Court of Appeal excused Cabinet’s bias based on 2001 Supreme Court ruling, and also ruled consultation with opposition was “reasonable”
FOR IMMEDIATE RELEASE:
Tuesday, July 28, 2020
OTTAWA – Today, Democracy Watch announced that the Supreme Court of Canada will rule on Thursday whether DWatch can appeal the Federal Court of Appeal’s ruling on its combined cases challenging the Trudeau Cabinet’s appointment in December 2017 of their own watchdogs – the Ethics Commissioner and Commissioner of Lobbying (SCC File #39096). David Yazbeck of Raven, Cameron, Ballantyne & Yazbeck LLP is representing Democracy Watch in the case.
The FCA ruled that the Trudeau Cabinet was biased when it appointed both commissioners (para. 5 of ruling). When the appointments happened, the Ethics Commissioner was investigating Trudeau and Finance Minister Bill Morneau, and the Lobbying Commissioner was investigating two situations involving Trudeau (Barry Sherman/Apotex Inc.’s fundraiser and Mickey MacDonald/Clearwater Seafoods fundraiser), and also situations involving Minister Morneau, and Minister Chrystia Freeland.
However, the FCA excused the Cabinet’s bias based on a 2001 Supreme Court of Canada ruling that Cabinet is allowed to be biased when appointing people like the commissioners if the commissioners implement government policy and don’t uphold constitutional principles. Before and since that 2001 Supreme Court ruling, Canadian courts have ruled that protection of the independence of judges, including in how they are appointed, also applies to human rights commissions, the RCMP Commissioner, and other key law enforcement positions that uphold constitutional rights and principles.
Democracy Watch argued before the FCA that the commissioners uphold the constitutional principles of democracy and rule of law just like judges do, as they both issue judge-like rulings on violations of ethics rules that are aimed at ensuring a high standard of government integrity. Cabinet ministers must not be allowed choose their own watchdogs who enforce laws that apply to the ministers, as that violates the fundamental principle that law enforcement officers can’t be controlled or influenced by politicians.
Democracy Watch applied to the Supreme Court of Canada at the end of March for permission to appeal the FCA’s ruling, arguing that the Ethics Commissioner and Lobbying Commissioner enforce key constitution-related laws and so must be fully independent from Cabinet in every way, including in how they are appointed.
Democracy Watch also applied to the SCC on the basis that the Cabinet failed to consult with opposition party leaders as required by the Parliament of Canada Act before making the Ethics Commissioner appointment, and also failed to consult as required by the Lobbying Act before making the Lobbying Commissioner appointment. The FCA ruled the Cabinet’s consultation was reasonable (para. 3 of the ruling).
Democracy Watch’s disagrees given the Cabinet hid from opposition parties that it had qualified candidates for both commissioner positions, and used secretive, partisan appointment processes that gave opposition party leaders only a few days to respond to Cabinet’ nominations of one person for each commissioner.
“Opposition parties complained that the Trudeau Cabinet failed to consult with them as required by law before appointing the ethics and lobbying commissioners, and at the time the commissioners were investigating Trudeau and other ministers so the Cabinet was in a clear conflict of interest when making the appointment of these key democracy watchdogs,” said Duff Conacher, Co-founder of Democracy Watch. “Given it is essential that the ethics and lobbying watchdogs are independent and impartial from Cabinet ministers, Democracy Watch hopes the Supreme Court of Canada will hear its appeal and overturn the appointments and require an independent process for all future watchdog appointments that includes meaningful consultation with opposition parties.”
“It would be a clear conflict of interest if someone sued Prime Minister Trudeau or a Cabinet minister and the Cabinet chose which judge would hear the case, and it is just as clearly a conflict of interest for the Cabinet to choose the ethics and lobbying commissioners who will judge whether the PM, his Cabinet ministers or their lobbyist friends violate the ethics law or lobbying law,” said Conacher.
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FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179