Current code is so full of loopholes it should be called the
“Almost Impossible to be in a Conflict of Interest Code”

FOR IMMEDIATE RELEASE:
Tuesday, February 15, 2022

OTTAWA – Today, Democracy Watch and the Government Ethics Coalition it coordinates, made up of 30 citizen groups from across Canada, is calling for key changes during testimony from 12 noon-1 pm before the House Procedure and House Affairs Committee to close huge loopholes in the Conflict of Interest Code for Members of the House of Commons that allow MPs to take part in most decisions even when they have a conflict of interest, and allow them to accept unethical gifts and favours, and is also calling for key measures to strengthen enforcement and penalties to discourage violations.

The Committee is conducting a long overdue review of the Code, which was enacted in 2004, is supposed to be reviewed every five years, was last reviewed in 2015, and before that in 2008 to 2009 , and before that in 2006-2007. The original version of the Code had loopholes in it, a weak enforcement system, and penalties that MPs themselves decide in a “kangaroo court” process, and past reviews by the Committee have added more loopholes, allowing for even more conflicts of interest and unethical favours, or have done nothing to close loopholes or strengthen penalties, and little to strengthen enforcement.

“The MP’s ethics code is so full of loopholes it should be called the Almost Impossible to be in a Conflict of Interest Code, the Ethics Commissioner doesn’t do basic enforcement actions like auditing MPs, and MPs decide whether to penalize other MPs which is a kangaroo court,” said Duff Conacher, Co-founder of Democracy Watch. “The big question is whether MPs will finally close these loopholes, and strengthen enforcement and penalties, or will they again add more loopholes to their ethics code as they have after past reviews.”

Conflict of Interest and Ethics Commissioner Mario Dion has made six recommendations for changes to the MP Code (and also for nine other technical changes), and while they will all somewhat improve the Code, they completely ignore huge loopholes that allow for unethical decision-making by MPs, and do nothing to strengthen enforcement. As well, Ethics Commissioner Dion has made the self-contradictory claim that the Code is working well and doesn’t need to be reviewed, and issued several highly questionable rulings since he began in January 2018 that allowed clear violations of federal ethics rules. Democracy Watch has an ongoing case in the Federal Court of Appeal challenging Commissioner Dion’s weak ruling that Prime Minister Trudeau didn’t violate the Conflict of Interest Act when he approved the grant in June 2020 to WE Charity, for which his wife served as an ambassador at the time.

All of this is not surprising given Mr. Dion had a record of eight unethical and questionable actions when he was the Public Sector Integrity Commissioner, and was handpicked by the Trudeau Cabinet through a secretive, dishonest process that the Federal Court of Appeal ruled was biased, and given the sister-in-law of Trudeau’s old friend and Cabinet Minister Dominic LeBlanc is the Ethics Commissioner’s senior lawyer (which may explain why the Ethics Commissioner has failed to issue a ruling on whether LeBlanc violated the ethics law by participating in the appointment process for judges in New Brunswick with financial and other connections to him.

“Ethics Commissioner Dion has failed to enforce federal ethics laws effectively, even when the law has been clearly violated, and also made self-contradictory, confusing and unclear statements about the rules,” said Duff Conacher, Co-founder of Democracy Watch. “It’s clear that the only way to ensure federal ethics rules are enforced effectively is for MPs to require the Ethics Commissioner to investigate and issue a public ruling on every situation and complaint, and to impose a penalty for every violation.”

The 10 key changes needed to make the MP Code effective at preventing conflicts of interest and unethical gift and favour trading are as follows:

