Loopholes in federal lobbying law allow for secret, unethical lobbying

Transport Committee MPs should call for public inquiry in its upcoming report on aircraft certification process

FOR IMMEDIATE RELEASE:
Tuesday, December 1, 2020

OTTAWA – Today, Democracy Watch disclosed the letter it has sent to federal Minister of Transport Marc Garneau, top Transport Canada officials Deputy Minister Michael Keenan, and civil aviation heads Nicholas Robinson and David Turnbull, and MPs on the Transport Committee calling on them to disclose all communications with anyone who works with or represents Boeing concerning the Government of Canada’s consideration of whether to approve Boeing’s 737 Max-8 to fly again in Canadian airspace after two crashes of the plane killed 346 people, including 18 Canadians. Huge loopholes in the federal Lobbying Act allow for secret lobbying (See details below).

In its letter, Democracy Watch also called on Transport Committee MPs to re-consider its vote last Thursday and recommend that the Trudeau Cabinet initiate a public inquiry into the many questions that Transport Canada refuses to answer about its decision-making that led to the 737 Max being approved, and between the first crash of the plane in Indonesia in October 2018 and the second crash in Ethiopia in March 2019 (the 18 Canadians were killed in the second crash, and afterwards the federal government finally banned the plane from flying).

Despite many unanswered questions remaining about the Transport Minister’s and Transport Canada’s actions, and even though Boeing refused to appear before the Committee, last Thursday Liberal and Conservative MPs on the Committee shamefully voted against a motion calling for an inquiry.

“Canadians have the right to know all the details about Boeing lobbying anyone in federal politics to try to win approval for the 737 Max to fly again in Canada, and the Minister, government officials and MPs must disclose that lobbying, and launch an independent public inquiry into how the plane was approved,” said Duff Conacher, Co-founder of Democracy Watch. “It is scandalous that Boeing is allowed to lobby in secret about this, and it shows how much the federal lobbying law is a sad, loophole-filled joke that allows secret, unethical lobbying.”

The federal Lobbying Act has huge loopholes that allow for secret lobbying, including lobbying of any regulatory agency by any business regulated by the agency. Clause 3(2)(b) of the federal Lobbying Act sets out that loophole:
     3(2) This Act does not apply in respect of
… (b) any oral or written communication made to a public office holder by an individual on behalf of any person or organization with respect to the enforcement, interpretation or application of any Act of Parliament or regulation by that public office holder with respect to that person or organization;…”

As well, the Lobbying Act only requires disclosure of paid lobbying (sections 5 and 7). As a result, Boeing could be paying former Liberal Cabinet ministers to give it strategic advice, while they secretly lobby for free for Boeing.

In addition, this regulation under the Lobbying Act:
https://laws-lois.justice.gc.ca/eng/regulations/SOR-2008-116/index.html
has huge loopholes in it as it only requires oral, pre-arranged communications initiated by the lobbyist to be disclosed monthly in the Registry of Lobbyists when the lobbying is about anything other than financial benefits.

As a result of these huge loopholes, Boeing doesn’t have to register and disclose any of its lobbying of Transport Canada or the Transport Minister or MPs re: the re-validation of the 737 Max, and it hasn’t according to the Registry of Lobbyists:
https://lobbycanada.gc.ca/app/secure/ocl/lrs/do/clntSmmrySrch?registrationText=boeing&searchType=Search

And, even if Boeing did register its lobbying generally about the 737 Max, Boeing wouldn’t have to disclose any communication initiated by Transport Canada officials or the Transport Minister or his staff or MPs, or any oral communications that were not pre-arranged by Boeing’s lobbyists, or any written communications (including letters, emails, pins etc.).

Finally, because none of the people lobbying are required to register, they are not covered by the ethics rules in the Lobbyists’ Code of Conduct. As a result, it’s legal for Boeing to have people lobby for them in secret who have fundraised or campaigned in the past for Minister Garneau or Transport Committee MPs.

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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]

Democracy Watch’s Government Ethics Campaign and Money in Politics Campaign

Case is not to overturn election results – just for ruling that election call was illegal

FOR IMMEDIATE RELEASE:
Thursday, November 26, 2020

OTTAWA – Today, Democracy Watch announced that it has filed an application in New Brunswick’s Court of Queen’s Bench challenging Premier Blaine Higgs’ advice last August to the Lieutenant Governor to call the provincial snap election (New Brunswick Court of Queen’s Bench file no. FM-90-20).

The case is not aimed at overturning the election results. Instead, it only asks the court to declare that Premier Higgs’ action violated the fixed election date measure in the Legislative Assembly Act (ss. 3(4)) and the constitutional convention that has been created by premiers calling elections only on the fixed date in 2010, 2014 and 2018.

New Brunswick’s legislature enacted its fixed election date measures with Bill 75 in 2007. Then-House Leader Stuart Jamieson said at the time that: “It was thought by both parties in the legislature and by other provinces that it would be better to remove the political nuances and give everybody a fair and even playing field.” Bill 62 in 2017 changed the fixed election date from September to October. The fixed date for the next provincial election was set for the third Monday in October 2022.

