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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 also all the evidence linked in Democracy Watch’s December 2020 affidavit, and most provinces have the same problems with their appointment system), as follows:
- 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.
- 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.
- 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.
- 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, with the minister required to choose from that short list, as in Quebec and the UK (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).
- Before making the final choice, the Minister shares each list of candidates with Cabinet ministers and MPs, and also party officials, from the province or territory. Ideally, the Minister should be prohibited from sharing the list with anyone.
Backgrounder on 4 Errors Made by federal Ethics Commissioner Mario Dion in his ruling on Prime Minister Justin Trudeau’s participation in approving the WE Charity grant in spring 2020
(November 10, 2021)
Ethics Commissioner Mario Dion’s May 2021 ruling on Prime Minister Trudeau’s participation in the WE Charity grant approval process made four key errors in letting Trudeau off even though Trudeau clearly violated the federal government ethics law.
The Ethics Commissioner concluded that, because PM Trudeau’s spouse volunteers as an ambassador and champion for WE Charity, including hosting a podcast for it, and his mother and brother have been paid large sums to give speeches for the charity, and the PM has also appeared at several WE events, there was “a strong appearance of conflict between the Trudeau family’s relationship with WE and Mr. Trudeau’s duty to make decisions that best serve the public interest.” (paragraphs 248-250).
Trudeau has said he should have recused himself, and Ethics Commissioner Dion says at the end of his ruling that “it is always advisable to recuse oneself and inform the Commissioner promptly when facing an apparent conflict of interest” (paragraph 269). Why? Because it is clearly improper to take part in a decision when in an apparent conflict.
- Failure to rule that Trudeau had a real conflict of interest
However, the Ethics Commissioner’s ruling first claims, wrongly, that Trudeau was not in a real or potential conflict of interest. Democracy Watch’s position is that, because of the extensive, direct and ongoing family ties between the Trudeau family and WE, especially the fact that his spouse is a WE ambassador and podcaster, the PM was clearly in a potential conflict of interest when WE Charity began engaging with the government about the grant, and then in a real conflict of interest as soon as WE Charity engaged with Cabinet and the PMO.
In the Trudeau II Report about the SNC-Lavalin scandal involving the Prime Minister and other top government officials, Commissioner Dion defined “private interests” as including “financial, social or political interests (paragraphs 288 to 292). In his ruling on the WE Charity grant, he concluded that the grant definitely benefited WE’s private interests but ignored the fact that the grant would very likely, by helping WE financially and deepening the relationship between WE and the PM’s government and family, also benefit the social interests of his WE-ambassador spouse and his family members who spoke at WE events, and the PM’s political interests as WE would have continued to promote the PM as it has for more than a decade (paragraphs 233-238 and 243-244).
- Failure to rule that Conflict of Interest Act covers apparent conflicts of interest
Secondly, the Ethics Commissioner’s ruling claims, wrongly, that being in an appearance of a conflict of interest is not a violation of the federal Conflict of Interest Act (CofI Act), and that only being in a real or potential conflict of interest is (paragraphs 252-268).
This part of the ruling is wrong because the purpose of the CofI Act is to prevent all “conflicts of interest” whether real, apparent or potential (subsections 3(b) and (c)), and the Act prohibits federal politicians and government officials from participating in specific decisions like handing out grants and contracts when they are “in a conflict of interest” (sections 4 and 6) which includes any type of conflict of interest, real, apparent or potential (as the Federal Court of Appeal ruled unanimously in 2009 (para. 49)).
- Failure to rule that Trudeau and Keilburger borthers, who head up WE Charity, are friends
Thirdly, the CofI Act prohibits politicians furthering not only their own interests but also “those of his or her relatives or friends or to improperly further another person’s private interests” (sections 4 and 6). As mentioned above, the WE Charity grant could benefit Trudeau and his relatives’ interests. In addition, the Ethics Commissioner ignored evidence that Trudeau and his spouse are friends of the Kielburger brothers who head up WE. Craig Keilburger described Trudeau as a friend in a November 2015 interview with the Ottawa Citizen. At the same time at the WE event where he gave his first speech as Prime Minister, Trudeau describe both Craig and his brother Marc as friends. Given this, and that the ties between the families have only increased since then, again including that Trudeau’s spouse is a WE Ambassador, the Ethics Commissioner was wrong to conclude that that they are not friends (paragraphs 239 to 241 of his ruling).