1. Add a rule to require MPs and their staff to tell the truth to stop the misleading spin that regularly and fatally undermines reasonable policy debates and discussions, and another rule to prohibit MPs from switching parties in between elections except when their party leader violates the law or breaks significant election promises (and, generally, expand the Code to cover MPs as soon as their election is confirmed by Elections Canada, and to cover MP staff who, because they are not covered by the Code, can currently do the things that MPs are prohibited from doing on their MP’s behalf, and can also accept all gifts and favours);
2. Close the huge loophole in the definition of “private interest” (in ss. 3(2) and (3)) to cover all conflicts of interest, not only specific financial conflicts, because the loophole means the Code doesn’t apply to 95% of decisions MPs participate in, and that allows them to take part in decisions when they, their family or friends can profit from the decision (and extend the Code to cover the private interests of extended family and friends of MPs and their staff);
3. Prohibit MPs and their staff from having investments in businesses (which is allowed under ss. 17 and 24(3)(j)), and from having blind trusts, (both of which the Parker Commission recommended way back in 1987) and change s. 7 to prohibit them from other outside activities, because they create clear conflicts of interest (other than professional requirements like doctors who have to practise a specific amount each year in order to retain their licence);
4. Require MPs to work full-time, and to disclose a summary of their work activities, including communications with anyone or any entity who is trying to influence their decisions, in an online, searchable database;
5. Change the gifts and benefits rule to ban MPs and their staff from accepting anything from anyone (including volunteer assistance under ss. 3(1)), who is trying to influence their decisions because even small gifts influence decisions, and delete s. 15 of the Code to ban “sponsored travel” because it is an unethical gift and essentially a form of legalized bribery;
6. Add a new rule (as a restriction on s. 5 of the Code) to prohibit MPs from giving preferential treatment to anyone who has given them a gift or assisted them in any way;
7. Require MPs to disclose in the Public Registry their assets and liabilities worth more than $1,000 (the current disclosure requirement is for everything worth more than $10,000, which is much too high), and to disclose details about their past five year’s work before they became an MP to make it easy to track which organizations and issues they have ties to, and to disclose in the Public Registry which members of their extended family they have close relationships with including being aware of their business, investments and other private interests;
8. Prohibit MPs and their staff from communicating with their former colleagues and government officials for a sliding-scale time period after they leave depending on what positions and committees they served in and how close their relationships are with Cabinet ministers, officials etc., and require them to disclose their post-activities online during this time period in a searchable database;
9. Require MPs and their staff to take a formal training course when they first start their position, and annually, and require the Ethics Commissioner to publish online a summary of his/her advice each time advice is given that covers a new situation to any person covered by the Code, and to publish online all advisory opinions and guidelines issued by the Commissioner, and require the Ethics Commissioner to regularly conduct an audit of a randomly selected sample of MPs’ financial statements and activities;
10. Give members of the public, who employ and pay all MPs and their staff, the right to file a complaint with the Ethics Commissioner, and require the Commissioner to investigate and issue a public ruling on every complaint and situation s/he becomes aware of, and to impose a sliding scale of penalties depending the seriousness of the violation, and add a rule that anyone is allowed to challenge any decision by the Commissioner in court.

Many other changes are needed to the Conflict of Interest Act (which applies to Cabinet ministers, staff and appointees), and to other federal laws, including the whistleblower protection law, to stop unethical actions, wealthy interests, secret, unethical lobbying, and excessive government secrecy overall, from undermining good public policy-making.

– 30 –

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

Democracy Watch’s Government Ethics Campaign

Current code is so full of loopholes it should be called the
“Almost Impossible to be in a Conflict of Interest Code”

FOR IMMEDIATE RELEASE:
Tuesday, February 15, 2022

OTTAWA – Today, Democracy Watch and the Government Ethics Coalition it coordinates, made up of 30 citizen groups from across Canada, is calling for key changes during testimony from 12 noon-1 pm before the House Procedure and House Affairs Committee to close huge loopholes in the Conflict of Interest Code for Members of the House of Commons that allow MPs to take part in most decisions even when they have a conflict of interest, and allow them to accept unethical gifts and favours, and is also calling for key measures to strengthen enforcement and penalties to discourage violations.

The Committee is conducting a long overdue review of the Code, which was enacted in 2004, is supposed to be reviewed every five years, was last reviewed in 2015, and before that in 2008 to 2009 , and before that in 2006-2007. The original version of the Code had loopholes in it, a weak enforcement system, and penalties that MPs themselves decide in a “kangaroo court” process, and past reviews by the Committee have added more loopholes, allowing for even more conflicts of interest and unethical favours, or have done nothing to close loopholes or strengthen penalties, and little to strengthen enforcement.

“The MP’s ethics code is so full of loopholes it should be called the Almost Impossible to be in a Conflict of Interest Code, the Ethics Commissioner doesn’t do basic enforcement actions like auditing MPs, and MPs decide whether to penalize other MPs which is a kangaroo court,” said Duff Conacher, Co-founder of Democracy Watch. “The big question is whether MPs will finally close these loopholes, and strengthen enforcement and penalties, or will they again add more loopholes to their ethics code as they have after past reviews.”