“Premier Higgs’ snap election call was self-interested and unfair, and it violated New Brunswick’s provincial law that fixed election dates, and the good democratic tradition of fixed elections every four years that has developed through the past three provincial elections,” said Duff Conacher, Co-founder of Democracy Watch, who filed an affidavit in support of the application.

Calling a snap election in violation of a provincial law and a constitutional convention is bad – calling a snap election during a pandemic is even worse. Premier Higgs also used the completely invalid excuse that the three opposition parties refused to agree support the government in every vote until October 2022, or at least until after the pandemic. In a parliamentary system of government, or in any form of democratic government, opposition parties are not required to agree to support the government at any time.

“By calling a snap election during a pandemic instead of waiting for the fixed election date in 2022, Premier Higgs acted like an old-school power-hungry politician, not a leader committed to fair and democratic elections and inter-party cooperation,” said Duff Conacher, Co-founder of Democracy Watch. “Hopefully the courts will rule that the Premier violated the law when he called his self-interested and unfair snap election.”

Snap elections are unfair not only to opposition parties (as they are usually called when having an election favours the ruling party), but also to people who want to run as a candidate but can’t afford to suddenly drop everything and run. That’s why the federal Parliament, and every province except Nova Scotia, followed B.C.’s lead in 2001 and enacted fixed election date measures. The UK Parliament also enacted such measures.

In the election, Premier Higgs’ Progressive Conservative Party won 55% of the seats in the legislature with the support of just over 39% of voters.

Jamie Simpson is providing legal counsel to Democracy Watch for the court case.

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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]

Democracy Watch’s Democratic Voting System Campaign

Case alleges system is too open to political interference, as has been revealed over the past year, and violates independence of courts and public’s Charter right to impartial courts

FOR IMMEDIATE RELEASE:
Monday, November 16, 2020

OTTAWA – Today, Democracy Watch released the application it has filed in Federal Court challenging the federal government’s system for appointing judges to the federal courts, and all provincial superior courts and courts of appeal, because it 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. Wade Poziomka of Ross & McBride LLP is leading the litigation team representing Democracy Watch and its co-founder Duff Conacher in the case.

The appointment process for these 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: 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 ruling party 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 below 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 over the past year by whistleblowers disclosing internal government emails to the Globe and Mail and CBC and Radio-Canada.

And last April 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 contrast, Cabinet ministers in Manitoba (s. 3.3) and B.C. (s. 21) choose a minority of the members of the advisory committee for their provincial courts (ideally the Cabinet should not choose any of the members). Also in contrast, the advisory committees in Ontario, Quebec and the UK submit only 1-3 candidates for each open judge position, and the minister is required to choose from that short list (and in the UK where the committee only submits one candidate, the minister must explain in writing to the committee if s/he rejects the recommended candidate).

Last week 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, 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

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Background on Key Problems that Make the
Federal Judicial Appointments System Too Political

To become a federally appointed judge, a person must either be a lawyer for 10 years or a lawyer and quasi-judicial tribunal member for a combined total of 10 years (See s. 3 of the Judges Act, and ss. 5.2 and 5.3 of the Federal Courts Act). There are Judicial Advisory Committees for each province and territory that review applications and recommend long lists of qualified candidates to the Minister of Justice.

The problems with the federal judicial appointments system that the case challenges are longstanding, and have been raised in the past, (see also here and here and here, and most provinces have the same problems with their appointment system), as follows:

1. Canada’s federal judicial appointment system is just a self-enforced policy of the federal government that can be changed at any time. In contrast, in the UK and in most provinces the appointment system is enshrined in law so that a Cabinet can’t change it without introducing a public bill that is debated by the legislature and the public;
2. The Minister of Justice and Cabinet appoint a majority of the seven members of each Judicial Advisory Committee. They appoint:
   • three of the members directly;
   • one from a list of nominees submitted by the Law Society of the province/territory;
   • one from a list of nominees submitted by the provincial or territorial chapter of the Canadian Bar Association;
   • one from a list of nominees submitted by the jurisdiction’s Attorney General, and;
   • then the chief judge of the jurisdiction chooses the last member of each committee

(ideally, the Minister and Cabinet should not be choosing any of the members of the committees) and the Minister alone chooses to appoint sitting judges to appeal courts (ideally, a fully independent committee should be recommending a short list of 1-3 sitting judges as candidates for promotion to appeal courts);

3. The federal judicial advisory committees are appointed by the Minister and Cabinet to renewable two-year terms (ideally, even if the Minister and Cabinet members are removed from appointing any of the committee members (as recommended above in #2) the terms should not be renewable, to ensure regular turnover of committee members);

4. Each committee submits a long list of candidates, which gives the Minister a lot of leeway to appoint whomever s/he wants (ideally, the committees should submit only 1-3 candidates for each open judge position, as in Ontario, Quebec and the UK), and;

5. Before making the final choice, the Minister shares each list of candidates with Cabinet ministers and ruling party MPs, and also ruling party officials, from the province or territory (ideally, the Minister should be prohibited from sharing the list with anyone).

