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Group believes Ethics Commissioner and Senate Ethics Officer should have found Nigel Wright and Senator Duffy guilty two weeks ago for secret payment

RCMP investigation should take no more than two months, and conclusions must be closely watched given evidence that RCMP lacks independence from Cabinet

Senate Ethics Officer allowed to re-start her investigation now (and should do this), and Ethics Commissioner as soon as RCMP completes its investigation

Friday, June 14, 2013

OTTAWA – Today, Democracy Watch set out the details of why it believes Ethics Commissioner Mary Dawson should have found Nigel Wright guilty two weeks ago of violating the Conflict of Interest Act (the Act) for making the secret $90,000 payment to Senator Duffy, and why Senate Ethics Officer Lyse Ricard should have found Senator Duffy guilty two weeks ago of violating the Conflict of Interest Code for Senators (the Code) for accepting the payment, before the RCMP’s investigation began.

The Act requires Ethics Commissioner Dawson to notify the proper authorities and suspend her investigation if there is reason to believe that another law has been violated, or if another investigation of a law violation is underway (section 49).  The Code allows (but does not require) Ethics Officer Ricard or the Senate Committee that controls her to suspend her investigation under the same circumstances (section 47).

Senate Ethics Officer Ricard abandoned her investigation as soon as the RCMP began reviewing the situation, and the Ethics Commissioner abandoned her investigation yesterday.  (SEE details in Backgrounder below about the flaws and very weak enforcement records by the Ethics Commissioner and Senate Ethics Officer)

“Based on the clear public evidence available weeks ago, in my opinion the Ethics Commissioner Dawson should have already found Nigel Wright guilty of violating the federal ethics law for making the secret payment to Senator Duffy, and Ethics Officer Ricard should have already found Senator Duffy guilty of violating the Senate ethics code for taking the money, before the RCMP began its investigation,” said Duff Conacher, Board member of Democracy Watch and Adjunct Professor of Law at the University of Toronto. “More evidence may come out that other people were involved in arranging the payment, and if so the RCMP, Ethics Commissioner and Ethics Officers can investigate further, but there is no good reason for the Ethics Commissioner and Ethics Officer to have failed to issue rulings two weeks ago based on the clear evidence that was available.  The Ethics Officer can and should re-start her investigation now, and the Ethics Commissioner should re-start her investigation as soon as the RCMP completes its investigation which should not take more than a couple of months.”

The Senate Ethics Officer should re-start her investigation and issue a ruling very soon finding Senator Duffy guilty.  And the RCMP’s investigation should not take any longer than a couple of months, as all they have to do is talk to a few people, and check all their communications, for a short time period, and the Prime Minister’s Officer has said they will cooperate fully so no court orders should even be needed to obtain all records.  As a result, by September the Ethics Commissioner should be re-opening her investigation and finding Nigel Wright guilty.

Based on his own public statements, Mr. Wright made the payment to Senator Duffy, and this has been confirmed several times and in several ways by Prime Minister Harper and representatives in his office.

There are measures in the Parliament of Canada Act (s.16), and in the Criminal Code (s.119 and 121(1)(a)) that prohibit offering or giving any kind of benefit to a senator or other federal or provincial politician in return for any action or inaction by the politician, and general breach of trust (122).  The federal NDP filed the request for investigation with the RCMP.

There are media reports that allege that the payment by Nigel Wright to Senator Duffy was in return for action or inaction by the senator by the senator (staying silent and stopping cooperation with auditors), and also by the Senate committee reviewing Senator Duffy’s expenses.

The problem is that, in a widely criticized new policy, the RCMP Commissioner has aligned his office with the office of the Minister of Public Safety in all communications about the RCMP’s actions.  Many commentators have raised concerns about how this policy affects the ability of the RCMP to make independent law enforcement decisions (See criticisms here, and here, and here).

Section 17(1) and (2) of the Conflict of Interest Code for Senators (PDF) apply to Senator Duffy’s acceptance of the payment, and it is clearly prohibited because “Neither a Senator, nor a family member, shall accept, directly or indirectly, any gift or other benefit, except compensation authorized by law, that could reasonably be considered to relate to the Senator’s position” (ss.17(1)) except gifts and benefits that are “a normal expression of courtesy or protocol, or within the customary standards of hospitality that normally accompany the Senator’s position” (ss.17(2)).  The payment clearly relates to the Senator’s position because it was to pay back improperly claimed Senate housing expenses, and it is clearly far more than a normal courtesy or hospitality gift.

