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Federal Liberals should suspend Ethics Commissioner, Lobbying Commissioner and other judicial and watchdog appointments until they make the appointment process independent and merit-based, and prohibit reappointments of any watchdog

Ontario and United Kingdom judicial appointment processes are world-leading models, and Liberals could easily make changes to match them by the end of June

Liberals haven’t changed appointment process at all — Cabinet ministers still choose all advisory committee members, and choose all appointees from long lists

Trudeau’s recusal now from choosing next Ethics Commissioner too little, too late – is a charade as he has likely already approved short list of candidates

Wednesday, May 17, 2017

OTTAWA – Today, Democracy Watch called on the federal Liberals to suspend the appointment of the next Conflict of Interest and Ethics Commissioner, Commissioner of Lobbying, Information Commissioner and RCMP Commissioner, and all other judicial and watchdog appointments, until they make the appointment process actually independent and merit-based.

Democracy Watch filed complaints with the Ethics Commissioner in mid-December and at the end of January asking for a ruling that it is violation of the Conflict of Interest Act for the Trudeau Cabinet to appoint or reappoint those and other watchdogs, especially when the watchdogs are investigating the Prime Minister (as the Ethics Commissioner was in December and is now, and as the Lobbying Commissioner is now). The Ethics Commissioner essentially refused to rule on the complaints in a ruling she finally sent to Democracy Watch at the end of March.

Democracy Watch also filed a complaint at the end of April about former Conservative Minister of Justice Peter MacKay appointing some of his friends as judges, including his former Cabinet colleague Vic Toews (Toews was finally found guilty in April by the Ethics Commissioner of violating the federal ethics law (two years after the complaint was filed).

Democracy Watch’s Stop Bad Government Appointments Campaign proposes that the way to ensure the appointment of fully independent, merit-based judges and watchdogs is to have a fully independent commission whose members are approved by all federal party leaders (along with entities such as the Canadian Judicial Council) do a public, non-partisan merit-based search for candidates, and to require the Trudeau Cabinet to choose from a short-list of 1-3 candidates that the commission nominates.

Ontario uses this kind of independent appointment system to appoint provincial judges (the advisory committee provides a shortlist of three candidates to the Cabinet). The United Kingdom uses it to appoint judges and judicial tribunal members (like the Ethics Commissioner and Lobbying Commissioner are) – its advisory committee provides only one candidate to the Cabinet, and the Cabinet has to accept the candidate or reject the candidate and provide written reasons. Both of their systems are considered to be world leading.

The Liberals haven’t changed the appointment process at all from what the Conservatives used for 10 years (after they broke their 2006 election promise to establish an independent Public Appointments Commission). Liberal Cabinet ministers still choose all advisory committee members, and are given long lists of candidates for all appointments (which allows them to choose essentially whomever they want) – even for the appointment of federal and provincial superior court judges.

The Liberals claim there is a “new” general Cabinet appointments process – but it is essentially the same process the Conservatives used to appoint whomever they wanted (the only change is that “diversity” is now a goal). In the answers in the “Frequently Asked Questions” document describing the Liberals’ Cabinet appointment process (which was just updated on April 28th), it is clear that Cabinet ministers control everything about all appointment processes. The answer to one of the questions says that even if an appointment advisory committee is used for any appointment process, the members of the committee “will be chosen by a Cabinet minister — and any committee is only advisory — the minister’s power to appoint whomever they want is not restricted in any way.” That is a recipe for patronage and crony appointments, and the appointment of lapdogs.

Democracy Watch also called on the Liberals, and all governments, to change the law to ensure all Cabinet appointees who watch over the government or oversee key democracy laws and processes (especially every Officer of Parliament) be only allowed to serve one term.

The new appointment process, and prohibition on being reappointed, should apply to the judicial advisory committees and appointments of all 1,123 federal and provincial superior court judicial appointments listed here, and to the new public appointments commission that must be established to ensure a merit-based selection process for a short list of candidates for appointment to the 32 federal administrative tribunals and 108 agencies/boards listed here.