Premier Horgan’s power-mad snap election during a pandemic leads to lowest voter turnout ever at just over 52% – NDP supported by only 23% of voters

Election call and results show that, while they failed to make promises to clean up B.C. politics, all parties need to work together to make changes or B.C.’s dangerous tradition of dirty politics will continue to hurt the province

Horgan’s self-interested snap election also delays much-needed actions in response to COVID-19 crisis for a deadly 2 months

FOR IMMEDIATE RELEASE:
Monday, October 26, 2020

OTTAWA – Today, Democracy Watch called on B.C.’s provincial parties, especially the NDP led by Premier John Horgan who just called a dishonest, unethical, illegal snap election, to make all the changes needed to ensure democratic politics across the province. Last Friday, Democracy Watch announced that, together with Wayne Crookes, founder of IntegrityBC, filed a petition in the B.C. Supreme Court challenging Premier John Horgan’s advice to the Lieutenant Governor to call the snap election even though he promised to hold the election on the fixed election date in October 2021.

While the final seat totals for each party won’t be known for a couple of weeks after the final count and recounts, Premier Horgan’s power-mad snap election call during a pandemic led to 52.4% voter turnout, the lowest ever in a B.C. election (see summaries of the history of B.C. elections here and here). This means the NDP, which won about 45% of the vote, is actually only supported by about 23% of registered voters in B.C. (and the NDP is supported by only about 22% of eligible voters, as only about 95% of eligible voters are registered to vote, so only about 50% of eligible voters voted). Preliminary totals from Elections B.C. are that there were approximately 3.5 million registered voters in the 2020 elections, approximately 1.83 million of whom voted, out of about 3.7 million total eligible voters.

As well, the NDP won a false majority of about 63% of the seats in the legislature with only about 45% voter support, while the Green Party won only 3.5% of the seats with 15% voter support (the Liberal seat total and percentage roughly matched). Not that more evidence was needed, these unfair, undemocratic results show clearly that voting system reforms are needed.

However, voting system reforms only make election results more democratic and fair – other key democratic and accountability reforms are needed to ensure everyone in B.C. politics always acts honestly, ethically, openly, representatively and prevents waste.

“The B.C parties promised almost nothing to clean up politics in the province, but this dishonest, unethical and illegal snap election has shown clearly that many changes are needed to ensure everyone in B.C. politics is, finally, effectively required to act honestly, ethically, openly, representatively and to prevent waste,” said Duff Conacher, Co-founder of Democracy Watch. As with every jurisdiction in Canada, about 100 specific changes are needed in B.C. to ensure democratic good government and democratic politics.

If the B.C. parties and voters want not just a new but also a democratic government, the top 10 most important changes that need to be made for everyone (politicians, appointees, political staff, public servants) in the provincial and municipal governments, and in every government and government-funded institution across the province, are as follows:

1. Enact an honesty-in-politics law that allows for complaints to the provincial Ethics Commissioner about broken promises, and about dishonest statements made anywhere (including in the legislature) by anyone involved in politics, with mandatory high fines as the penalty (including for false online election ads).
2. Require all provincially regulated industry and service sectors (property and auto insurance, financial and investment services, health care institutions, energy and water) to include a notice in their mailings and emails to customers inviting them to join and fund citizen watchdog groups for each industry and sector, and increase royalties for all resource development sectors and put part of the increase into a fund that citizen watchdog groups jointly oversee and use for jointly decided initiatives.
3. Establish a Public Appointments Commission whose members are approved of by the leaders of parties that receive more than 5 percent of the popular vote in the election, and require the Commission to conduct public, merit-based searches and choose a short list of a maximum of 3 candidates for all Cabinet appointments, with the Cabinet required to choose from the short list (especially for judges, tribunal members and other law enforcement positions).
4. Enact a meaningful public consultation law that requires broad, in-depth public consultation with voters (including legislature committee hearings) before any government or government institution makes a significant decision, and free and empower MLAs to represent voters and hold the government accountable by restricting the powers of the Premier and party leaders;
5. Ban political donations and gifts from businesses, unions and other organizations, and (as in Quebec) limit individual donations to $100 annually and establish per-vote and donation-matching public funding, and limit election spending by parties and candidates to about $1 per voter, and advertising spending by third parties to $50,000.
6. Prohibit everyone in politics from participating in any way in any decision-making process if they have even the appearance of a conflict of interest (even if the decision applies generally), including banning anyone who leaves politics from communicating with anyone involved in politics about their decisions for 3-5 years.
7. Require everyone in politics to disclose through an online registry any communication they have with anyone with regard to decisions they are making (to close the secret lobbying loopholes that still exist in B.C.) and prohibit lobbyists from helping with political campaigns or fundraising (as federal government does).
8. Change the voting system to ensure a more accurate representation of the popular vote results of each election in the seats held by each party in the legislature (and in city councilors elected) while ensuring that all elected officials are supported by, and are accountable to, voters in each riding/constituency (with a safeguard to ensure that a party with a low-level, narrow-base of support does not have a disproportionately high level of power in the legislature) – and, if DWatch loses its court case, actually fix election dates (as Britain has).
9. Strengthen the access-to-information law by reducing loopholes, applying it to all government and government-funded institutions, requiring that records of all decisions and actions be disclosed regularly, and giving the Information Commissioner the power and mandate to order disclosure (as in B.C., Ontario and Quebec) and changes to government institutions’ information systems (as in Britain), and to penalize violators, and ensure whistleblower protection by strengthening the rules and empowering the Public Interest Commissioner to protect all whistleblowers in the public and private sectors.
10. Reduce waste by prohibiting omnibus budget bills, and empowering the Auditor General to: audit all government and government-funded institutions; audit projected spending to ensure truth-in-budgeting; prohibit government advertising if it is misleading or partisan; order changes to clean up the financial management of any institution, and; penalize violators of spending or procurement rules.

