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Nigel Wright’s meetings wrong, but legal (and that is the problem)

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Set out below is a letter-to-the-editor by Democracy Watch Board member Duff Conacher which was published on Rabble.ca on August 29, 2012

While most everyone would say that it is a conflict of interest for Prime Minister Harper’s chief of staff Nigel Wright to meet and be lobbied by Barrick Gold or any of the dozens of companies in which he has friends and/or financial or other interests, in almost every case the lobbying is legal.

In fact, in almost every case it is legal for Wright, and every cabinet minister and staff person, and every senior government official, and every MP and senator and their staff, to lobby and make decisions on issues and matters in which they, their families and friends have financial or other interests.

This is all legal because of a huge loophole added in December 2003 by Paul Martin to the federal cabinet ethics law, and that MPs and senators included in 2004-2005 in their new House and Senate ethics codes. Stephen Harper promised in the 2006 election to remove the loophole from the cabinet ethics law but he broke his promise.

Prime Minister Harper put stronger ethics rules into his Accountability Guide for cabinet ministers, but those rules do not apply to cabinet staff, and so far he has ignored every violation of those rules. In addition, the staff of MPs and senators are not covered by any ethics rules (except senior staff in the Leader of the Opposition’s office).

The effect of the Martin loophole is that no one is considered to be in a conflict of interest unless they are dealing with a very specific matter such as a merger, takeover, license, approval or contract (and only about 1 per cent of their decisions are about these things).

To put it another way, federal ethics rules do not apply to 99 per cent of the decisions and actions of federal politicians and senior policy-makers.

These very weak rules combined with the very weak enforcement attitude and record of federal Ethics Commissioner Mary Dawson (who has interpreted rules in many cases in very questionable ways that let Cabinet ministers and MPs off-the-hook), and the weak enforcement powers of the Senate Ethics Officer, mean that it is effectively legal for all federal politicians, staff and senior government officials to be unethical.

BACKGROUNDER

Before 2004, ethics rules applied to all the decisions and actions of Cabinet ministers, their staff and senior government officials because they were required to, in every case, avoid even the appearance of a conflict of interest.  The rules were almost never enforced because of lapdog ethics officers, but they did exist.  In December 2003, Paul Martin put in the loophole that gutted the rules in the Conflict of Interest Act, and Stephen Harper promised in the 2006 election to remove that loophole but he broke his promise.  See details in Democracy Watch’s December 3, 2010 news release at: <http://dwatch.ca/camp/RelsDec0310.html> (archive website)

Prime Minister Harper put stronger ethics rules into his Accountability Guide for Cabinet ministers, but those rules do not apply to Cabinet staff, and he has ignored every violation of those rules.  See details at: <http://dwatch.ca/camp/OpEdAug0612.html> (archive website)

In 2004, MPs finally (137 years after Canada became a country) enacted an ethics code for themselves, and senators followed in 2005 with their code.  Both MPs and senators included the loophole that Paul Martin put in the Cabinet rules, and failed to apply the rules to their staff.  See details in Democracy Watch’s recent op-ed at: <http://dwatch.ca/camp/OpEdJuly2312.html> (archive website)

While the Ethics Commissioner has been independent of Cabinet since spring 2004, current Commissioner Mary Dawson and her predecessor Bernard Shapiro (and the lapdog Ethics Counsellor Howard Wilson before them, who had no independence or powers), have all let dozens of Cabinet ministers, staff, senior officials, and MPs off the hook for clearly unethical activities.  See details at: <http://dwatch.ca/camp/Ethics_Court_Cases.html> (archive website) and specifically about Commissioner Dawson at: <http://dwatch.ca/camp/OpEdJuly1912.html> (archive website)

The Senate Ethics Officer, like the former Ethics Counsellor, has no independence and very weak enforcement powers.  See details at: <http://www.dwatch.ca/camp/OpEdJun0109.html> (archive website)

For more details, go to Democracy Watch’s Government Ethics page

Democracy Watch’s five federal ethics complaints that are still awaiting fair, impartial investigations and rulings

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Background

Five Complaints from 2001-2004 Finally Ruled On in 2011-2012

 

Five Complaints from 2001-2004 Finally Ruled on in 2011-2012

In December 2002, Democracy Watch applied to the Federal Court of Canada for a review of federal Ethics Counsellor Howard Wilson’s bias and failure to uphold legal duties because of the delay in ruling on 8 complaints Democracy Watch had filed with the Ethics Counsellor.

