Link to Hill Times article

Group prepared to appeal to court if Commissioner rejects ruling

FOR IMMEDIATE RELEASE:
Monday, December 16, 2013

OTTAWA – Today, Democracy Watch released the complaint affidavit it is filing with the City of Toronto Integrity Commissioner today requesting that in Democracy Watch’s opinion she should investigate Rob Ford’s well-publicized, and self-admitted, actions in the past year to determine if they violate the Code of Conduct for Members of Council (the “Code”).

The Integrity Commissioner recently ruled on a separate complaint that the City council filed about different actions by Rob Ford that the City, and in that ruling she said that she thinks the general standards of conduct in the Code are “aspirational” and not enforceable.  Democracy Watch disagrees and is appealing to the Commissioner to uphold the standards as they are among the most important rules in the Code.

Democracy Watch is prepared to appeal the Integrity Commissioner’s ruling in court if she rejects its complaint on the same grounds.

The preamble to the Code includes four statements of principle that “underline” the Code, including that members of Council should perform their functions with “integrity”; perform their duties and arrange their private affairs “in a manner that promotes public confidence and will bear close public scrutiny”; and uphold both the letter and the spirit of all laws.

The Code does not say that the statements of principle in the preamble are not enforceable, and Democracy Watch’s opinion is that they are legally enforceable rules and that the Integrity Commissioner can investigate alleged violations of the principles and issue a ruling, including recommending the possible penalties for violations of a reprimand or a suspension of up to 90 days (the Council then votes on what penalty to impose, if any).

 “Democracy Watch believes that Toronto’s Integrity Commissioner is legally allowed to rule  on whether Rob Ford’s  actions over the past year violate the general standards of conduct and integrity set out in the councillor’s code of conduct,” said Duff Conacher, Board member of Democracy Watch. “If the Integrity Commissioner rules that these general integrity standards are not enforceable, then the provincial government should quickly pass a law requiring all councillors across Ontario to comply with such standards, with a sliding scale of penalties depending on the significance of the violation, from short suspensions up to losing their job and pension.”

In July 2011, Rob Ford admitted to talking on his cellphone while driving which is a violation of provincial law.  On November 3, 2013, I verily believe that Rob Ford admitted on his then-radio show that he had texted while driving, which is a violation of provincial law.  On November 5, 2013, Rob Ford admitted publicly that he had smoked crack cocaine, which is a violation of federal law.

On November 7, 2013, a video was made public by various media outlets in which Rob Ford appears and utters threats to kill an unnamed person, and making such statements is a violation of federal law.  On November 13, 2013, Rob Ford admitted at a meeting of council that he had bought illegal drugs during his term as Mayor.  On November 14, 2013, Rob Ford publicly admitted to drinking alcohol and then driving, which is a violation of provincial law.

As well, Rob Ford has publicly apologized for some of his actions again and again and again.  In addition, on November 5, 2013, the results of a survey by Forum Research were released and showed that 59 percent of Toronto voters wanted Rob Ford to resign. , and on November 13, 2013, the results of a survey by Ipsos-Reid were released publicly and showed that 41 percent believed Rob Ford should resign, 35 percent believed that he should take a leave of absence, while 24 percent believed that he should remain in office.

Democracy Watch’s opinion is that Rob Ford’s self-admitted violations of various laws violate the principles in the Code, and his apologies show that Rob Ford himself, and the surveys show that a majority of voters in Toronto, believe that his actions do not meet the standards established by the statements of principle that require members of council to act with “integrity” and act in ways that promote public confidence and bear close public scrutiny.

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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]

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Democracy Watch’s Government Ethics Campaign

Link to website article

Link to Huffington Post blog

Link to CTV News Channel online video

December 11, 2013

OTTAWA – Today, following its complaint filed last week to the RCMP, and its complaint filed yesterday with the Senate Ethics Officer, Democracy Watch released the letter it has sent to federal Conflict of Interest and Ethics Commissioner Mary Dawson requesting that it is Democracy Watch’s opinion that she should initiate an inquiry because it seems that the intervention into the Senate Committee’s audit of Senator Mike Duffy by Nigel Wright, Patrick Rogers, Chris Woodcock and Benjamin Perrin violated the Conflict of Interest Act (the “Act”).  Democracy Watch’s letter also requests an inquiry into Mr. Perrin’s actions of assisting Mr. Wright in making the payment of more than $90,000 to Senator Duffy.

