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Democracy Watch files complaint with Ethics Commissioner about some of former Justice Minister Peter MacKay’s judicial appointments, including his appointment of Vic Toews

Federal ethics law prohibits Cabinet ministers from making decisions like appointments that benefit friends, including political friends

Ethics Commissioner must recuse herself as she is serving at pleasure of Liberal Cabinet — Liberals must change Cabinet appointment system to match Ontario’s judicial appointment process to stop patronage and weak lapdog appointments

Tuesday, April 25, 2017

OTTAWA – Today, Democracy Watch released the letter it sent yesterday to federal Conflict of Interest and Ethics Commissioner Mary Dawson calling for a ruling that former Conservative Attorney General and Minister of Justice Peter MacKay violated the Conflict of Interest Act (COIA) by appointing friends as judges, including his former Conservative Cabinet colleague Vic Toews.

According to a February 2015 media report, Peter MacKay appointed a few friends and associates as judges in Nova Scotia from October 2013 on, and in March 2014 he appointed Vic Toews as a judge in Manitoba.

Section 4 and subsection 6(1) of the COIA together prohibit public office holders like Cabinet ministers from making or taking part in decisions when they have an opportunity to further their own, their family’s or their friends private interests. Democracy Watch’s position is that appointing someone as a judge furthers their private interest, and that “friends” should be defined by the Ethics Commissioner as including political friends such as Cabinet colleagues and significant supporters of the governing party.

“It seems clear that at least some of former Minister MacKay’s judicial appointments violated the rule in the federal political ethics law that prohibits making decisions that help friends, including Cabinet colleagues, but an investigation is needed to determine the relationship he had with all his appointees,” said Duff Conacher, Co-founder of Democracy Watch.

Democracy Watch’s letter also calls on Ethics Commissioner Mary Dawson to recuse herself from ruling on the complaint because the Trudeau Liberal Cabinet gave her the gift of a $100,000, six-month contract in mid-December.

Ethics Commissioner Dawson’s office has claimed that the contract does not create a conflict of interest for her because under subsection 81(1) of the Parliament of Canada Act, opposition party leaders are consulted on the appointment of the Ethics Commissioner. However, under subsection 82(2) of that Act, the Cabinet is not required to consult opposition party leaders before appointing anyone to a six-month term like the one the Ethics Commissioner is currently serving, and in any case Cabinet makes the final appointment decision.

“It would be outrageous if someone filed a lawsuit against a former Conservative Cabinet minister and then Prime Minister Trudeau chose the judge to rule on the lawsuit and handed the judge a six-month contract worth $100,000, and it is equally outrageous for an ethics complaint against a former Conservative Cabinet minister to be ruled on by an ethics commissioner chosen by and serving at the pleasure of Liberal Prime Minister Trudeau,” said Conacher.

Another reason not to have Ethics Commissioner Dawson rule on the complaints is her negligently weak enforcement record since 2007 and lack of accountability (See Backgrounder below for details). Democracy Watch and the nation-wide Government Ethics Coalition continue to call for key changes to strengthen federal political ethics rules and the enforcement system (See Backgrounder for details).

Democracy Watch proposes that the solution is to have a fully independent commission whose members are approved by all federal party leaders along with entities such as the Canadian Judicial Council do a public, non-partisan merit-based search for the next Ethics Commissioner and Commissioner of Lobbying, and to require the Trudeau Cabinet to choose from a short-list of candidates that the commission nominates, with approval still by the House of Commons.

To stop patronage and cronyism, and the appointment of weak government watchdogs and law enforcement officers, Democracy Watch has called for this change to the process for all Cabinet appointments in its Stop Bad Government Appointments Campaign. Ontario uses this appointment system to appoint provincial judges, and it is considered to be a world-leading process.

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

Democracy Watch’s Government Ethics Campaign


1. Federal Ethics Commissioner Mary Dawson’s weak enforcement record

Federal Ethics Commissioner Mary Dawson has had a very weak enforcement record since 2007, including (as of June 2015) making 149 secret rulings, issuing only 25 public rulings, and letting 75 (94%) of people who clearly violated ethics rules off the hook.

Ethics Commissioner Dawson has greatly undermined various sections of the Conflict of Interest Act (COIA) in past rulings by creating loopholes in the COIA that do not exist – such as:

  1. her April 29, 2010 “Cheques Report” ruling claiming that political parties are not “persons” under the COIA and therefore it was fine for Conservative MPs and Cabinet ministers to hand out government cheques with the Conservative Party logo on them;
  2. her May 13, 2010 “Raitt Report” ruling that it was fine for two lobbyists who were lobbying Minister Lisa Raitt to help raise thousands of dollars for her riding association because, you claimed, that only helped the association not her;
  3. her December 2016 ruling that it was fine for Health Minister Jane Philpott to use the driving service company of one of her former campaign volunteers because it was the only such company Minister Philpott claimed she knew about (a ruling that creates a loophole allowing any Minister or other senior government officlal to use the same invalid excuse Minister Philpott used to give contracts to their friends or other party loyalists);
  4. her baseless decision that the COIA only applies to financial interests despite the fact that the COIA’s section 2 definition of “private interest” does not in any way even suggest that the definition of “private interest” is restricted to only financial interests, and;
  5. her baseless decision that the COIA only applies to close personal friends (there is no such definition of “friends” in the COIA).

Because of section 66 added to the then-new Conflict of Interest 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. If this section had not been added to the Act, Democracy Watch would have challenged several of Commissioner Dawson’s rulings since 2007 in court.

Democracy Watch is currently challenging Ethics Commissioner Dawson’s use of conflict-of-interest screens in court on the basis that the screens are unlawful.

2. Federal ethics law and codes 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. Prime Minister Harper instead put those rules in his Accountable Government code for ministers and other senior officials so he could ignore the rules (as he did until the Conservatives were defeated in the 2015 election – see especially rules in Annex A, Part 1 of the code).

The Liberals made no promises in their 2015 election platform to close the huge loopholes in the Conflict of Interest Act (and they also made no promises to close the huge loopholes in the Lobbying Act or the Public Servants Disclosure Protection Act). Instead, Prime Minister Trudeau re-named and re-issued the Accountability Government code as his Open and Accountable Government code. He has ignored the rules in his code just like Prime Minister Harper did.