Ethics Commissioner has covered up twice already for Nigel Wright, Senate Ethics Officer is controlled by a Senate committee, Auditor General is failing to do audit, Elections Canada has secret, questionable enforcement record, and even the RCMP’s independence is questionable

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This release was covered by the Huffington Post, VOCM Backtalk, and Ottawa Life on May 22, 2013

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Wednesday, May 22, 2013

OTTAWA – Today, Democracy Watch set out the details of why biased, lapdog investigations mean that a cover-up of the Senate expenses scandal is the most likely outcome, and why a public inquiry will likely be needed to ensure a full investigation.

Nigel Wright and Mike Duffy should be found guilty of violating federal ethics rules, but the fact that the same secretive, Conservative-controlled Senate Committee of Internal Economy, Budgets and Administration that watered down the conclusions in its initial report is still controlling the review of expenses is just the tip of the iceberg of investigation problems.

“The Conservatives caused the Senate scandal, but they and the Liberals, NDP and Bloc Quebecois are all to blame for the weak, biased or ineffective lapdogs who are investigating the scandal because they all failed during recent minority governments to choose strong watchdogs, and to pass measures to close loopholes and strengthen enforcement powers and requirements,” said Tyler Sommers, Coordinator of Democracy Watch.  “As a result, no one should be surprised if all the investigations cover-up the scandal, and if there is any evidence that this is happening an independent public inquiry will clearly be needed.”

Ethics Commissioner

Federal Ethics Commissioner Mary Dawson is investigating Nigel Wright’s role in the scandal, but she has had a very weak enforcement record since 2007, including letting dozens of Conservatives off the hook for very questionable actions, and making more than 80 secret rulings.  Commissioner Dawson has also already covered up twice for Nigel Wright and could, as she has many times in the past, abandon her investigation secretly without issuing a public ruling (See details below in Backgrounder).

Because of section 66 added to the new Act by the Conservatives in 2006, the Ethics Commissioner’s rulings cannot be challenged in court if she has factual or legal errors in her rulings.  There are no mandatory penalties for violating the ethics rules in the Act.  As well, if Prime Minister Harper approves it, Commissioner Dawson’s term in office can be renewed for another seven years in 2014 so she has an incentive to please him

Overall, there is no reason to trust that Ethics Commissioner Dawson will do a full investigation or rule correctly, even though there is already enough clear, public evidence for her to find Nigel Wright guilty of violating at least one or more of sections 4, 5, 6(1), 8 of the Conflict of Interest Act because he used inside information to make the secret, clearly improper payment that furthered the interests of his (maybe) friend Mike Duffy during the audit of Senator Duffy’s expenses.

Senate Ethics Officer

The Senate Ethics Officer may investigate Senator Duffy’s role in the scandal, but the Ethics Officer is even more of a lapdog than the Ethics Commissioner because the Conflict of Interest Code for Senators puts the Officer under the control of a secretive, Conservative-controlled committee of senators who have the power to decide what the Code’s rules mean, how the rules will be applied, whether an investigation can even happen, and (along with the whole Senate) what the final ruling, and penalties, will be.

While the NDP has filed a complaint, in fact the Senate Ethics Officer can only investigate if the committee directs the Officer to investigate on its own or prompted by a complaint from a senator. (See details below in Backgrounder)

Overall, there is no reason to trust that the Senate committee will allow a full investigation, let alone a legally correct ruling, even though there is already enough clear public evidence to find Senator Duffy guilty of violating section 17.1 of the Code for taking the clearly prohibited gift of the payment of money from Nigel Wright.

The Ethics Officer does not have to issue a public ruling if the Officer’s conclusion is that no Code violations occurred.  Also, if Senator Duffy or any other senator resigns, any investigation is suspended forever unless the committee decides to continue it.

Auditor General

The Auditor General has full powers to audit Senate expenses under the Auditor General Act, (See details below in Backgrounder) and should have exercised those powers already, and should begin an audit immediately of all senators’ expenses, and also of all MPs’ expenses.