Sections 4, 5, 6(1), 8 of the Conflict of Interest Act apply to Nigel Wright secret payment to Senator Duffy, and Mr. Wright:

  • Either violated sections 4 and 6(1) of the Act because he made a decision “related to the exercise of an official power, duty or function” (ss.6(1)) when he “reasonably should know that, in the making of the decision” he “would be in a conflict of interest” (ss.6(1)) because the decision provided “an opportunity to further his or her private interests or those of his or her relatives or friends or to improperly further another person’s private interests” (s.4).  NOTE: Some reports have claimed Mr. Wright and Senator Duffy are friends, in which case Mr. Wright’s payment furthered the private interest of his friend, but even if they are not friends Mr. Wright clearly improperly furthered Senator Duffy’s private interest (the secrecy of the payment; the fact that Senator Duffy accepting such a gift is a violation of the Senate Code, and; Mr. Wright’s resignation all show clearly that the payment was improper).
  • Or, if the Ethics Commissioner tries to make the dubious claim that Mr. Wright’s payment was not “related to the exercise of an official power, duty or function,” then the Ethics Commissioner must find Mr. Wright guilty of violating section 5 of the Act for failing to “arrange his or her private affairs in a manner that will prevent the public office holder from being in a conflict of interest.”  By making the secret payment, Mr. Wright placed himself in a conflict of interest between his duty to uphold the law and his interest in protecting Senator Duffy, and himself, from public accountability for the payment;
  • As well, given that Mr. Wright made the payment in secret, he also violated section 8 of the Act which prohibits using “information that is obtained in his or her position as a public office holder and that is not available to the public” to further the interest of a friend “or to improperly further or to seek to improperly further another person’s private interests.”

Finally, there seems to be enough evidence for the Ethics Commissioner to rule that Mr. Wright also violated section 9 of the Act because he contacted and tried to influence senators who were overseeing the audit and issuing a report with rulings on whether the Senate expense rules had been violated by Senator Duffy.  Section 9 prohibits using your “position as a public office holder to seek to influence a decision of another person so as to further the public office holder’s private interests or those of the public office holder’s relatives or friends or to improperly further another person’s private interests.”  At least one senator has stated publicly that he was in contact with Mr. Wright about the audit reports, and it is clearly improper for Mr. Wright to intervene in a quasi-legal decision-making process deciding whether Senate rules, and even federal laws, were violated (see for details Prime Minister Harper’s Accountability Guide for ministers and other senior officials, the rules in Annex A, Part 1 of the Guide).

There is also evidence that others in the Prime Minister’s Officer were involved in contacting the senators on the committee, and the Ethics Commissioner should definitely investigate to determine who this people were because if they also tried to influence senators then they also violated section 9 of the Act.

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FOR MORE INFORMATION, CONTACT:
Tyler Sommers, Coordinator of Democracy Watch
Tel: (613) 241-5179
campaigns@democracywatch.ca

Democracy Watch’s Government Ethics Campaign and Stop Fraud Spending Campaign


BACKGROUNDER

Federal Ethics Commissioner Mary Dawson’s weak enforcement record

Federal Ethics Commissioner Mary Dawson has had a very weak enforcement record since 2007, including letting dozens of Conservatives off the hook for very questionable actions, and making more than 80 secret rulings.  Commissioner Dawson has also already covered up twice for Nigel Wright and could, as she has many times in the past, abandon her investigation secretly without issuing a public ruling

Ethics Commissioner Dawson’s first cover-up for Nigel Wright

Commissioner Dawson’s first cover-up for Nigel Wright was her creation of an illegal, so-called ethics screen when Wright first took the job that violated the requirement in subsection 25(1) of the Conflict of Interest Act to make a public declaration within 60 days every time Wright recused himself from a decision-making process because of a conflict of interest.  This “screen” was supposedly enforced by the Deputy Chief of Staff. As a result of this cover-up, all of Wright’s recusals have been kept secret, and there is no way to tell if he ever failed to recuse himself as required by the Act.

Ethics Commissioner Dawson’s second cover-up for Nigel Wright

Commissioner Dawson’s second cover-up for Wright was when she abandoned her investigation last fall without issuing a notice, let alone a ruling, of whether Wright violated the Act by taking part in discussions of issues that affect Barrick Gold.  The Ethics Commissioner is allowed to do this under s. 45 of the Act.  The cover-up only came to light because Canadian Press journalist Joan Bryden pressed Commissioner Dawson to make a public statement about the case.  Commissioner Dawson’s statement failed to set out any reasons why she concluded that Wright had not violated the Act.

