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Trudeau Liberal government must now make access to information law changes called for in its own public consultation

Liberals also need to make other key open government changes to end secret lobbying, end secret investments by politicians, their staff and Cabinet appointees, and strengthen whistleblower protection

Thursday, December 23, 2021

OTTAWA – Today, Democracy Watch responded to the report released by the Trudeau government yesterday afternoon containing the results of its public consultation on the Access to Information Act (ATIA). The report is a loud and clear call from all stakeholder groups and the public for key changes to close loopholes in the ATIA and strengthen the Information Commissioner’s enforcement powers.

“The public and experts have loudly and clearly called once again, as they have for decades, for key changes to close loopholes in the federal access to information law, and strengthen enforcement,” said Duff Conacher, Co-founder of Democracy Watch. “The Trudeau Liberals must now stop their spin, lame excuses and unjustifiable delays and introduce a bill as soon as Parliament opens again in February to make the key changes that voters want to strengthen the access to information law and enforcement.”

“The federal access to information law is so full of loopholes that it really is just a guide to keeping information secret that the public has a right to know, and the key changes that the public is calling for will, if the Trudeau government implements them, make the law more effective,” said Conacher.

The changes loudly and clearly called for in the report on the Trudeau government’s public consultation on the ATIA are as follows, in order of importance in terms of making the ATIA effective:

  1. Expand the ATIA to cover any organization that performs a public function or receives significant public funding;
  2. Expand the ATIA to cover the Prime Minister’s Office and Cabinet Ministers’ offices;
  3. Require all government institutions and organizations covered by the ATIA to create detailed records of all actions and decisions;
  4. Expand the requirement to proactively publish records in Part 2 of the ATIA, and give the Information Commissioner the power to do disclosure audits;
  5. Narrow down the huge loopholes in the ATIA that allow advice to Cabinet and Cabinet confidences to be kept secret, and narrow down all other exemptions and exclusions, and give the Information Commissioner the power to review all requested records to prevent abuse;
  6. Set strict time limits in the ATIA on all extensions that go beyond the requirement to disclose records within 30 days of receiving a request;
  7. Add a public interest override (as in Alberta and B.C.) to the ATIA to ensure public interest information is always disclosed;
  8. Increase resources, training and technology support for ATI officers, and eliminate the $5 request fee;
  9. Significantly reduce the 20-year period during which Cabinet records and other information can be kept secret, including creating a system for declassifying records that have been designated as “classified” and;
  10. Allow people from outside Canada to file requests for information.

Despite committing to make government information “open by default” in their 2015 federal election platform, the Trudeau Liberals have broken almost all of their open government promises, and have shown little interest in strengthening the ATIA. The Liberals made no ATIA promises in their 2021 election platform, and made no commitments in their new National Action Plan for the international Open Government Partnership process. Also, Treasury Board Minister Mona Fortier’s statement on the release of yesterday’s report commits only to a “review of access to information” not to making changes.

The Trudeau Cabinet’s Bill C-58 changing the federal Access to Information Act ignored many of the recommendations made in the unanimous June 2016 report of the House of Commons Access, Privacy and Ethics Committee, and was actually a step backwards in some ways.

Democracy Watch and its Open Government Coalition have been pushing to strengthen the Access to Information Act for years, including through a global coalition open letter in 2017, as have opposition MPs and the Information Commissioner. Democracy Watch’s coalitions have also been pushing for years for key transparency and integrity changes to the federal Lobbying Act, Public Servants Disclosure Protection Act, and Conflict of Interest Act and related MP and Senate ethics rules.

“The Trudeau Liberals broke most of their promises to close loopholes in Canada’s open government law, and strengthen transparency rules for government spending, and they have done nothing to strengthen protections for whistleblowers who report government wrongdoing nor to close loopholes that allow secret lobbying and secret investments by politicians, staff and Cabinet appointees,” said Conacher.

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Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s Open Government Campaign, Protect Whistleblowers Campaign, Government Ethics Campaign

Federal Court rejects Trudeau Cabinet’s first attempt to have key evidence kept out of case challenging its too-political judicial appointments and promotions system

Trudeau Cabinet still trying to stop court from seeing government emails reported on in La Presse, and evidence that lawyer associations, law professors, experts and media all think the Liberals’ appointment process is too political

Case hearing in 2022 – case alleges Trudeau Liberal’s consultation with only Liberals across Canada taints appointments with partisan bias that violates independence of courts and public’s Charter right to impartial courts

Wednesday, December 15, 2021

OTTAWA – Today, Democracy Watch announced that the Federal Court rejected (PDF) the Trudeau Cabinet’s first attempt to have key evidence thrown out in its case challenging the federal government’s too-political, unconstitutional system for appointing judges to the federal courts and all provincial superior courts and courts of appeal, and promoting judges within those courts.

The evidence shows clearly that federal appointments system for judges is too open to political interference that violates the constitutional principle that guarantees the independence of courts, and the public’s Charter right to impartial courts.

Department of Justice lawyers are still trying to prevent the Federal Court from considering almost all of the evidence that Democracy Watch filed in a December 2020 affidavit (PDF) and in a second affidavit (PDF) about internal government emails reported on in La Presse on October 31, 2020.

