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Former Ethics Commissioner Shapiro recommended disclosure of all recusals because screens cover up conflicts of interest

Conservatives changed law to require disclosure – Ethics Commissioner ignored the law and set up ethics “smokescreens” for many ministers and others

Democracy Watch is challenging Ethics Commissioner’s illegal screens in the Federal Court of Appeal – has one other court case underway and another planned

Wednesday, November 1, 2017

OTTAWA – Today, Democracy Watch revealed that the first federal Ethics Commissioner, Bernard Shapiro, recommended in 2005 and 2006 that public disclosure be required of the details every time a Cabinet minister or other government official recuses themselves from a discussion or decision when they have a conflict of interest. With the 2006 Federal Accountability Act, the Conservatives changed the federal ethics law to require public disclosure.

The Ethics Commissioner has ignored the law and instead set up what she calls conflict of interest “screens.” The screens are actually “smokescreens” that hide whether a minister or official is actually recusing from decisions when they have a conflict, as the Ethics Commissioner claims they don’t have to make any public declarations.

There is nothing in the federal ethics law, the Conflict of Interest Act, that allows the Ethics Commissioner to use the screens. Subsection 25(1) of the Act requires a public declaration detailing every recusal.

Democracy Watch has submitted this information to the Federal Court of Appeal as part of its court case challenging the Ethics Commissioner’s illegal ethics screens. Ministers Morneau, LeBlanc, Wilson-Raybould and 21 other top government officials currently have screen schemes set up by Ethics Commissioner Mary Dawson.

“The federal Ethics Commissioner is violating the federal ethics law by allowing Cabinet ministers and others to use smokescreens to hide whether they are taking part in decisions when they have a conflict of interest,” said Duff Conacher, Co-founder of Democracy Watch. “The Ethics Commissioner screen schemes ignore that the law was changed in 2006 to require public disclosure every time a minister or government official doesn’t participate in a discussion or decision because of a conflict of interest, as recommended the previous ethics commissioner in 2005 and 2006.”

Democracy Watch will also soon file a new court case against federal Ethics Commissioner Mary Dawson because she has failed to recuse herself from investigating complaints about Finance Minister Bill Morneau, and because she made a legally incorrect decision to allow Morneau and other ministers to keep owning investments while they are in Cabinet.

Last July, Democracy Watch also filed a court case challenging the Ethics Commissioner for being in a conflict of interest because the Trudeau Cabinet’s re-appointed her last June to her third six-month interim term — so she is essentially currently serving at the pleasure of the Trudeau Cabinet.

More than 10,000 Canadians have signed a petition supporting Democracy Watch call for federal parties to work together to change the appointment process for the Ethics Commissioner, and all officers of Parliament and judicial and watchdog positions, to make it actually merit-based and independent from Cabinet, and to prohibit reappointments.

Ethics Commissioner Shapiro was the Officer of Parliament from May 2004 to April 2007 who enforced the predecessor to the Act which was entitled the Conflict of Interest and Post-Employment Code for Public Office Holders (the “Code”). Shapiro used conflict of interest screens but only because the Recusals section in the Schedule of the Code did not require detailed public declarations of each recusal by an office holder (in fact, the Code required the Ethics Commissioner to maintain a confidential record of recusals).

In the “Recusal” section of his annual report for fiscal year 2004-2005, Ethics Commissioner Shapiro recommended requiring public disclosure of the details of each recusal.

In the “Recusal” section and in Recommendation 2 of his Issues and Challenges 2005 special report, Commissioner Shapiro repeated this recommendation that public disclosure of the details of each recusal be required because “Full disclosure of the details of instances of recusal involving all public office holders would further enhance the public’s confidence in this regard.”

In addition, in the “Recusals” section of his annual reports for 2004-2005 and 2005-2006, Commissioner Shapiro’s discloses some details of the specific situations which then-Prime Minister Martin, and some other public office holders, had been required to recuse themselves.

Commissioner Shapiro’s annual report for the 2005-2006 also mentions under the “Challenges Ahead” part, under section “A. Impact of Bill C-2” that one of the challenges if the 2006 Federal Accountability Act was enacted would be that the bill included, among other changes to federal laws and regulations, the new Conflict of Interest Act (which incorporated in subsection 25(1) Commissioner Shapiro’s recommendation that details be disclosed concerning every recusal by any public office holder). The enactment of the Act, therefore, would require the Commissioner’s office would have to maintain “an expanded public registry to include recusal information that would not otherwise breach Cabinet confidences or harm national security.”

Finally, in the “Recusals” section of Ethics Commissioner Shapiro’s annual report for 2006-2007, he makes it clear that in every case that public office holders recuse themselves from a decision-making process as required under the Act, they must “sign a Public Declaration of Recusal” as required by the Act.

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

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