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Jun 26, 2017

Today, Democracy Watch announced its court case challenging decisions by federal Ethics Commissioner Mary Dawson made in a letter dated March 29th sent to Democracy Watch, including her refusal to recuse herself from investigating and ruling on complaints about Prime Minister Trudeau’s actions because of her conflict of interest created when Trudeau Cabinet gave her a $100,000, six-month contract in mid-December, a contract that has just been renewed for another six months (see page 1 of her letter). David Yazbeck of RavenLaw in Ottawa is providing pro bono counsel to Democracy Watch for the case.

The case, filed in the Federal Court of Appeal, is also based on the claim that the Ethics Commissioner’s current second six-month interim appointment is illegal. The appointment was made under the Parliament of Canada Act subsection 82(2) which says that a person can only be appointed for a term of no longer than six months.

The case also challenges the Ethics Commissioner’s specific bias against Democracy Watch, as Commissioner Dawson has failed or refused to investigate and rule on five complaints filed by Democracy Watch. In contrast, the Ethics Commissioner has ruled on complaints filed by MPs and other people, and in much shorter time periods.

Democracy Watch won a case in 2004 against then-Ethics Counsellor Howard Wilson in part because of his similar pattern of delay and refusal to rule on its complaints. As with Ethics Commissioner Dawson, Democracy Watch was Ethics Counsellor Wilson’s most vocal critic, and challenged several of his rulings in public and in court.

Since 2010, Democracy Watch has repeatedly called on MPs to fire Ethics Commissioner Dawson because of her weak enforcement record. Democracy Watch also challenged one of the Ethics Commissioner’s ruling in court in 2009, and has an ongoing court case challenging the Ethics Commissioner’s use of conflict of interest “smokescreens” that cover up the fact that Cabinet ministers and senior government officials take part in decisions even when they have a clear conflict of interest.

“As it has before, Democracy Watch is again going to court to try to stop Ethics Commissioner Dawson’s ongoing unethical reign of error,” said Duff Conacher, Co-founder of Democracy Watch. “The court case directly challenges the Ethics Commissioner’s conflict of interest caused by the fact that while she was investigating Prime Minister Trudeau she was given a second six-month contract by the Trudeau Cabinet, a contract that the Cabinet was prohibited from giving her. We hope the court will agree that the Ethics Commissioner’s bias and illegal second-term contract prohibited her from ruling on complaints about the actions of Prime Minister Trudeau and his Cabinet ministers and MPs.”

“Prime Minister Trudeau finally acknowledged in May that the Ethics Commissioner investigating him causes a conflict of interest that prohibits him from taking part in decisions about the Ethics Commissioner position but the Ethics Commissioner continues to refuse to acknowledge that the situation also causes a conflict of interest for her,” said Conacher.

In the past week, more than 10,000 Canadians have signed Democracy Watch’s Stop Political Lapdog Appointments petition on Change.org which calls on the federal Liberal government to make the Cabinet appointment process actually independent and merit-based (as Britain has) for Cabinet appointments of all judges, officers of parliament, and members of agencies, boards, commissions and tribunals. The petition was launched as part of Democracy Watch’s ongoing Stop Bad Government Appointments Campaign.

The five Democracy Watch complaints Commissioner Dawson has failed or refused to investigate and rule on are:

  1. Democracy Watch’s December 10, 2013 complaint about Prime Minister Harper staff Patrick Rogers, Chris Woodcock and Benjamin Perrin who all assisted Nigel Wright as he violated the Conflict of Interest Act by paying off Senator Mike Duffy;
  2. Democracy Watch’s December 6, 2016 complaint about Trudeau Cabinet fundraising events that involved lobbyists (the complaint raised legal issues not raised by the complaints filed in early December by then-Conservative MP Rona Ambrose and NDP MP Alexandre Boulerice which the Commissioner responded to much earlier in mid-February (See page 3 of the Commissioner’s March 29th letter);
  3. Democracy Watch’s December 14, 2016 complaint that the Trudeau Cabinet is in a conflict of interest when making appointment decisions about the Ethics Commissioner and Lobbying Commissioner at the same time both commissioner offices were investigating complaints that the Prime Minister and/or ministers violated the Conflict of Interest Act or had a relationship with a lobbyist that violates the Lobbyists’ Code of Conduct. Despite the Ethics Commissioner mischaracterizing Democracy Watch’s complaint in order to dismiss it (see page 2 of her letter), Trudeau finally recused himself in mid-May from all matters relating to the appointment of the next Ethics Commissioner.
  4. Democracy Watch’s December 16, 2016 complaint complaint about a new and different situation that had not been considered by the Ethics Commissioner before – Prime Minister Trudeau giving preferential treatment to the companies and/or organizations or other individuals represented by several Liberal Party donors when he invited those donors to a gala dinner in honour of Chinese Premier Li Keqiang on September, as reported in the Globe and Mail (See page 3 of the Commissioner’s March 29th letter).
  5. Democracy Watch’s January 31, 2017 complaint about the Aga Khan’s trip gifts to then-MP Trudeau in 2014, and to Liberal MP Seamus O’Regan in December 2016, and lobbyist Murray Edwards’ trip gift to then-Conservative Interim Party Leader Rona Ambrose in December 2016 (See page 2 of the Commissioner’s March 29th letter – the Commissioner is investigating a complaint filed by Conservative MP Blaine Calkin and a complaint filed by Conservative Party leader Andrew Scheer about the Aga Khan’s December 2016 trip gift to Trudeau).