Conflict of Interest and Ethics Commissioner Mario Dion has made six recommendations for changes to the MP Code (and also for nine other technical changes), and while they will all somewhat improve the Code, they completely ignore huge loopholes that allow for unethical decision-making by MPs, and do nothing to strengthen enforcement. As well, Ethics Commissioner Dion has made the self-contradictory claim that the Code is working well and doesn’t need to be reviewed, and issued several highly questionable rulings since he began in January 2018 that allowed clear violations of federal ethics rules. Democracy Watch has an ongoing case in the Federal Court of Appeal challenging Commissioner Dion’s weak ruling that Prime Minister Trudeau didn’t violate the Conflict of Interest Act when he approved the grant in June 2020 to WE Charity, for which his wife served as an ambassador at the time.

All of this is not surprising given Mr. Dion had a record of eight unethical and questionable actions when he was the Public Sector Integrity Commissioner, and was handpicked by the Trudeau Cabinet through a secretive, dishonest process that the Federal Court of Appeal ruled was biased, and given the sister-in-law of Trudeau’s old friend and Cabinet Minister Dominic LeBlanc is the Ethics Commissioner’s senior lawyer (which may explain why the Ethics Commissioner has failed to issue a ruling on whether LeBlanc violated the ethics law by participating in the appointment process for judges in New Brunswick with financial and other connections to him.

“Ethics Commissioner Dion has failed to enforce federal ethics laws effectively, even when the law has been clearly violated, and also made self-contradictory, confusing and unclear statements about the rules,” said Duff Conacher, Co-founder of Democracy Watch. “It’s clear that the only way to ensure federal ethics rules are enforced effectively is for MPs to require the Ethics Commissioner to investigate and issue a public ruling on every situation and complaint, and to impose a penalty for every violation.”

The 10 key changes needed to make the MP Code effective at preventing conflicts of interest and unethical gift and favour trading are as follows:

1. Add a rule to require MPs and their staff to tell the truth to stop the misleading spin that regularly and fatally undermines reasonable policy debates and discussions, and another rule to prohibit MPs from switching parties in between elections except when their party leader violates the law or breaks significant election promises (and, generally, expand the Code to cover MPs as soon as their election is confirmed by Elections Canada, and to cover MP staff who, because they are not covered by the Code, can currently do the things that MPs are prohibited from doing on their MP’s behalf, and can also accept all gifts and favours);
2. Close the huge loophole in the definition of “private interest” (in ss. 3(2) and (3)) to cover all conflicts of interest, not only specific financial conflicts, because the loophole means the Code doesn’t apply to 95% of decisions MPs participate in, and that allows them to take part in decisions when they, their family or friends can profit from the decision (and extend the Code to cover the private interests of extended family and friends of MPs and their staff);
3. Prohibit MPs and their staff from having investments in businesses (which is allowed under ss. 17 and 24(3)(j)), and from having blind trusts, (both of which the Parker Commission recommended way back in 1987) and change s. 7 to prohibit them from other outside activities, because they create clear conflicts of interest (other than professional requirements like doctors who have to practise a specific amount each year in order to retain their licence);
4. Require MPs to work full-time, and to disclose a summary of their work activities, including communications with anyone or any entity who is trying to influence their decisions, in an online, searchable database;
5. Change the gifts and benefits rule to ban MPs and their staff from accepting anything from anyone (including volunteer assistance under ss. 3(1)), who is trying to influence their decisions because even small gifts influence decisions, and delete s. 15 of the Code to ban “sponsored travel” because it is an unethical gift and essentially a form of legalized bribery;
6. Add a new rule (as a restriction on s. 5 of the Code) to prohibit MPs from giving preferential treatment to anyone who has given them a gift or assisted them in any way;
7. Require MPs to disclose in the Public Registry their assets and liabilities worth more than $1,000 (the current disclosure requirement is for everything worth more than $10,000, which is much too high), and to disclose details about their past five year’s work before they became an MP to make it easy to track which organizations and issues they have ties to, and to disclose in the Public Registry which members of their extended family they have close relationships with including being aware of their business, investments and other private interests;
8. Prohibit MPs and their staff from communicating with their former colleagues and government officials for a sliding-scale time period after they leave depending on what positions and committees they served in and how close their relationships are with Cabinet ministers, officials etc., and require them to disclose their post-activities online during this time period in a searchable database;
9. Require MPs and their staff to take a formal training course when they first start their position, and annually, and require the Ethics Commissioner to publish online a summary of his/her advice each time advice is given that covers a new situation to any person covered by the Code, and to publish online all advisory opinions and guidelines issued by the Commissioner, and require the Ethics Commissioner to regularly conduct an audit of a randomly selected sample of MPs’ financial statements and activities;
10. Give members of the public, who employ and pay all MPs and their staff, the right to file a complaint with the Ethics Commissioner, and require the Commissioner to investigate and issue a public ruling on every complaint and situation s/he becomes aware of, and to impose a sliding scale of penalties depending the seriousness of the violation, and add a rule that anyone is allowed to challenge any decision by the Commissioner in court.