Parts of the evidence in exhibits attached to the second affidavit will be considered confidentially by the Federal Court under an order of the court (the PDF of the second affidavit that is linked above is redacted to remove the currently confidential information).

The Trudeau Cabinet’s lawyers are trying to hide from the Federal Court almost all of Democracy Watch’s December 2020 affidavit – exhibits D to J, N to W and Z to BB – which contain all of the open letters and articles that lawyer associations, law professors, lawyers, experts and media have produced in the last few years expressing their concerns about how political the federal judicial appointment is, and how that undermines the public’s confidence in the independence and impartiality of the judiciary.

Wade Poziomka of Ross & McBride LLP is leading the litigation team representing Democracy Watch and its co-founder Duff Conacher in the case.

The federal appointment process for the federal and provincial superior and appeal courts matters a lot because the Supreme Court of Canada refuses to hear 90% of appeals from these courts, and many appeals are also refused by provincial appeal courts, so in many cases the provincial superior courts are the public’s court of last resort. The constitutional guarantee of the independence of the courts has been upheld in several rulings on the measures in Part VII of the Constitution. And sections 7 and 11(d) (and, indirectly, 24(1)) of the Charter have been applied in rulings to ensure impartial court hearings.

The problems are longstanding, and have been raised in the past: unlike in the UK and Quebec, the federal Minister of Justice has too much political control of the process from start to finish, from choosing the majority of the members of the judicial appointment advisory committees in each province and territory (who serve renewable two-year terms), to receiving long lists of candidates from those committees, to circulating those lists secretly to MPs, Cabinet ministers and ruling party officials before making the final choice. The Minister also makes the decision, without any advisory committee involved making recommendations, to promote a sitting judge by appointing them to a court of appeal. (See Backgrounder for details)

Details about how many ruling party officials the Minister of Justice involves in reviewing the long lists of candidates for judicial appointments submitted by the advisory committees have been confirmed by whistleblowers disclosing internal government emails to the Globe and Mail and CBC and Radio-Canada.

And in April 2020 the Canadian Judicial Council found that Justice Colleen Suche, spouse of then-federal Natural Resources Cabinet Minister Jim Carr, had violated the judiciary’s ethics code by providing suggestions about who the federal Cabinet should appoint as judges.

In November 2020, the Canadian Bar Association (CBA) expressed concern about the final step of the federal appointment process in which the Minister circulates the long lists of candidates to many ruling party officials, saying that it is “a process that is open to speculation about political interference” that may be “a factor in the number of vacancies on the bench, which is a direct contributor to court delays and the access to justice crisis in Canada.”

There are also concerns that the partisan nature of the appointment process may be inhibiting the appointment of judges that reflect Canada’s diversity. Last June, the Chief Justice of the Supreme Court of Canada expressed the need for a “our courts, including our highest court, to reflect the diversity of Canadians.” In September 2020, 36 lawyers associations, legal clinics and advocacy groups called for changes to the appointment process, as did the CBA, to increase the appointment of more Black, Indigenous and People of Colour (BIPOC) judges.

“The current federal judicial appointment system is open to too much political interference by the ruling party, which violates the independence of the courts that is need to ensure democratic good government and fair law enforcement for all,” said Duff Conacher, Co-founder of Democracy Watch. “Hopefully this case will lead to key changes that will ensure the appointment process for judges across Canada is truly independent and merit-based.”

“The power of Parliament is checked by the power of the judiciary, which has the ability to declare laws enacted by Parliament to be unconstitutional,” said Wade Poziomka, a partner at Ross & McBride LLP who is leading the litigation team representing Democracy Watch. “The independence of the judiciary is a necessary safeguard in a healthy democracy. This case challenges an appointment process that has been in place over more than one government, a process that is ripe for change because it allows partisan considerations to affect appointments.”

“Democracy Watch wants to strengthen the independence of our judiciary and, in turn, public confidence in the justice system,” said Poziomka. “Our first choice is to work with federal politicians and other stakeholders to achieve this goal. If litigation is necessary however, Democracy Watch will argue the merits of its case before the Federal Court.”

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Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

See more at Democracy Watch’s Stop Bad Government Appointments Campaign and Stop Unfair Law Enforcement Campaign

Background on Key Problems

Background on Key Problems that Make the
Federal Judicial Appointments System Too Political
(December 2021)

To become a federally appointed judge, a person must either be a lawyer for 10 years or a lawyer and quasi-judicial tribunal member for a combined total of 10 years (See s. 3 of the Judges Act, and ss. 5.2 and 5.3 of the Federal Courts Act). There are Judicial Advisory Committees for each province and territory that review applications and recommend long lists of qualified candidates to the Minister of Justice.

The problems with the federal judicial appointments system that the case challenges are longstanding, and have been raised in the past, (see also here and here and here, and also all the evidence linked in Democracy Watch’s December 2020 affidavit, and most provinces have the same problems with their appointment system), as follows:

  1. Canada’s federal judicial appointment system is just a self-enforced policy of the federal government that can be changed at any time. In contrast, in the UK and in most provinces the appointment system is enshrined in law so that a Cabinet can’t change it without introducing a public bill that is debated by the legislature and the public.
  2. The Minister of Justice and Cabinet appoint a majority of the seven members of each Judicial Advisory Committee. They appoint:
    1. three of the members directly;
    2. one from a list of nominees submitted by the Law Society of the province/territory;
    3. one from a list of nominees submitted by the provincial or territorial chapter of the Canadian Bar Association;
    4. one from a list of nominees submitted by the jurisdiction’s Attorney General, and;
    5. then the chief judge of the jurisdiction chooses the last member of each committee.

