Tuesday, October 16, 2012

OTTAWA—Today civil society organizations welcomed a federal judge’s condemnation of shoddy investigations conducted by the government’s whistleblower watchdog. Unfortunately this is not an isolated case, they say, and the agency’s failure may have contributed to the inaction that led to the XL Foods disaster.

In the court ruling Madam Justice Mactavish found that the Public Sector Integrity Commissioner’s investigators made so many mistakes that this amounted to a ‘clear breach of the common law duty of procedural fairness’. Key witnesses were never interviewed and PSIC ‘failed to investigate obviously crucial evidence’. The whistleblower was kept in the dark regarding the results of the investigation and given no opportunity to see or comment on the report before a decision was made – in spite of promises that he could do so. Although the investigation took an inordinate length of time (21 months) the judge found that it was neither thorough nor fair.

“PSIC’s ineffectiveness has serious consequences for the public – like the XL Foods recall” said David Hutton, executive director of Federal Accountability Initiative for Reform (FAIR). ”This entire fiasco could likely have been avoided if the CFIA inspectors had believed that they could bypass their bosses and safely report their concerns to someone independent – and that action would be taken. But the judge’s ruling confirms that they had good reason to fear that their concerns might not be investigated properly by PSIC, and that they would not be protected from the reprisals that would surely follow.”

Unfortunately the situation the Federal Court ruled appears typical of how PSIC treats those it is charged with protecting. Since the agency was created, whistleblower organizations like FAIR and Canadians for Accountability have received calls from more than 30 public servants (and their lawyers) trying to deal with the agency. The judge’s findings closely mirror these people’s frustrations.

“Whistleblowers consistently tell us that PSIC is a black hole into which they pour serious allegations – and hear nothing back” said Hutton. “They are kept in the dark about what’s happening and given false assurances. After hearing nothing for months they finally receive a rejection letter written in bureaucratic legalese. They have no idea of how this decision was made or based on what evidence, and Integrity Commissioner Mario Dion and his staff aren’t telling – since this would apparently ‘violate the privacy’ of the alleged wrongdoers.”

“You cannot go to PSIC simply on the basis that you’ve seen something that’s clearly wrong” said Allan Cutler. “You need a lawyer just to complete their application form – to help you figure out which sections of the Act are applicable and what statutes may have been violated. Courageous people, who are putting their careers on the line to protect the public, are met with disrespect and bureaucratic obstacles.”

“The court ruling and the XL Foods fiasco show clearly that the federal government must stop being negligent and immediately launch the illegally overdue review of the federal whistleblower protection law, and ensure the law is changed to require the Integrity Commissioner to actually protect whistleblowers in every case,” said Tyler Sommers, Coordinator of Democracy Watch.

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Contact Information:

David Hutton, Executive Director, FAIR (Federal Accountability Initiative for Reform) (613) 567-1511

Allan Cutler, President, Canadians for Accountability: (613) 863-4671

Ian Bron, Managing Director, Canadians for Accountability: (613) 304-8049

Tyler Sommers, Coordinator of Democracy Watch and Chair of the Open Government Coalition: (613) 241-5179

Democracy Watch’s Government Ethics Campaign

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Set out below is an op-ed by Democracy Watch Board Member Duff Conacher which was published in the Hill Times on October 15, 2012

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The corruption scandal in Quebec provides more evidence of how negligent federal politicians were in December 2006 when they approved changes to federal law to require audits of suspicious bank account transactions, but failed to apply those changes to Canadian politicians and government officials.

It also shows how negligent Quebec politicians and watchdog agencies have been for years, if not decades.

In December 2006, federal politicians quickly and quietly passed Bill C-25, amending the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA).

To comply with Canada’s commitments under Sec. 52 of the United Nations Convention Against Corruption, and the international Financial Action Task Force (FATF) standards, Bill C-25 should have required Canadian financial institutions to monitor the bank accounts of senior politicians and government officials and their families and associates in all levels of government, adding them to the watch-list of the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC).

But Bill C-25 only added foreign politicians and key officials and their families to FINTRAC’s watch-list—no Canadian politician or official was covered by the new system.

As well, as Democracy Watch has proposed for the past decade, ethics and political finance watchdog agencies in Quebec should have been doing random audits of donations and gifts, the donation limit should have been lowered and disclosure of organizers of fundraising events and donor’s employers and family members required, a whistleblower protection law covering all levels of government should have been passed, and government auditors should have been able to determine years ago that provincial and municipal governments were not getting value for the money they spent.

