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Government whistleblower watchdog fails to deliver after five years and $30 million spent

Major reforms are required, but government is stalling.

Thursday June 28, 2012

OTTAWA – Today, following the release of the fifth annual report by the Public Sector Integrity Commissioner, civil society groups are calling the federal Conservatives’ 5-year old whistleblower regime a failure and calling for major reforms to ensure protection of Canadian whistleblowers.

“After five years of bureaucratic charades, taxpayers have essentially nothing to show for more than 30 million dollars spent on the Integrity Commissioner’s office and the associated Tribunal” said David Hutton, executive director of FAIR, the whistleblower charity. “Not a single wrongdoer has been sanctioned and not a single whistleblower has been protected. It is time for a root and branch reform of this law.”

Integrity Commissioner Mario Dion has thus far uncovered only one case of wrongdoing out of more than 320 complaints submitted over the past 5 years.  Due to loopholes in the law, the manager found to have misspent taxpayer’s money could not be disciplined because she had left her job for another outside the public service.  Dion declined to use the only remaining sanction available – to name her.

The government has also failed to initiate the five-year review of the Whistleblower Act, as legally required. “More than two months after it was supposed to begin, Minister Clement has still not announced the review or provided information on the format or timing.  The earliest date for a review is now the fall, well after it was to begin according to the Act” said Tyler Sommers of Democracy Watch. “If this government wants to protect honest public servants it will launch a comprehensive, open, and transparent review process immediately – and invite experts from other jurisdictions such as the UK, USA, and Australia, that are decades ahead of Canada in protecting truth-tellers.”

“This government rode into town on a white horse of transparency and accountability, with whistleblower protection the centerpiece of its election campaign” said Mr. Hutton. “It’s time to deliver on the ‘ironclad’ protection promised in 2006.”

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Tyler Sommers, Coordinator of Democracy Watch
Tel: (613) 241-5179

David Hutton, Executive Director, FAIR (Federal Accountability Initiative for Reform)
Tel: +44-798-104-6958 OR 01144-798-104-6958

Democracy Watch’s Open Government Campaign

Parliamentary Budget Officer needs enforcement powers

Set out below is a op-ed by Democracy Watch Coordinator Tyler Sommers which was published in the The Epoch Times (English Edition) June 21, 2012

The ongoing refusal by federal government institutions to provide the Parliamentary Budget Officer (PBO) with information he clearly has a legal right to examine, and needs, to do his analysis of spending makes it clear that the PBO must be given the power to penalize anyone who refuses his legal requests, and to subpoena information through a quick application in court.

As well, the PBO must be made independent of Cabinet (as the Conservatives promised in the 2006 election), with a fixed term of office and protection from being fired for arbitrary reasons.

Until these changes are made, the federal Conservatives will continue to produce dishonest spending and financial statements that hide what they are doing with the public’s money.

For more details about the changes needed to the PBO go to May 28 News release (archive website)

Canada needs more honest, ethical, open government

Set out below is a letter-to-the-editor by Democracy Watch Founder Duff Conacher which was published in the Toronto Star and the Hill Times June 16-18, 2012

While it is dangerously undemocratic, if not clearly unconstitutional, for the Conservatives to have introduced a huge budget bill that includes dozens of amendments that have nothing to do with spending the public’s money, opposition parties are also to blame for this current fiasco.

There was a minority federal government from June 2004 until May 2011, and all the opposition parties had to do, some time in those seven years, was cooperate and pass a bill that clearly restricted budget bills to changes to spending.

Instead, as they almost always do, the opposition parties (including the Conservatives between 2004 and 2006, and yes even Jack Layton’s NDP) competed over who would get attention for complaining about government actions, attacked each other trying to better position themselves for the next election and, in some cases, tried to stop democratic reforms because they feared the ruling party or another party would be applauded.

