GG is a key guardian of Canada’s democracy – must be fully independent and impartial, not handpicked in secret by PM

All federal parties should also agree on key rules of Parliament before next election to prevent abuse of power by PM

FOR IMMEDIATE RELEASE:
Friday, January 22, 2021

OTTAWA – Today, as part of its Democratic Head Campaign which is supported by thousands of Canadians, Democracy Watch called on Prime Minister Trudeau to democratize and Canadianize the choice of the next Governor General. Like all the other Officers of Parliament, the Governor General (GG) must be independent of the Prime Minister because s/he makes many key decisions about the operations of Parliament and the government, and so the Prime Minister should not be choosing the GG alone as that taints the position with partisanship.

To democratize the selection of the Governor General, Democracy Watch’s campaign proposes that an independent committee (whose members are approved by all federal party leaders in the House of Commons) conduct a public, merit-based search for a shortlist of three nominees for GG, and then at least all federal party leaders should approve the choice of GG. Even better, given that the GG appoints the Lieutenant Governors of each province, Prime Minister Trudeau should send the shortlist of nominees to the party leaders of each legislature and have them rank the nominees. The GG would be the person who receives the most votes from this ranked ballot vote.

To Canadianize the selection of the Governor General, Democracy Watch proposes that the Prime Minister should not request that Queen Elizabeth approve of the person chosen through the process. The Queen does have to approve the person formally, but if the Prime Minister does not request the approval, and the Queen agrees to whomever is nominated, then a new constitutional convention will be established that Canada chooses its own Head of State. This will be a small but significant step toward full independence for Canada.

Both of these changes to the Governor General’s appointment process can be made by the Prime Minister alone – no changes to any law, or Canada’s Constitution, are needed.

“Prime Minister Harper appointed his own advisory committee for choosing the Governor General but it was a charade as he could ignore the committee’s nominees and he controlled the final choice. Given how important it is for the Governor General to be independent of the Prime Minister and impartial, especially in a minority government situation, Prime Minister Trudeau must involve opposition parties in choosing the Governor General, and it would be even better to involve party leaders from across Canada given that the Governor General appoints the Lieutenant Governors in each province,” said Duff Conacher, Co-founder of Democracy Watch and Ph.D. student at the University of Ottawa’s Faculty of Law.

“Prime Minister Trudeau should also tell the Queen who Canada has chosen as Governor General, and not ask her approval, and if she accepts that as the new protocol it will become clear that Canada chooses its own head of state,” said Conacher.

As well, Democracy Watch called on federal party leaders in the House of Commons to agree on public, written rules for a minority government, as more than 80% of Canadians want and as Britain’s Parliament did 10 years ago with its 110-page Cabinet manual. Agreeing on and writing down the rules now (and making them law as soon as possible) will help ensure the legislature runs fairly and democratically through to the next election.

The current rules in Canada are unclear because they are unwritten constitutional conventions – even constitutional scholars disagree what lines they draw (and, as a result, a large majority of scholars agree they should be written down). The former Governor General also said in an August 2016 interview with the Hill Times that he thought these unwritten constitutional conventions should be written down.

The rules should, at the very least, make clear: what a vote of non-confidence is; when and how the next election can be called before the fixed election date; which party will get to try governing first after the next election; when the legislature will open; when it can be closed, and when and how the opposition parties may get a chance to govern (See Backgrounder for the seven key rules).

Ideally, the rules should also cover the following key areas: what can be included in omnibus bills; the freedom and powers of individual politicians to vote how they want on resolutions and bills; how members can be removed from and reinstated in political party caucuses through democratic votes of caucus members; how members of legislature committees are chosen by caucuses not by party leaders, and; what a Cabinet can do during an election campaign period until the next Cabinet is chosen.

In England, Australia and New Zealand, political party leaders and MPs agreed years ago to clear, public rules so what happens before, after and in-between elections is fair for all the parties, and for voters. Most countries in the world also have clear, public rules. Britain’s politicians and public also all know that the only way an election can occur before the next fixed election date under Britain’s Fixed-term Parliaments Act 2011 is if at least two-thirds of MPs vote in favour of a motion to call an early election or if a resolution is passed that states the legislature has no confidence in the government and that resolution is not reversed within 14 days.