In 7 of the 8 complaints, the complaint was based upon activities of a lobbyist which Democracy Watch believed violated Rule 8 of the Lobbyists’ Code of Conduct which prevents lobbyists from undertaking any activity that constitutes improper influence and puts a federal public office holder in a conflict of interest situation.  The eighth complaint, filed on April 12, 2001 and concerning John Dossetor, alleged that Dossetor violated the Lobbyists’ Code of Conduct by failing to register as a lobbyist.

Rule 8 is as follows:

“8. Improper Influence
Lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder.”

In response to Democracy Watch’s December 2002 court application, Ethics Counsellor Howard Wilson in January 2003 issued an interpretation bulletin of Rule 8 (that Wilson backdated to September 2002) of the Lobbyists’ Code of Conduct that stated that in order to violate Rule 8 a lobbyist would, among other things, have to “interfere with the decision, judgment or action” of a federal politician or federal government official in a way that amounts to “a wrongful constraint whereby the will of the public office holder was overpowered . . . and induced to do or forbear an act which he or she would not do if left to act freely” involving “a misuse of position of confidence” or taking “advantage of a public office holder’s weakness, infirmity or distress”.

Ethics Counsellor Howard Wilson’s interpretation bulletin essentially states that a lobbyist only violates Rule 8 if the lobbyist enslaves a federal politician or other federal government official or extorts them, thereby forcing them to do something they would not do if they had a free will.  In other words, the Ethics Counsellor ruled that in order to violate Rule 8, a lobbyist would also have to violate the Criminal Code of Canada measures that outlaw enslavement and extortion.

At the same time, according to Ethics Counsellor Howard Wilson’s interpretation of Rule 8, a lobbyist could violate the Criminal Code of Canada measures that outlaw bribery without violating Rule 8 (because bribery would not force a federal politician or other federal government official to do something they would not do if they had a free will, as they would take the bribe willingly).

Using this ridiculous interpretation of Rule 8, Ethics Counsellor Howard Wilson proceeded through March 2003 to rule on 4 of Democracy Watch’s 8 complaints about lobbyists violating Rule 8.  As none of the complaints were about a lobbyist enslaving or extorting a federal politician or other federal government official, the Ethics Counsellor ruled that none of the lobbyists had violated Rule 8.

In April and May 2003, Democracy Watch filed applications in the Federal Court of Canada for a judicial review of the 4 rulings by the Ethics Counsellor (May 23, 2003 news release about the judicial review court applications).

On Thursday, May 13, 2004, with the hearing of Democracy Watch’s applications scheduled for Monday, May 17th, the federal government had the gall to file a motion with the Federal Court for dismissal of Democracy Watch’s applications, on the basis that the federal Cabinet proclaimed Bill C-4 into law on May 10, 2004.

Bill C-4 eliminated the Ethics Counsellor position and created the new positions of Ethics Commissioner (to enforce the then-in-force Public Office Holders Code and other ethics rules established by the Prime Minister), and the MPs Code that first came into force in October 2004) and the position of Registrar of Lobbyists (to enforce the Lobbyists Registration Act and the Lobbyists’ Code).  The federal government’s argument was that since the Ethics Counsellor position had ceased to exist, the issues raised by the judicial review applications were moot (meaning no longer relevant) and therefore Democracy Watch could no longer challenge the Ethics Counsellor in court.

On May 17, 2004 the Federal Court dismissed the federal government’s motion, ruling that the applications were not moot, and that even if the issues raised in the applications were moot, there were still issues raised by the treatment of Democracy Watch’s complaints by the Ethics Counsellor, and there were still issues of national importance that warranted rulings by the court. Federal Court 2004 ruling (See especially paragraphs 25-31 in the ruling).