In contrast, Cabinet ministers in Manitoba (s. 3.3) and B.C. (s. 21) choose a minority of the members of the advisory committee for their provincial courts. Ideally, the Cabinet should not choose any of the members of the committees. The federal Minister alone chooses to promote sitting judges to appeal courts. Ideally, a fully independent committee should be recommending a short list of 1-3 sitting judges as candidates for promotion to appeal courts.

  1. The federal judicial advisory committees are appointed by the Minister and Cabinet to renewable two-year terms. Ideally, even if the Minister and Cabinet members are removed from appointing any of the committee members (as recommended above in #2) the terms should not be renewable, to ensure regular turnover of committee members.
  2. Each committee submits a long list of candidates, which gives the Minister a lot of leeway to appoint whomever s/he wants. Ideally, the committees should submit only 1-3 candidates for each open judge position, with the minister required to choose from that short list, as in Quebec and the UK (and in the UK, where the committee only submits one candidate, the minister must explain in writing to the committee if s/he rejects the recommended candidate).
  3. Before making the final choice, the Minister shares each list of candidates with Cabinet ministers and MPs, and also party officials, from the province or territory. Ideally, the Minister should be prohibited from sharing the list with anyone.

Court should again find Ford government’s third-party ad spending limits unconstitutional, and also his use of notwithstanding clause

DWatch intervening in this week’s court hearing to argue that limits are needed for democratic, fair elections, but limits also need to be democratic

Ford also doubled donation limit allowing wealthy donors to buy even more influence, likely helping Ford’s PC Party most – limit should be lowered to $100

Tuesday, November 23, 2021

OTTAWA – Today, Democracy Watch announced that it is intervening in the online court hearing this week on whether the Ford government’s Bill 307 that extended limits on third-party interest group ad spending for 12 months before each election are unconstitutional.

Democracy Watch is scheduled to present its arguments today, Tuesday, November 23, 2021, at about 12 noon. The public can watch the hearing live on Zoom by clicking here. Crawford Smith of the law firm LOLG will present Democracy Watch’s intervention, assisted by Matthew Law and Patrick Wodhams.

Unlike the unions who filed the court case, and other intervenors, Democracy Watch is arguing that limits on third-party interest group ad spending between elections can be constitutional if the limits are democratic, established democratically, and based on the actual cost of reaching voters through advertising on any issue.

In contrast, the limits set by the Ford government in Bill 307 allow a wealthy individual voter, or a private corporation with only a few shareholders, to spend $600,000 on issue ads – the same amount as a citizen group with tens of thousands of voters. That’s not democratic – individual voters and private corporations should have a much lower spending limit than broad-based citizen groups. Also, the Ford government did not consult with the public or study the actual cost of reaching voters on any issue – the government just imposed an arbitrary limit based on the arbitrary limit set in 2017 by the Wynne government.

The Ford government’s spending restrictions on advertising by interest groups for the year before the election should again be ruled unconstitutional by the court because they are undemocratic, arbitrary, and were rammed through the legislature without proper study or consultation,” said Duff Conacher, Co-founder of Democracy Watch and Chairperson of the Money in Politics Coalition. “Restricting massive ad campaigns by wealthy interest groups and individuals in the months leading up to an election is a good, democratic idea, as the Supreme Court of Canada has ruled, as is prohibiting huge ad campaigns by wealthy individuals and lobby groups all the time, but an independent commission should be set up to study the actual costs of reaching voters to ensure the ad spending limit is realistic, and the limit should be much higher for citizen groups that have lots of supporters than it is for an individual voter or private business.”

The court should also rule that it was undemocratic and dictatorial, and illegal, for Doug Ford to invoke the notwithstanding clause to impose his arbitrary and undemocratic spending restrictions on advertising by interest groups for the year before the election,” said Conacher.

Ford first imposed the limits last April in Bill 254 which was introduced without any consultation with opposition parties or stakeholders. However, in a case filed by several unions, the limits were struck down by Ontario’s Superior Court in June for unreasonably restricting Charter free expression rights (Charter s. 2(b)).

Then, in just a few days, despite many calling for a re-consideration of the limits, including Democracy Watch backed by 35,000 Ontario voters, Ford’s PC Party introduced and passed Bill 307 to impose the limits again, and included the notwithstanding clause in the bill in an attempt to prevent anyone from challenging the limits in court. However, several unions again challenged the limits as a violation of the right of voters under Charter s. 3 to play a meaningful role in elections. The notwithstanding clause cannot be used to shield violations of s. 3 from being challenged in the courts.

Bill 254 rigged Ontario’s political finance system in favour of Ford’s PC Party

In its submission to the Ontario legislature committee reviewing the Ford government’s Bill 254, Democracy Watch called for changes to reverse the many undemocratic, unethical and unconstitutional political finance measures in the bill that make Ontario politics and elections unfair, tilting the rules in favour of Ford’s PC Party.

“The other measures in the Ford government’s Bill 254 that violate the fundamental democratic principle of one person, one vote must also be changed because they are unfair and tilt the rules in favour of Ford’s PC Party,” said Conacher.