Many other changes are needed to the Conflict of Interest Act (which applies to Cabinet ministers, staff and appointees), and to other federal laws, including the whistleblower protection law, to stop unethical actions, wealthy interests, secret, unethical lobbying, and excessive government secrecy overall, from undermining good public policy-making.

– 30 –

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

Democracy Watch’s Government Ethics Campaign

Sorry, this entry is only available in Français.

Sorry, this entry is only available in Français.

The following op-ed by Democracy Watch Co-founder Duff Conacher was published in slightly edited form in the Hill Times on January 19, 2022.

---

The federal Lobbying Act and Lobbyists’ Code of Conduct, and federal ethics rules in the Conflict of Interest Act, MPs’ and Senators’ ethics codes, and public servants’ code, continue to be a collective sad joke because of huge loopholes, fatal flaws, and weak, secretive enforcement by the Ethics Commissioner, Lobbying Commissioner, deputy ministers and the Public Sector Integrity Commissioner.

These commissioners are handpicked by the Cabinet through secretive processes that the Federal Court of Appeal has ruled are biased. The appointment process for these and all other federal democratic good government watchdogs, including judges, needs to be made much more independent of Cabinet to remove the taint of self-interested partisanship that undermines public confidence.

The Supreme Court ruled in 1996 that government ethics-related laws and codes must set high transparency and integrity standards, and be strictly and strongly enforced, or Canada will not be a democracy. More than 25 years later, we are still far from meeting the Supreme Court’s standard.

The loophole-filled, flawed federal rules: 1. allow for secret, unethical lobbying, mainly by big business lobbyists; 2. allow Cabinet ministers, their staff, top government officials, MPs and senators all to participate in decisions that they and their family members can profit or benefit from in secret, and; 3. do not even cover staff of MPs and senators.

Only one of the loopholes is usually mentioned in articles about the Lobbying Act – the rule that allows an employee of a business to lobby in secret without registering as long as they don’t lobby more than 20 percent of their work time. The House Ethics Committee unanimously called for that loophole to be closed 10 years ago, and again last June.

But there are other huge loopholes the Committee continues to ignore. Businesses often lobby enforcement agencies about the enforcement of a law or regulation – none of that lobbying is required to be disclosed. Many businesses also lobby for tax credits but in a highly questionable enforcement policy the Commissioner of Lobbying ruled that the credits are not a “financial benefit” (even though they clearly are) and, therefore, that lobbying also does not have to be disclosed.

No one is required to register and disclose their lobbying if they are not paid for it. Hired-gun “consultant” lobbyists can easily have their contract say their clients will pay them for advice, and then lobby for them in secret for free. This loophole also allows unpaid board members and retired executives of businesses and other organizations to lobby in secret.

Another loophole is that anyone can secretly lobby senior officials in any federal political party and they can pass on your demands to their party’s politicians.

Even if a person is required to register their lobbying, only oral, pre-arranged communications that they initiate with office holders are required to be disclosed. Emails, letters, and any communications initiated by the office holder (other than about a government financial benefit) can be kept secret.

If you can exploit a loophole so you are not required to register your lobbying, then the ethics rules in the Lobbyists’ Code don’t apply to you and you can do favours for politicians you are lobbying or will lobby, like fundraising and campaigning for them.

Even if you are a registered lobbyist, the Code together with a loophole in the MP and senator ethics codes legalize lobbyists giving MPs the gift of unlimited sponsored travel, and other loopholes allow all federal politicians to accept gifts from friends, even if they are lobbyists.

The Lobbying Commissioner is currently proposing to weaken other Code rules to allow for even more unethical lobbying.

