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More than 31,000 Canadians have signed petition calling for public explanation from the RCMP and prosecutors

Democracy Watch considering private prosecution to ensure full hearing of the legal issues – also calls on Ethics Commissioner and Senate Ethics Officer to rule finally on complaints filed months ago

April 22, 2014

OTTAWA – Today, Democracy Watch called on the RCMP officials and prosecutors who decided not to charge and prosecute Nigel Wright for his payment of more than $90,000 to Senator Mike Duffy to provide a detailed written explanation of their decision, as a B.C. prosecutor did in the Dobell case in 2008 (To see the explanation in B.C. case, click here (PDF document).

More than 31,000 Canadians have signed an online petition calling for a public explanation whenever prosecutors decide not to prosecute someone involved in the Senate spending scandal, as well as for fully independent prosecutors to oversee the investigations to ensure decisions are made based on the facts and the law and no other considerations.

Democracy Watch also called on federal Ethics Commissioner Mary Dawson to launch an examination of the complaint it filed with her in December concerning the actions of Wright and other staff of the Prime Minister’s Officer involved in the Senate scandal. And Democracy Watch called on Senate Ethics Officer Lyse Ricard to rule on the complaint it filed with her also in December about Duffy and other senators’ actions. Both the Ethics Commissioner and Senate Ethics Officer could have ruled last June about Wright’s and Duffy’s actions, if they had acted like watchdogs instead of lapdogs.

On December 4, 2013, Democracy Watch sent a 6-page letter to RCMP Commissioner Robert Paulson setting out a detailed opinion about the law and the evidence that suggested the investigation into the Senate scandal should be expanded to include the actions of people other than Nigel Wright and Senator Mike Duffy.

The letter set out the opinion of Duff Conacher (issued on behalf of Democracy Watch), who has a law degree, and for 20 years has monitored government and business ethics law in Canada, including teaching a course on the law of ethics in government and business for the past three years at the University of Toronto Faculty of Law.

The letter set out an explanation of why the law covers not only Nigel Wright and Senator Mike Duffy, but also others involved in the negotiations that resulted in the payments to Senator Duffy in return for actions by Senator Duffy, and lists the evidence from the affidavit of RCMP Corporal Greg Horton that was released last November, evidence that clearly raises questions about whether these other people violated the law. As a result, the letter suggests that the investigation should be expanded to determine whether these other people violated the law.

Instead of expanding the investigation, the RCMP cut it off last week with a vague, somewhat contradictory three-line statement that said essentially when the RCMP launched their investigation in June 2013 “there were sufficient grounds to pursue the matter with regards to the offences of breach of trust, bribery, frauds on the government, as well as receiving prohibited compensation contrary to the Parliament of Canada Act” but that “Upon completion of the investigation, we have concluded that the evidence gathered does not support criminal charges against Mr. Wright.”

“Given the clear evidence that Senator Duffy was required to do specific things in return for the payment from Nigel Wright, and given that the laws covering this situation have never or very rarely been ruled on by the courts, the RCMP and prosecutors must provide a detailed written explanation of why they have not prosecuted Wright and others involved in the payment to Duffy. If they don’t provide this public explanation, they will face ongoing questions about what they are covering up and whether they have properly enforced the law in the public interest,” said Duff Conacher, Board member of Democracy Watch. “Prosecutors should not be pre-empting the courts ruling on legal issues and evidence in cases where the evidence is clear and the law has never or only rarely been tested, especially when the integrity of government and public officials is involved.”

Democracy Watch is considering launching a private prosecution to ensure a full hearing in the courts, and a judicial ruling, on the actions of several people and the legal issues involved in the Senate spending scandal.

In Democracy Watch’s opinion, the key legal measure is subsection 119(1) of the Criminal Code, which prohibits even offering (as well as giving) “corruptly” any benefit to any public official “in respect of” any action or inaction by the official in their capacity as a public official (even if the official never acts). This subsection also prohibits the public official from even attempting to obtain (as well as obtaining) the benefit. And under section 21 of the Criminal Code, it is a violation to aid or abet anyone in violating any prohibition in the Code, and under section 24 it is a violation to attempt to violate any prohibition in the Code.