On July 9, 2004, the Federal Court ruled that the Ethics Counsellor was institutionally biased (because of his lack of independence from the Prime Minister) and also specifically biased against Democracy Watch (because of his delay in dealing with Democracy Watch’s complaints).   The Federal Court in effect ordered that Democracy Watch’s 8 complaints must be re-considered by the new Ethics Commissioner and the new Registrar for Lobbyists. Federal Court 2004 ruling

The new Ethics Commissioner, Bernard Shapiro, refused to rule on any of the complaints.  For this reason, and other completely negligent and weak enforcement actions by Shapiro, Democracy Watch filed a complaint with the Ethics Commissioner on June 29, 2005 alleging that the Ethics Commissioner himself was violating the federal Public Office Holders Code and calling on Commissioner Shapiro to arrange an independent review of his actions and statements. Link to June 29, 2005 news release

In early August, Ethics Commissioner Shapiro responded to Democracy Watch’s complaint, refusing to ensure an independent review of his actions and statements.

Unfortunately, the new Registrar of Lobbyists position was structured in a similar way as the former Ethics Counsellor position.  The former Ethics Counsellor had no independence from the Prime Minister, while the new Registrar had no independence initially from the Industry Minister, and after September 2005 from the Treasury Board minister.  As a result, Democracy Watch’s position was that the Registrar was also biased and incapable of fairly and impartially upholding the Lobbyists Registration Act and Lobbyists’ Code.

As a result of the biased actions and statements of federal Ethics Commissioner Bernard Shapiro, and the biased structure of the Office of the Registrar of Lobbyists, Democracy Watch launched a court challenge in September 2005 of the bias and incompetence of Commissioner Shapiro and Registrar Nelson. Link to September 29, 2005 news release

As a result of Democracy Watch’s September 2005 court challenge of Ethics Commissioner Shapiro and Registrar Michael Nelson, the federal government changed (through the so-called “Federal Accountability Act” (FAA)) the Commissioner position into the Conflict of Interest and Ethics Commissioner, and the Public Office Holders Code into the Conflict of Interest Act, and the Registrar of Lobbyists position into the Commissioner of Lobbying, and Lobbyist Registration Act into the Lobbying Act. To see the details about the FAA changes, click here.

As a result of Democracy Watch’s lawsuit and the passage of the FAA, Bernard Shapiro resigned as Ethics Commissioner, and the new Conflict of Interest and Ethics Commissioner Mary Dawson was appointed on July 9, 2007, and Michael Nelson resigned as Registrar of Lobbyists, and the new Commissioner of Lobbying Karen Shepherd was appointed in November 2008.

However, in October 2006 (just before the Federal Accountability Act became law), Registrar of Lobbyists Michael Nelson finally issued his first ruling on one of Democracy Watch’s 8 outstanding complaints (using Ethics Counsellor Howard Wilson’s September 2002 interpretation of Rule 8 of the Lobbyists’ Code of Conduct (described above)).

Democracy Watch filed a court challenge of the Registrar’s ruling in November 2006 — for details about the court challenge, and to see the Registrar’s ruling, click here.

In addition, Registrar of Lobbyists Michael Nelson issued on May 31, 2007 a new ruling on another of Democracy Watch’s 8 complaints, and issued on September 7, 2007 a ruling on another of the complaints.  For various reasons, Democracy Watch did not challenge either of these rulings in court.

On January 28, 2008, a hearing of Democracy Watch’s court challenge of the Registrar of Lobbyists ruling occurred in the Federal Court of Canada in Toronto.  On February 19, 2008 (just three weeks after the court hearing), Deputy Judge Frenette issued his ruling upholding the Registrar of Lobbyists’ ruling and ordering Democracy Watch to pay the costs of the other parties.

In March 2008, Democracy Watch filed an appeal of Deputy Judge Frenette’s ruling, and the Federal Court of Appeal hearing of the appeal was on January 12, 2009 — To see details about Frenette’s ruling and Democracy Watch’s appeal of the ruling, click here.

On March 12, 2009, the Federal Court of Appeal overturned Deputy Judge Frenette’s ruling in every way, and rejected the Ethics Counsellor’s/Registrar’s interpretation of Rule 8 of the Lobbyists Code as “deeply flawed” — To see details, click here.