“Queen Elizabeth, Britain’s politicians and public know the rules for UK minority governments because its rules are written but Canadian politicians and public don’t because our rules are unwritten,” said Duff Conacher, Co-founder of Democracy Watch. “If federal party leaders don’t agree to key written rules before the next election, constitutional crises could happen with politicians, lawyers and academics having ridiculous arguments about what our unwritten rules are, and the unelected, unaccountable Governor General forced to make decisions based on conflicting opinions about unwritten rules. Meanwhile, in Britain, Australia and New Zealand everyone is following clear written rules.”

“Nobody knows for sure what an unwritten rule says, and that’s why Britain, Australia, New Zealand and most other countries have written down their key constitutional rules,” said Conacher. “It’s clearly in the public interest that Canada’s rules be written down to stop unfair abuses of power by the PM and Cabinet that will violate the rights of the legislature and the democratic will of the majority of voters right through the next election.”

The Governor General has almost never stopped a Prime Minister from doing whatever they want, and have allowed premiers to abuse their powers by not opening the legislature after an election, shutting it down arbitrarily for months, and calling snap elections in violation of fixed-election-date laws. The Governor General allowed Prime Minister Harper to call a snap election in 2008 in violation of the (too vague) fixed-election-date law, to prorogue Parliament in a very questionable minority government situation, and to declare many votes in Parliament as confidence votes even though they were clearly not confidence votes.

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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 Head Campaign and Stop PM/Premier Abuses Campaign

Is Ford giving them gifts as they cash in on their so-called “public service”? Even a Ford PC Party MPP is concerned

Huge loopholes in law also need to be closed to stop secret, unethical lobbying

FOR IMMEDIATE RELEASE:
Tuesday, December 17, 2020

OTTAWA – Today, Democracy Watch released its report on the dozens of people who have become provincial lobbyists soon after they campaigned, fundraised or worked for Doug Ford and/or Ontario’s PC Party in the 2018 leadership race and election, and/or worked for Ford or one or more of his Cabinet ministers. Many of them are still advising Ford and/or in senior PC Party positions while they continue to lobby Ford’s Cabinet on long-term care, property development, COVID-19 relief, mining, and other big issues.

Even one of Ford’s MPPs is expressing concern, as Thornhill MPP Gila Martow issued a statement via Twitter and a docs webpage on Friday that said in part:

“Big box retailers should not be permitted to enrich themselves on the backs of small businesses simply because they can afford to hire well-connected lobbyists like Melissa Lantsman to get them preferential treatment.” (link in original)

Very unfortunately, Ontario’s Integrity Commissioner J. David Wake has let Melissa Lantsman and many other Ford/PC Party-connected lobbyists violate Ontario’s Lobbyists Registration Act (LR Act). Commissioner Wake finally confirmed publicly that he has been allowing Ford-connected lobbyists to do this in the negligently bad Interpretation Bulletin he issued in June 2020 interpreting the rule added to the LR Act on July 1, 2016 (section 3.4).

The rule prohibits lobbying any politician or other public office holder if it will create a real or potential conflict of interest or make it improper for them to further the interests of the lobbyist or their clients. But Commissioner Wake believes it’s fine to start lobbying one year after campaigning, fundraising, gifting or working with politicians or parties.

Among the dozens of lobbyists Commissioner Wake has let lobby unethically are: Chris Froggatt of Loyalist Public Affairs; Kory Teneycke of Rubicon Strategy; Michael Diamond of Upstream Strategy Group; Alex Simakov of Sussex Strategy Group; Brayden Akers of Navigator Ltd.; Andrew Brander of Crestview Strategies; Carly Luis of StrategyCorp (until she re-joined as Ford Cabinet staff in September 2020); Melanie Paradis of McMillan Vantage (until she started working for Erin O’Toole in Sept. 2020) – and many others at their lobbying firms – and (as noted above) Melissa Lantsman of Enterprise Canada. Click here to see the full list.

All other commissioners in Canada have ruled that the conflict of interest created by assisting a politician lasts for several years. For example, the federal Commissioner of Lobbying’s ruling says the conflict lasts four years. The federal lobbying law also prohibits Cabinet staff from lobbying for five years after leaving their position (s. 10.11 – though it has loopholes). (Click here to see Backgrounder on Conflict of Interest Rule).