If any of them would, instead of opposing and competing, propose working together to make government more honest, ethical, open, representative and waste-preventing, let alone to solve many other societal problems, they would not only make the other parties look very bad if they refused to work together, and be widely applauded by voters, they would also give the 40 per cent of Canadians who don’t vote a reason to vote.

One would think that political parties trying to get into power would want to do things to attract votes from 40 per cent of Canadians. One can only hope that at least one of them will soon break their addiction to corrupt, destructive politics as usual and start proposing solutions, and cooperative processes for implementing those solutions.

For more details, go to Democracy Watch’s Clean Up the System page

Conservative MP’s budget concerns, and solutions

Set out below is a letter-to-the-editor by Democracy Watch Board Member Duff Conacher which was published in the iPolitics May 24, 2012 and the Toronto Star May 27, 2012


The situation of Conservative MP David Wilks expressing concerns about the federal omnibus budget bill is a perfect example of the dangerously undemocratic problems of excessive party leader control, the lack of a requirement to set out a clear, specific election platform, and the lack of a clear definition of what are votes of confidence in Parliament.

The Conservatives’ 2011 election campaign did not mention, let alone propose, changes to environmental assessment laws (although the Speech from the Throne did).

And while votes to approve or reject spending bills are clearly votes of confidence, shouldn’t it be made clear that votes on whether to split off parts of a budget bill that have nothing to do with spending are not confidence votes.

And, therefore, shouldn’t it also be made clear that Prime Minister Harper has no right to require Conservative MPs to vote for a budget bill that changes non-spending laws? And that the PM has no right to kick an MP out of the Conservative Party if s/he votes against such an omnibus budget bill?

In a democracy, MPs are supposed to hold the executive (Cabinet ministers) accountable and represent voter interests, not be completely controlled by ministers and party leaders.

If MPs from all parties would simply work together, they could throw off their undemocratic chains by passing a bill that clearly restricts their leaders’ powers in many ways, and contains clear rules requiring honest, specific election platforms, and democratic legislative processes and votes.

No party leader would dare speak out against such a bill. So what are you waiting for MPs? The country is 145 years old — get it together already and pass a bill to finally free yourselves, and all of us, from the tyranny of political party leaders and the abuses of our undemocratically vague election and parliamentary processes.



To see a related op-ed, click here (archive website)


For more details, go to Democracy Watch’s Voter Rights Campaign

House Committee recommends some key changes to strengthen federal Lobbying Act and enforcement system, but fails to address huge loopholes that allow secret, unethical lobbying of the federal government

News Release

House Committee recommends some key changes to strengthen federal Lobbying Act and enforcement system, but fails to address huge loopholes that allow secret, unethical lobbying of the federal government

Conservatives must close all loopholes to end secret lobbying as they promised they would in 2006

Thursday, May 17, 2012

OTTAWA – Today, Democracy Watch and the national Government Ethics Coalition called on the Conservative Cabinet to go further than the recommendations of the House Access to Information, Privacy and Ethics Committee by changing the federal Lobbying Act and enforcement system in 10 key ways to finally end secret, unethical lobbying of the federal government.

The Act is so full of loopholes, it should be called the “Some Lobbying by Some Lobbyists Act”.  And even if all of the House Committee’s recommended changes were made, secret and unethical lobbying would still be allowed because of huge loopholes in the law.  All parties are to blame for this, because even though the so-called New Democrats proposed some additional changes beyond the Committee’s recommendations, their proposals also failed to address the loopholes.

“By failing to strongly recommend closing all the loopholes in the federal lobbying law that allow for secret, unethical lobbying, even by former Cabinet ministers and senior government officials, and by failing to recommend changes that will ensure strong and strict enforcement of the law in every case, MPs from all parties have failed Canadians and failed democracy,” said Tyler Sommers, Coordinator of Democracy Watch.  “We can only hope that the federal Conservative Cabinet will go further than the Committee and introduce a bill that keeps their 2006 election promise to close all the loopholes and strengthen enforcement in ways that will finally end secret, unethical lobbying of the federal government.”