Elections Canada

The NDP has filed a complaint with the Commissioner of Canada Elections concerning the possibility that Senator Duffy’s claims of Senate expenses during the 2011 federal election may have covered costs that should have been covered by the Conservative Party, in violation of the Canada Elections Act.

The problem is that the Commissioner, in conjunction with the Director of Public Prosecutions, has a very secretive and questionable enforcement record, with more than 3,000 secret rulings since 1997, and many weak actions including a deal with the Conservative Party that let senators who participated in the Conservatives’ illegal in-and-out ad spending scheme during the 2006 federal election off the hook with no penalty.

RCMP

There are measures in the Parliament of Canada Act (s.16), and in the Criminal Code (s.119) that prohibit offering or giving any kind of benefit to a senator or other federal or provincial politician in return for any action or inaction by the politician.

There are media reports that allege that the payment by Nigel Wright to Senator Duffy was in return for cooperation by the senator, and the Senate committee reviewing Senator Duffy’s expenses, and the NDP has filed a request for investigation with the RCMP.

There are also media reports that the RCMP is looking into the Senate expenses violations generally to determine if any laws were broken.

The problem is that, in a widely criticized new policy, the RCMP Commissioner has aligned his office with the office of the Minister of Public Safety in all communications about the RCMP’s actions.  Many commentators have raised concerns about how this policy affects the ability of the RCMP to make independent law enforcement decisions (See criticisms here, and here, and here).

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 FOR MORE INFORMATION, CONTACT:
Tyler Sommers, Coordinator of Democracy Watch
Tel: (613) 241-5179
[email protected]

Democracy Watch’s Government Ethics Campaign, Enforce Fair Election Laws Campaign, Stop Fraud Politician Spending Campaign

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BACKGROUNDER

Ethics Commissioner Mary Dawson’s first cover-up for Nigel Wright

Commissioner Dawson’s first cover-up for Nigel Wright was her creation of an illegal, so-called ethics screen when Wright first took the job that violated the requirement in subsection 25(1) of the Conflict of Interest Act to make a public declaration within 60 days every time Wright recused himself from a decision-making process because of a conflict of interest.  This “screen” was supposedly enforced by the Deputy Chief of Staff. As a result of this cover-up, all of Wright’s recusals have been kept secret, and there is no way to tell if he ever failed to recuse himself as required by the Act.

Ethics Commissioner Mary Dawson’s second cover-up for Nigel Wright

Commissioner Dawson’s second cover-up for Wright was when she abandoned her investigation last fall without issuing a notice, let alone a ruling, of whether Wright violated the Act by taking part in discussions of issues that affect Barrick Gold.  The Ethics Commissioner is allowed to do this under s. 45 of the Act.  The cover-up only came to light because Canadian Press journalist Joan Bryden pressed Commissioner Dawson to make a public statement about the case.  Commissioner Dawson’s statement failed to set out any reasons why she concluded that Wright had not violated the Act.

Conflict of Interest Act missing key rules

The Conservatives broke a 2006 election promise (one of their many broken accountability promises) to include key ethics rules in the new Conflict of Interest Act prohibiting dishonesty and being in even an appearance of a conflict of interest, as Prime Minister Harper instead put those rules in his Accountability Guide for ministers and other senior officials so he could ignore them (as he has since – see the rules in Annex A, Part 1 of the Guide).

Senate Ethics Officer is a lapdog controlled by a Senate committee

The Senate Ethics Officer is, under the Conflict of Interest Code for Senators, even more of a lapdog than the Ethics Commissioner because the Officer is essentially under the control of a committee of senators (ss.35 and 41(1)) that operates in secret (s.36), currently has a majority of Conservative members, and (among other powers) has the following powers:

• defines what the rules in the Code mean, and how they are applied by the Ethics Officer (subsection 37(2));
• controls whether the Ethics Officer can investigate a situation (s.44(1) and 44(8));
• if an investigation is approved, controls (along with the whole Senate) whether the Ethics Officer has access to “persons, papers, things and records” (s.44(13);
• can overrule the ruling of the Ethics Officer (s.46), although the Ethics Officer’s ruling must be made public (ss.45(2) to (3)), and;
• along with the whole Senate, decides whether a senator is guilty, and whether there will be any penalty (s.48).

