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Democracy Watch calls on Senate Ethics Officer to initiate inquiries into Senator Duffy’s acceptance of payment from Arthur Hamilton, and into interventions by senators Gerstein and LeBreton in Duffy’s audit

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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Duff Conacher, Board member of Democracy Watch
Tel: 613-241-5179
Cell: 416-546-3443
Email: [email protected]

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