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Democracy Watch in court today challenging Trudeau Cabinet’s biased, secretive appointment of new Ethics Commissioner

Cases ask Federal Court to overturn the appointment because Cabinet was biased as Commissioner was investigating PM at the time, and also failed to consult with opposition parties as required by law

More than 15,000 Canadians have called for key changes to make the Cabinet appointment process actually open, independent and merit-based

Wednesday, November 14, 2018

OTTAWA – Today, Democracy Watch is in Federal Court in Ottawa for the hearing of its case challenging the Trudeau Cabinet’s appointment in December 2017 of the new Ethics Commissioner. Democracy Watch argues that the Cabinet was biased and in a conflict of interest because the Ethics Commissioner was investigating Trudeau and was also investigating Finance Minister Bill Morneau during the appointment process.

Also, the Cabinet failed to consult with opposition party leaders as required by the Parliament of Canada Act before making the appointment. The Cabinet hid the fact that it had qualified candidates for Ethics Commissioner in spring 2017, and controlled the partisan process in secret right through to the end of November 2017 when the very questionable decision to appoint Mario Dion (who had an unethical record as Integrity Commissioner) was made.

Democracy Watch is represented by Sebastian Spano.

“The Trudeau Cabinet failed to consult with opposition party leaders, as required by law, before appointing the new Ethics Commissioner, and at the time the commissioner was investigating Trudeau and Finance Minister Morneau so the Cabinet was in a clear conflict of interest when making the appointment of this key democracy watchdog,” said Duff Conacher, Co-founder of Democracy Watch and Adjunct Professor of Law and Political Science at the University of Ottawa. “Given it is essential that ethics watchdogs are independent and impartial, Democracy Watch hopes the court will overturn the appointment and establish high standards to prevent conflicts of interest, and also require meaningful consultation with opposition parties, for all future watchdog appointments.”

“It would be a clear conflict of interest if someone sued Prime Minister Trudeau or a Cabinet minister and the Cabinet chose which judge would hear the case, and it is just as clearly a conflict of interest for the Cabinet to choose the new Ethics Commissioner who will judge whether the PM and another Cabinet minister violated the ethics law,” said Conacher. “Given both opposition parties complained about the Trudeau Cabinet failing to consult with them before the Ethics Commissioner appointment was made, it’s clear the Cabinet also failed to consult as required by the law that sets out the appointment rules.”

Prime Minister Trudeau recused himself in mid-May 2017 from the Ethics Commissioner appointment process because the Commissioner was investigating him for accepting the Bahamas trip gift from the Aga Khan. The PM chose Minister Bardash Chagger to take the lead in making the appointment decision for the new Ethics Commissioner.

Minister Chagger repeatedly defended the PM’s acceptance of the gift in the House of Commons in January and April 2017. After the May 2017 fiasco in which the Liberals tried to impose a blatantly partisan appointee for Official Languages Commissioner, the opposition leaders wrote a joint letter to the PM calling on the Cabinet to consult with them, as required by law, on all officer of Parliament appointments.

The NDP also proposed a resolution in June 2017 that a committee of MPs review nominees for Ethics Commissioner and other watchdog positions but the Liberals rejected the proposal. Democracy Watch’s court case has revealed that Minister Chagger then sent a letter in July 2017 that misled opposition leaders by claiming the Ethics Commissioner appointment process was transparent and merit-based while failing to mention that the Liberals had already found qualified candidates for the position, and failing to consult the opposition on those candidates.

Minister Chagger and a Cabinet committee then controlled the partisan process in secret right through to December 5, 2017 when Minister Chagger sent opposition leaders a letter saying that the Cabinet had decided on its own to appoint Mario Dion as Ethics Commissioner. Mr. Dion was a very questionable choice, given he had an unethical record as Integrity Commissioner.

The NDP sent a letter on December 11, 2017 to Minister Chagger saying very clearly that it’s position was that it was not consulted before the appointment of Mr. Dion was made, and requesting to see the shortlist of candidates.

The Conflict of Interest Act and PM Trudeau’s code for ministers and the law of bias all prohibit ministers from taking part in decisions when they appear to be biased or have an opportunity to further their own interests or improperly further another person’s private interests.

More than 15,000 Canadians have sent a letter through Democracy Watch’s Stop Bad Government Appointments Campaign calling on the federal Liberals to change the Cabinet appointment process from the current partisan system to ensure actually independent and merit-based appointments of all judges, officers of parliament, and members of agencies, boards, commissions and tribunals.

“The only way to stop the current dangerously undemocratic and unethical appointment process for judges and government watchdogs is to establish a fully independent public appointment commission, as Ontario and Britain have, to conduct public, merit-based searches for nominees and send a short list to Cabinet, with Cabinet required to choose from the list,” said Conacher.

The independent commission, whose members would be approved by all federal party leaders (and entities such as the Canadian Judicial Council) should be mandated to do a public, non-partisan merit-based search for candidates for appointment as officers of Parliament and as members of the 32 federal administrative tribunals and 108 agencies/boards listed here. For all appointments, Cabinet should be required to choose appointees from a short-list of one to three candidates that the commission nominates.

Ontario uses this kind of independent appointment system to appoint provincial judges (the advisory committee provides a shortlist of three candidates to the Cabinet). Britain uses it to appoint judges and judicial tribunal members (like the Ethics Commissioner and Lobbying Commissioner are) – its advisory committee provides only one candidate to the Cabinet, and the Cabinet has to accept the candidate or reject the candidate and provide written reasons. Both of their systems are considered to be world leading.

The judicial advisory committees for appointments of all 1,123 federal and provincial superior court judicial appointments listed here should also be made more independent from the federal Cabinet (currently the Minister of Justice chooses all the members), and should provide only a short list of candidates (currently they send long lists to Cabinet).

Democracy Watch also called on the Liberals, and all governments, to change the law to ensure all Cabinet appointees who watch over government or oversee key democracy laws (especially every Officer of Parliament) serve only one term, so they don’t try to please the government in order to keep their job.

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

Democracy Watch’s Stop Bad Government Appointments Campaign and Government Ethics Campaign