The Ford government’s Bill 254 also doubled the annual donation limit, which will allow wealthy donors to buy even more unethical influence over parties and politicians, and will likely benefit Ford’s PC Party the most. Democracy Watch’s analysis of 2020 party donations shows the PCs received almost 50% of their donations of more than $100 from only 20% of their donors who donated $1,000 or more. The other main parties’ top donors also provided disproportionate amount of funding.

Democracy Watch’s analysis also shows that the median donation to provincial parties of donations of more than $100, which is the most accurate indication of the amount an average voter can afford, is: PCs ($200), Liberals ($50); NDP ($25); Greens ($30).

“Doubling the donation limit as the Ford government’s Bill 254 did will allow wealthy donors to buy even more unethical influence over parties and politicians, especially given that the full identity and associations of donors is not disclosed, and will likely benefit Ford’s party the most,” said Conacher. “The only way to stop the unethical, undemocratic influence of big money on Ontario politics is to limit donations to $100 or less, like Quebec has, which is an amount an average voter can afford.”

Bill 254 also extended and increased the annual per-vote funding for parties. Democracy Watch’s analysis, contained in its submission, revealed that the provincial per-vote funding system provides on average half to two-thirds of each of the four main parties’ annual funding. Combined with the tax credits that donors receive, it adds up to too high public funding for parties and candidates.

“An independent commission is needed to study the actual costs of running parties and riding associations are and then, only if parties and candidates can prove they need it, public funding should be adjusted to reflect those actual costs, and to ensure the funding is fair and based on actual voter support,” said Conacher.

The only good parts in Bill 254 were the measures allowing independent candidates to raise money before election campaigns begins (however, more disclosure must be required of donations and spending of such candidates), and the measures giving the Chief Electoral Officer the power to fine violators of Ontario’s election law.

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Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s Money in Politics Campaign

Democracy Watch files lawsuit vs. Ethics Commissioner’s ruling that ignored PM Trudeau’s clear violation in WE Charity grant approval

Federal ethics law prohibits all conflicts of interest and improper decisions, including improper apparent conflict that the Commissioner found Trudeau had

Monday, November 15, 2021

OTTAWA – Today, Democracy Watch announced that it has filed a court case challenging Ethics Commissioner Mario Dion’s May 2021 ruling on Prime Minister Trudeau’s participation in the WE Charity grant approval process because the Commissioner made four key errors in letting Trudeau off even though Trudeau clearly violated the federal government ethics law.

Click here to see the Backgrounder summarizing the four key errors in the Ethics Commissioner’s ruling.

The case is Federal Court of Appeal file number A-169-21. David Yazbeck of Ravenlaw is representing Democracy Watch in the case. The Attorney General of Canada, which (strangely) defends the Ethics Commissioner in such cases, has filed a motion to have the case thrown out.

“Ethics Commissioner Dion contradicted himself, tied himself into knots, and cut the federal ethics law into pieces in his ruling letting Prime Minister Trudeau off even though he clearly violated the federal conflict of interest law by participating, and having his office staff participate, in the WE Charity grant approval,” said Duff Conacher, Co-founder of Democracy Watch. “Ethics Commissioner Dion rolled over like a lapdog and again failed to properly enforce the ethics law, and Democracy Watch is challenging his ruling in court because it sets a very bad precedent that will allow politicians and government officials to take part in future decisions to hand out money to individuals and organizations that have close relations with their families.”

– 30 –

Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s and Government Ethics Campaign and Stop Fraud Politician Spending Campaign


Backgrounder on 4 Errors Made by federal Ethics Commissioner Mario Dion in his ruling on Prime Minister Justin Trudeau’s participation in approving the WE Charity grant in spring 2020

(November 10, 2021)

Ethics Commissioner Mario Dion’s May 2021 ruling on Prime Minister Trudeau’s participation in the WE Charity grant approval process made four key errors in letting Trudeau off even though Trudeau clearly violated the federal government ethics law.

The Ethics Commissioner concluded that, because PM Trudeau’s spouse volunteers as an ambassador and champion for WE Charity, including hosting a podcast for it, and his mother and brother have been paid large sums to give speeches for the charity, and the PM has also appeared at several WE events, there was a strong appearance of conflict between the Trudeau family’s relationship with WE and Mr. Trudeau’s duty to make decisions that best serve the public interest.” (paragraphs 248-250).

Trudeau has said he should have recused himself, and Ethics Commissioner Dion says at the end of his ruling that “it is always advisable to recuse oneself and inform the Commissioner promptly when facing an apparent conflict of interest” (paragraph 269). Why? Because it is clearly improper to take part in a decision when in an apparent conflict.

  1. Failure to rule that Trudeau had a real conflict of interest

However, the Ethics Commissioner’s ruling first claims, wrongly, that Trudeau was not in a real or potential conflict of interest. Democracy Watch’s position is that, because of the extensive, direct and ongoing family ties between the Trudeau family and WE, especially the fact that his spouse is a WE ambassador and podcaster, the PM was clearly in a potential conflict of interest when WE Charity began engaging with the government about the grant, and then in a real conflict of interest as soon as WE Charity engaged with Cabinet and the PMO.