- Failure to find that Trudeau acted improperly, which is a violation of the Act
Fourthly, Commissioner Dion’s ruling ignores the real meaning of the second part of section 4 of the CofI Act that prohibits taking part in a decision if it offers an opportunity to “improperly further” another person’s or entity’s interests. That is a very broad prohibition, as the Commissioner himself concluded in the Trudeau II Report on the SNC-Lavalin scandal (paragraphs 286 and 296-301). According to the Commissioner, “improper” includes a violation of any of the PM’s Code rules, and that Code’s Annex B rule prohibits the PM and ministers from being in an appearance of conflict of interest.
Again Trudeau has said he should have recused himself, and Ethics Commissioner Dion says at the end of his ruling that “it is always advisable to recuse oneself and inform the Commissioner promptly when facing an apparent conflict of interest” (paragraph 269). Why? Because it is clearly improper to take part in a decision when in an apparent conflict.
List of Senators Who Hold or Have Recently Held Business/Organization Board Positions and/or Employee Positions and/or Who Have Stock Market Investments(according to the senators’ most recent disclosures in the Senate’s Public Registry)
NOTE 1: In Democracy Watch’s opinion, the most serious conflicts with a senator’s work duties and duty to uphold the public interest are caused by working for, or being on the board of, a private company (especially investment firms) or organization that is federally regulated or affected by federal spending, taxes, subsidies or other programs and/or having stock market investments or mutual fund investments in companies that are federally regulated. Working for, or being on the board of, a company or organization that is provincially regulated can also cause conflicts, as can having stock market or mutual fund investments in companies that are provincially regulated.
NOTE 2: Senators are required to disclose publicly whether they have stock market investments (i.e. investments in “publicly traded securities”) or mutual fund investments, but are not required to disclose which companies they are invested in. In contrast, U.S. senators are required to disclose details of their stock market and mutual fund investments, and changes to those investments, worth more than $1,000.
NOTE 3: Eight senators appointed in June and July 2021 have not yet made their first disclosure of their business/organization work and board positions, investments, assets and liabilities. These senators are as follows: David M. Arnot, Michèle Audette, Bernadette Clement, Amina Gerba, Clément Gignac, Jim Quinn, Karen Sorenson and Hassan Yussuff.
Denise Batters – has stock market investments
Douglas Black – works for Dentons Canada LLP, works for Clearspring Capital Partners, and has stock market investments
Patricia Bovey – has a consultancy, has stock market investments
Larry Campbell – was board member of Great Canadian Gaming Corporation (up to June 1, 2021)
Claude Carignan – practises law; has stock market investments
Daniel Christmas – has stock market investments
Jane Cordy – has stock market investments
Brent Cotter – has consultancy
Mary Coyle – has stock market investments
Pierre J. Dalphond – practises law, has stock market investments
Donna Dasko – has stock market investments
Dennis Dawson – has stock market investments
Colin Deacon – has stock market investments
Marty Deacon – on several organization boards, has stock market investments
Tony Dean – has stock market investments
Pat Duncan – has mutual fund investments
Renée Dupuis – has mutual fund investments
Éric Forest – has stock market investments
Josée Forest-Niesing – has stock market investments
Brian Francis – has stock market investments