Conflict of Interest Act missing key rules and accountability measures
The Conservatives broke a 2006 election promise (one of their many broken accountability promises) to include key ethics rules in the new Conflict of Interest Act prohibiting dishonesty and being in even an appearance of a conflict of interest, as Prime Minister Harper instead put those rules in his Accountability Guide for ministers and other senior officials so he could ignore the rules (as he has since – see the rules in Annex A, Part 1 of the Guide).

Because of section 66 added to the new Act by the Conservatives in 2006, the Ethics Commissioner’s rulings cannot be challenged in court if she has factual or legal errors in her rulings.  There are no mandatory penalties for violating the ethics rules in the Act.  As well, if Prime Minister Harper approves it, Commissioner Dawson’s term in office can be renewed for another seven years in 2014 so she has an incentive to please him

Senate Ethics Officer is a lapdog controlled by a Senate committee

The Senate Ethics Officer is, under the Conflict of Interest Code for Senators, even more of a lapdog than the Ethics Commissioner because the Officer is essentially under the control of a committee of senators (ss.35 and 41(1)) that operates in secret (s.36), currently has a majority of Conservative members, and (among other powers) has the power to decide what the Code’s rules mean, how the rules will be applied, whether an investigation can even happen (even though the NDP has filed a complaint), and (along with the whole Senate) what the final ruling, and penalties, will be.  The details are as follows:

  • defines what the rules in the Code mean, and how they are applied by the Ethics Officer (subsection 37(2));
  • controls whether the Ethics Officer can investigate a situation (s.44(1) and 44(8));
  • if an investigation is approved, controls (along with the whole Senate) whether the Ethics Officer has access to “persons, papers, things and records” (s.44(13);
  • can overrule the ruling of the Ethics Officer (s.46), although the Ethics Officer’s ruling must be made public (ss.45(2) to (3)), and;
  • along with the whole Senate, decides whether a senator is guilty, and whether there will be any penalty (s.48).

The Senate Ethics Officer can only investigate if the committee decides on its own that the Ethics Officer should investigate (ss.44(1) and 44(8)) or decides that the Ethics Officer should investigate a complaint filed by a senator (s.44(2) and (3)).  The Ethics Officer can also abandon the investigation without issuing a public ruling or reasons if the Ethics Officer’s conclusion is that no Code violations occurred (s.45(4).

Finally, contrary to some recent media reports the Committee or the Ethics Officer may suspend an investigation and refer the situation to other authorities if they have reasonable evidence that a law has been violated, but they are not required to suspend the investigation (s.47).  If a senator resigns, any investigation into that senator’s actions is suspended forever unless the committee decides to continue it (s.49).

The Ethics Officer does not have to issue a public ruling if the Officer’s conclusion is that no Code violations occurred.  Also, if Senator Duffy or any other senator resigns, any investigation is suspended forever unless the committee decides to continue it.

Elections Canada

The NDP has filed a complaint with the Commissioner of Canada Elections concerning the possibility that Senator Duffy’s claims of Senate expenses during the 2011 federal election may have covered costs that should have been covered by the Conservative Party, in violation of the Canada Elections Act.

The problem is that the Commissioner, in conjunction with the Director of Public Prosecutions, has a very secretive and questionable enforcement record, with more than 3,000 secret rulings since 1997, and many weak actions including a deal with the Conservative Party that let senators who participated in the Conservatives’ illegal in-and-out ad spending scheme during the 2006 federal election off the hook with no penalty.

Auditor General

The Auditor General has full powers to audit Senate expenses under the Auditor General Act, and should have exercised those powers already, and thankfully is finally beginning an audit of all senators’ expenses.  The AG should also begin an audit of all MPs’ expenses immediately.

Auditor General Act (R.S., 1985, c. A-17)
POWERS AND DUTIES
Examination
5. The Auditor General is the auditor of the accounts of Canada, including those relating to the Consolidated Revenue Fund and as such shall make such examinations and inquiries as he considers necessary to enable him to report as required by this Act.
1976-77, c. 34, s. 5.

ACCESS TO INFORMATION
Access to information
13. (1) Except as provided by any other Act of Parliament that expressly refers to this subsection, the Auditor General is entitled to free access at all convenient times to information that relates to the fulfilment of his or her responsibilities and he or she is also entitled to require and receive from members of the federal public administration any information, reports and explanations that he or she considers necessary for that purpose.

Inquiries
(4) The Auditor General may examine any person on oath on any matter pertaining to any account subject to audit by him and for the purposes of any such examination the Auditor General may exercise all the powers of a commissioner under Part I of the Inquiries Act.
R.S., 1985, c. A-17, s. 13; 2003, c. 22, s. 90(E).


Democracy Watch’s Government Ethics Campaign and Stop Fraud Spending Campaign