Court of Appeal excused Cabinet’s bias based on 2001 Supreme Court ruling, and also ruled consultation with opposition was “reasonable”

Hopefully federal parties will soon make changes to ensure, as 5 provinces have, Cabinet is prohibited from choosing its own watchdogs

FOR IMMEDIATE RELEASE:
Thursday, July 30, 2020

OTTAWA – Today, Democracy Watch announced that the Supreme Court of Canada has refused to allow DWatch to 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), although the SCC did not impose costs on Democracy Watch. David Yazbeck of Raven, Cameron, Ballantyne & Yazbeck LLP represented 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.

“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 was just as clearly a conflict of interest for the Trudeau 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 Duff Conacher, Co-founder of Democracy Watch.

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 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 uphold the constitutional principles of democracy and rule of law just like judges do, and so must be fully independent from Cabinet in every way, including in how they are appointed. Democracy Watch made the same arguments before the FCA. The SCC refusing to hear the case means, unfortunately, it is fine with Cabinet ministers choosing their own watchdogs.

“Given it is essential that the ethics and lobbying watchdogs are not chosen by the Cabinet ministers they watch over, Democracy Watch is very disappointed that the Supreme Court of Canada has refused to hear its appeal,” said Duff Conacher, Co-founder of Democracy Watch. “Hopefully, as Alberta, B.C., New Brunswick, Manitoba and Ontario have all done, federal parties will soon make changes to ensure that Cabinet ministers do not control the appointment process for key good government and democracy watchdogs.” P.E.I. also has a more independent process for choosing its government ethics watchdog (but not its lobbying watchdog), and B.C.’s all-party committee process is used for choosing all of its government watchdogs.

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.

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FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s Stop Bad Government Appointments Campaign and Government Ethics Campaign