George Furey – has stock market investments
Raymonde Gagné – has stock market investments
Rosa Galvez – has mutual fund investments
Marc Gold – on several organization boards, has stock market investments
Stephen Greene – has mutual fund investments
Diane Griffin – on a few organization boards, has stock market investments
Peter Harder – on board of Magna International Inc., has stock market investments
Nancy Hartling – has mutual fund investments
Leo Housakos – has stock market investments
Mobina Jaffer – partner in a law firm, on board and owns shares in three property corporations and a poultry farm
Marty Klyne – on board of FHQ Developments, has stock market investments
Stan Kutcher – has stock market investments
Patti LaBoucane-Benson – consultant, board member of House of Anansi Press, has mutual fund investments
Frances Lankin – has mutual fund investments
Tony Loffreda – has stock market investments
Michael L. MacDonald – has mutual fund investments
Elizabeth Marshall – has stock market investments
Yonah Martin – board member of several organizations
Sarabjit Marwah – on board of Cineplex Inc. and George Weston Ltd., and has stock market investments
Paul Massicotte – board member of several private investment firms, has several private investments
Marilou McPhedran – board member of one organization, has mutual fund investments
Marie Françoise Mégie – board member of a business and two organizations, has stock market investments
Terry Mercer – has mutual fund investments
Julie Miville-Dechêne – has mutual fund investments
Rosemary Moodie – practicing medicine, board member of three organizations, has mutual fund investments
Victor Oh – honourary positions with 16 organizations
Ratna Omidvar – board member of several organizations, has stock market investments
Kim Pate – adjunct law professor, member of organization advisory committee, has mutual fund investments
Dennis Glen Patterson – board member of Nunatta Environmental Services Inc., has stock market investments
Chantal Petitclerc – board member and works for Chantal Petitclerc Inc., board member of several organizations, including a new one in June 2020 and another new one in June 2020, has mutual fund investments
Mohamed-Iqbal Ravalia – has private company and stock market investments
Raymonde Saint-Germain – has stock market investments
Judith G. Seidman – board member of a consultancy, has stock market investments
Paula Simons – has mutual fund investments
Larry W. Smith – works for and board member of consultancy, has stock market investments
Scott Tannas – works for Western Financial Group Inc. (insurance company), board member of nine private companies and one organization, has stock market investments
Josée Verner – has mutual fund investments
Pamela Wallin – board member of two organizations, has stock market investments
David M. Wells – board member and works with consultancy, part owner of Battery Management Corp., has private investments and stock market investments
Howard Wetston – member of Toronto Hydro Corporation Board of Directors and Westcourt Capital Corporation Advisory Board, member of three organizations (including as Senior Fellow of C.D. Howe Institute), has stock market investments
Vernon White – has consultancy, adjunct professor at three universities, Fellow at Australian Strategic Policy Institute, external advisor to Fabriik (crypto-currency trading company), board member of eight organizations
Yuen Pau Woo – Senior Resident Fellow, Jack Austin Centre for Asia Pacific Business Studies (at Beedie School of Business Simon Fraser University), board member of 10 organizations, has mutual fund investments
Set out below are the 16 sub-categories for the five issue area categories that are the basis for the Report Card.