The complaint letter is based on the provisions of the Act, publicly confirmed facts, and the evidence set out in the recently released affidavit of RCMP Corporal Greg Horton.

The big question is whether the Ethics Commissioner will take any action – she has let Nigel Wright off the hook three times already (See details below) – and any timely action as she has already suspended an inquiry into the situation because of the RCMP’s investigation (she is only required to suspend an inquiry under section 49 of the Act if the specific person complained about is the subject of an investigation by a legal authority).

“Ethics Commissioner Mary Dawson is legally allowed to investigate and rule right now on the actions of PMO staff who are not being investigated by the RCMP for specific offences, so will she act like a watchdog and investigate now, or continue her weak lapdog enforcement record by failing, as she has more than 80 times, to investigate and rule publicly on a complaint about possible violations of the federal ethics law?” asked Duff Conacher, Board member of Democracy Watch.

“It seems not only that an investigation of Benjamin Perrin helping Nigel Wright negotiate his payment to Senator is warranted, but also investigations seem warranted into the interventions by Mr. Perrin, Mr. Wright and Patrick Rogers and Chris Woodcock in the audit of Senator Duffy which were as bad as contacting a judge and trying to influence the judge’s ruling,” said Conacher.

There is no likelihood that an inquiry by the Ethics Commissioner into the intervention by PMO staff into the Senate committee’s audit of Mike Duffy will negatively affect the RCMP’s investigation of Nigel Wright’s payment to Senator Duffy as all the facts have been publicly disclosed and admitted.  And no police investigation has been confirmed into the actions of Patrick Rogers, Chris Woodcock and Benjamin Perrin, so there is no good reason for the Ethics Officer to refuse to initiate an inquiry into their actions.

The Ethics Commissioner has already initiated an inquiry into whether Nigel Wright’s payment to Senator Duffy of more than $90,000 violated the Act but she suspended that inquiry in July.  As a result, it seems in Democracy Watch’s opinion to be warranted for the Ethics Commissioner to initiate an inquiry into Benjamin Perrin helping Mr. Wright negotiate the payment to Senator Duffy.

Democracy Watch’s opinion is that it seems improper for Nigel Wright, Patrick Rogers, Chris Woodcock and Benjamin Perrin to have intervened in the Senate Committee’s audit of Senator Duffy, and for Mr. Perrin to have assisted Mr. Wright in making the payment to Senator Duffy, for the following reasons:

• It seems that they either violated sections 4 and 6(1) of the Act because they made a decision “related to the exercise of an official power, duty or function” (ss.6(1)) when they “reasonably should know that, in the making of the decision” he “would be in a conflict of interest” (ss. 6(1)) because the decision provided “an opportunity . . . to improperly further another person’s private interests” (s. 4) – namely Senator Duffy’s private interest in having the results of the audit, and recommended penalties, altered to protect his financial interests (and, concerning Mr. Perrin, his interest in having someone else pay the expenses he owed);
• As well, given that they intervened in the audit in secret, it seems they also violated section 8 of the Act which prohibits using “information that is obtained in his or her position as a public office holder and that is not available to the public” to further the interest of a friend “or to improperly further or to seek to improperly further another person’s private interests”; and
• And finally, it seems by intervening in the audit process they also violated section 9 of the Act because they used their “position as a public office holder to seek to influence a decision of another person so as . . . to improperly further another person’s private interests.”

Democracy Watch’s opinion is that it was improper for Nigel Wright, Benjamin Perrin, Patrick Rogers and Chris Woodcock to intervene in the Senate committee’s audit process, and for all of them to obtain and convey information about the audit processes, simply because it is improper for anyone who is not involved in an audit to attempt to influence auditors.