The loopholes also allow federal politicians and officials to leave office and start lobbying federal politicians and government officials the next day, in secret and unregistered. The so-called “five-year ban” in the Lobbying Act only applies to registered lobbyists.

And while there is a cooling-off period in the ethics law for Cabinet ministers and top government officials after they leave office, it is also so full of loopholes that they can start working right away with most lobby groups. The stronger rules that prohibit giving advice based on secret information obtained in office, or taking improper advantage of your former office, have essentially been ignored by the Ethics Commissioner.

The much-too-high political donation and third-party spending limits in the Canada Elections Act, are additional layers in this smelly layer cake of unethical federal political decision-making. They allow people who can afford it to buy influence by donating up to $3,350 annually to each party and its riding associations, and wealthy individuals and lobby groups to spend more than $500,000 supporting parties during election campaigns, up to $1 million in the couple of months before that, and an unlimited amount between elections. Banks, which are regulated by the federal government, are also allowed to buy influence by making unlimited loans to parties and candidates.

Finally, the Ethics Commissioner and Lobbying Commissioner are allowed to make secret rulings, both have let many people off for clear violations of the rules and, even if you are found guilty, the only penalty in most cases is a public report. The commissioners should be required to rule publicly on every situation they examine, and to impose significant fines on all violators.

Add it all up and it’s essentially a legalized bribery system of unethical, biased favour-trading – pay to play, cash for access and influence. This is not to say that every federal political decision-making process is undermined by politicians and officials returning favours – only that every process is vulnerable to being tainted, in secret, by serious conflicts of interests.

The key question is, will a critical mass of MPs in the current minority government situation work together to pass a bill to clean up this unethical mess, finally?

To join the call for key changes, go to the Stop Secret, Unethical Lobbying Campaign and Government Ethics Campaign and Money in Politics CampaignThe following op-ed by Democracy Watch Co-founder Duff Conacher was published in slightly edited form in the Hill Times on January 19, 2022.

---

The federal Lobbying Act and Lobbyists’ Code of Conduct, and federal ethics rules in the Conflict of Interest Act, MPs’ and Senators’ ethics codes, and public servants’ code, continue to be a collective sad joke because of huge loopholes, fatal flaws, and weak, secretive enforcement by the Ethics Commissioner, Lobbying Commissioner, deputy ministers and the Public Sector Integrity Commissioner.

These commissioners are handpicked by the Cabinet through secretive processes that the Federal Court of Appeal has ruled are biased. The appointment process for these and all other federal democratic good government watchdogs, including judges, needs to be made much more independent of Cabinet to remove the taint of self-interested partisanship that undermines public confidence.

The Supreme Court ruled in 1996 that government ethics-related laws and codes must set high transparency and integrity standards, and be strictly and strongly enforced, or Canada will not be a democracy. More than 25 years later, we are still far from meeting the Supreme Court’s standard.

The loophole-filled, flawed federal rules: 1. allow for secret, unethical lobbying, mainly by big business lobbyists; 2. allow Cabinet ministers, their staff, top government officials, MPs and senators all to participate in decisions that they and their family members can profit or benefit from in secret, and; 3. do not even cover staff of MPs and senators.

Only one of the loopholes is usually mentioned in articles about the Lobbying Act – the rule that allows an employee of a business to lobby in secret without registering as long as they don’t lobby more than 20 percent of their work time. The House Ethics Committee unanimously called for that loophole to be closed 10 years ago, and again last June.

But there are other huge loopholes the Committee continues to ignore. Businesses often lobby enforcement agencies about the enforcement of a law or regulation – none of that lobbying is required to be disclosed. Many businesses also lobby for tax credits but in a highly questionable enforcement policy the Commissioner of Lobbying ruled that the credits are not a “financial benefit” (even though they clearly are) and, therefore, that lobbying also does not have to be disclosed.

No one is required to register and disclose their lobbying if they are not paid for it. Hired-gun “consultant” lobbyists can easily have their contract say their clients will pay them for advice, and then lobby for them in secret for free. This loophole also allows unpaid board members and retired executives of businesses and other organizations to lobby in secret.

Another loophole is that anyone can secretly lobby senior officials in any federal political party and they can pass on your demands to their party’s politicians.

Even if a person is required to register their lobbying, only oral, pre-arranged communications that they initiate with office holders are required to be disclosed. Emails, letters, and any communications initiated by the office holder (other than about a government financial benefit) can be kept secret.