A – Platform makes clear promise to implement proposal
B – Platform makes vague or partial promise to implement proposals
C – Platform makes clear promise to explore proposal
D – Platform makes vague or partial promise to explore proposal
D- – Platform mentions proposal
F – Platform mentions theme of proposal
I – Platform does not mention proposal
I. Honest, Ethical Government Measures
SECTION I OVERALL GRADES
Bloc Québécois – D
1. Requiring honesty-in-politics – Pass a law that requires all federal Cabinet ministers, MPs, Senators, political staff, Cabinet appointees and government employees (including at Crown corporations, agencies, boards, commissions, courts and tribunals) nomination race, party leadership race and election candidates to tell the truth, with an easily accessible complaint process to a fully independent watchdog agency that is fully empowered to investigate and penalize anyone who lies (including during elections through online election posts or ads). (Go to Honesty in Politics Campaign, and Stop Fake Online Election Ads Campaign, for details about Democracy Watch’s proposals)
Bloc Québécois – I
2. Strengthening ethics standards for politicians, political staff, Cabinet appointees and government employees, and ethics enforcement – Close the loopholes in the existing ethics rules (including requiring resignation and a by-election if an MP switches parties between elections) and apply them to all government institutions (including all Crown corporations), and as proposed by the federal Department of Finance place anyone with decision-making power on the anti-corruption watch list of the Financial Transactions and Reports Analysis Centre of Canada (Fintrac) so deposits to their bank accounts can be tracked, and; strengthen the independence and effectiveness of politician and government employee ethics watchdog positions (the Ethics Commissioner for Cabinet and MPs, the Senate Ethics Officer for senators, the Public Sector Integrity Commissioner for government employees, the Commissioner of Lobbyists for lobbyists) by giving opposition party leaders a veto over appointees, having Parliament (as opposed to Cabinet) approve their annual budgets (as is currently the process for the Ethics Commissioner), prohibiting the watchdogs from giving secret advice, requiring them to investigate and rule publicly on all complaints (including anonymous complaints), fully empowering and requiring them to penalize rule-breakers, changing all the codes they enforce into laws, and ensuring that all their decisions can be reviewed by the courts. (Go to Government Ethics Campaign for details about Democracy Watch’s proposals)
Bloc Québécois – C
3. Making the political donations system democratic – Prohibit secret, unlimited donations of money, property or services by anyone for any reason to nomination and party leadership candidates (only such donations are now only prohibited if given to election candidates); limit loans, including from financial institutions, to parties and all types of candidates to the same level as donations are limited; require disclosure of all donations (including the identity of the donor’s employer (as in the U.S.) and/or major affiliations) and loans quarterly and before any election day; limit spending on campaigns for the leadership of political parties; maintain limits on third-party (non-political party) advertising during elections; lower the public funding of political parties from $2 per vote received to $1 per vote received for parties that elect more MPs than they deserve based on the percentage of voter support they receive (to ensure that in order to prosper these parties need to have active, ongoing support of a broad base of individuals) and; ensure riding associations receive a fair share of this per-vote funding (so that party headquarters don’t have undue control over riding associations). (Go to Money in Politics Campaign for details about Democracy Watch’s proposals)
Bloc Québécois – B
4. Closing down the revolving door – Prohibit lobbyists from working for government departments or serving in senior positions for political parties or candidates for public office (as in New Mexico and Maryland), and from having business connections with anyone who does, and close the loopholes so that the actual cooling-off period for former Cabinet ministers, ministerial staff and senior public officials is five years (and three years for MPs, senators, their staff, and government employees) during which they are prohibited from becoming a lobbyist or working with people, corporations or organizations with which they had direct dealings while in government. Make the Ethics Commissioner, Commissioner of Lobbying and Senate Ethics Officer more independent and effective by requiring approval of opposition party leaders of the person appointed to each position, by having Parliament (as opposed to Cabinet) approve the Commissioner of Lobbying’s annual budget (as is currently the process for the Ethics Commissioner), by prohibiting the Commissioners from giving secret advice, by requiring the Commissioners to investigate and rule publicly on all complaints (including anonymous complaints), by fully empowering and requiring the Commissioners to penalize rule-breakers, by ensuring all decisions of the Commissioners can be reviewed by the courts, and by changing the codes they enforce (MPs Code, Lobbyists’ Code and Senate Code of Conduct into laws. (Go to Government Ethics Campaign for details about Democracy Watch’s proposals)