A spokesperson for Deloitte has stated publicly that it is improper for any information about an audit to be given to anyone other than the people involved in the audit – therefore it was, by definition, improper to seek information about the audit, and to try to influence the audit.  Democracy Watch’s opinion is that it is analogous to someone in government contacting a judge of a court or a tribunal in an attempt to influence the judge’s ruling.

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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]

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BACKGROUNDER

Federal Ethics Commissioner Mary Dawson’s weak enforcement record

Federal Ethics Commissioner Mary Dawson has had a very weak enforcement record since 2007, including letting dozens of Conservatives off the hook for very questionable actions, and making more than 80 secret rulings.

Ethics Commissioner Dawson’s first cover-up for Nigel Wright

Commissioner Dawson’s first cover-up for Nigel Wright was her creation of an illegal, so-called ethics screen when Wright first took the job that violated the requirement in subsection 25(1) of the Conflict of Interest Act to make a public declaration within 60 days every time Wright recused himself from a decision-making process because of a conflict of interest.  This “screen” was supposedly enforced by the Deputy Chief of Staff. As a result of this cover-up, all of Wright’s recusals have been kept secret, and there is no way to tell if he ever failed to recuse himself as required by the Act.

Ethics Commissioner Dawson’s second cover-up for Nigel Wright

Commissioner Dawson’s second cover-up for Wright was when she abandoned her investigation last fall without issuing a notice, let alone a ruling, of whether Wright violated the Act by taking part in discussions of issues that affect Barrick Gold.  The Ethics Commissioner is allowed to do this under s. 45 of the Act.  The cover-up only came to light because Canadian Press journalist Joan Bryden pressed Commissioner Dawson to make a public statement about the case.  Commissioner Dawson’s statement failed to set out any reasons why she concluded that Wright had not violated the Act.

Ethics Commissioner Dawson’s third cover-up for Nigel Wright

Commissioner Dawson’s third cover-up for Wright was when she failed to issue a ruling concerning Mr. Wright’s payment to Senator Duffy of more than $90,000, which she could have done easily last June before the RCMP announced its investigation into the payment because the facts of the payment had been public for a month already.

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

Because of section 66 added to the new Act by the Conservatives in 2006, the Ethics Commissioner’s rulings cannot be challenged in court if she has factual or legal errors in her rulings.  There are no mandatory penalties for violating the ethics rules in the Act.  As well, if Prime Minister Harper approves it, Commissioner Dawson’s term in office can be renewed for another seven years in 2014 so she has an incentive to please him

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Democracy Watch’s Government Ethics Campaign

Link to Toronto Star article

December 10, 2013

OTTAWA – Today, Democracy Watch released the letter it has sent to Senate Ethics Officer Lyse Ricard requesting that she initiate inquiries to determine if the actions of senators Mike Duffy, Irving Gerstein and Marjorie LeBreton in the Senate expense scandal violated the Conflict of Interest Code for Senators (the “Code”).  The complaint letter is based on the rules in the Code, publicly confirmed facts, and the evidence set out in the recently released affidavit of RCMP Corporal Greg Horton.

The big question is whether the Senate Ethics Officer will take any action given that she is under the control of a Conservative-dominated senate committee that defines the Code’s  rules and determines whether she can initiate inquiries (under ss. 37(2)), and sections 44-46 of the Code).

Contrary to some recent media reports, the Ethics Officer (or the Committee) are not required to suspend an investigation and refer the situation to other authorities if they have reasonable evidence that a law has been violated or they discover that a police investigation is underway into the situation (they may suspend the inquiry, but they are not required to do so under s. 47 of the Code).

“The Senate Ethics Officer is legally allowed to investigate and rule right now on the actions of senators Duffy, Gerstein and LeBreton in the Senate expense scandal, but only if a Conservative-dominated committee gives her permission,” said Duff Conacher, Board member of Democracy Watch.