The three huge loopholes that the Committee MPs from all parties failed to address, and that will remain open unless the Conservatives close them in the bill they will hopefully introduce to change the Act, are that:

  1. secret lobbying will still be legal if the lobbyist is not paid for their lobbying (a consultant lobbyist can easily arrange for clients to pay them for other services while lobbying for free, and former Cabinet ministers and senior government officials collecting rich pensions can afford to lobby for free, and they are the people who most need to be stopped from lobbying because of the undue and unethical influence they can have on their former colleagues);
  2. secret lobbying will still be legal if a lobbyist is lobbying about the enforcement, interpretation or application of laws and regulations (which is a huge area of lobbying, especially for big businesses), and;
  3. secret emails, texts, phone calls and even meetings between lobbyists and Cabinet ministers and senior government officials will still be legal as long as the minister or official initiates the communication or meeting (which they will do whenever they want to have secret, unethical relations with a lobbyist — only oral, pre-arranged communications initiated by the lobbyist are required to be disclosed).

Since 2004, even without doing random audits and inspections, the Commissioner of Lobbying has caught 32 lobbyists violating the Lobbying Act, but none of them have been prosecuted because of these and other loopholes in the law.  These law-breaking lobbyists have also never been identified and are likely still lobbying the government.

Lobbyists who exploit loopholes in the Act and don’t register and disclose their lobbying activities are not required to comply with the ethics rules in the Lobbyists’ Code of Conduct, and former Cabinet ministers and senior government officials and politicians who exploit the loopholes are not covered by the 5-year ban on lobbying after they leave office.  This is why it is so important to close all the loopholes — any loopholes that are left open will be exploited by unethical lobbyists for unethical lobbying, and these people will continue to be let off without any penalty.

The Committee also failed to address the biggest problems with enforcement of the Lobbying Act and Code — the Commissioner of Lobbying and RCMP and Public Prosecutor must be required to do random audits and inspections, and to investigate and issue public rulings in every case.  In addition to the 32 lobbyists who violated the Lobbying Act since 2004 but were not prosecuted, the Commissioner of Lobbying has failed to fully investigate and issue public rulings about more than 55 other situations where allegations were made that a lobbyist violated the Act or the Lobbyists’ Code of Conduct.

So while the House Committee recommended that the Commissioner be given the power to fine violators, it is unfortunately likely that the Commissioner would never use this power anyway unless required to issue rulings in every case.

This enforcement record is as bad overall as the former disgraced federal Integrity Commissioner Christiane Ouimet who was fired by the Conservatives in fall 2010.  However, not one MP from any party has ever asked Commissioner of Lobbying to disclose details about the 32 lobbyists and 55 situations (likely because the lobbyists who broke the law are public supporters of one or another of the federal parties and so the MPs are protecting their parties and themselves from embarassment by failing to push for disclosure of the identities of these law-breaking lobbyists).

The Committee also ignored the simplest solution to end secret, unethical lobbying of the federal government — require every politician, political staff person, appointee and decision-making public servant to disclose the identity of anyone who communicates with them in any way directly or indirectly about their decisions, and the details of the communications (as the Conservatives promised to require in their 2006 election platform).

The Conservatives are members of the international Open Government Partnership (OGP) which requires, among other key changes, strengthening laws like the Lobbying Act and keeping their commitment to increase public integrity.  If they do not close all the loopholes in the Lobbying Act, and strengthen enforcement, they will be violating their OGP commitments.

To see Democracy Watch’s and the Government Ethics Coalition’s 10-page submission to the Committee, click here (PDF), and/or see summary list of much-needed changes to the Lobbying Act and enforcement system below.