“The Trudeau Liberals’ Cabinet appointment system is essentially the same as the Harper Conservatives used, and it allows Cabinet ministers to choose their own Liberal party cronies as judges and lapdogs as supposed watchdogs,” said Duff Conacher, Co-founder of Democracy Watch. “To stop this dangerously undemocratic and unethical appointment process for judges and watchdogs, as in the UK and Ontario a fully independent public appointment commission must be created to conduct public, merit-based searches for nominees and send a short list to Cabinet, with Cabinet required to choose from the list.”

“Like judges, all government and law-enforcement watchdogs must only serve one term, with no possibility that the government can reappoint them, to ensure watchdogs don’t try to please the government in order to keep their job,” said Conacher. “To safeguard our democracy the ruling party must not be allowed to reappoint any government and law-enforcement watchdogs.”

The past 9 years cannot be repeated if Canada wants to claim it is a democracy, as the federal Ethics Commissioner Mary Dawson’s very weak enforcement record and Commissioner of Lobbying Karen Shepherd’s very weak enforcement record have done as much to undermine democracy in Canada as the dishonest, unethical and secretive actions of various politicians (See Part 1 of the Backgrounder below for details).

Democracy Watch and the nation-wide Government Ethics Coalition continue to call for key changes to strengthen federal political ethics rules and the enforcement system (See Part 2 of the Backgrounder below for details).

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

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


1. Federal Ethics Commissioner Mary Dawson’s weak enforcement record

Federal Ethics Commissioner Mary Dawson has had a very weak enforcement record since 2007, including (as of June 2015) making 149 secret rulings, issuing only 25 public rulings, and letting 75 (94%) of people who clearly violated ethics rules off the hook.

Ethics Commissioner Dawson has greatly undermined various sections of the Conflict of Interest Act (COIA) in past rulings by creating loopholes in the COIA that do not exist – such as:

  1. her April 29, 2010 “Cheques Report” ruling claiming that political parties are not “persons” under the COIA and therefore it was fine for Conservative MPs and Cabinet ministers to hand out government cheques with the Conservative Party logo on them;
  2. her May 13, 2010 “Raitt Report” ruling that it was fine for two lobbyists who were lobbying Minister Lisa Raitt to help raise thousands of dollars for her riding association because, you claimed, that only helped the association not her;
  3. her December 2016 ruling that it was fine for Health Minister Jane Philpott to use the driving service company of one of her former campaign volunteers because it was the only such company Minister Philpott claimed she knew about (a ruling that creates a loophole allowing any Minister or other senior government officlal to use the same invalid excuse Minister Philpott used to give contracts to their friends or other party loyalists);
  4. her baseless decision that the COIA only applies to financial interests despite the fact that the COIA’s section 2 definition of “private interest” does not in any way even suggest that the definition of “private interest” is restricted to only financial interests, and;
  5. her baseless decision that the COIA only applies to close personal friends (there is no such definition of “friends” in the COIA).

Because of section 66 added to the then-new Conflict of Interest 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. If this section had not been added to the Act, Democracy Watch would have challenged several of Commissioner Dawson’s rulings since 2007 in court.

Democracy Watch is currently challenging Ethics Commissioner Dawson’s use of conflict-of-interest screens in court on the basis that the screens are unlawful.

2. Federal ethics law and codes missing key rules and accountability measures

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. Prime Minister Harper instead put those rules in his Accountable Government code for ministers and other senior officials so he could ignore the rules (as he did until the Conservatives were defeated in the 2015 election – see especially rules in Annex A, Part 1 of the code).

The Liberals made no promises in their 2015 election platform to close the huge loopholes in the Conflict of Interest Act (and they also made no promises to close the huge loopholes in the Lobbying Act or the Public Servants Disclosure Protection Act). Instead, Prime Minister Trudeau re-named and re-issued the Accountability Government code as his Open and Accountable Government code. He has ignored the rules in his code just like Prime Minister Harper did.