“Dozens of people who have helped or worked for Doug Ford or his Cabinet ministers or the PC Party have set themselves up in lobbying firms and, even though many of them have never lobbied before, big businesses are hiring them because they know it will get them inside access to Ford and his ministers,” Duff Conacher, co-founder of Democracy Watch. “With negligently bad decisions, Ontario’s so-called Integrity Commissioner is showing zero integrity by letting these lobbyists corrupt Ontario government policy-making as they cash in on their so-called public service.”

As a result of his negligently bad enforcement attitude, since July 2016 Commissioner Wake has also let off 85% of lobbyists he has found violating the LR Act, and issued 763 secret decisions that have let off an unknown number of other lobbyists who may have fundraised or campaigned or give significant gifts to politicians and then lobbied them only one year later, or violated the law in other ways. Click here to see details.

Commissioner Wake’s weak enforcement record shows he is a lapdog who should not have been appointed to a second term. Opposition MPs should have forced a committee vote on this (ss. 23(2)) but they all approved it on December 1st.

As well, huge loopholes in the LR Act allow countless other lobbyists to lobby in secret and unethically. None of the following lobbying activities are required to be disclosed: unpaid lobbying, business lobbying or non-profit organization lobbying of less than 50 hours a year, lobbying about the enforcement of a law, or in response to a request for feedback from a Minister, official or MPP. As a result, anyone lobbying in these ways is also allowed to give gifts to and campaign, fundraise and do favours for Ministers, MPPs, political staff and government officials they are lobbying.

“Until huge loopholes are closed in the lobbying law, public officials are banned from lobbying for years after they leave their position, and the Integrity Commissioner strengthens enforcement, secret, unethical lobbying will continue to corrupt Ontario government policy-making,” said Conacher.

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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

763 rulings remain secret — negligently weak enforcement means MPPs made a big mistake re-appointing Commissioner Wake for a second 5-year term

Huge loopholes in law also need to be closed to stop secret, unethical lobbying

FOR IMMEDIATE RELEASE:
Tuesday, December 8, 2020

OTTAWA – Today, Democracy Watch released its report on the rulings on lobbyists published in Ontario Integrity Commissioner J. David Wake’s 2018-2109 and 2019-2020 Annual Reports. From April 2018 to March 2020, Integrity Commissioner Wake let off 23 out of 27 (85%) of the lobbyists he found violating Ontario’s Lobbyists Registration Act (LR Act) in serious ways, including failing to register their lobbying for a year or more. He only penalized four of the lobbyists who violated the LR Act, and only by publicizing their names.

As well, Commissioner Wake only fully investigated and issued public rulings on 63 of the 634 allegations of lobbying violations he reviewed (only 10%), and he issued 192 secret Advisory Opinions to lobbyists. Given his weak public enforcement record, he likely let off dozens more lobbyists in the 763 secret rulings and opinions he issued.

Commissioner Wake’s weak enforcement record shows he is a lapdog who should not have been appointed to a second term. Opposition MPs should have forced a committee vote on this (ss. 23(2)) but they all approved it on December 1st.

When the Integrity Commissioner lets a lobbyist off for a violation of the law, the lobbyist’s identity is kept secret, as are the details of their lobbying. The Commissioner can penalize a lobbyist for a violation of the LR Act by naming them publicly and/or banning them from lobbying for up to two years (section 17.9).

As well, from April 2018 to March 2020 the Commissioner let off at least 13 lobbyists, and likely dozens more, for secret or unethical lobbying because of huge loopholes in the LR Act. None of the following communications are required to be disclosed as lobbying: Unpaid lobbying, business lobbying or non-profit organization lobbying of less than 50 hours a year, lobbying about the enforcement of a law, or in response to a request for feedback from a Minister, official or MPP.

Among the dozens of lobbyists Commissioner Wake has let off are people who worked in senior roles on Doug Ford’s or the Ontario PC Party’s election campaign and/or for Ford’s ministers and, one year later, started lobbying Ford’s Cabinet. These lobbyists include Chris Froggatt of Loyalist Public Affairs, Kory Teneycke of Rubicon Strategy and Michael Diamond of Upstream Strategy Group (and several others at their lobbying firms), Melissa Lantsman of Enterprise Canada and Melanie Paradis (until she stopped in Sept. 2020). See details in subsection B(ii) of Backgrounder on rulings.

Click here to see Backgrounder on Integrity Commissioner’s Rulings 2018-2020.