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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]

Democracy Watch’s Campaigns page

Case is not to stop election – just to have the court rule election call was illegal

FOR IMMEDIATE RELEASE:
Friday, October 23, 2020

OTTAWA – Today, Democracy Watch announced that, together with Wayne Crookes, founder of IntegrityBC, it has filed a petition in the B.C. Supreme Court challenging Premier John Horgan’s advice to the Lieutenant Governor to call the provincial snap election (B.C. Supreme Court file no. S2010710).

The case is not aimed at stopping the election. Instead, the petition only asks the court to declare that the Premier’s action violated the fixed election date measure in B.C.’s Constitution Act and the constitutional convention that has been created by premiers calling elections only on the fixed date in 2005, 2009, 2013 and 2017.

B.C. was the first jurisdiction in Canada to enact fixed election date measures with Bill 7 in 2001. The B.C. NDP showed it was in favour of fixed election dates when it introduced Bill 5 in 2017 to change the fixed election date from May to October. The fixed date for the next provincial election was set for the third Saturday in October 2021.

“Premier Horgan’s snap election call was self-interested, hypocritical and unfair, and it violates the fixed election date measures in B.C.’s constitution that the NDP has publicly supported, and the written agreement that the NDP had with the Green Party, and the good democratic tradition of fixed elections every four years that has developed through the past four B.C. elections” said Wayne Crookes, founder of Integrity B.C., who has filed an affidavit in support of the petition.

Calling a snap election in violation of B.C.’s constitution is bad – calling a snap election during a pandemic is even worse. Elections B.C. was forced by Premier Horgan’s cynical power grab-scheme to issue 16 emergency orders to change how polling stations will run and people will vote, and it will likely hurt voter turnout.

“By calling a snap election during a pandemic instead of waiting for the fixed election date a year from now, Premier Horgan acted like an old-school power-crazed politician, not a new democrat committed to fair and democratic elections,” said Duff Conacher, Co-founder of Democracy Watch. “Hopefully the B.C. courts will rule that the Premier violated the law when he called his self-interested, hypocritical and unfair snap election.”

Snap elections are unfair not only to opposition parties (as they are usually called when having an election favours the ruling party), but also to people who want to run as a candidate but can’t afford to suddenly drop everything and run. That’s why the federal Parliament, and every province except Nova Scotia, followed B.C.’s lead and enacted fixed election date measures. The UK Parliament has also enacted fixed election date measures.

Emily MacKinnon and Sarah Chaster of Osler, Hoskin and Harcourt LLP in Vancouver are providing legal counsel to Democracy Watch and Wayne Crookes for the court case.

– 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 Democratic Voting System Campaign

Case is not to stop election – just to have the court declare election call was illegal

FOR IMMEDIATE RELEASE:
Monday, October 19, 2020

OTTAWA – Today, Democracy Watch announced that it will soon file a petition in the B.C. Supreme Court challenging B.C. Premier John Horgan’s advice to the Lieutenant Governor to call the provincial snap election. The case is not aimed at stopping the election. Instead, DWatch will only ask the court to declare that the Premier’s action violated the fixed election date measure in B.C.’s Constitution Act and the constitutional convention that has been created by premiers calling elections only on the fixed date in 2005, 2009, 2013 and 2017.

B.C. was the first jurisdiction in Canada to enact fixed election date measures with Bill 7 in 2001. The B.C. NDP showed it was in favour of fixed election dates when it introduced Bill 5 in 2017 to change the fixed election date from May to October. The fixed date for the next provincial election was set for the third Saturday in October 2021.

“By calling a snap election instead of waiting for the fixed election date a year from now, Premier Horgan acted like an old dictator not a new democrat,” said Duff Conacher, Co-founder of Democracy Watch. “Hopefully the B.C. courts will rule that the Premier violated the law when he called the snap election.”

Snap elections are unfair not only to opposition parties (as they are usually called when having an election favours the ruling party), but also to people who want to run as a candidate but can’t afford to suddenly drop everything and run. That’s why the federal Parliament, and every province except Nova Scotia, followed B.C.’s lead and enacted fixed election date measures. The UK Parliament has also enacted fixed election date measures.

Democracy Watch will be represented in the case by Emily MacKinnon and Sarah Chaster of Osler, Hoskin and Harcourt LLP in Vancouver.

