Ethics Commissioner and Lobbying Commissioner should both recuse themselves from investigating because Trudeau Cabinet gave them illegal 6-month contracts
Despite their false claims, Liberals’ appointment process still Cabinet-controlled not merit-based – 10,000+ call on Liberals to make changes to match Ontario’s and Britain’s world-leading appointment processes
FOR IMMEDIATE RELEASE:
Wednesday, July 12, 2017
OTTAWA – Today, Democracy Watch announced it is filing complaints with both federal Lobbying Commissioner Karen Shepherd and Ethics Commissioner Mary Dawson about the relationship and meetings between representatives of the Council of Canadian Innovators (CCI) and Liberal Cabinet officials, and decisions Cabinet ministers may have made about those relationships and meetings.
In both complaints, Democracy Watch will request that the commissioners recuse themselves from ruling on the situation because they are both in a conflict of interest currently as they are serving their third six-month contract handed to them by the Trudeau Cabinet. Democracy Watch recently filed court challenges of both commissioners’ contracts based on the claim the contracts are illegal.
“Given that the former election campaign managers for Foreign Affairs Minister Chrystia Freeland head up the Council of Canadian Innovators it raises questions of whether government officials are giving them preferential treatment that is illegal under the federal ethics law,” said Duff Conacher, Co-founder of Democracy Watch. “The federal lobbyists’ code prohibits anyone from lobbying a Cabinet minister or their officials for five years after helping them get elected, it’s reasonable to question whether Minister Freeland’s former campaign managers have violated that code given that the Council has lobbied many senior officials at the foreign affairs and trade department.”
Democracy Watch is filing the complaint with the Ethics Commissioner because it believes the evidence shows reasonable grounds to believe that Liberal Cabinet officials may have violated section 7 of the Conflict of Interest Act (possibly with the approval of Liberal Cabinet ministers):
7. No public office holder shall, in the exercise of an official power, duty or function, give preferential treatment to any person or organization based on the identity of the person or organization that represents the first-mentioned person or organization.”
The evidence Democracy Watch points to is from a report by Radio-Canada about the CCI’s “Membership Prospectus” document that states the CEOs of so-called “cleantech” companies who are members of CCI participate in “Monthly meetings with the Chief of Staff to the Minister of Environment and Climate Change.” An article in the Globe and Mail states that the CCI claims it changed the prospectus in June to promise only regular meetings with the minister’s chief of staff.
The CCI document also states:
“CCI is a unique forum where CEOs speak directly with government decision makers about ideas that can improve the ecosystem for their companies. The Council hosts regular meetings between government civil servants and our CEOs. Our events have attracted Privy Council Officials, Cabinet Ministers, Deputy Ministers and many others.”
“The Council is the only non-governmental referral partner to the Accelerated Growth Service (AGS). All CCI companies that are under 500 employees are enrolled into this new concierge service from the Federal Government.”
“Starting in May 2017, a permanent Federal Trade Commissioner from Global Affairs Canada will be part of CCI, exclusively dedicated to helping CCI member companies navigate new markets and advance their companies’ growth globally.”
This evidence of preferential treatment amounts to a violation of section 7 of the Conflict of Interest Act unless Liberal Cabinet officials, and ministers who may have approved of their actions, can show that they did not give CCI preferential treatment based on the facts:
- that since March 2016 the CCI’s Executive Director has Benjamin Bergen, who according to the Globe and Mail article, and this CanTechLetter.com article, played a senior management role in the 2015 federal election campaign of former International Trade Minister and, since January 2017, Minister of Foreign Affairs Chrystia Freeland, and/or;
- that Dana O’Born is CCI’s Director of Policy (according to Mr. Bergen (as cited in the Globe article), Ms. O’Born was Ms. Freeland’s 2015 campaign manager).
Democracy Watch is filing the complaint with the Lobbying Commissioner based on the fact that former rule 8 and (since December 2015) current rules 6-9 of the Lobbyists’ Code of Conduct, prohibit people who help in senior positions in election campaigns from lobbying for five years the politician they helped get elected or their staff or department. According to the Registry of Lobbyists, CCI has been registered to lobby the federal government (including Ms. Freeland’s Global Affairs ministry) with Mr. Bergen as the listed senior official since April 4, 2016 and has had 202 registered communications with government officials since then (although many more could have occurred as only oral, pre-arranged communications initiated by the lobbyist are required to be disclosed (unless the communication is about a financial benefit and then even if the government official initiates the communication it must be disclosed)).