The Liberals haven’t changed the federal Cabinet appointment process at all from what the Conservatives used (other than adding the goal of diversity). In the answer to the third question in the “Frequently Asked Questions” document describing the Liberals’ Cabinet appointment process (which was updated on April 28th), it says Cabinet ministers “manage” all appointment processes.

That means Cabinet appointments are still partisan, political processes, not merit-based as the Liberals claim (as the recent appointment of former Ontario Liberal Cabinet minister Madeleine Meilleur as the federal Languages Commissioner has revealed so clearly) and the government’s website listing openings and qualifications for Cabinet appointments that the Liberals claim makes the appointment process more open and transparent has existed for several years.

Two weeks ago, Democracy Watch called on the federal Liberals to suspend the appointment of the next Ethics Commissioner and Commissioner of Lobbying, and all other judicial and watchdog appointments, until they make the appointment process actually independent and merit-based.

In addition to their false claims about changing the Cabinet appointment process, the Trudeau Liberals have made false claims about the appointment processes for several officers of parliament. According to the June 9th Canadian Press article, an unnamed senior government source claims that “specific qualifications for each watchdog are spelled out in legislation.” In fact, statutory qualifications are set out only in the Parliament of Canada Act and only for the Ethics Commissioner. There are no statutory requirements for the Lobbying Commissioner or Chief Electoral Officer (CEO) -- the three other officers whose positions are open – nor for the Information Commissioner (whose position is open soon).

As well, the Liberals have made the very questionable claim that they can’t find anyone qualified to be the CEO, Lobbying Commissioner or Ethics Commissioner. To give one of likely many examples of qualified applicants, Duff Conacher, Co-founder of Democracy Watch, applied for, and is fully qualified for, the Lobbying Commissioner position (and was short listed for that position in 2007 by the Conservatives’ candidate search process).

“The Liberals’ false claims smell very fishy and are clearly an attempt to cover up the fact that they haven’t changed the appointment process for government and law enforcement watchdogs, and that it’s still political and partisan, not merit-based, as Trudeau Cabinet ministers can still choose whomever they want,” said Duff Conacher, Co-founder of Democracy Watch. “The Liberals’ Cabinet appointment system is essentially the same as the Harper Conservatives used, and it allows Trudeau Cabinet ministers to choose their own Liberal Party cronies as government and law enforcement lapdogs.”

“The Trudeau Cabinet is in a conflict of interest when choosing any government or law enforcement watchdog because those watchdogs enforce laws that apply to Cabinet ministers or their departments,” said Conacher. “The only way to stop this dangerously undemocratic and unethical appointment process for judges and watchdogs, a fully independent public appointment commission must be created, as Ontario and Britain have, to conduct public, merit-based searches for nominees and send a short list to Cabinet, with Cabinet required to choose from the list.”

Democracy Watch’s Stop Bad Government Appointments Campaign proposes that the way to ensure the appointment of fully independent, merit-based judges and watchdogs is to have a fully independent commission whose members are approved by all federal party leaders (and entities such as the Canadian Judicial Council) do a public, non-partisan merit-based search for candidates, and to require the Trudeau Cabinet to choose from a short-list of one to three candidates that the commission nominates.

Ontario uses this kind of independent appointment system to appoint provincial judges (the advisory committee provides a shortlist of three candidates to the Cabinet). Britain uses it to appoint judges and judicial tribunal members (like the Ethics Commissioner and Lobbying Commissioner are) – its advisory committee provides only one candidate to the Cabinet, and the Cabinet has to accept the candidate or reject the candidate and provide written reasons. Both of their systems are considered to be world leading.

