accomplishment and public service – as professor of law, as principal of McGill and as one of our finest Governors-General.

He is also a wildly inappropriate choice as independent special rapporteur, in the matter of China’s attempts to interfere in Canadian elections, and whatever blame might attach to the Liberal government for allowing them.

The rapporteur – an invented title, it means adviser, though the Prime Minister has pledged to be bound by his recommendations – will have to decide, among other things, whether to call a public inquiry into the matter, and on what terms.

The point of a public inquiry, with all of its quasi-judicial powers and independence, is to bring to light things that could not otherwise be brought to light, or that the public could not have confidence would be. It is not obvious how that is necessary here. Whether and how China interfered in Canadian elections could just as well be assessed by the intelligence services – and has, voluminously.

It is the other side of the equation – what the government did or did not do about it, and why – that makes a public inquiry imperative. Leaked intelligence reports alleging China interfered in the last two federal elections, via a wide-ranging scheme of undeclared cash donations, illegal reimbursement of contributions, stacked nomination meetings, and online whisper campaigns, all with the explicit aim of electing a Liberal government, are one thing.

But China could not have done so without the co-operation or at least the knowledge of some Liberal Party members, and if party members knew, chances are the party leadership did, even without the intelligence services’ urgent and repeated warnings. That nothing was done about it is therefore disturbing, especially in light of the current government’s history of cozying up to Beijing.

We do not know with certainty that anything untoward happened. But there is a serious possibility that it did. So far as it is a serious possibility, it must be investigated, and if the investigation is to inspire public confidence, it cannot be, or be seen to be, in any way under the influence of the Prime Minister, the government or the Liberal Party. The government cannot investigate itself.

It is therefore vital that any public inquiry be scrupulously at arm’s-length from the government – as must be the process surrounding it. The point of the independent special rapporteur was supposed to be to put the decision on whether to call an inquiry itself at arm’s-length. With the appointment of Mr. Johnston, that can no longer be said with confidence.

There is first his personal relationship with the Prime Minister: Mr. Trudeau himself has described him as a lifelong “family friend,” a friendship cemented over many summers as neighbouring cottagers in the Laurentians.

There are also the professional associations. His status as one of 23 “members” of the Pierre Elliott Trudeau Foundation would raise eyebrows, even without the news that the government of China had, early in Mr. Trudeau’s prime ministership, secretly funnelled $200,000 to the foundation through an intermediary – apparently as part of its influence operations.

The Rideau Hall Foundation, which Mr. Johnston founded and chairs, was the recipient of a gift of millions of dollars from the Trudeau government to mark his retirement as -General. Mr. Johnston has also been serving as the head of the Leaders’ Debates Commission, a post to which he was appointed by Mr. Trudeau; he will now step down from that role.

There is nothing wrong with any of these associations, on their own. They do not suggest any lack of integrity on Mr. Johnston’s part, nor do they make the case that he is, in the words of a particularly ugly and stupid tweet by a Conservative front-bencher, “another random Liberal.”

But for a position whose first requirement is and must be conspicuous independence from the person making the appointment, they are surely disqualifying. Any one of them would bring it into doubt, but taken together they raise questions about the Prime Minister’s intentions in making the appointment, and Mr. Johnston’s judgment in taking it.

To borrow a point made by others: If you were to take someone to court and find the judge was not only a lifelong friend of the defendant, but had partnered with him in various ventures – including one directly touching on the matter before the court – well, it wouldn’t happen, that’s all. The judge would never be let near the case.

This would not be a comment on the judge’s integrity; neither is it on Mr. Johnston’s. The issue, as with any matter of conflict of interest, is not whether he is a good man, but whether his personal and professional associations with Mr. Trudeau could colour his judgment – or rather, whether a reasonable person might wonder if they had.

This is public ethics 101. It is the responsibility of the office-holder, in this case Mr. Trudeau, to leave no room for any reasonable doubt about the propriety of his actions. It is not the responsibility of the public to avoid harbouring such doubts. It was up to Mr. Trudeau to appoint someone entirely outside his orbit, without personal or professional connections to him of any kind. It is not up to everyone else to overlook those connections.