In the Trudeau II Report about the SNC-Lavalin scandal involving the Prime Minister and other top government officials, Commissioner Dion defined “private interests” as including “financial, social or political interests (paragraphs 288 to 292). In his ruling on the WE Charity grant, he concluded that the grant definitely benefited WE’s private interests but ignored the fact that the grant would very likely, by helping WE financially and deepening the relationship between WE and the PM’s government and family, also benefit the social interests of his WE-ambassador spouse and his family members who spoke at WE events, and the PM’s political interests as WE would have continued to promote the PM as it has for more than a decade (paragraphs 233-238 and 243-244).

  1. Failure to rule that Conflict of Interest Act covers apparent conflicts of interest

Secondly, the Ethics Commissioner’s ruling claims, wrongly, that being in an appearance of a conflict of interest is not a violation of the federal Conflict of Interest Act (CofI Act), and that only being in a real or potential conflict of interest is (paragraphs 252-268).

This part of the ruling is wrong because the purpose of the CofI Act is to prevent all “conflicts of interest” whether real, apparent or potential (subsections 3(b) and (c)), and the Act prohibits federal politicians and government officials from participating in specific decisions like handing out grants and contracts when they are “in a conflict of interest” (sections 4 and 6) which includes any type of conflict of interest, real, apparent or potential (as the Federal Court of Appeal ruled unanimously in 2009 (para. 49)).

  1. Failure to rule that Trudeau and Keilburger borthers, who head up WE Charity, are friends

Thirdly, the CofI Act prohibits politicians furthering not only their own interests but also “those of his or her relatives or friends or to improperly further another person’s private interests” (​sections 4 and 6). As mentioned above, the WE Charity grant could benefit Trudeau and his relatives’ interests. In addition, the Ethics Commissioner ignored evidence that Trudeau and his spouse are friends of the Kielburger brothers who head up WE. Craig Keilburger described Trudeau as a friend in a ​November 2015 interview with the Ottawa Citizen. At the same time ​at the WE event where he gave his first speech as Prime Minister, Trudeau describe both Craig and his brother Marc as friends. Given this, and that the ties between the families have only increased since then, again including that Trudeau’s spouse is a WE Ambassador, the Ethics Commissioner was wrong to conclude that that they are not friends (paragraphs 239 to 241 of his ruling).

  1. Failure to find that Trudeau acted improperly, which is a violation of the Act

Fourthly, Commissioner Dion’s ruling ignores the real meaning of the second part of section 4 of the CofI Act that prohibits taking part in a decision if it offers an opportunity to “improperly further” another person’s or entity’s interests. That is a very broad prohibition, as the Commissioner himself concluded in the Trudeau II Report on the SNC-Lavalin scandal (paragraphs 286 and 296-301). According to the Commissioner, “improper” includes a violation of any of the PM’s Code rules, and that Code’s Annex B rule prohibits the PM and ministers from being in an appearance of conflict of interest.

Again Trudeau has said he should have recused himself, and Ethics Commissioner Dion says at the end of his ruling that “it is always advisable to recuse oneself and inform the Commissioner promptly when facing an apparent conflict of interest” (paragraph 269). Why? Because it is clearly improper to take part in a decision when in an apparent conflict.

Democracy Watch files six more lawsuits vs. Integrity Commissioner for letting Ford/PC Party-connected lobbyists lobby Ford Cabinet

Since 2018, Commissioner has made 1,036 secret rulings, let an unknown number of lobbyists violate the law, and failed to penalize 85% of the lobbyists he found violated the law

Even a Ford PC Party MPP is concerned about whether Ford is giving these lobbyists policy gifts as they cash in on their so-called “public service”

Monday, November 8, 2021

OTTAWA – Today, Democracy Watch announced that it has filed six more applications in Ontario’s Divisional Court challenging five more rulings by Ontario’s Integrity Commissioner J. David Wake that allowed three lobbyists who worked on campaigns for Ontario politicians, or gave them gifts, to lobby the politicians soon afterwards, and failed to penalize one of those three lobbyists, and two other lobbyists, even though he ruled that they violated the law.

The six cases add to the nine other court cases Democracy Watch filed last December and mean that, in total, Democracy Watch is challenging 14 of the Integrity Commissioner’s unknown total number of decisions that have let dozens of people (and maybe more) unethically lobby Doug Ford and his Cabinet ministers soon after they campaigned, fundraised or worked for Ford and/or Ontario’s PC Party in the 2018 leadership race and election, and/or worked for Ford or one or more of his ministers since the election. A Divisional Court judge is currently considering whether to allow the first nine cases to proceed, which will determine whether the six new cases will be allowed to proceed.

Many of these lobbyists are still advising Ford and/or in senior PC Party positions while they continue to lobby Ford’s Cabinet on long-term care, property development, highway development, COVID-19 relief, mining, and other big issues. A Toronto Star report published in July documented how these Ford/PC Party-connected lobbyists had won many favours from the Ford government since the COVID crisis began in spring 2020.