There are no past court rulings on subsection 119(1). As Democracy Watch’s letter to the RCMP detailed, based on past rulings concerning a similar section in the Code (subsection 426(1)), Democracy Watch’s opinion is that to violate subsection 119(1) there does not have to be a “corrupt bargain” or a trading of favours between the person who offers or gives the benefit and the public official attempting to obtain or receiving the benefit. All that is needed for a violation is for the benefit to be given in a corrupt way (for example, in secret with a commitment to keep it secret), and for the benefit to be “in respect of” actions or inactions by the official.

The evidence in Corporal Horton’s affidavit revealed last November shows that at least three people other than Nigel Wright were involved in the secret negotiations involving offers of benefits, and payments of money, to Senator Duffy in return for at least three actions by Senator Duffy in his capacity as a senator. And the evidence shows that at least one other person was involved in attempting to obtain, and obtaining, benefits and payments of money for Senator Duffy in return for at least three actions by Senator Duffy in his capacity as a senator.

The secrecy of the negotiations and agreements between Nigel Wright and Senator Duffy; the resignation or firing of Wright, and; the agreement by many of the people involved to issue public statements that concealed that the payment had been given to Senator Duffy, and their agreement to mislead the public about the facts of the situation, is all evidence that the benefits were offered and given to Senator Duffy “corruptly”.

For all of the above reasons, Democracy Watch is requesting that the RCMP officials and the prosecutors involved explain exactly how they took into account the evidence and legal measures set out above in their decision not to prosecute Nigel Wright (and, by implication, others involved), and Democracy Watch will continue pursuing this matter until all the evidence and legal arguments are given a full public hearing.

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FOR MORE INFORMATION, CONTACT:

Duff Conacher, Board member of Democracy Watch
Tel: 613-241-5179
Cell: 416-546-3443
Email: [email protected]
Internet: http://democracywatch.ca

The following op-ed by Democracy Watch co-founder Duff Conacher was published in edited form by the Globe and Mail on April 7, 2014

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The federal Conservatives fully deserve the many criticisms of their so-called proposed “Fair Elections Act” (Bill C-23) not only because it is yet another omnibus bill trying to sneakily make many unfair changes but also because it fails to correct unfair flaws in the current federal election system, and because the Conservatives have tried to spin so many misleading statements about the bill.

Playing misleading games with understandable, and fundamental, democratic elections and voting issues isn’t going to work, and is going to hit the Conservatives where it hurts the most – with their soft supporters, and with swing voters.

At the same time, some commentators have also used hyped-up claims about some measures in Bill 23 that are not that game-changing, and so unfortunately some really unfair measures have been overlooked. [NOTE – please LINK “really unfair measures” to the Tues. news release webpage]

One misplaced concern is that changes proposed by Bill C-23 will “muzzle” or “gag” the Chief Electoral Officer (CEO). While the bill does limit the CEO to providing the public only with information about how, when and where to become a candidate and to vote, and the measure should be clarified, it does not seem to prevent Elections Canada from “providing” this information in imaginative ways and places – including vote-encouraging ads, high school mock-votes or other voter turnout education programs.

If the Conservatives actually tried to stop any voter education ad or educational program by Elections Canada it would cause a public backlash that would seriously hurt their re-election chances.

The changes in Bill C-23 also do not, as some have claimed, prohibit the CEO from doing public surveys and studies or from reporting on allegations of violations that Elections Canada receives, or investigations it undertakes.

Another misplaced concern about Bill C-23 is that the change to having the Director of Public Prosecutions (DPP) choose the Commissioner of Canada Elections instead of the CEO will reduce the Commissioner’s independence and effectiveness. The DPP is chosen by the Cabinet just like the CEO, and the Commissioner already submits investigation results to the DPP, with the DPP deciding whether to prosecute.

The first real problem with Bill C-23 is that it fails to make the DPP, CEO and the Commissioner (and all officers of Parliament) as independent as they need to be to do their jobs properly. They should all be nominated by the independent Public Appointments Commission the Conservatives promised to create in 2006, and appointed only with the approval of opposition party leaders.

A second real problem is that no one would even be able to tell if the Commissioner’s enforcement record worsened because the Commissioner makes secret rulings. In refusing to disclose his rulings on more than 3,000 complaints he received since 1997 when Democracy Watch requested them in April 2012, the Commissioner gave the unjustifiable reason that the rulings might make him look bad.

Bill C-23 makes this secrecy worse because it prohibits the Commissioner and the DPP from disclosing their rulings on complaints unless they penalize the violator. They should both be required to disclose all their rulings to ensure they enforce the law properly.