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Tyler Sommers, Coordinator of Democracy Watch
Tel: (613) 241-5179

Democracy Watch’s Government Ethics Campaign

Democracy Watch’s Money in Politics Campaign

Changes needed to ensure transparent and ethical federal government lobbying under the Lobbying Act and to ensure the Commissioner of Lobbying enforces rules effectively
(NOTE: Democracy Watch urged the Oliphant Commission to recommend all of the following changes in its May 2010 report)

  • close the loophole that currently allows corporations to hide the number of people involved in lobbying activities (employees of corporations who lobby less than 20% of their work time are not required to be listed in the corporation’s lobbying registration);
  • require lobbyists to disclose their past work with any Canadian or foreign government, political party or candidate;
  • require lobbyists to disclose all their government relations activities (whether paid or volunteer and on no matter what issue (NOTE: currently unpaid lobbyists are not required to disclose, nor lobbyists who lobby about the enforcement of laws or administration of programs) involving gathering inside information or trying to influence policy-makers (as in the U.S.) — or require all government decision-makers to disclose all their contacts with anyone trying to influence them (as the Conservatives promised they would in the 2006 federal election);
  • require lobbyists to disclose the amount they spend on lobbying campaigns (as in 33 U.S. states);
  • the search page for Lobbyist Registry must be changed to allow for searches by any data field in the registry (currently, the database can only be searched by the name and client(s) or organization of the lobbyist, the department being lobbied and the subject matter, and the lobbying time period);
  • prohibit lobbyists from working for government departments or serving in senior positions for political parties or candidates for public office (as in New Mexico and Maryland), and from having business connections with anyone who does;
  • close the loophole MPs added to their MPs Code in May 2009 that allows lobbyists to provide unlimited volunteer services of any kind in secret to any MP without any conflict of interest being created, and make the MPs Code a law;
  • ban all senior politicians, staff, appointees and senior government officials from lobbying (paid or unpaid) for five years for anyone they had dealings with during their last five years in office (currently former senior politicians and only full-time government officials only have to sit out for one to two years), and ban all junior politicians, staff appointees and officials from doing the same for one to three years depending on their decision-making power;
  • anyone participating in the “employment exchange program” (who are mainly people from large corporations) must be covered by the five-year ban on senior public office holders becoming lobbyists;
  • ban lobbyists from becoming members of Cabinet for at least four years after they are elected as a federal politician;
  • the Commissioner of Lobbying must be required to conduct random audits of everyone covered by the Lobbying Act and the Lobbyists’ Code of Conduct;
  • prohibit the Commissioner from giving secret advice;
  • ensure that the Commissioner must investigate and rule publicly on all complaints (including anonymous complaints) and empower the Commissioner to investigate and rule on complaints even if the police are investigating the lobbyist for a violation of another law at the same time;
  • require the Commissioner to disclose the identity of rule-breakers (although Democracy Watch’s position is that she is legally required to disclose this information in her annual report)
  • empower and require the Commissioner to penalize rule-breakers, even for violations of the Lobbyists’ Code with significant fines (as recommended by the commissioners from Ontario, B.C., Alberta and Québec);
  • ensure all Commissioner decisions can be reviewed by the courts;
  • give opposition party leaders a veto over the appointment of the Commissioner of Lobbying;
  • the Commissioner of Lobbying must be required to submit public, bi-annual reports to a parliamentary committee that include details about the wrongdoing alleged in each complaint; the date each complaint is received; when each investigation began and finished; when the Commissioner received the investigation report; when the Commissioner/courts ruled and ruling details; how many people formally trained/informed by the Commissioner’s Office; number of information requests received by subject and other core operational information;
  • have Parliament (as opposed to Cabinet) approve the Commissioner’s annual budget (as is currently the process for the Ethics Commissioner);
  • as with the Conflict of Interest and Ethics Commissioner position, any person nominated and chosen to be the Commissioner of Lobbying must be required to have legal experience enforcing ethics rules or laws to ensure proper enforcement of the Lobbying Act and the Lobbyists’ Code of Conduct, and;

Federal Conservatives fail to initiate review of whistleblower law by legal deadline: groups fear government end-run on whistleblower law.

A comprehensive, transparent, and independent review of the flawed Act is required.