Even one of Ford’s MPPs has expressed concern about the Ford-connected lobbyists, as Thornhill MPP Gila Martow issued a statement via Twitter and a docs webpage last December that said in part:

“Big box retailers should not be permitted to enrich themselves on the backs of small businesses simply because they can afford to hire well-connected lobbyists like Melissa Lantsman to get them preferential treatment.” (link in original)

The new cases challenge rulings #1 and 3 on page 52 of the Commissioner’s 2020-2021 Annual Report and rulings #5, 6 and 8 on pages 53-54 of the Report. The cases are Division Court file numbers 587/21 to 592/21. Nick Papageorge of Ross McBride LLP is currently representing Democracy Watch for the cases. Click here to see the Notice of Application challenging ruling #6 (the other five applications are very similar).

Section 3.4 was added to the Lobbyists Registration Act (LR Act) on July 1, 2016, and it prohibits lobbying any politician or other public office holder if it will create a real or potential conflict of interest or make it improper for them to further the interests of the lobbyist or their clients. Commissioner Wake’s rulings are based on a very weak Interpretation Bulletin he finally issued in June 2020 that claims when a lobbyist assists a politician with fundraising or campaigning or gives them a gift, the conflict of interest created by the assistance or gift disappears soon afterwards, so the lobbyist can then lobby the politician and their staff.

The 14 cases also ask the courts to rule that Commissioner Wake was biased when he issued the three rulings, given he knew that he would need the unanimous approval of Ford’s Cabinet and all MPPs to be re-appointed for a second five-year term, which happened last December 1st (although many MPPs were not present for that snap vote).

“Dozens of people who have helped or worked for Doug Ford or his Cabinet ministers or the PC Party have set themselves up in lobbying firms and, even though many of them have never lobbied before, big businesses are hiring them because they know it will get them inside access to Ford and his ministers,” Duff Conacher, co-founder of Democracy Watch. “Democracy Watch is challenging all the very weak decisions that Ontario’s so-called Integrity Commissioner has made public that have allowed lobbyists corrupt Ontario government policy-making as they cash in on their so-called public service.”

“Hopefully the courts will issue rulings that stop this unethical lobbying of Ford’s Cabinet and require the Commissioner to start enforcing the lobbying ethics rules strictly and strongly,” said Conacher. “Democracy Watch will continue challenging the Integrity Commissioner’s rulings in court, and his excessive secrecy including more than 1,000 secret decisions since 2018, as long as the Commissioner continues letting lobbyists lobby politicians unethically and violate the lobbying law in other ways, and continues to fail to penalize every violator.”

From April 2018 to March 2021, Commissioner Wake issued 281 secret Advisory Opinions, closed 197 secret compliance reviews at the initial stage, and resolved 558 cases informally in secret. At least some of those 1,036 secret decisions by Commissioner Wake have allowed dozens of other lobbyists to fundraise or campaign or give significant gifts to Ford’s Cabinet and then lobby them soon afterwards.

The Commissioner also only issued 81 public rulings out of 1,125 situation he investigated, and he let off without any penalty 28 of the 33 lobbyists he found guilty of violating the law. (Click here to see Backgrounder on Integrity Commissioner’s Rulings 2018-2021).

All other commissioners in Canada have ruled that the conflict of interest created by assisting a politician in any significant way lasts for several years. For example, the federal Commissioner of Lobbying’s ruling says the conflict lasts four years. The federal lobbying law also prohibits Cabinet staff from lobbying for five years after leaving their position (s. 10.11 – though it has loopholes). (Click here to see Backgrounder on Conflict of Interest Rule in Ontario’s Lobbying Law).

As well, huge loopholes in the LR Act allow countless other lobbyists to lobby in secret and unethically. None of the following lobbying activities are required to be disclosed: unpaid lobbying, business lobbying or non-profit organization lobbying of less than 50 hours a year, lobbying about the enforcement of a law, or in response to a request for feedback from a Minister, official or MPP. As a result, anyone lobbying in these ways is also allowed to give gifts to and campaign, fundraise and do favours for Ontario Ministers, MPPs, political staff and government officials they are lobbying.

“Until huge loopholes are closed in the lobbying law, public officials are banned from lobbying for years after they leave their position, and the Integrity Commissioner enforces the law more strictly and strongly, secret, unethical lobbying will continue to corrupt Ontario government policy-making,” said Conacher.

– 30 –

Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s Government Ethics Campaign

DWatch calls on federal and Ontario governments to end fossil fuel financing by Canada’s banks and other financial institutions

Voluntary, vague disclosure and investment plans announced today by alliance of banks and other financial institutions too weak to stop polluting investments

Wednesday, November 3, 2021

OTTAWA – Today, Democracy Watch, backed by thousands of Canadians that have sent a letter through its Stop Fossil Fuel Financing Campaign and/or signed its petition, called on Finance Minister Chrystia Freeland and Ontario Premier Doug Ford to work together with all parties and make three key changes that will expose, and end, fossil fuel financing by Canada’s Big Banks and other key financial institutions, and empower financial consumers and retail investors to have a much greater say in what financial institutions are doing with their money.

Democracy Watch is one of 231 organizations in 38 countries calling for key changes to disclose and stop bank financing of fossil fuels and other major polluting industries that are causing the climate crisis.

According to research by the Rainforest Action Network and other organizations, 3 of Canada’s Big 5 Banks are among the top 12 banks worldwide financing the fossil-fuel industry, and the other 2 are in the top 25 banks. Click here to see their report.

It was difficult for the organizations to find out this information, and Canada’s Big Banks are denying it is accurate. The information also doesn’t include other Canadian financial institutions, such as insurance companies, that support the industry, nor does it cover other major industries that create the pollution that is causing the climate crisis.