The CCI’s monthly communications reports in the registry show that on the following dates (and, again, possibly many more) CCI communicated with Global Affairs Canada officials (when Ms. Freeland was Minister of Foreign Affairs or Minister of International Trade) including deputy ministers, assistant deputy ministers, special assistants, and the minister’s Parliamentary Secretary: April 21, 2017; April 10, 2017; March 30, 2017; March 24, 2017; March 1, 2017; February 8, 2017; November 4, 2016; November 2, 2016; October 21, 2017; October 20, 2017 (two meetings); October 17, 2016, and; October 13, 2016.
If Mr. Bergen or Ms. O’Born played a role in any of these communications it raises the issue especially of a violation of rule 6 of the current Lobbyists’ Code which is a general prohibition on lobbying a government department when there is even an appearance of conflict of interest for the minister who heads the department.
Democracy Watch wants both commissioners to recuse themselves from ruling on the situations, and has filed court cases challenging their re-appointments to their third six-month term, based on the concern that when Cabinet hands out repeated six-month contracts to government watchdogs who judge and issue rulings about situations involving Cabinet ministers, the contracts create conflicts of interest for those watchdogs as they have an incentive to issue rulings that favour Cabinet, MPs and supporters of their political party (and an incentive to fail to issue rulings on situations in which the evidence clearly shows that a minister or ruling party supporter violated the law).
“The federal lobbying and ethics laws clearly intend that the commissioners who enforce those laws be appointed for seven-year terms to ensure their independence as watchdogs who rule on situations involving Cabinet ministers and their political party supporters. The Trudeau Cabinet is abusing those laws and undermining the independence of those watchdogs by repeatedly handing six-month contracts to the Lobbying Commissioner and Ethics Commissioner,” said Duff Conacher, Co-founder of Democracy Watch.
Both the Ethics Commissioner and the Lobbying Commissioner are currently investigating (or refusing to investigate) situations involving Prime Minister Trudeau and other Cabinet ministers. The Ethics Commissioner is investigating complaints filed by Conservative MP Blaine Calkins and Conservative Party leader Andrew Scheer about the Aga Khan’s December 2016 trip gift to Trudeau. The Ethics Commissioner has also refused to investigate complaints other situations involving Trudeau and other Liberals.
As far as Democracy Watch knows (it is difficult to tell because the Lobbying Commissioner’s 2016-2017 annual report fails to provide details), the Lobbying Commissioner’s office: 1. is investigating Democracy Watch’s complaint about an August 26, 2015 fundraising event attended by Justin Trudeau and hosted by Apotex Inc. chairman Barry Sherman (Apotex lobbies the PMO); 2. is investigating Democracy Watch’s complaint about an August 25, 2014 fundraising event attended by Justin Trudeau hosted by a Clearwater Seafoods co-founder and board member (Clearwater lobbies the PMO), and; 3. is investigating Democracy Watch’s complaint about the situation revealed in an October 25th Globe and Mail article involving Apotex Inc. chairman Barry Sherman who assisted with selling tickets for a fundraising event that Finance Minister Bill Morneau attended (Apotex lobbies Finance Canada).
However, the Lobbying Commissioner seems to be failing to investigate Democracy Watch’s complaint filed in May 2016 about travel junket gifts given by 16 businesses and lobby organizations to federal MPs (including several Liberal MPs) from 2009 to 2016. There is no mention of the complaint in the compliance section of the Lobbying Commissioner’s 2016-2017 annual report.
That section of the report also states that the Lobbying Commissioner let 10 lobbyists off the hook for clear violations during the 2016-2017 fiscal year (while only finding two guilty). As well the compliance section of the Commissioner’s 2015-2016 annual report states that the Commissioner let seven lobbyists off the hook for clear violations (while only finding two guilty). How many of the lobbyists who broke the Lobbying Act or Lobbyists’ Code since the 2015 election and are Liberal Party supporters is not known because the Commissioner does not disclose the identity of lobbyists she let off the hook (nor the reasons why she let each lobbyist off the hook).