Bloc Québécois – I
II. Open Government Measures
SECTION II OVERALL GRADES
Bloc Québécois – I
5. Strengthening access-to-information system – Strengthen the federal access-to-information law and government information management system by applying the law to all government/publicly funded institutions, requiring all institutions and officials to create records of all decisions and actions and disclose them proactively and regularly, creating a public interest override of all access exemptions, giving opposition party leaders a veto over the appointment of the Information Commissioner, having Parliament (as opposed to Cabinet) approve the Information Commissioner’s annual budgets (as is currently the process for the federal Ethics Commissioner), and giving the federal Information Commissioner the power and mandate to order the release of documents (as in Ontario, Alberta and B.C.), to order changes to government institutions’ information systems, and to penalize violators of access laws, regulations, policies and rules. (Go to Open Government Campaign for details about Democracy Watch’s proposals)
Bloc Québécois – I
6. Exposing behind-closed-door communications – Require in a new law that Ministers and senior public officials to disclose their contacts with all lobbyists, whether paid or volunteer lobbyists. (Go to Government Ethics Campaign for details about Democracy Watch’s proposals)
Bloc Québécois – I
7. Strengthening lobbying disclosure and ethics, and the enforcement system – Strengthen the Lobbying Act and Lobbyists’ Code of Conduct disclosure system by closing the loophole that currently allows corporations to hide the number of people involved in lobbying activities, and by requiring lobbyists to disclose their past work with any Canadian or foreign government, political party or candidate, to disclose all their government relations activities (whether paid or volunteer) involving gathering inside information or trying to influence policy-makers (as in the U.S.) and to disclose the amount they spend on lobbying campaigns (as in 33 U.S. states), and; strengthen the ethics and enforcement system by adding specific rules and closing loopholes in the Lobbyists’ Code and making it part of the Act, by extending the limitation period for prosecutions of violations of the Act to 10 years, and; by giving opposition party leaders a veto over the appointment of the Commissioner of Lobbying, by having Parliament (as opposed to Cabinet) approve the Commissioner’s annual budget (as is currently the process for the Ethics Commissioner), by prohibiting the Commissioner from giving secret advice, by ensuring that the Commissioner must investigate and rule publicly on all complaints (including anonymous complaints), by fully empowering the Commissioner to penalize rule-breakers, and by ensuring all Commissioner decisions can be reviewed by the courts. (Go to Government Ethics Campaign for details about Democracy Watch’s proposals)
Bloc Québécois – I
III. Efficient Government Measures
SECTION III OVERALL GRADES
Bloc Québécois – I
8. Increasing powers of Auditor General and Parliamentary Budget Officer – Increase the independence of the Auditor General and Parliamentary Budget Officer (PBO) by requiring approval of appointment from opposition party leaders, and by making the PBO a full Officer of Parliament with a fixed term who can only be dismissed for cause; increase auditing resources of the Auditor General and PBO by having Parliament (as opposed to Cabinet) approve the Auditor General’s annual budget (as is currently the process for the federal Ethics Commissioner), and; empower the Auditor General to audit all government institutions, to make orders for changes to government institutions’ spending systems, and empower the Auditor General and PBO to penalize violators of federal Treasury Board spending rules or Auditor General or PBO orders o requests for information. (Go to Stop Fraud Politician Spending Campaign for details about Democracy Watch’s proposals)
Bloc Québécois – I
9. Restricting government advertising – Empower a government watchdog agency to preview and prohibit government advertising that promotes the ruling party, especially leading up to an election (similar to the restrictions in Manitoba and Saskatchewan). (Go to Stop Fraud Politician Spending Campaign for details about Democracy Watch’s proposals)
Bloc Québécois – I
IV. Representative, Citizen-Driven Government MeasuresSECTION IV OVERALL GRADES
Bloc Québécois – D-
10. Increasing meaningful public consultation – Pass a law requiring all government departments and institutions to use consultation processes that provide meaningful opportunities for citizen participation, especially concerning decisions that affect the lives of all Canadians. (Go to Stop PM/Premier Power Abuses Campaign for details about Democracy Watch’s proposals)
Bloc Québécois – I