If you can exploit a loophole so you are not required to register your lobbying, then the ethics rules in the Lobbyists’ Code don’t apply to you and you can do favours for politicians you are lobbying or will lobby, like fundraising and campaigning for them.

Even if you are a registered lobbyist, the Code together with a loophole in the MP and senator ethics codes legalize lobbyists giving MPs the gift of unlimited sponsored travel, and other loopholes allow all federal politicians to accept gifts from friends, even if they are lobbyists.

The Lobbying Commissioner is currently proposing to weaken other Code rules to allow for even more unethical lobbying.

The loopholes also allow federal politicians and officials to leave office and start lobbying federal politicians and government officials the next day, in secret and unregistered. The so-called “five-year ban” in the Lobbying Act only applies to registered lobbyists.

And while there is a cooling-off period in the ethics law for Cabinet ministers and top government officials after they leave office, it is also so full of loopholes that they can start working right away with most lobby groups. The stronger rules that prohibit giving advice based on secret information obtained in office, or taking improper advantage of your former office, have essentially been ignored by the Ethics Commissioner.

The much-too-high political donation and third-party spending limits in the Canada Elections Act, are additional layers in this smelly layer cake of unethical federal political decision-making. They allow people who can afford it to buy influence by donating up to $3,350 annually to each party and its riding associations, and wealthy individuals and lobby groups to spend more than $500,000 supporting parties during election campaigns, up to $1 million in the couple of months before that, and an unlimited amount between elections. Banks, which are regulated by the federal government, are also allowed to buy influence by making unlimited loans to parties and candidates.

Finally, the Ethics Commissioner and Lobbying Commissioner are allowed to make secret rulings, both have let many people off for clear violations of the rules and, even if you are found guilty, the only penalty in most cases is a public report. The commissioners should be required to rule publicly on every situation they examine, and to impose significant fines on all violators.

Add it all up and it’s essentially a legalized bribery system of unethical, biased favour-trading – pay to play, cash for access and influence. This is not to say that every federal political decision-making process is undermined by politicians and officials returning favours – only that every process is vulnerable to being tainted, in secret, by serious conflicts of interests.

The key question is, will a critical mass of MPs in the current minority government situation work together to pass a bill to clean up this unethical mess, finally?

To join the call for key changes, go to the Stop Secret, Unethical Lobbying Campaign and Government Ethics Campaign and Money in Politics Campaign

Sorry, this entry is only available in Français.

Trudeau Cabinet still trying to stop court from seeing government emails reported on in La Presse, and evidence that lawyer associations, law professors, experts and media all think the Liberals’ appointment process is too political

Case hearing in 2022 – case alleges Trudeau Liberal’s consultation with only Liberals across Canada taints appointments with partisan bias that violates independence of courts and public’s Charter right to impartial courts

FOR IMMEDIATE RELEASE:
Wednesday, December 15, 2021

OTTAWA – Today, Democracy Watch announced that the Federal Court rejected (PDF) the Trudeau Cabinet’s first attempt to have key evidence thrown out in its case challenging the federal government’s too-political, unconstitutional system for appointing judges to the federal courts and all provincial superior courts and courts of appeal, and promoting judges within those courts.

The evidence shows clearly that federal appointments system for judges is too open to political interference that violates the constitutional principle that guarantees the independence of courts, and the public’s Charter right to impartial courts.

Department of Justice lawyers are still trying to prevent the Federal Court from considering almost all of the evidence that Democracy Watch filed in a December 2020 affidavit (PDF) and in a second affidavit (PDF) about internal government emails reported on in La Presse on October 31, 2020.

Parts of the evidence in exhibits attached to the second affidavit will be considered confidentially by the Federal Court under an order of the court (the PDF of the second affidavit that is linked above is redacted to remove the currently confidential information).

The Trudeau Cabinet’s lawyers are trying to hide from the Federal Court almost all of Democracy Watch’s December 2020 affidavit – exhibits D to J, N to W and Z to BB – which contain all of the open letters and articles that lawyer associations, law professors, lawyers, experts and media have produced in the last few years expressing their concerns about how political the federal judicial appointment is, and how that undermines the public’s confidence in the independence and impartiality of the judiciary.

Wade Poziomka of Ross & McBride LLP is leading the litigation team representing Democracy Watch and its co-founder Duff Conacher in the case.