Commissioner Wake let these and many other lobbyists off based on a negligently bad Interpretation Bulletin he issued in June 2020 saying that when a lobbyist assists a politician with fundraising or campaigning or gives them a gift, the conflict of interest created by the assistance or gift magically disappears after one year, so the lobbyist can lobby the politician and their staff after that year.

A rule was added July 1, 2016 to the LR Act (section 3.4) that prohibits lobbying any politician or other public office holder if it will create a real or potential conflict of interest or make it improper for them to further the interests of the lobbyist or their clients. But Commissioner Wake negligently took until June 2020 to issue his Bulletin about the new rule (Click here to see Backgrounder on Conflict of Interest Rule).

As a result of this negligently bad Interpretation Bulletin, from 2018-2020 Commissioner Wake has let off an unknown number of other lobbyists for unethically illegal lobbying. Since April 2018, Commissioner Wake has issued 192 secret Advisory Opinions, closed 135 secret compliance reviews at the initial stage, and resolved 436 cases informally in secret. Likely dozens of those 763 secret decisions by Commissioner Wake allowed lobbyists to fundraise or campaign or give significant gifts to politicians and then lobby them only one year later, or to violate the law in other ways.

Commissioner Wake’s Bulletin is ridiculous. Doug Ford and all his Cabinet ministers and their staff, and all Progressive Conservative MPPs, owe all of the people who helped them win power (or have fundraised for them) at least until the next election, and arguably for the rest of their political careers. No other commissioner in Canada has set such a short “cooling-off” time period for lobbyists – all have said the conflict of interest created by assisting a politician lasts for several years. See, for example, the federal Commissioner of Lobbying’s ruling that the conflict of interest lasts at least four years.

“Doug Ford’s former campaigners who set themselves up in lobbying firms after he won the 2018 election are all violating Ontario’s lobbying law that prohibits lobbying politicians you have assisted with fundraising or campaigning, but unfortunately the Integrity Commissioner has issued negligently bad rulings protecting them and failing to stop their unethical lobbying,” Duff Conacher, co-founder of Democracy Watch.

Commissioner Wake’s ethics rulings on Ministers, MPPs and other government officials are just as bad. He let Premier Ford off even though he attended the final Cabinet meeting approving the appointment of his old friend Ron Taverner as OPP Commissioner, and let his staff try to rig the process in favour of Taverner (and he also let Ford’s staff off). He also let Premier Ford off even though he offered Taverner an executive job at the Ontario Cannabis Store. He also let a top government official off who was fundraising for a political party (See p.29), and let several public servants off even though they used government resources for self-benefit (See p.40), and another public servant off even though they were involved in hiring a family member (See p.42).

“Integrity Commissioner Wake’s negligently bad enforcement record shows he is a lapdog who should not have been re-appointed for another term, as he has let dozens of lobbyists get away with secret, unethical lobbying, and let the Premier and his staff and top government officials get away with clear violations of the province’s government ethics laws,” said Conacher. “By re-appointing Commissioner Wake, Ontario’s political parties have confirmed that they are in favour of secretive and unethically bad government decision-making and don’t care about protecting the public interest or ensuring democratic good government.”

Integrity Commissioner Wake has also taken the negligent position (in response to a letter sent by DWatch in January 2020) that he will only issue public summaries of his rulings in his annual report which is made public in June of each year, and covers the fiscal-year period which runs from April 1 to March 31 of the previous year.

This means if Commissioner Wake completes an investigation of a lobbyist after April 1st any year, he will not issue any information or a public ruling on that investigation until his annual report in June of the following year (14 months later), unless he decides to penalize the lobbyist (which he rarely decides to do).

Commissioner Wake also claimed in his 2018-2019 Annual Report (p. 47) that the advisory opinions he gives lobbyists under section 15 of the LR Act are confidential, but there is nothing in that section or anywhere in the LR Act that requires them to be kept secret. They are rulings, and the public has a right to know how the Commissioner has ruled every time. The Commissioner should at least issue a summary of every ruling.

“There is nothing in the lobbying law that prohibits Integrity Commissioner Wake from issuing a public ruling on a lobbyist’s alleged violations of the law after he completes his investigation and the lobbyist has been given an opportunity to respond, and it is absurdly negligent for him to claim that the law allows him to wait a year or more to issue a public ruling, and to keep almost all his rulings secret,” said Conacher.

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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

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.

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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 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.

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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

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.

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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