– 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 Democratic Voting System Campaign

FCA ruled public has no right to have a complaint ruled on by Lobbying Commissioner and no right to challenge the Commissioner’s rulings in court – SCC ruling also stops two other court cases vs. the Commissioner

FCA ruling nixed Federal Court ruling that ordered Commissioner to investigate Aga Khan and his foundation further for possible lobbying law violations

Federal Court ruling also extended lobbying disclosure and ethics rules to many more business, union and organization board members, and expanded Lobbying Commissioner’s investigation mandate

FOR IMMEDIATE RELEASE:
Thursday, October 15, 2020

OTTAWA – Today, Democracy Watch announced that the Supreme Court of Canada (SCC) has ruled that DWatch can’t appeal the Federal Court of Appeal’s ruling in the Aga Khan case issued last April, and has ordered it to pay costs to the government.

The FCA ruled that the public has no right to have complaints investigated by the federal Commissioner of Lobbying, and so members of the public are prohibited from challenging the Commissioner’s rulings in court, even if a ruling ignores all the evidence and is full of errors, and even on the basis of public interest standing. Sebastian Spano is representing Democracy Watch in the application to appeal, which is SCC file no. 39202.

The Supreme Court’s ruling makes the Lobbying Commissioner into an unaccountable czar, which is dangerous given the Commissioner has let off 84% of lobbyists caught violating the federal lobbying law and/or code since 2007.

In its submissions to the SCC, DWatch argued that the FCA’s ruling set a bad precedent that contradicts past SCC and FCA rulings as it shuts out the public from the enforcement system for the lobbying law and code, which is one of several key federal government public accountability systems.

Lawyers expressed concern here and here about the negative implications of the FCA’s ruling on the rights of the public to hold government officials and watchdogs accountable for bad decisions.

“In its shocking refusal to allow Democracy Watch’s appeal, the Supreme Court has joined the Federal Court of Appeal in striking a serious blow against the public’s rights to complain about corruption and wrongdoing by politicians, government officials and lobbyists, and to hold democracy watchdogs accountable for failing to do their jobs properly and issuing rulings that protect wrongdoers,” said Duff Conacher, Co-founder of Democracy Watch. “Very unfortunately, the Federal Court of Appeal’s bad ruling will now be used across Canada to stop the public from holding government and other watchdogs accountable for wrongful decisions.”

By refusing to allow DWatch’s appeal, the Supreme Court has also stopped two other ongoing DWatch cases that were challenging rulings by the Lobbying Commissioner:

1. DWatch’s case challenging the Commissioner’s ruling letting Apotex Inc. off for Barry Sherman’s fundraising for, and lobbying of, the Trudeau Liberals;
2. DWatch’s case challenging the Commissioner’s ruling letting Clearwater Seafoods off for Mickey McDonald’s fundraising for, and Clearwater’s lobbying of, the Trudeau Liberals;

In March 2019, Democracy Watch won the landmark Federal Court ruling that rejected former Commissioner of Lobbying Karen Shepherd’s secret September 2017 ruling that, even though the Aga Khan was lobbying Prime Minister Trudeau, and is chair of the Aga Khan Foundation, which is registered to lobby the PM, because someone at the Foundation claimed the Aga Khan wasn’t paid to lobby for it, the Lobbying Act and Lobbyists’ Code of Conduct were not violated when the Aga Khan gave Trudeau and his family and friends free vacations on his private island in the Bahamas.

“The Trudeau Liberals wasted taxpayers’ money on protecting Trudeau’s old family friend the Aga Khan from accountability for unethical lobbying by appealing the Federal Court’s ruling, and very unfortunately the Federal Court of Appeal’s ruled that the Lobbying Commissioner is a czar who can’t be held accountable by the public or the courts no matter how bad the Commissioner’s rulings are,” said Duff Conacher, Co-founder of Democracy Watch.

The Federal Court ruling rejected Commissioner Shepherd’s ruling as “unreasonable” because it was “a narrow, technical, and targeted analysis that is lacking in transparency, justification, and intelligibility when considered in the context the Commissioner’s duties and functions” (para. 146). As a result, the court ordered new Commissioner of Lobbying Nancy Bélanger) to re-examine the actions of everyone at the Aga Khan Foundation with “a broad view of the circumstances.”

The Lobbyists’ Code, which the Commissioner enforces, prohibits lobbyists registered under the Lobbying Act from doing anything for, or giving anything to, anyone they are lobbying, and requires compliance with several strongly worded principles.

The Federal Court ruling also greatly broadened the scope of the Lobbying Act to cover board members of businesses and other organizations who are compensated in any way or receive “anything of value” – including even the value of being given a position as a member of board (paras. 134-143). In the past, the Lobbying Commissioner has interpreted the Act as requiring board members to disclose their lobbying in the Registry of Lobbyists only if they were paid more than their expenses.

In addition, the Federal Court’s ruling required the Commissioner to investigate and issue a public ruling whenever there are “potential compliance questions” (para. 133) concerning the actions of anyone, or any business or organization that relate to the requirements of the Lobbying Act or Lobbyists’ Code (paras. 127-134).