At the ongoing international meeting addressing the climate crisis (COP26), an international alliance of banks and other financial institutions (GFANZ) led by former Bank of Canada Governor Mark Carney announced today a voluntary plan that will let them continue to hide their actual investments in fossil fuels and other polluting industries, and do little to stop those investments, for at least another decade.

Democracy Watch supports Reclaim Finance’s critical analysis of the weak and flawed plan proposed by GFANZ.

In April’s federal government budget, Finance Minister Chrystia Freeland didn’t include any measures to require the Big Banks or other financial institutions to disclose their climate-related investments. The government only committed to talk to provincial and territorial governments about disclosure (p. 175).

The international Task Force on Climate-Related Financial Disclosures (TCFD) has recommended requiring disclosure, as did an Ontario government task force in January 2021 (Recommendation 41, pp. 68-71). Canada’s Big Banks and other financial institutions are also not required to lend and invest in actually sustainable businesses that will create long-term jobs that don’t pollute or harm Canadians and their communities.

“Canada’s big banks and other financial institutions wouldn’t be able to operate without our money, and so they shouldn’t be allowed to keep details of their fossil fuel industry loans, investments and insurance secret from us or be allowed to make up their own voluntary disclosure and investment standards,” said Duff Conacher, Co-founder of Democracy Watch, which has led the bank accountability movement in Canada in the past 25 years. “The federal and Ontario governments must require all financial institutions to disclose their fossil fuel financing, to finance only actually sustainable big businesses, and establish two citizen groups that will empower financial consumers and retail investors to have more say over how financial institutions are using their money.”

Democracy Watch Stop Fossil Fuel Financing Campaign calls for 3 key changes which either the federal government (through federal laws) or the Ontario government (through securities laws) can make. The changes that would require disclosure of fossil-fuel investments by banks and other key financial institutions; require them to finance only actually sustainable big businesses, and empower financial consumers and investors to ensure their money is used to support sustainable, job-creating businesses:

  1. Require banks, insurance, trust and mutual fund companies, and other financial institutions, to disclose their lending, investments and insurance for the fossil fuel industry, and all other major carbon-producing industries (coal, heavy manufacturing), by company as recommended by the international Task Force on Climate-Related Financial Disclosures (TCFD);
  2. Add the Equator Principles and other real sustainability rules to Canada’s and Ontario’s laws to require banks and other financial institutions to lend, invest and provide insurance only to actually sustainable big businesses, and;
  3. Establish a Financial Consumer Organization (FCO) using this innovative method that has been proven effective in the U.S., and an Individual Investor Organization (IIO) using the same method. Together these groups will exponentially increase the information available to financial institution customers and individual investors about how financial institutions use and invest their money, and will also exponentially increase the power of financial consumers and individual investors to have a say in the use of their money, and to push for actually responsible, sustainable investing.

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Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s Stop Fossil Fuel Financing Campaign and Bank Accountability Campaign and Corporate Responsibility Campaign

Democracy Watch case going ahead vs. Lobbying Commissioner rulings letting off lobbyists who helped Chrystia Freeland win election, then lobbied her officials and staff

Lobbying Commissioner trying to hide details of her investigation and ruling – judge will decide what Commissioner has to disclose

Tuesday, October 19, 2021

OTTAWA – Today, Democracy Watch announced that the Federal Court rejected the Trudeau government’s motion requesting that the court stop the cases Democracy Watch filed in August 2020 challenging the federal Commissioner of Lobbying’s rulings about lobbyists Ben Bergen and Dana O’Born of the Council of Canadian Innovators (CCI).

The cases are continuing, and the next step is that the Commissioner is trying to stop the court and Democracy Watch from seeing the details of her investigation and findings that led to her ruling. Under the Lobbying Act, investigations are conducted in private, but under Federal Court rules the Commissioner is required to disclose the record of her investigation so that the court can fully review whether it was conducted properly, and whether the rulings were also proper.

The Commissioner and Democracy Watch will file their submissions on the investigation disclosure issue over the next month, and then the court will issue its ruling sometime after that. Democracy Watch is represented by Andrew Montague-Reinholdt and Rhian Foley of Nelligan O’Brien Payne LLP. The cases are Federal Court file nos. T-915-20 and T-916-20.

Lobbying Commissioner Nancy Bélanger ruled in March 2020, a completely unjustifiable delay of almost three years after Democracy Watch filed its complaint, that Mr. Bergen and Ms. O’Born did not violate Lobbyists’ Code of Conduct rules 6, 8, 9 or 10 which prohibit assisting a politician in any significant way and then lobbying their office or officials afterwards, even though they:

  1. co-managed Chrystia Freeland’s 2015 election campaign;
  2. continued to work in senior roles with her riding association post-election, and;
  3. then were hired for the top positions at CCI and lobbied in 2017 Freeland’s then-Parliamentary Secretary David Lametti, her office staff, and senior officials in her then-International Trade department, including deputy ministers, assistant deputy ministers and special assistants.

Democracy Watch’s case argues that Bergen and O’Born’s lobbying violated Lobbyists’ Code rules.