The Senate Ethics Officer can only investigate if the committee directs the Ethics Officer to investigate on its own (ss.44(1) and 44(8)) or prompted by a complaint from a senator (s.44(2) and (3)).  The Ethics Officer can also abandon the investigation without issuing a public ruling or reasons if the Ethics Officer’s conclusion is that no Code violations occurred (s.45(4).

Finally, contrary to some recent media reports the Committee or the Ethics Officer may suspend an investigation and refer the situation to other authorities if they have reasonable evidence that a law has been violated, but they are not required to suspend the investigation (s.47).  If a senator resigns, any investigation into that senator’s actions is suspended forever unless the committee decides to continue it (s.49).

Auditor General

Auditor General Act (R.S., 1985, c. A-17)
POWERS AND DUTIES
Examination
5. The Auditor General is the auditor of the accounts of Canada, including those relating to the Consolidated Revenue Fund and as such shall make such examinations and inquiries as he considers necessary to enable him to report as required by this Act.
1976-77, c. 34, s. 5.

ACCESS TO INFORMATION
Access to information
13. (1) Except as provided by any other Act of Parliament that expressly refers to this subsection, the Auditor General is entitled to free access at all convenient times to information that relates to the fulfilment of his or her responsibilities and he or she is also entitled to require and receive from members of the federal public administration any information, reports and explanations that he or she considers necessary for that purpose.

Inquiries
(4) The Auditor General may examine any person on oath on any matter pertaining to any account subject to audit by him and for the purposes of any such examination the Auditor General may exercise all the powers of a commissioner under Part I of the Inquiries Act.
R.S., 1985, c. A-17, s. 13; 2003, c. 22, s. 90(E).

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Democracy Watch’s Government Ethics Campaign, Enforce Fair Election Laws Campaign, Stop Fraud Politician Spending Campaign

Voting system and lack of key promises for more democratic elections and government are likely reasons for turnout

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This release was covered by The Tyee on May 17, 2013

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Thursday, May 16, 2013

OTTAWA – Today, Democracy Watch called for democratic changes to British Columbia’s political system in response to the clear crisis of low voter turnout in the provincial election.  Initial results show that the B.C. Liberals have won 50 of 85 seats with the support of only 22% of eligible voters.

“With just about half of eligible voters casting ballots yesterday, alarm bells should be going off and questions raised about the legitimacy of the provincial government,” said Tyler Sommers, Coordinator for Democracy Watch.  “Voter turnout will go up if the voting system is changed and if the parties make changes to end undemocratic elections and government.”

The most important changes the B.C. parties can make to increase voter turnout are as follows:

• pass an honesty-in-politics law that gives voters an easy, low-cost way to file complaints to the Integrity Commissioner, and gives the Commissioner the power to penalize misleaders (and requires MLAs who switch parties in-between elections to resign and run in a by-election);
• change the voting system so that the percentage of MLAs each party receives more closely matches the popular vote percentages.

These two changes would give voters a reason to vote because they would know that voting for a specific party would mean a guaranteed result in terms of percentage of MLAs elected and promises kept.

In addition, if the parties strengthened provincial ethics, political finance, lobbying, open government, and whistleblower protection laws, voters would have more reason to vote because they would be more assured of good government no matter which party won.

“More and more voters know from their experience of the past few decades of elections that they are not going to get what they vote for, and are likely to get dishonest, secretive, unethical, unrepresentative and wasteful government no matter who they vote for, and as a result no one should be surprised to see voter turnout at such low levels,” said Sommers.

