Despite their false claims, Liberals haven’t changed appointment process – still partisan (not merit-based) as Cabinet ministers still control every step of process
Liberals also make false claims that there are legal qualifications for all officers of parliament, and that they can’t find qualified candidates
Ontario and United Kingdom judicial appointment processes are world-leading models, and Liberals could easily make changes to match them
FOR IMMEDIATE RELEASE:
Monday, June 12, 2017
OTTAWA – Today, as part of its Stop Bad Government Appointments Campaign, Democracy Watch formally launched its Stop Political Lapdog Appointments petition on Change.org that calls on the federal Liberal government to make the process actually independent and merit-based (as Britain has) for Cabinet appointments of all judges, officers of parliament, and members of agencies, boards, commissions and tribunals. More than 3,000 people have already signed the petition.
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.
Two weeks ago, Democracy Watch called on the federal Liberals to suspend the appointment of the next Ethics Commissioner and Commissioner of Lobbying, and all other judicial and watchdog appointments, until they make the appointment process actually independent and merit-based.
In addition to their false claims about changing the Cabinet appointment process, the Trudeau Liberals have made false claims about the appointment processes for several officers of parliament. According to the June 9th Canadian Press article, an unnamed senior government source claims that “specific qualifications for each watchdog are spelled out in legislation.” In fact, statutory qualifications are set out only in the Parliament of Canada Act and only for the Ethics Commissioner. There are no statutory requirements for the Lobbying Commissioner or Chief Electoral Officer (CEO) — the three other officers whose positions are open – nor for the Information Commissioner (whose position is open soon).
As well, the Liberals have made the very questionable claim that they can’t find anyone qualified to be the CEO, Lobbying Commissioner or Ethics Commissioner. To give one of likely many examples of qualified applicants, Duff Conacher, Co-founder of Democracy Watch, applied for, and is fully qualified for, the Lobbying Commissioner position (and was short listed for that position in 2007 by the Conservatives’ candidate search process).
“The Liberals’ false claims smell very fishy and are clearly an attempt to cover up the fact that they haven’t changed the appointment process for government and law enforcement watchdogs, and that it’s still political and partisan, not merit-based, as Trudeau Cabinet ministers can still choose whomever they want,” said Duff Conacher, Co-founder of Democracy Watch. “The Liberals’ Cabinet appointment system is essentially the same as the Harper Conservatives used, and it allows Trudeau Cabinet ministers to choose their own Liberal Party cronies as government and law enforcement lapdogs.”
Another reason to suspend the appointment process is that the Trudeau Cabinet can’t appoint the new Ethics Commissioner because the commissioner is currently investigating the Aga Khan’s trip gift to the Prime Minister (and in any case the Cabinet is in a conflict of interest as the Ethics Commissioner enforces rules that apply to every minister). Nor can the Trudeau Cabinet choose the new Commissioner of Lobbying because it is in a conflict of interest, and the commissioner is currently investigating two complaints concerning people tied to companies that lobby the PMO who hosted fundraising events attended by Trudeau, as well as a complaint about a lobbyist who helped organize a fundraising event attended by Finance Minister Bill Morneau.
Democracy Watch filed complaints with the Ethics Commissioner in mid-December and at the end of January asking for a ruling that it is violation of the Conflict of Interest Act for the Trudeau Cabinet to appoint or reappoint those and other watchdogs, especially when the watchdogs are investigating the Prime Minister (as the Ethics Commissioner was in December and is now, and as the Lobbying Commissioner is now). The Ethics Commissioner essentially refused to rule on the complaints in a ruling she finally sent to Democracy Watch at the end of March.
“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, a fully independent public appointment commission must be created, 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.”
Democracy Watch’s Stop Bad Government Appointments Campaign proposes that the way to ensure the appointment of fully independent, merit-based judges and watchdogs is to have a fully independent commission whose members are approved by all federal party leaders (and entities such as the Canadian Judicial Council) do a public, non-partisan merit-based search for candidates, and to require the Trudeau Cabinet to choose 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.
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) be only allowed to serve one term.
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.
“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.”
The past 10 years cannot be repeated if Canada wants to claim it is a democracy, as the federal Ethics Commissioner Mary Dawson’s very weak enforcement record and Commissioner of Lobbying Karen Shepherd’s very weak enforcement record have done as much to undermine democracy in Canada as the dishonest, unethical and secretive actions of various politicians (See Part 1 of the Backgrounder below for details).
Democracy Watch and the nation-wide Government Ethics Coalition continue to call for key changes to strengthen federal political ethics and lobbying rules and the enforcement systems (See Part 2 of the Backgrounder below for details).
FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
1. Federal Ethics Commissioner Mary Dawson’s weak enforcement record
Federal Ethics Commissioner Mary Dawson has had a very weak enforcement record since 2007, including (as of June 2015) making 149 secret rulings, issuing only 25 public rulings, and letting 75 (94%) of people who clearly violated ethics rules off the hook.
Ethics Commissioner Dawson has greatly undermined various sections of the Conflict of Interest Act (COIA) in past rulings by creating loopholes in the COIA that do not exist – such as:
- her April 29, 2010 “Cheques Report” ruling claiming that political parties are not “persons” under the COIA and therefore it was fine for Conservative MPs and Cabinet ministers to hand out government cheques with the Conservative Party logo on them;
- her May 13, 2010 “Raitt Report” ruling that it was fine for two lobbyists who were lobbying Minister Lisa Raitt to help raise thousands of dollars for her riding association because, you claimed, that only helped the association not her;
- her December 2016 ruling that it was fine for Health Minister Jane Philpott to use the driving service company of one of her former campaign volunteers because it was the only such company Minister Philpott claimed she knew about (a ruling that creates a loophole allowing any Minister or other senior government officlal to use the same invalid excuse Minister Philpott used to give contracts to their friends or other party loyalists);
- her baseless decision that the COIA only applies to financial interests despite the fact that the COIA’s section 2 definition of “private interest” does not in any way even suggest that the definition of “private interest” is restricted to only financial interests, and;
- her baseless decision that the COIA only applies to close personal friends (there is no such definition of “friends” in the COIA).
Because of section 66 added to the then-new Conflict of Interest 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. If this section had not been added to the Act, Democracy Watch would have challenged several of Commissioner Dawson’s rulings since 2007 in court.
Democracy Watch is currently challenging Ethics Commissioner Dawson’s use of conflict-of-interest screens in court on the basis that the screens are unlawful.
2. Federal ethics law and codes 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. Prime Minister Harper instead put those rules in his Accountable Government code for ministers and other senior officials so he could ignore the rules (as he did until the Conservatives were defeated in the 2015 election – see especially rules in Annex A, Part 1 of the code).
The Liberals made no promises in their 2015 election platform to close the huge loopholes in the Conflict of Interest Act (and they also made no promises to close the huge loopholes in the Lobbying Act or the Public Servants Disclosure Protection Act). Instead, Prime Minister Trudeau re-named and re-issued the Accountability Government code as his Open and Accountable Government code. He has ignored the rules in his code just like Prime Minister Harper did.