“The federal lobbying ethics code prohibits anyone from lobbying a Cabinet minister or their officials for four years after helping them get elected or assisting them in a significant way, and so Lobbying Commissioner Bélanger should have found Minister Freeland’s former election campaign managers guilty of violating the code given they lobbied many senior officials in Minister Freeland’s former department before four years had passed,” said Duff Conacher, Co-founder of Democracy Watch.

“By letting the CCI lobbyists off the hook, and issuing other similarly weak rulings in recent years letting off other unethical lobbyists, Lobbying Commissioner Nancy Bélanger is continuing the negligent enforcement record of her predecessor Karen Shepherd who let off 84% of the lobbyists who violated the law during her decade as commissioner,” said Conacher.

The case was delayed in fall 2020 waiting for the Supreme Court of Canada (SCC) to decide whether to allow DWatch to appeal the Federal Court of Appeal’s ruling on its case challenging former Lobbying Commissioner Karen Shepherd’s decision not to investigate the Aga Khan for giving Justin Trudeau’s family and friends a trip to his private Bahamas island. Incredibly, the FCA ruled that the public had no right to have a complaint ruled on by the Commissioner, and therefore no right to challenge a decision not to investigate a complaint.

The SCC decided not to hear DWatch’s appeal. However, the Bergen and O’Born cases are different because the Commissioner issued final rulings under section 10.5 of the Lobbying Act after investigating. In contrast, in the Aga Khan case, the Commissioner refused to investigate under subsection 10.4(1) of the Act.

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Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s Government Ethics Campaign

DWatch criticizes so-called Independent Senators Group for planning a kangaroo court hearing to expel Senator Marilou McPhedran for questioning weak, loophole-filled Senate ethics and harassment measures

Senate Ethics Officer has ignored how several senators’ business board and employee positions and investments violate key ethics code rules

Monday, October 18, 2021

OTTAWA –Democracy Watch criticized the so-called “Independent Senators Group” (ISG) for planning to hold a secretive, closed-door hearing today to decide whether to expel Senator Marilou McPhedran for questioning weak, loophole-filled Senate ethics and anti-harassment rules and enforcement.

“If they want to claim to be independent, senators in the so-called Independent Senators Group should have rejected the attempt to use a secretive, kangaroo court process to punish a senator for questioning the Senate’s weak, loophole-filled ethics and anti-harassment measures,” said Duff Conacher, Co-founder of Democracy Watch. “Senators in the ISG should be ashamed for trying to expel Senator McPhedran, and it shows yet again why the Senate should be abolished as senators continue to refuse to reform it in any meaningful ways to make it democratic, ethical and accountable.”

The Senate’s anti-harassment measures, like the measures across the federal government, are far from a best-practice system to protect complainants who blow the whistle on wrongdoing.

In terms of ethics, the Senate’s Ethics and Conflict of Interest Code for Senators is full of loopholes, and Senate Ethics Officer Pierre Legault continues to fail to issue guidelines for key (but vague) rules in the Code. In fact, in July 2021, the Ethics Officer finally issued the first guidelines ever issued since the office was created in 2005, but only for two of the many rules in the Code.

Specifically, the Senate Ethics Officer continues to fail to explain how more than 60 senators (To see list, click here) can be paid to be board members of businesses or organizations and/or have stock market or mutual fund investments (but not disclose which companies they are invested in) and/or other paid work, and yet not be in violation of:

  1. subsection 2(1) of the Code which requires senators to give precedence to their parliamentary duties and functions over any other duty or activity;
  2. subsection 2(2) which sets out principles senators are expected to uphold, including avoiding even the appearance of a conflict of interest,
  3. section 7.1 that requires senators to “uphold the highest standards of dignity” and prohibits acting in a way that “could reflect adversely” on the position of Senator or the Senate overall, and;
  4. section 7.2 requires senators to perform their parliamentary functions and duties with “dignity, honour and integrity.”

“No senator can claim to be independent or provide sober second thought on any issue when they are on the board of or working for a private business or firm or have secret financial investments in the stock market,” said Conacher. “Senators should be required to work only as senators, and should only be allowed to invest in term deposits and government bonds, to prevent conflicts with their duty to act in the public interest.”

Democracy Watch sent a letter in September 2018 to Ethics Officer Legault calling on him to issue a ruling that Senator Larry Campbell’s then-position as a board member with Great Canadian Gaming Corporation (with stock options in the company), a position he retired from only in June 2021, violated the purpose and rules 2(1), 2(2) and 7.2 of the Senate ethics code.

In the letter, Democracy Watch also called on the Ethics Officer Legault to review the board positions and investments of all senators, and to issue the same ruling for any senator who holds a position as a board member, executive or employee, or who has investments, in any corporation that has interests in the province they represent or interests affected by federal laws duties because their board and financial interests conflict with the overall public interest that senators have a duty to represent and uphold under their ethics code.

“The Senate ethics rules require senators to dedicate themselves to their duties as a senator over all other activities, and to always act with integrity and avoid even the appearance of a conflict of interest, and no senator can comply with those rules when they are a board member, executive or investor in a corporation that is regulated by federal laws or operates in the province they are supposed to represent,” said Conacher. “Senators can unethically help their company’s interests not only by taking part in discussions, debates and votes that affect the company’s interests but also by not doing anything such as not making any public statements or proposals that would hurt the company’s interests.”

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Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s Government Ethics Campaign and Shut Down the Senate Campaign