In all of the complaints it has filed in the past year, because they have been essentially serving at the pleasure of the Trudeau Cabinet on six-month contracts, Democracy Watch has requested that the Lobbying Commissioner and Ethics Commissioner recuse themselves from investigating and ruling on the complaints and instead have someone independent of the Trudeau Cabinet rule on the complaint.
“Prime Minister Trudeau finally acknowledged in May that the Ethics Commissioner investigating him causes a conflict of interest that prohibits him from taking part in decisions about the Ethics Commissioner position. The Ethics Commissioner and the Lobbying Commissioner have both failed to acknowledge that they are in a conflict of interest because they have been handed six-month contracts by the Trudeau Cabinet while investigating Trudeau and other Cabinet ministers,” said Conacher.
The case against the Ethics Commissioner’s reappointment replaces an earlier case that Democracy Watch had filed in the Federal Court of Appeal that has been discontinued.
More than 10,000 Canadians have signed Democracy Watch’s Stop Political Lapdog Appointments petition on Change.org in the past few weeks. The petition calls on the federal Liberals to make the Cabinet appointment process actually independent and merit-based (as Britain has) for appointments of all judges, officers of parliament, and members of agencies, boards, commissions and tribunals. The petition was launched as part of Democracy Watch’s Stop Bad Government Appointments Campaign.
The Liberals haven’t changed the federal Cabinet appointment process at all from what the Conservatives used (other than adding the goal of diversity). In the answer to the third question in the “Frequently Asked Questions” document describing the Liberals’ Cabinet appointment process (which was updated on April 28th), it says Cabinet ministers “manage” all appointment processes.
That means Cabinet appointments are still partisan, political processes, not merit-based as the Liberals claim (as the recent appointment of former Ontario Liberal Cabinet minister Madeleine Meilleur as the federal Languages Commissioner has revealed so clearly). And the government’s website listing openings and qualifications for Cabinet appointments that the Liberals claim makes the appointment process more open and transparent has existed for several years.
“The Liberals’ false claims smell very fishy and are clearly an attempt to cover up the fact that their Cabinet appointment system is essentially the same as the Harper Conservatives used, and that it’s still political and partisan, not merit-based, and allows Trudeau Cabinet ministers to choose their own Liberal Party cronies as government and law enforcement lapdogs,” said Conacher.
“The Trudeau Cabinet is in a conflict of interest when choosing any government or law enforcement watchdog because those watchdogs enforce laws that apply to Cabinet ministers or their departments,” said Conacher. “The only way to stop this dangerously undemocratic and unethical appointment process for judges and watchdogs is to establish a fully independent public appointment commission, as Ontario and Britain have, to conduct public, merit-based searches for nominees and send a short list to Cabinet, with Cabinet required to choose from the list.”
The independent commission, whose members are approved by all federal party leaders (and entities such as the Canadian Judicial Council) should be mandated to do a public, non-partisan merit-based search for candidates, and the Trudeau Cabinet should be required to choose appointees from a short-list of one to three candidates that the commission nominates.
Ontario uses this kind of independent appointment system to appoint provincial judges (the advisory committee provides a shortlist of three candidates to the Cabinet). Britain uses it to appoint judges and judicial tribunal members (like the Ethics Commissioner and Lobbying Commissioner are) – its advisory committee provides only one candidate to the Cabinet, and the Cabinet has to accept the candidate or reject the candidate and provide written reasons. Both of their systems are considered to be world leading.
The new appointment process, and prohibition on being reappointed, should apply to the judicial advisory committees and appointments of all 1,123 federal and provincial superior court judicial appointments listed here, and to the new public appointments commission that must be established to ensure a merit-based selection process for a short list of candidates for appointment to the 32 federal administrative tribunals and 108 agencies/boards listed here.
Democracy Watch also called on the Liberals, and all governments, to change the law to ensure all Cabinet appointees who watch over the government or oversee key democracy laws and processes (especially every Officer of Parliament) serve only one term.
“Like judges, all government and democracy watchdogs must only serve one term, with no possibility that the government can reappoint them, to ensure watchdogs don’t try to please the government in order to keep their job,” said Conacher. “To safeguard our democracy the ruling party must not be allowed to reappoint any government watchdog.”
FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179