For his supporters then to exclaim, in tones of wounded dignity, “how dare you attack Mr. Johnston’s integrity,” is transparent deflection. Nobody is attacking his integrity, least of all me. That’s not the point. You can be the most upright, high-minded person in the world, and still have a hard time separating your prior good impression of a person from the possibly contradictory facts a rapporteur might be required to assess.

The current controversy raises very grave possibilities, including about the Prime Minister’s conduct. Anyone with any responsibility for inquiring into them must be able to at least imagine the PM capable of doing wrong, possibly very wrong things: not that he did, or that it is probable he did, but that it is possible he did.

Would someone with such close associations with the Prime Minister have greater difficulty imagining such things than someone more at arm’s-length? Would he find himself, consciously or otherwise, discounting such possibilities, on the grounds that “that’s not the man I know”? We have all had an education in recent years on the subject of unconscious bias. Can we discard altogether the possibility that it would be at work here?

To investigate a sitting prime minister, moreover, would be, among other things, personally devastating – to the Prime Minister, and to the rapporteur. It would potentially do irreparable damage to their friendship, and to others. Would he be more reluctant to put his friend through this – or himself – than someone without such prior associations?

More to the point, is it at least reasonable to wonder whether he might be? As I say, the issue is not whether his judgment was coloured, but whether a reasonable member of the public might wonder whether it had been. Which they should never be put in the position of having to wonder. And it is the public office-holder’s duty to see that they aren’t.

Consider, also, the position that Mr. Johnston has been put in. If he declines to order a public inquiry, many people will wonder whether it was because of his associations with Mr. Trudeau. On the other hand, he might genuinely consider a public inquiry unwise, but feel pressure to order one, just to prove his independence.

But independence is not the only requirement of the job. So is good judgment and, let it be said, nerve. A great many rocks may well be turned over before this is through, and we may all be quite shocked by what is revealed. Not everyone has the stomach for that kind of work. The rapporteur must.

Here again is reason to doubt the wisdom of Mr. Johnston’s appointment. For in all his long and distinguished career, the experience most directly relevant to the current situation was as special adviser to then-prime minister Stephen Harper, in the matter of Brian Mulroney’s post-prime ministerial dealings with the notorious international arms dealer Karlheinz Schreiber. And in this assignment he flopped, badly.

It was Mr. Johnston’s responsibility to frame the terms of reference for a public inquiry, headed by Justice Jeffrey Oliphant, into the affair. The most obvious question: whether the $300,000 in cash Mr. Schreiber paid Mr. Mulroney after he was prime minister had something to do with the decision to award a major aircraft contract to Airbus, the European aerospace consortium, while he was prime minister.

Yet, incredibly, Mr. Johnston’s report recommended striking any inquiry into the Airbus affair from the inquiry’s mandate, on the grounds that this had already been thoroughly investigated by the RCMP. It most certainly had not, as anyone with any familiarity with the case can tell you: the investigation had barely begun.

Mr. Oliphant’s report was still hugely damning – he basically found that Mr. Mulroney had lied to him, over and over and over – but the restrictive terms of reference ordered by Mr. Johnston meant the country lost its best chance of ever getting to the bottom of the Airbus mess.

Whether it was an error of judgment or failure of nerve, it was hardly an advertisement for Mr. Johnston as term-setter for an even more sensitive inquiry – not into the affairs of a former prime minister, but the one that appointed him.

It’s an extraordinary thing. With 40 million Canadians to choose from, could the Prime Minister not have found someone with whom he was not so personally and professionally connected, and with no history of hobbling public inquiries into the conduct of prime ministers? If he were really interested in, as he says, upholding public confidence in Canada’s democracy, is this the person he would have picked?

Of course, if the Prime Minister were really interested in allaying all doubts, he would not have taken it upon himself to make the appointment unilaterally, but would rather have worked in concert with the opposition leaders. Instead we get what looks more and more like a deliberate provocation.