The federal appointment process for the federal and provincial superior and appeal courts matters a lot because the Supreme Court of Canada refuses to hear 90% of appeals from these courts, and many appeals are also refused by provincial appeal courts, so in many cases the provincial superior courts are the public’s court of last resort. The constitutional guarantee of the independence of the courts has been upheld in several rulings on the measures in Part VII of the Constitution. And sections 7 and 11(d) (and, indirectly, 24(1)) of the Charter have been applied in rulings to ensure impartial court hearings.

The problems are longstanding, and have been raised in the past: unlike in the UK and Quebec, the federal Minister of Justice has too much political control of the process from start to finish, from choosing the majority of the members of the judicial appointment advisory committees in each province and territory (who serve renewable two-year terms), to receiving long lists of candidates from those committees, to circulating those lists secretly to MPs, Cabinet ministers and ruling party officials before making the final choice. The Minister also makes the decision, without any advisory committee involved making recommendations, to promote a sitting judge by appointing them to a court of appeal. (See Backgrounder for details)

Details about how many ruling party officials the Minister of Justice involves in reviewing the long lists of candidates for judicial appointments submitted by the advisory committees have been confirmed by whistleblowers disclosing internal government emails to the Globe and Mail and CBC and Radio-Canada.

And in April 2020 the Canadian Judicial Council found that Justice Colleen Suche, spouse of then-federal Natural Resources Cabinet Minister Jim Carr, had violated the judiciary’s ethics code by providing suggestions about who the federal Cabinet should appoint as judges.

In November 2020, the Canadian Bar Association (CBA) expressed concern about the final step of the federal appointment process in which the Minister circulates the long lists of candidates to many ruling party officials, saying that it is “a process that is open to speculation about political interference” that may be “a factor in the number of vacancies on the bench, which is a direct contributor to court delays and the access to justice crisis in Canada.”

There are also concerns that the partisan nature of the appointment process may be inhibiting the appointment of judges that reflect Canada’s diversity. Last June, the Chief Justice of the Supreme Court of Canada expressed the need for a “our courts, including our highest court, to reflect the diversity of Canadians.” In September 2020, 36 lawyers associations, legal clinics and advocacy groups called for changes to the appointment process, as did the CBA, to increase the appointment of more Black, Indigenous and People of Colour (BIPOC) judges.

“The current federal judicial appointment system is open to too much political interference by the ruling party, which violates the independence of the courts that is need to ensure democratic good government and fair law enforcement for all,” said Duff Conacher, Co-founder of Democracy Watch. “Hopefully this case will lead to key changes that will ensure the appointment process for judges across Canada is truly independent and merit-based.”

“The power of Parliament is checked by the power of the judiciary, which has the ability to declare laws enacted by Parliament to be unconstitutional,” said Wade Poziomka, a partner at Ross & McBride LLP who is leading the litigation team representing Democracy Watch. “The independence of the judiciary is a necessary safeguard in a healthy democracy. This case challenges an appointment process that has been in place over more than one government, a process that is ripe for change because it allows partisan considerations to affect appointments.”

“Democracy Watch wants to strengthen the independence of our judiciary and, in turn, public confidence in the justice system,” said Poziomka. “Our first choice is to work with federal politicians and other stakeholders to achieve this goal. If litigation is necessary however, Democracy Watch will argue the merits of its case before the Federal Court.”

– 30 –

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

See more at Democracy Watch’s Stop Bad Government Appointments Campaign and Stop Unfair Law Enforcement Campaign

Trudeau Cabinet still trying to stop court from seeing government emails reported on in La Presse, and evidence that lawyer associations, law professors, experts and media all think the Liberals’ appointment process is too political

Case hearing in 2022 – case alleges Trudeau Liberal’s consultation with only Liberals across Canada taints appointments with partisan bias that violates independence of courts and public’s Charter right to impartial courts

FOR IMMEDIATE RELEASE:
Wednesday, December 15, 2021

OTTAWA – Today, Democracy Watch announced that the Federal Court rejected (PDF) the Trudeau Cabinet’s first attempt to have key evidence thrown out in its case challenging the federal government’s too-political, unconstitutional system for appointing judges to the federal courts and all provincial superior courts and courts of appeal, and promoting judges within those courts.

The evidence shows clearly that federal appointments system for judges is too open to political interference that violates the constitutional principle that guarantees the independence of courts, and the public’s Charter right to impartial courts.

