Howard Levitt: On the China file, Johnston fails the check of Caesar’s spouse — and he should understand it


“With battle of curiosity, the rule of Caesar’s spouse applies. It should not solely be pure however should be seen to be pure.”  — Bursey vs. Acadia Motors, N.B. Court docket of Enchantment

Does the conduct of our former governor normal, David Johnston, in accepting the place of particular rapporteur with respect to the Chinese language authorities’s affect in two federal elections, a publish that requires him to determine on the ethics of his pal and cottage neighbour Justin Trudeau, cross the purity check? That means, not solely is he freed from a battle of curiosity, however is he “seen” to be “pure,” (i.e. unimpeachable) as effectively?

Does he have a battle of curiosity that might be unacceptable if he was an worker of the federal government?

The courts have set out the check for battle of curiosity in a public service context.

Within the case of Threader vs. Treasury Board, the Federal Court docket of Enchantment put the check as follows: “Would an knowledgeable individual, viewing the matter realistically and virtually and having thought it via, assume it extra seemingly than not that the general public servant, whether or not consciously or unconsciously, be influenced within the efficiency of his public duties by issues of his non-public pursuits.”

What is important in evaluating battle of curiosity circumstances is that there needn’t be an precise battle of curiosity. Because the B.C. Court docket of Enchantment has famous, merely the potential for battle is enough. One other facet of battle of curiosity legislation is that the “rule of Caesar’s spouse” applies with specific rigour to extra senior executives.

Johnston is being requested to guage the probity of the Liberal authorities’s conduct, whether or not it hid the knowledge it acquired from CSIS from Parliament and whether or not a public inquiry must be held with witnesses summonsed and with open disclosure. His findings will impression on the popularity and future electability of our prime minister.

To place it bluntly, Johnston’s job might be to find out what did Trudeau know, when did he understand it and what did he do about it?

We all know that Johnston is a household pal of Trudeau, that they’re cottage neighbours, that Trudeau took ski journeys with Johnston’s daughters in his youth and that Johnston had a outstanding function within the Trudeau basis, which itself acquired secret donations from a Chinese language benefactor that it has needed to give again.

However worse, because the Nationwide Submit’s Terry Glavin has identified, Johnston has been concerned in establishing the Confucius Institute, a part of the Chinese language authorities’s propaganda machine, and has acquired honorary doctorates from three Chinese language Universities. Three of Johnston’s daughters additionally went to college in China and the board of administrators of his personal Rideau Corridor basis are, as Glavin put it, “a snapshot of the who’s-who of Beijing’s finest pals and enterprise companions in Canada.”

What is important although is that it seems that we didn’t know any of this from Johnston however, slightly, from Opposition MPs and investigative reporters akin to Glavin who raised it in objecting to Johnston as a selection.

In one other B.C. Court docket of Enchantment choice, an govt’s failure to explicitly and instantly disclose the main points of his connections entitled the employer to dismiss him for trigger. In fact, I have no idea with precision what Johnston disclosed and to whom, however the reportage means that he didn’t disclose all these ties. And that, by itself, could be trigger for dismissal in an employment dispute and suggests strongly that he ought to take away himself.

Taking a look at Johnston’s acceptance of this place via a authorized prism then, given his historical past, each respecting his involvements each with China and our PM, there’s little doubt that he would fail the check.

Clearly, a well-informed individual would assume it extra seemingly than not that he would, unconsciously at the very least, be influenced by his relationships and views of each Trudeau and the Chinese language regime.

Maybe none of this occurred to Johnston when he was provided after which accepted this fascinating new mission. However he’s effectively conscious of the problems now and has not resigned.

For such a place, one would need somebody each unimpeachable and accepted by all related events, not one who would signal on when their very involvement constitutes a scandal.

Johnston has had an outstanding profession and, for his personal sake in addition to Canadians’ acceptance of no matter findings are made, he ought to instantly resign. An govt would by no means be permitted to be in such a place.

Howard Levitt is senior companion of



, employment and labour legal professionals with places of work in Toronto and Hamilton. He practices employment legislation in eight provinces. He’s the writer of six books together with the Legislation of Dismissal in Canada.

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