“Will Ethics Officer Ricard be a watchdog and defy the Senate committee by launching investigations, or will the committee continue to control her as a lapdog and, like other Senate committees, continue the cover up by preventing full investigations into the actions of other Conservative senators?” asked Conacher.  “It seems not only that an investigation into Senator Duffy’s acceptance of a payment from Conservative Party lawyer Arthur Hamilton is warranted, but also investigations seem warranted into the interventions by senators Irving Gerstein and Marjorie LeBreton in the audit of Senator Duffy which were as bad as a senator contacting a judge and trying to influence the judge’s ruling,” said Conacher.

There is no likelihood that an inquiry by the Ethics Officer into Senator Duffy’s acceptance of payments will negatively affect the RCMP’s investigation of Senator Duffy as all the facts have been publicly disclosed and admitted.  And no police investigation has been confirmed into either Senator Gerstein’s or Senator LeBreton’s actions, so there is no good reason for the Ethics Officer to refuse to initiate an inquiry into their actions.

The Senate Ethics Officer has already initiated an inquiry into whether Senator Duffy’s acceptance of the payment from Nigel Wright of more than $90,000 violated subsection 17(1) of the Code which prohibits senators from accepting any payments, except their salary and benefits, if the payment is connected to their position as a senator.

Democracy Watch is requesting that the Ethics Officer also investigate Senator Duffy’s acceptance of payment of his legal fees by Conservative Party of Canada’s lawyer Arthur Hamilton because the payment was, like the payment from Mr. Wright, conditional on Senator Duffy doing three things in his role as a senator.

Democracy Watch also expressed its opinion to the Ethics Officer that an inquiry is warranted into Senator Irving Gerstein’s actions as he seems to have violated sections 9 and 10 of the Code by intervening in Deloitte’s audit of Senator Duffy’s expenses and relaying information about the audit to Nigel Wright and others in the Prime Minister’s office, as admitted by Senator Gerstein and his contact at Deloitte, Michael Runia, in Corporal Horton’s affidavit.

Democracy Watch expressed its opinion to the Ethics Officer that an inquiry is also warranted into Senator Marjorie LeBreton’s actions as she seems to have violated sections 8, 9 and 10 of the Code by intervening.

Section 8 of the Code prohibits taking part as a senator in, and section 9 prohibits using or attempting to use one’s position as a senator to influence, a decision of another person to further the private interests of the senator or his/her family, or to improperly further another person’s or entity’s interests.  Section 10 of the Code prohibits using or conveying information that is not generally publicly available to further interests in the same ways as in section 9.  Section 11 of the Code defines furthering private interests as including acting in ways that could increase someone’s assets or liabilities.

Democracy Watch’s opinion is that Senator Gerstein (by intervening in the Deloitte audit), and Senator LeBreton (by intervening in the Senate audit committee’s process), both attempted to use their positions as senators to improperly further another person’s private interests (namely Senator Duffy’s interests), which seems to violate sections 8 or 9 (or both) of the Code.

Given that the audit processes were aimed at determining what Senator Duffy owed in improperly claimed expenses, the interventions seem to have been clearly related to Senator Duffy’s assets and liabilities.  And in their interventions, senators Gerstein and LeBreton used and conveyed information not generally publicly available, which seems to violate section 10 of the Code.

Democracy Watch’s opinion is that it was improper for Senator Gerstein to intervene in the Deloitte audit, and for Senator LeBreton to intervene in the Senate committee’s audit process, and for both to obtain and convey information about the audit processes, simply because it is improper for anyone who is not involved in an audit to attempt to influence auditors.  A spokesperson for Deloitte has stated publicly that it is improper for any information about an audit to be given to anyone other than the people involved in the audit – therefore it was, by definition, improper to seek information about the audit, and to try to influence the audit.  Democracy Watch’s opinion is that it is analogous to that person or senator contacting a judge of a court or a tribunal in an attempt to influence the judge’s ruling.

Senator LeBreton is an ex officio member of the Senate’s Standing Committee on Internal Economy, Budgets and Administration.  However, she did not attend any of the Committee’s 25 meetings from March 8, 2012 to March 7, 2013.  Senator LeBreton was not a member of the subcommittee (known as the “Steering Committee”) that oversaw the audit of Senator Duffy – only Senator Carolyn Stewart Olsen, Senator David Tkachuk and Senator George Furey were members.

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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]

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