The Trudeau government, represented by the Attorney General of Canada, appealed to the Federal Court of Appeal (FCA). The FCA didn’t rule on any part of the Federal Court’s ruling other than deciding that the public has no right to file complaints with the Lobbying Commissioner, and so is prohibited from challenging the Commissioner’s rulings in court, no matter how much the rulings ignore the facts and the law.

– 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 and Stop Bad Government Appointments Campaign

FCA ruling nixed Federal Court ruling that ordered Commissioner to investigate Aga Khan and his foundation further for possible lobbying law violations – if SCC upholds FCA ruling it will also stop two other court cases

Federal Court ruling also extended lobbying disclosure and ethics rules to many more business, union and organization board members, and expanded Lobbying Commissioner’s investigation mandate

FOR IMMEDIATE RELEASE:
Wednesday, October 14, 2020

OTTAWA – Today, Democracy Watch announced that the Supreme Court of Canada will rule tomorrow, Thursday, October 15, 2020, on whether DWatch can appeal the Federal Court of Appeal’s ruling in the Aga Khan case issued last April Fool’s Day. The FCA ruled that the public has no right to file complaints with the federal Commissioner of Lobbying, and so members of the public are prohibited from challenging the Commissioner’s rulings in court, even if a ruling ignores all the evidence and is full of errors. Sebastian Spano is representing Democracy Watch in the application to appeal, which is SCC file no. 39202.

The FCA’s ruling made the Lobbying Commissioner into an unaccountable czar, which is dangerous given the Commissioner has let off 84% of lobbyists caught violating the federal lobbying law and/or code since 2007.

DWatch is arguing that the FCA’s ruling sets a bad precedent that contradicts past SCC and FCA rulings as it shuts out the public from the enforcement system for the lobbying law and code, which is one of several key federal government public accountability systems.

Lawyers have expressed concern here and here about the negative implications of the FCA’s ruling on the rights of the public to hold government officials and watchdogs accountable for bad decisions.

If the Supreme Court does not allow DWatch to appeal, and upholds the FCA’s ruling, it will also stop two other ongoing DWatch cases that are challenging rulings by the Lobbying Commissioner:

1. DWatch’s case challenging the Commissioner’s ruling letting Apotex Inc. off for Barry Sherman’s fundraising for, and lobbying of, the Trudeau Liberals;
2. DWatch’s case challenging the Commissioner’s ruling letting Clearwater Seafoods off for Mickey McDonald’s fundraising for, and Clearwater’s lobbying of, the Trudeau Liberals;

In March 2019, Democracy Watch won the landmark Federal Court ruling that rejected former Commissioner of Lobbying Karen Shepherd’s secret September 2017 ruling that, even though the Aga Khan was lobbying Prime Minister Trudeau, and is chair of the Aga Khan Foundation, which is registered to lobby the PM, because someone at the Foundation claimed the Aga Khan wasn’t paid to lobby for it, the Lobbying Act and Lobbyists’ Code of Conduct were not violated when the Aga Khan gave Trudeau and his family and friends free vacations on his private island in the Bahamas.

“The Trudeau Liberals wasted taxpayers’ money on protecting Trudeau’s old family friend the Aga Khan from accountability for unethical lobbying by appealing the Federal Court’s ruling, and very unfortunately the Federal Court of Appeal’s ruled that the Lobbying Commissioner is a czar who can’t be held accountable by the public or the courts no matter how bad the Commissioner’s rulings are,” said Duff Conacher, Co-founder of Democracy Watch. “Hopefully, the Supreme Court of Canada will allow Democracy Watch’s appeal, and will issue a strong ruling that will finally stop, after more than a dozen years, the Lobbying Commissioner’s negligently weak enforcement of the federal lobbying law and code.”

“This case is a real test of whether the Supreme Court of Canada cares about protecting the public’s right to complain about wrongdoing by lobbyists and politicians and government officials, and the public’s right to go to court to hold democratic good government watchdogs accountable when they ignore the facts and law and let wrongdoers off the hook,” said Conacher. “The Federal Court of Appeal’s ruling showed it doesn’t care about protecting the public’s rights to ethical government – hopefully the Supreme Court will show it cares by allowing Democracy Watch’s appeal.”

The Federal Court ruling rejected Commissioner Shepherd’s ruling as “unreasonable” because it was “a narrow, technical, and targeted analysis that is lacking in transparency, justification, and intelligibility when considered in the context the Commissioner’s duties and functions” (para. 146). As a result, the court ordered new Commissioner of Lobbying Nancy Bélanger) to re-examine the actions of everyone at the Aga Khan Foundation with “a broad view of the circumstances.”

The Lobbyists’ Code, which the Commissioner enforces, prohibits lobbyists registered under the Lobbying Act from doing anything for, or giving anything to, anyone they are lobbying, and requires compliance with several strongly worded principles.

