“With conflict of interest, the rule of Caesar’s wife applies. It must not only be pure but must be seen to be pure.”  — Bursey vs. Acadia Motors, N.B. Court of Appeal

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Howard Levitt: On the China file, Johnston fails the test of Caesar's wife — and he must know it Back to video

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Does the conduct of our former governor general, David Johnston, in accepting the position of special rapporteur with respect to the Chinese government’s influence in two federal elections, a post that requires him to decide on the ethics of his friend and cottage neighbour Justin Trudeau, pass the purity test? Meaning, not only is he free of a conflict of interest, but is he “seen” to be “pure,” (i.e. unimpeachable) as well?

Does he have a conflict of interest that would be unacceptable if he was an employee of the government?

The courts have set out the test for conflict of interest in a public service context.

In the case of Threader vs. Treasury Board, the Federal Court of Appeal put the test as follows: “Would an informed person, viewing the matter realistically and practically and having thought it through, think it more likely than not that the public servant, whether consciously or unconsciously, be influenced in the performance of his public duties by considerations of his private interests.”

What is significant in evaluating conflict of interest cases is that there need not be an actual conflict of interest. As the B.C. Court of Appeal has noted, merely the potential for conflict is sufficient. Another aspect of conflict of interest law is that the “rule of Caesar’s wife” applies with particular rigour to more senior executives.

Johnston is being asked to evaluate the probity of the Liberal government’s conduct, whether it concealed the information it received from CSIS from Parliament and whether a public inquiry should be held with witnesses summonsed and with open disclosure. His findings will impact on the reputation and future electability of our prime minister.

To put it bluntly, Johnston’s job will be to determine what did Trudeau know, when did he know it and what did he do about it?

We know that Johnston is a family friend of Trudeau, that they are cottage neighbours, that Trudeau took ski trips with Johnston’s daughters in his youth and that Johnston had a prominent role in the Trudeau foundation, which itself received secret donations from a Chinese benefactor that it has had to give back.

But worse, as the National Post’s Terry Glavin has pointed out, Johnston has been involved in establishing the Confucius Institute, part of the Chinese government’s propaganda machine, and has received honorary doctorates from three Chinese Universities. Three of Johnston’s daughters also went to university in China and the board of directors of his own Rideau Hall foundation are, as Glavin put it, “a snapshot of the who’s-who of Beijing’s best friends and business partners in Canada.”

What is significant though is that it appears that we did not know any of this from Johnston but, rather, from Opposition MPs and investigative reporters such as Glavin who raised it in objecting to Johnston as a choice.

In another B.C. Court of Appeal decision, an executive’s failure to explicitly and immediately disclose the details of his connections entitled the employer to dismiss him for cause. Of course, I do not know with precision what Johnston disclosed and to whom, but the reportage suggests that he did not disclose all these ties. And that, by itself, would be cause for dismissal in an employment dispute and suggests strongly that he should remove himself.

Looking at Johnston’s acceptance of this position through a legal prism then, given his history, both respecting his involvements both with China and our PM, there is little doubt that he would fail the test.

Clearly, a well-informed person would think it more likely than not that he would, unconsciously at least, be influenced by his relationships and views of both Trudeau and the Chinese regime.

Perhaps none of this occurred to Johnston when he was offered and then accepted this fascinating new project. But he is well aware of the issues now and has not resigned.

For such a position, one would want someone both unimpeachable and accepted by all relevant parties, not one who would sign on when their very involvement constitutes a scandal.

Johnston has had a superb career and, for his own sake as well as Canadians’ acceptance of whatever findings are made, he should immediately resign. An executive would never be permitted to be in such a position.

Howard Levitt is senior partner of Levitt Sheikh , employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.