Department of Justice lawyers are still trying to prevent the Federal Court from considering almost all of the evidence that Democracy Watch filed in a December 2020 affidavit (PDF) and in a second affidavit (PDF) about internal government emails reported on in La Presse on October 31, 2020.

Parts of the evidence in exhibits attached to the second affidavit will be considered confidentially by the Federal Court under an order of the court (the PDF of the second affidavit that is linked above is redacted to remove the currently confidential information).

The Trudeau Cabinet’s lawyers are trying to hide from the Federal Court almost all of Democracy Watch’s December 2020 affidavit – exhibits D to J, N to W and Z to BB – which contain all of the open letters and articles that lawyer associations, law professors, lawyers, experts and media have produced in the last few years expressing their concerns about how political the federal judicial appointment is, and how that undermines the public’s confidence in the independence and impartiality of the judiciary.

Wade Poziomka of Ross & McBride LLP is leading the litigation team representing Democracy Watch and its co-founder Duff Conacher in the case.

The federal appointment process for the federal and provincial superior and appeal courts matters a lot because the Supreme Court of Canada refuses to hear 90% of appeals from these courts, and many appeals are also refused by provincial appeal courts, so in many cases the provincial superior courts are the public’s court of last resort. The constitutional guarantee of the independence of the courts has been upheld in several rulings on the measures in Part VII of the Constitution. And sections 7 and 11(d) (and, indirectly, 24(1)) of the Charter have been applied in rulings to ensure impartial court hearings.

The problems are longstanding, and have been raised in the past: unlike in the UK and Quebec, the federal Minister of Justice has too much political control of the process from start to finish, from choosing the majority of the members of the judicial appointment advisory committees in each province and territory (who serve renewable two-year terms), to receiving long lists of candidates from those committees, to circulating those lists secretly to MPs, Cabinet ministers and ruling party officials before making the final choice. The Minister also makes the decision, without any advisory committee involved making recommendations, to promote a sitting judge by appointing them to a court of appeal. (See Backgrounder for details)

Details about how many ruling party officials the Minister of Justice involves in reviewing the long lists of candidates for judicial appointments submitted by the advisory committees have been confirmed by whistleblowers disclosing internal government emails to the Globe and Mail and CBC and Radio-Canada.

And in April 2020 the Canadian Judicial Council found that Justice Colleen Suche, spouse of then-federal Natural Resources Cabinet Minister Jim Carr, had violated the judiciary’s ethics code by providing suggestions about who the federal Cabinet should appoint as judges.

In November 2020, the Canadian Bar Association (CBA) expressed concern about the final step of the federal appointment process in which the Minister circulates the long lists of candidates to many ruling party officials, saying that it is “a process that is open to speculation about political interference” that may be “a factor in the number of vacancies on the bench, which is a direct contributor to court delays and the access to justice crisis in Canada.”

There are also concerns that the partisan nature of the appointment process may be inhibiting the appointment of judges that reflect Canada’s diversity. Last June, the Chief Justice of the Supreme Court of Canada expressed the need for a “our courts, including our highest court, to reflect the diversity of Canadians.” In September 2020, 36 lawyers associations, legal clinics and advocacy groups called for changes to the appointment process, as did the CBA, to increase the appointment of more Black, Indigenous and People of Colour (BIPOC) judges.

“The current federal judicial appointment system is open to too much political interference by the ruling party, which violates the independence of the courts that is need to ensure democratic good government and fair law enforcement for all,” said Duff Conacher, Co-founder of Democracy Watch. “Hopefully this case will lead to key changes that will ensure the appointment process for judges across Canada is truly independent and merit-based.”

“The power of Parliament is checked by the power of the judiciary, which has the ability to declare laws enacted by Parliament to be unconstitutional,” said Wade Poziomka, a partner at Ross & McBride LLP who is leading the litigation team representing Democracy Watch. “The independence of the judiciary is a necessary safeguard in a healthy democracy. This case challenges an appointment process that has been in place over more than one government, a process that is ripe for change because it allows partisan considerations to affect appointments.”

“Democracy Watch wants to strengthen the independence of our judiciary and, in turn, public confidence in the justice system,” said Poziomka. “Our first choice is to work with federal politicians and other stakeholders to achieve this goal. If litigation is necessary however, Democracy Watch will argue the merits of its case before the Federal Court.”

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

See more at Democracy Watch’s Stop Bad Government Appointments Campaign and Stop Unfair Law Enforcement Campaign