The Federal Court ruling also greatly broadened the scope of the Lobbying Act to cover board members of businesses and other organizations who are compensated in any way or receive “anything of value” – including even the value of being given a position as a member of board (paras. 134-143). In the past, the Lobbying Commissioner has interpreted the Act as requiring board members to disclose their lobbying in the Registry of Lobbyists only if they were paid more than their expenses.

In addition, the Federal Court’s ruling required the Commissioner to investigate and issue a public ruling whenever there are “potential compliance questions” (para. 133) concerning the actions of anyone, or any business or organization that relate to the requirements of the Lobbying Act or Lobbyists’ Code (paras. 127-134).

The Trudeau government, represented by the Attorney General of Canada, appealed to the Federal Court of Appeal (FCA). The FCA didn’t rule on any part of the Federal Court’s ruling other than deciding that the public has no right to file complaints with the Lobbying Commissioner, and so is prohibited from challenging the Commissioner’s rulings in court, no matter how much the rulings ignore the facts and the law.

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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]

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

 

Council of Canadian Innovators Ben Bergen and Dana O’Born co-managed Freeland’s 2015 election campaign, then lobbied her then-Parliamentary Secretary David Lametti, her office staff and senior department officials

FOR IMMEDIATE RELEASE:
Tuesday, October 13, 2020

OTTAWA – Today, Democracy Watch announced that it has filed court cases challenging the federal Commissioner of Lobbying’s rulings on the complaint Democracy Watch filed in July 2017 about lobbyists Ben Bergen and Dana O’Born of the Council of Canadian Innovators (CCI).

The Lobbying Commissioner ruled last March, after a completely unjustifiable delay of almost three years, that Mr. Bergen and Ms. O’Born did not violate the Lobbyists’ Code of Conduct, which prohibits assisting a politician in any significant way and then lobbying their office or officials afterwards, even though they co-managed Chrystia Freeland’s 2015 election campaign, continued to work in senior roles with her riding association post-election, and then were hired in senior positions at CCI and lobbied Freeland’s then-Parliamentary Secretary David Lametti, her office staff, and senior officials in her department including deputy ministers, assistant deputy ministers and special assistants.

Rules 6-9 of the Lobbyists’ Code prohibit lobbyists from doing anything significant for, or giving anything significant to, anyone they are lobbying or are going to lobby.

Democracy Watch’s initial complaint also requested that the Lobbying Commissioner recuse herself from ruling on the situation because she was handpicked by Trudeau. The Federal Court of Appeal ruled last February that the Trudeau Cabinet was biased when it appointed Bélanger, and DWatch’s court case also alleges that Bélanger was biased when ruling on Bergen and O’Born.

Democracy Watch is also challenging two other rulings issued by Lobbying Commissioner Bélanger in Federal Court (see details here about the Apotex/Barry Sherman-Trudeau Liberals case and here about the Mickey MacDonald/Clearwater Seafoods-Trudeau Liberals case). All four cases are on hold until the Supreme Court of Canada decides whether to allow DWatch to appeal the Federal Court of Appeal’s ruling on DWatch’s case challenging the ruling issued by former Lobbying Commissioner Karen Shepherd in the Aga Khan/Justin Trudeau case.

“The federal lobbying ethics code prohibits anyone from lobbying a Cabinet minister or their officials for four years after helping them get elected or assisting them in some other significant way, and so Lobbying Commissioner Bélanger should have found Minister Freeland’s former election campaign managers and riding association senior officials guilty of violating the code given the Council of Canadian Innovators that they head up lobbied many senior officials in Minister Freeland’s former department, including her former Parliamentary Secretary David Lametti,” said Duff Conacher, Co-founder of Democracy Watch. “By letting the CCI lobbyists off the hook, and issuing other similarly weak rulings recently letting off other unethical lobbyists, Lobbying Commissioner Bélanger is continuing the negligent enforcement record of her predecessor Karen Shepherd who let off 84% of the lobbyists she found violating the law during her decade as commissioner.”

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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]

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

Big Banks’ temporary cuts of some fees, and credit card, mortgage and loan deferrals for only some customers, are not enough – key measures needed (as U.S. has had for decades) to ensure fair interest rates, fees and service now, and into the future

Big 6 Banks gouged out record profits of more than $46 billion in 2019 – their 10th year in a row of record profits – and have high profits still, so they can afford to help more, as Prime Minister Trudeau said in April

Loopholes also must be closed to ensure banks pay fair share of taxes

FOR IMMEDIATE RELEASE:
Wednesday, October 7, 2020

OTTAWA – Today, Democracy Watch, along with the more than 95,000 people from across Canada who have joined its letter-writing campaign and/or signed its Change.org petition, called on new Finance Minister Chrystia Freeland to work together with all federal parties in this minority government situation to make Canada’s big banks do more to help Canadians and small businesses, and pay their fair share of taxes, now and after the coronavirus crisis.

The U.S. enacted measures decades ago to ensure banks serve everyone fairly and well with fair interest rates and fees, and they apply to the U.S. banks that 4 of Canada’s Big 6 Banks own. In the U.S., Bank of Montreal (BMO) owns BMO Harris Bank, Canadian Imperial Bank of Commerce (CIBC) owns CIBC U.S., Royal Bank of Canada (RBC) owns City National Bank, and Toronto-Dominion Bank (TD) owns TD Bank. See #s 2 and 4 in the list of key changes further below.