These problems exist in all the provinces and territories across Canada.  All of these changes should be made by the federal and provincial and territorial governments, and for their municipalities, before either mandatory or Internet voting are tried (because both of those have likely serious negative effects).

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FOR MORE INFORMATION, CONTACT:
Tyler Sommers, Coordinator of Democracy Watch
Tel: (613) 241-5179
[email protected]

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Democracy Watch’s Democratic Voting Systems Campaign

Surveys show Canadians are unhappy with dangerously undemocratic, unaccountable, unethical and secretive Senate – shutting it down is the easiest and best option

Wednesday, May 15, 2013

OTTAWA – Today, Democracy Watch launched a national letter-writing campaign calling on politicians from all parties across Canada to stop playing games and take immediate action to change the Constitution to shut down the Senate.

“Recent scandals show how dangerously undemocratic and unaccountable the Senate is, and overall it is easier, less costly, and best to shut down the Senate rather than reform it, especially since constitutional changes are required to do anything and prime ministers and senators have clearly failed for more than 145 to clean up the Senate in any meaningful way,” said Tyler Sommers, Coordinator of Democracy Watch.

There is debate around whether to reform or abolish the Senate and the Supreme Court has recently been asked to rule on whether reforming it requires a constitutional amendment.  The answer is likely “yes” and, as a result, shutting down the Senate will be clearly no more difficult than reforming it.

The many reasons for shutting down the Senate, and why a shut down is easier, less costly, and causes fewer problems than any possible reforms, are as follows:

1. The Senate is redundant:  The Senate does some good studies, but the Senate has not produced any report that contains anything significantly different than reports produced by privately funded independent think-tanks, NGOs, political parties, House of Commons Committees, the Library of Parliament etc.
2. The Senate is unnecessary:  The Senate is supposed to provide balanced regional representation, but that can be achieved by shutting down the Senate and adding seats to the House of Commons from the regions.  If you believe in the federation of Canada, representation in the House will never match population exactly (it never has and never will), so there is no real problem with adding seats from the regions to ensure the balance that the Senate is, in part, aimed at achieving.
3. The Senate is illegitimate and will remain inefficient:  Currently many senators are in their position for no other reason than they did favours for a prime minister.  Electing senators bit by bit over several years, if not decades, will cause a two-tier Senate, and eventually will give the Senate democratic legitimacy which means it will justifiably be able to cause legislative gridlock by blocking bills passed in the House of Commons.
4. The Senate is undemocratic and unaccountable in many other ways:  Even if changes are made to have elected senators, or have them serve fixed terms, the Senate will still be undemocratic with a secretive Board of Internal Economy; very weak ethics and expense rules that senators enforce themselves; weak penalties for violators (except sometimes when scandals are revealed); a lapdog Senate Ethics Officer under the control of a committee of senators; a requirement to have money and property to be a senator; and who knows what other problems that the Senate has been covering up, and failing to clean up, for more than 145 years.

To give just a few details about how unconcerned senators clearly are about fulfilling their supposed role to provide “sober second thought”, not only is the Senate Ethics Officer under the control of a committee of senators, but also violations of Senate ethics rules are not penalized in any way, and the rules:

• do not require senators to be honest, and allow senators to make decisions even if they have a financial interest in the outcome (as long as the decision applies generally to a broad group of people or organizations);
• do not allow conflicts of interest that senators have to be made public unless a senate committee approves it;
• allow senators to accept the gift of unlimited travel, even from lobbyists, and;
• allow senators to sit on the boards of businesses and so they can be essentially inside-government lobbyists for those businesses (given that, legally, directors are required to advance the interests of the business).

Democracy Watch will continue to run this campaign and to push for all parties to shut down the Senate until this key democratic reform happens.

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FOR MORE INFORMATION, CONTACT:
Tyler Sommers, Coordinator of Democracy Watch
Tel: (613) 241-5179
[email protected]

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Democracy Watch’s Shut Down the Senate Campaign