11. Restricting power of Cabinet to make appointments – Require approval by opposition party leaders for the approximately 3,000 judicial, agency, board, commission and tribunal appointments currently made by the Prime Minister (including the board and President of the CBC), especially for appointees to senior and law enforcement positions, after a merit-based nomination and screening process conducted by finally setting up the Public Appointments Commission that was given a legal basis to exist under the so-called “Federal Accountability Act”. (Go to Stop Bad Government Appointments Campaign, and Stop PM/Premier Power Abuses Campaign, for details about Democracy Watch’s proposals)
Bloc Québécois – B
12. Making the House more democratic, and making the Senate democratic or abolish it – Change the Parliament of Canada Act to restrict the Prime Minister’s power to shut down (prorogue) Parliament to only for a very short time, and only for an election (dissolution) or if the national situation has changed significantly or if the Prime Minister can show that the government has completed all their pledged actions from the last Speech from the Throne (or attempted to do so, as the opposition parties may stop or delay completion of some actions). Give all party caucuses the power to choose which MPs and senators in their party sits on House and Senate committees, and allow any MP or senator to introduce a private member bill at any time, and define what a “vote of confidence” is in the Parliament of Canada Act in a restrictive way so most votes in the House of Commons are free votes. Attempt to reach an agreement with provincial governments (as required by the Constitution) to either abolish the Senate or reform the Senate (with a safeguard that Senate powers will not be increased unless senators are elected and their overall accountability increased). (Go to Stop Muzzling MPs Campaign, and Stop PM/Premier Power Abuses Campaign, and Shut Down the Senate Campaign, and Democratic Head Campaign, for details about Democracy Watch’s proposals)
Bloc Québécois – I
13. Ensuring free, fair and representative elections – Change the current voting law and system (the Canada Elections Act) to specifically restrict the Prime Ministers’ power to call an unfair snap election, so that election dates are fixed as much as possible under the Canadian parliamentary system. Change the Act also so that nomination and party leadership races are regulated by Elections Canada (including limiting spending on campaigns for party leadership), so that Elections Canada determines which parties can participate in election debates based upon merit criteria, so that party leaders cannot appoint candidates except when a riding does not have a riding association, so that voters are allowed to refuse their ballot (ie. vote for “none of the above”, as in Ontario), and to provide a more equal number of voters in every riding, and a more accurate representation in Parliament of the actual voter support for each political party (with a safeguard to ensure that a party with low-level, narrow-base support does not have a disproportionately high level of power in Parliament). (Go to Democratic Voting System Campaign for details about Democracy Watch’s proposals)
Bloc Québécois – I
V. General Government Accountability Measures
SECTION V OVERALL GRADES
Bloc Québécois – D
14. Facilitating citizen watchdog groups over government – Require federal government institutions to enclose one-page pamphlets periodically in their mailings to citizens inviting citizens to join citizen-funded and directed groups to represent citizen interests in policy-making and enforcement processes of key government departments (for example, on ethics, spending, and health care/welfare) as has been proposed in the U.S. and recommended for Canadian banks and other financial institutions in 1998 by a federal task force, a House of Commons Committee, and a Senate Committee. (Go to Citizen Association Campaign for details about Democracy Watch’s proposals)
Bloc Québécois – I
15. Ensuring effective whistleblower protection – Require everyone to report any violation of any law, regulation, policy, code, guideline or rule, and require all watchdog agencies over government (for example: Auditor General, Information Commissioner, Privacy Commissioner, Public Service Commission, the four ethics watchdogs (especially the Public Sector Integrity Commissioner), Security and Intelligence Review Committee, the National Health Council) to investigate and rule publicly on allegations of violations, to penalize violators, to protect anyone (not just employees) who reports a violation (so-called “whistleblowers”) from retaliation, to reward whistleblowers whose allegations are proven to be true, and to ensure a right to appeal to the courts. (Go to Protect Whistleblowers Who Protect You Campaign for details about Democracy Watch’s proposals)
Bloc Québécois – B-
16. Ensuring loophole free laws and strong penalties for wrongdoers – Close any technical and other loopholes that have been identified in laws, regulations, policies, codes, guidelines and rules (especially those regulating government institutions and large corporations) to help ensure strong enforcement, and increase financial penalties for violations to a level that significantly effects the annual revenues/budget of the institution or corporation. (Go to Stop Unfair Law Enforcement Campaign, and Corporate Responsibility Campaign, for details about Democracy Watch’s proposals)
Bloc Québécois – C-