The call comes after 5 of Canada’s Big 6 Banks announced they had higher than expected profits in the third quarter of 2020 totalling $9.8 billion (BMO – $1.23B; CIBC – $1.17B ; National – $600m; RBC – $3.2B; Scotiabank – $1.3B; TD – $2.3B). The Big 6 had record profits of more than $46 billion in 2019 – the 10^th year in a row, and more than double their 2010 profits. (See Canada’s Big Banks Backgrounder)

Former Finance Minister Bill Morneau boasted in early April that the federal government negotiated with the Big 6 Banks to temporarily cut some credit card interest rates for some customers (but not for small businesses) who request a deferral for a couple of months, and to process small business loans funded by the government, in addition to the up-to-6-month mortgage and loan deferrals and fee reductions the banks have already offered (but again, only for some customers, with the delayed amount still required to be paid later, plus interest).

However, those payment deferrals of about $1 billion will soon run out for most people, including about 760,000 Canadians who have deferred their mortgage and Prime Minister Trudeau stated on April 6th that “we need to see even more action like this going forward because this is a time to think about each other, not about the bottom line.”

“The big banks can afford to do much more to help during this crisis, and must be required by law passed by the federal Liberals and all parties to disclose much more information about how they treat customers and borrowers, and about their profits in every part of their business, to ensure they don’t gouge or abuse anyone and are effectively required to serve everyone fairly and well with fair interest rates and fees,” said Duff Conacher, Co-founder of Democracy Watch.

“The federal government cannot tell if the banks are still gouging or treating customers unfairly in this crisis, and won’t be able to tell post-crisis, because the banks are allowed to keep secret the profit levels in each area of their business, what type of borrowers they approve and reject for loan and credit relief, and how many complaints they are receiving,” said Conacher. “As the U.S. did more than 40 years ago, the federal government must require the banks to disclose this information and more to ensure the banks give everyone who needs it a real break in their loan and credit card payments during the crisis, and serve everyone fairly and well at fair interest rates and fees that give the banks a reasonable profit and not excessive gouging profit levels.”

Canada’s Big 6 Banks reported record profits of more than $46 billion in 2019 – the 10^th year in a row, and more than double their 2010 profits. The Big 6 Banks reaped record profits every year for the past 10 years in part by firing thousands of people, shifting jobs overseas (or using temporary foreign workers), cutting services, and hiking fees and credit card interest rates even as the Bank of Canada’s prime rate dropped to record low levels.

The Big 6 Banks also paid their CEOs a total of $75 million in 2019 in salary and bonuses (an average of $12.5 million each).

“The federal Conservatives and Liberals have done nothing since 2010 to stop Canada’s big banks from hiking fees and credit card interest rates to gouge Canadians and more than double their profits to the highest levels of banks world-wide, while reducing service, treating many customers unfairly, and exploiting loopholes to lower the amount they pay in taxes,” said Conacher. “In this time of crisis, and with the minority government, all parties must work together to make key changes to make banks help more now, to finally stop their excessive profits, gouging and abuse of consumers, and to make banks pay their fair share in taxes.”

Just like the initial spending actions taken by the federal and provincial governments were not enough to address the coronavirus crisis, the banks must do more. The Big 6 Banks’ decade of record profits and cuts to their prime lending rates show that they can afford to cut interest rates much more on loans like mortgages etc., and also to cut fees much more, and not raise them again to their gouging, excessive profit levels.

The more than 95,000 voters are calling on federal parties to work together now to require the banks:

1. To cut all their interest rates and fees in half now, and cut loan payments entirely for anyone who needs it, without requiring payment or extra interest later;
2. To disclose detailed profit reports after fully independent audits and keep rates and fees at reasonably low levels in the future (for example, many U.S. states cap credit card interest rates);
3. To empower consumers and increase consumer protection by supporting the creation of an independent, consumer-run bank watchdog group (as recommended by MPs and senators in 1998);
4. To disclose approval rates for credit, loans and account services by neighbourhood and type of borrower, and require corrective actions by any bank that discriminates (as the U.S. has required for more than 40 years under the Community Reinvestment Act) as part of their annual Public Accountability Statements);
5. To re-open basic banking branches in neighbourhoods (where they closed them in the 1990s) to help get rid of predatory pay-day loan companies (and banking at Canada Post outlets should also be allowed to help ensure everyone has access to basic banking services at fair rates and fees);
6. To cut bank executive pay down to a reasonable level (as in some European countries);
7. To pay their fair share of taxes now, and in the future, by closing all the loopholes they exploit and (as England and Australia have) imposing an excess profits tax, and;
8. Finally, enforcement measures and penalties also need to be strengthened to ensure banks, and other financial institutions, serve everyone fairly and well at fair prices (See Backgrounder on Weak Enforcement of Financial Consumer and Investment Protection)

See Full List of Key Bank Accountability Changes.

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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]

Democracy Watch’s Big Banks Coronavirus Accountability Campaign