If Bill C-25 had covered Canadian politicians and officials six years ago, and politicians had strengthened laws, and watchdog agencies had increased their enforcement actions a decade ago, the corruption in Quebec would have been discovered much sooner.

Clearly, the laws must now be changed to strengthen the rules, and to require stronger enforcement, to help stop corruption in the future. Unfortunately, the provincial parties’ election platforms did not promise to make the many changes needed to actually stop corruption.

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For more details, go to Democracy Watch’s Money in Politics Campaign

Sorry, this entry is only available in Français.

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Set out below is an op-ed by Democracy Watch Board Member Duff Conacher which was published in Edmonton Sun on October 4, 2012 and the Globe and Mail on October 5, 2012

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While all Canadian politicians should have more resources and do more to hold the government and Cabinet ministers accountable, especially on spending issues, their power to make rulings and penalize ministers and others should be taken away because they almost always make  decisions based on politics and party lines, instead of principles and facts.

Ontario Liberal Cabinet minister Chris Bentley is facing the likelihood of being found in contempt by the provincial legislature because opposition parties have a majority of seats — there is no way he would have faced such a ruling if the Liberals had a majority.

The power of the Speaker of the legislature to make such rulings should also be taken away because the Speaker is also a partisan politician.

The best way to ensure honesty, transparency and respect by all politicians is to pass an honesty-in-politics law, close loopholes in open government laws, increase the standards of behaviour required in the legislature, and have all complaints referred to the independent agencies that watch over integrity and open government.

The commissioners who head these agencies do need to be made more independent by requiring approval of appointments from all party leaders, and in some cases more accountable by ensuring all their rulings can be appealed to the courts if the make a factual or legal error, but other than that they have much more fair investigation and ruling processes than politicians do.

Making these changes would result in more democratic good government across Canada.

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

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Set out below is an op-ed by Democracy Watch Board Member Duff Conacher which was published in Rabble.ca on October 2, 2012 and the Hill Times on October 8, 2012

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Bruce Carson, former senior advisor to Prime Minister Harper, is in court charged with the crime of taking payment from a client while promising he could win a decision from the federal government (known as influence peddling).

So why did prosecutors decide not to prosecute Carson for failing to register and disclose his lobbying activities under the federal Lobbying Act?  Likely because Carson, and his client, have both claimed that he was not paid to lobby, only for advice.  Only people who are paid to lobby are required to register under the Act.

Treasury Board minister Tony Clement recently announced the changes the federal Conservatives plan to make to the Lobbying Act, and both he and all MPs on the House of Commons committee that recommended changes to the Act ignored the loophole exploited by Carson (the same loophole Rahim Jaffer exploited).

As long as unpaid lobbyists are not required to register, no lobbyist will ever be prosecuted for violating the Lobbying Act because all they have to do when caught lobbying without registering is claim, as Carson and Jaffer did, that they were not paid for the lobbying they did.

Also as long as this loophole is left open, there will be no five-year ban on federal Cabinet ministers, the Leader of the Opposition, their senior staff and senior government officials lobbying the federal government after they leave their position.

All of them will continue to be allowed to lobby the government the day after they leave, in secret without registering, as long as they are not paid to do the lobbying and are careful whom they lobby. And because they are not required to register this lobbying, they are also not required to follow the ethics rules in the Lobbyists’ Code of Conduct.

As well, both the House Committee and Minister Clement ignored the loopholes that allow for secret lobbying if a lobbyist is lobbying about the enforcement, interpretation or application of laws and regulations (which is a huge area of lobbying, especially for big businesses), and that allow for secret emails, texts, phone calls and even meetings between lobbyists and Cabinet ministers and senior government officials as long as the minister or official initiates the communication or meeting (which they do whenever they want to have secret, unethical relations with a lobbyist — only oral, pre-arranged communications initiated by the lobbyist are currently required to be disclosed).

In other words, even if the Conservatives make the changes proposed by the House Committee and Tony Clement, secret, unethical lobbying by the most powerful former politicians, staff and government officials, and by many other lobbyists, will still be legal.

The Conservatives promised during the 2006 election to end secret lobbying of the federal government.  They continue to break that promise.

As well, the seven provinces that have a lobbying disclosure law have the same loopholes in their laws that allow for secret, unethical lobbying, and the three provinces and two territories that do not have a lobbying law obviously also allow secret, unethical lobbying.

Only the City of Toronto’s by-law requires unpaid lobbyists to register and disclose their lobbying activities (although the by-law has other loopholes such as not requiring non-profit organizations to register).

Given that secrecy in government is a recipe for corruption, waste and abuse of the public, Canadians deserve better from all their governments.  All lobbying must be disclosed, no matter who is lobbying, for how long, on whatever issue, and whether or not they are paid.