What are the other key unfair measures in the so-called “Fair Elections Act”?

It not only eliminates the practice of allowing a voter to “vouch” for the identity of one other voter but also makes it illegal for Elections Canada to allow its voter registration card to be used as ID in the future. Why do we have a voter registration system if the registration card can’t be considered valid ID?

Given there is no evidence of past voter fraud through vouching there really is no justifiable reason to prohibit vouching, and given that the voter registration card is one of Canada’s most accurate types of ID, it should be added to the list of 39 types of ID that are accepted at the ballot box.

Any irregularities or other problems at the ballot box should be reduced by empowering and funding Elections Canada to hire and fully train all election workers well before each election, and to make the registration list and ID checking even more accurate.

A related unfair measure in Bill C-23 is that it extends the dangerously unethical power of the ruling party to force returning officers to appoint the election workers it wants. A change to the CEA in 2006 gave the CEO the power to appoint returning officers, and Bill C-23 should be changed to give Elections Canada the power to appoint all election workers.

Some commentators have claimed another unfair problem with Bill C-23 is that it increases the non-election year donation limit for individuals from $2,400 to $3,000 and the election-year limit from $3,600 to $4,500 (which will make it easier for businesses and other organizations to funnel large, corrupting donations through their executives and employees (as happened in Quebec)).

However, the real problems are that the current donation limit is 10 times higher than an average voter can afford (it should be lowered to about $100-200 annually, as Quebec did recently), and that the Conservatives are eliminating the per-vote annual funding that parties receive (the most democratic part of the federal political finance system).

As well, Bill C-23 increases the donation a candidate can make to their own campaign from $1,200 to $5,000, and for party leadership candidates from $1,200 to $25,000. These are huge, and hugely undemocratic, increases that will only benefit wealthy candidates.

In addition, while Bill C-23 contains measures to limit loans to candidates at the same levels as donations, it allows unlimited bank loans to candidates and parties. Banks are regulated by the federal government, and this measure will allow them to pick and choose candidates and parties to support (likely only sure winners) and buy influence with them through loans.

Bill C-23 also unfairly proposes to change the CEA so that the amount parties spend on communications for “fundraising” from recent donors will not be counted as an election expense. This is the first time since spending limits were first imposed 40 years ago that a spending or donation loophole has been added to the CEA (the trend has been to close loopholes) and like any loophole it will be abused to hide millions of dollars of secret, unaccountable spending that likely exceeds the legal limits.

And while Bill C-23 increases the amounts parties can spend on elections, it sneakily extends the advertising spending limit for interest groups and voters (so-called “third parties) to cover all ads that relate to an election. This change means the production costs of an ad run by a third party before and during an election period could be counted in the overall amount the third party is allowed to spend on election ads. In contrast, Bill C-23 doesn’t limit pre-election spending by parties in any way.

But even if Bill C-23’s unfair measures are changed, other measures will still be needed to correct the unfair and undemocratic flaws in the current federal elections system.

The current federal election voting system should be changed to ensure that the number of politicians each political party elects is based upon the voter support each party receives, and to allow voters to vote “none of the above” and also to actually fix election dates for every four years (unless a vote on non-confidence occurs earlier).

Nomination races should be regulated to ensure party leaders can’t appoint candidates or stop them from running (other than on grounds of “good character”) and to ensure the races are democratic Elections Canada should be empowered to run them.

Elections Canada should also be empowered to run election debates, with the leader of every party with a seat in the House or substantial voter support allowed to participate.

Federal election watchdogs should have a right to any document they request to confirm compliance with the CEA, as watchdogs do in several provinces, and whistleblowers should be given a financial reward if they disclose evidence that leads to a conviction.

Finally, make the system more fair by allowing independent candidates to raise money in-between elections (currently only party-backed candidates are allowed to do this).

Clearly many changes are needed to make the proposed so-called “Fair Elections Act” (Bill C-23), and federal elections, actually fair. If the Conservatives don’t make at least some key changes to the Act, it’s fair to say that voters across Canada will be fairly concerned that the Conservatives aren’t playing fair, and that it will be fair game for voters not to give the Conservatives a fair shake when they vote in the next election.

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Democracy Watch’s Make the Fair Elections Act Actually Fair Campaign

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Link to Chronicle Journal editorial