Democracy Watch also called on the Liberals, and all governments, to change the law to ensure all Cabinet appointees who watch over the government or oversee key democracy laws and processes (especially every Officer of Parliament) be only allowed to serve one term.

The new appointment process, and prohibition on being reappointed, should apply to the judicial advisory committees and appointments of all 1,123 federal and provincial superior court judicial appointments listed here, and to the new public appointments commission that must be established to ensure a merit-based selection process for a short list of candidates for appointment to the 32 federal administrative tribunals and 108 agencies/boards listed here.

“Like judges, all government and democracy watchdogs must only serve one term, with no possibility that the government can reappoint them, to ensure watchdogs don’t try to please the government in order to keep their job,” said Conacher. “To safeguard our democracy the ruling party must not be allowed to reappoint any government watchdog.”

The past 10 years cannot be repeated if Canada wants to claim it is a democracy, as the federal Ethics Commissioner Mary Dawson’s very weak enforcement record and Commissioner of Lobbying Karen Shepherd’s very weak enforcement record have done as much to undermine democracy in Canada as the dishonest, unethical and secretive actions of various politicians (See Part 1 of the Backgrounder below for details).

Democracy Watch and the nation-wide Government Ethics Coalition continue to call for key changes to strengthen federal political ethics and lobbying rules and the enforcement systems (See Part 2 of the Backgrounder below for details).

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Backgrounder

1. Federal Ethics Commissioner Mary Dawson’s weak enforcement record

Federal Ethics Commissioner Mary Dawson has had a very weak enforcement record since 2007, including (as of June 2015) making 149 secret rulings, issuing only 25 public rulings, and letting 75 (94%) of people who clearly violated ethics rules off the hook.

Ethics Commissioner Dawson has greatly undermined various sections of the Conflict of Interest Act (COIA) in past rulings by creating loopholes in the COIA that do not exist – such as:

  1. her April 29, 2010 “Cheques Report” ruling claiming that political parties are not “persons” under the COIA and therefore it was fine for Conservative MPs and Cabinet ministers to hand out government cheques with the Conservative Party logo on them;
  2. her May 13, 2010 “Raitt Report” ruling that it was fine for two lobbyists who were lobbying Minister Lisa Raitt to help raise thousands of dollars for her riding association because, you claimed, that only helped the association not her;
  3. her December 2016 ruling that it was fine for Health Minister Jane Philpott to use the driving service company of one of her former campaign volunteers because it was the only such company Minister Philpott claimed she knew about (a ruling that creates a loophole allowing any Minister or other senior government officlal to use the same invalid excuse Minister Philpott used to give contracts to their friends or other party loyalists).
  4. her baseless decision that the COIA only applies to financial interests despite the fact that the COIA’s section 2 definition of “private interest” does not in any way even suggest that the definition of “private interest” is restricted to only financial interests, and;
  5. her baseless decision that the COIA only applies to close personal friends (there is no such definition of “friends” in the COIA).

Because of section 66 added to the then-new Conflict of Interest Act by the Conservatives in 2006, the Ethics Commissioner’s rulings cannot be challenged in court if she has factual or legal errors in her rulings. If this section had not been added to the Act, Democracy Watch would have challenged several of Commissioner Dawson’s rulings since 2007 in court.

Democracy Watch is currently challenging Ethics Commissioner Dawson’s use of conflict-of-interest screens in court on the basis that the screens are unlawful.

2. Federal ethics law and codes missing key rules and accountability measures

The Conservatives broke a 2006 election promise (one of their many broken accountability promises) to include key ethics rules in the new Conflict of Interest Act prohibiting dishonesty and being in even an appearance of a conflict of interest. Prime Minister Harper instead put those rules in his Accountable Government code for ministers and other senior officials so he could ignore the rules (as he did until the Conservatives were defeated in the 2015 election – see especially rules in Annex A, Part 1 of the code).

The Liberals made no promises in their 2015 election platform to close the huge loopholes in the Conflict of Interest Act (and they also made no promises to close the huge loopholes in the Lobbying Act or the Public Servants Disclosure Protection Act). Instead, Prime Minister Trudeau re-named and re-issued the Accountability Government code as his Open and Accountable Government code. He has ignored the rules in his code just like Prime Minister Harper did.

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