Thursday, May 16, 2012

OTTAWA – Today civil society organizations voiced concern that the federal conservative government has still not begun the legally-required review of its discredited whistleblower law, and may attempt to short-circuit the process to avoid proper discussion.

Conservative cabinet Minister Tony Clement is responsible for overseeing the review, which under the law was required to begin by April 15th, and is required to be an “independent” review.

The Conservative Government’s ‘ironclad’ whistleblower protection regime is in disarray, having been discredited by former integrity commissioner Christiane Ouimet’s (archive website) shameful mismanagement. Even under the new commissioner Mario Dion, virtually nothing has been achieved: after five years and more than 30 million dollars spent the agency has reported only one case of wrongdoing.

The root cause of these problems lies in the deeply-flawed legislation passed by the Conservative government in 2006, after coming to power on a promise to clean up government and specifically to protect whistleblowers. The Canadian whistleblower charity FAIR has analyzed this law and published a list of 40 serious shortcomings.

“This government owes it to Canadians to fix this bungled law. We need a comprehensive, transparent and independent review involving the best experts available” said David Hutton, executive director of FAIR. “Unfortunately the government has not commenced the legally-required review process, which should have begun a month ago, and it has refused to disclose even the most basic information about the intended format of the review.”

Tyler Sommers, Coordinator of Democracy Watch noted “Our concern is that the Conservatives will secretly conduct a bogus review that is not independent and does not involve the right people or public hearings at a parliamentary committee.”

Allan Cutler of Canadians for Accountability observed “This review process will be a critical test of whether this government really wants to fulfill its campaign promise by protecting honest public servants who speak up about government misconduct.”

The groups want a comprehensive, open and transparent process, including a conference or workshop where recognized experts can develop a consensus on the most important changes. There should also be substantive hearings before House and Senate committees, which can pass further amendments if necessary.

“After years of inaction and a spectacular false start, Canada is now decades behind countries like the USA, the UK and Australia. It is essential to consult with experts from these countries, which unlike Canada have considerable experience with effective laws, and have carried out excellent in-depth research.” says Hutton.

Ross MacLeod, the official responsible for the review, told FAIR that Treasury Board has made its recommendation (regarding the review) to Minister Clement but is still awaiting his decision.

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David Hutton, Executive Director, FAIR (Federal Accountability Initiative for Reform)
(613) 567-1511

Tyler Sommers, Coordinator of Democracy Watch and Chair of the Open Government Coalition:
(613) 241-5179

Allan Cutler, President, Canadians for Accountability:
(613) 863-4671

Ian Bron, Managing Director, Canadians for Accountability:
(613) 304-8049

Democracy Watch’s Government Ethics Campaign

Democracy Watch’s Money in Politics Campaign

Federal democracy and good government watchdogs are lapdogs in key ways — will Conservatives make much-needed changes?

Set out below is a letter-to-the-editor by Democracy Watch Board Member Duff Conacher which was published in the Globe and Mail May 15, 2012


Many of the federal officers of Parliament who are supposed to enforce key democracy and good government laws are unfortunately lapdogs in important ways (Watchdogs of Parliament forge closer ties – May 12).

The ruling party chooses them and, in a majority government, can appoint whomever they want (opposition party leaders are consulted, but have no power to stop any appointment).

All of the laws they enforce have loopholes that allow for dishonesty, conflicts of interest and other unethical activities, excessive secrecy, and waste of the public’s money.

None of the officers can penalize anyone who violates the key rules they enforce — they can bark by issuing reports, but can’t bite.

And, unfortunately, some of them are unaccountable themselves — it is illegal to challenge a ruling of the Ethics Commissioner or Commissioner of Lobbying in court no matter how incorrect their ruling is.

All of the laws for the officers are being reviewed by Parliament this year.  Hopefully, they will finally be made into watchdogs who can hold politicians and public servants accountable, and can be held accountable themselves when they fail to do their jobs properly.


For more details, go to Democracy Watch’s Clean Up the System page