Five Complaints from 2001-2004 Finally Ruled on in 2011-2012

As of spring 2011, Democracy Watch was still waiting for rulings from the Commissioner of Lobbying on the following 5 of its original 8 complaints.

Thankfully, on November 6, 2009 the Commissioner of Lobbying complied with the March 2009 Federal Court of Appeal ruling Democracy Watch had won, and issued a new, mostly legally correct and effective Guideline for Rule 8 of the Lobbyists’ Code of Conduct.

However, Commissioner of Lobbying Karen Shepherd failed to apply the Guideline properly when she finally ruled on the following 5 complaints in late 2011-early 2012:

  1. On March 27, 2001, Democracy Watch petitioned the Ethics Counsellor to investigate René Fugère, who was investigated by the RCMP for failing to register as a lobbyist.  Fugère was not charged even though clear evidence existed that Fugère was lobbying.  Given that Fugère is an unpaid aide to Prime Minister Jean Chrétien, and that the Prime Minister’s office was involved in at least one of the same grant decisions, Democracy Watch also believes that Fugère’s lobbying activities put the Prime Minister in a conflict of interest. RULING:  On November 1, 2011, the Commissioner of Lobbying finally issued a ruling (PDF) finding Fugère guilty of violating the Lobbyists’ Code in one case.  Concerning another situation, the Commissioner issued a ruling (PDF) that Fugère was not in violation of the Code.
  2. On June 17, 2002, Democracy Watch petitioned the Ethics Counsellor to investigate possible violations of the Public Office Holders’ Code and the Lobbyists’ Code arising from activities of nine particular lobbyists who have worked with either the Prime Minister, a Cabinet minister or opposition MP while also lobbying the federal government.  (NOTE: The Ethics Counsellor ruled on this complaint on March 21, 2003; Democracy Watch’s court challenge was filed on April 23, 2003, Federal Court File #T-641-03).  RULING: On August 22, 2011, the Commissioner of Lobbying finally issued a ruling (PDF) that stated that too much time had passed, and standards had changed, and therefore the Commissioner was refusing to find any of the lobbyists guilty.
  3. On October 17, 2002, Democracy Watch petitioned the Ethics Counsellor to investigate possible violations of the Public Office Holders’ Code and the Lobbyists’ Code arising from secret donations of lobbyists to the leadership campaigns of John Manley, Sheila Copps and Allan Rock. (NOTE: The Ethics Counsellor ruled on this complaint on March 31, 2003; Democracy Watch’s court challenge was filed on May 5, 2003, Federal Court File #T-711-03).  RULING: On January 26, 2012, the Commissioner of Lobbying finally issued a ruling (PDF) that stated that too much time had passed, and standards had changed, and therefore the Commissioner was refusing to find any of the lobbyists guilty.

(NOTE: Ethics Counsellor Howard Wilson ruled on the above 3 complaints, but in July 2004 the Federal Court of Canada rejected all 3 of Wilson’s rulings because he was biased)

4. On September 26, 2002, Democracy Watch petitioned the Ethics Counsellor to investigate possible violations of the Public Office Holders’ Code and the Lobbyists’ Code arising from the activities of numerous lobbyists paying to attend (and paying to golf with Cabinet ministers) at a federal Liberal Party golf tournament  held on August 19, 2002 in Chicoutimi, Quebec.  RULING: On November 8, 2012, the Commissioner of Lobbying finally issued a ruling (PDF) that stated that too much time had passed, and standards had changed, and therefore the Commissioner was refusing to find any of the lobbyists guilty.

5. The complaint was filed against Paul Martin, Sheila Copps, and John Manley, alleging that they had violated the Public Office Holders Code by taking large donations from several corporations registered to lobby them and the federal government, and that the corporations had violated the Lobbyists’ Code by making the donations (January 30, 2004 news release about the ethics complaints).  RULING: On January 26, 2012, the Commissioner of Lobbying finally issued a ruling (PDF) that stated that too much time had passed, and standards had changed, and therefore the Commissioner was refusing to find any of the lobbyists guilty.