If this is not required across the country, all Canadians should continue to expect to see more cases like Bruce Carson and Rahim Jaffer, as government decision-making processes continue to be corrupted by secret, unethical lobbying.

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

Set out below is a letter-to-the-editor by Democracy Watch board member Duff Conacher published in the Hill Times on October 1, 2012

Gerry Nicholls claims that the current federal donation limit is $1,200, and that this limit must be eliminated or increased before the Liberals and NDP could hope to raise as much money as the Conservatives (Tory Party spending is not the problem – Hill Times, Sept. 24).

He also claims that restricting spending in between elections by parties, and non-political parties (so-called “third parties) is a bad idea.

In fact, individuals are limited to donating $1,200 annually to each party, but are also allowed to donate another $1,200 combined total to the riding associations of each party (and, during an election period, another $1,200 combined total to the election candidates of each party).

And anyone or organization can also still loan an unlimited amount to an election candidate (a loophole that must be closed immediately by limiting loans to individuals, and to the same amount as donations are limited).

Given that the current average donation is in the low hundreds, and given the average annual income of Canadians is only about $40,000, the democratic move is to decrease the donation limit, not increase it.

If the Liberals and NDP want to raise more money, the democratic solution is simple, do more for more people so that more people will donate.

And if and when an actual fixed-election-date law is passed by Parliament, as part of that law it will be democratic to restrict spending by parties and third parties for a few months leading up to the fixed election date (to the extent that is possible, as an unexpected election could still occur if a vote of non-confidence happens).

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For more details, go to Democracy Watch’s Money in Politics Campaign

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Set out below is a letter-to-the-editor by Democracy Watch Board Member Duff Conacher which was published in the Hill Times on September 24, 2012

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Re: “Money talks … about Grit leadership race,” (The Hill Times, Sept. 17, p. 10, by Gerry Nicholls). As he has in the past, Gerry Nicholls claims that, “The real problem is Canada’s overly-restrictive campaign finance laws which make it nearly impossible to raise the resources needed to run for high political office.”

Of course, he doesn’t cite any evidence to back this claim, because there is no evidence.

Canada’s campaign finance law only makes it nearly impossible for people who are not supported by many people to raise the resources needed to run for office.

Which is exactly how it should be in any country that calls itself a democracy.

I say nearly impossible because Canada’s campaign finance law still has a huge loophole in it that federal politicians have continued to fail to close for the past three years—a loophole that allows for unlimited loans to candidates and allows candidates to have the resources to run a successful leadership campaign with the support of only a couple of people.

No one knows for sure how much funding is needed to have a chance of success running for the leadership of a national party, especially today with the internet as a very, very low-cost way of reaching many people (and robocalls as another very low cost way). But let’s assume $1-million is needed (which I think is a reasonable estimate).

Only donations from individuals are allowed, and the federal donation limit is $1,200 to all the candidates in any federal party’s leadership race. Some people may choose to donate to two candidates, so they would only be allowed to donate $600 to each candidate (or some other combination of donations that adds up to $1,200). It is key to remember that donors get about 50 per cent of their donation back as a tax credit.

Assuming $1-million is needed for a campaign that has a chance of success, a candidate who hopes to be successful has to convince only 833 people out of the 26.4 million Canadians who are older than 19 (i.e. 0.0032 per cent of all those people) to give the maximum $1,200 to him/her, or 1,666 people (0.0064 per cent) to give $600 each (or 3,312 people (0.013 per cent) to give $300 each etc.).

So here’s a simple question for anyone thinking of running for leadership of the Liberals or any other national party to ask themselves. Do I have the strong support of at least 0.0032 per cent to 0.013 per cent of adult Canadians, strong enough for them to donate to me?

If not, better think hard about whether you should run (because you likely won’t, and should not, win), and if you do run better severely restrict your spending so you don’t end up in with a debt you can’t pay off.

Several candidates from the 2006 Liberal leadership race have such debts because they simply failed to ask themselves this question.

While the donation limit was decreased during that race, they still should have known that they were spending way more than they would ever be able to raise. And, as a result, Elections Canada should, and hopefully will, soon prosecute them for failing to pay off their debts in the past six years.

And also hopefully the federal political finance system will be made even more democratic very soon by prohibiting loans to candidates from anyone but individuals, limiting loans to the same level of donations, and closing the loopholes that currently allow for secret, unlimited donations to nomination race and party leadership candidates who are not MPs.

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For more details, go to Democracy Watch’s Money in Politics Campaign