In December 2002, Democracy Watch applied to the Federal Court of Canada for a review of federal Ethics Counsellor Howard Wilson's bias and failure to uphold legal duties because of the delay in ruling on 8 complaints Democracy Watch had filed with the Ethics Counsellor.

In 7 of the 8 complaints, the complaint was based upon activities of a lobbyist which Democracy Watch believes violate Rule 8 of the Lobbyists' Code of Conduct which prevents lobbyists from undertaking any activity that constitutes improper influence and puts a federal public office holder in a conflict of interest situation.  The eighth complaint, filed on April 12, 2001 and concerning John Dossetor, alleged that Dossetor violated the Lobbyists' Code of Conduct by failing to register as a lobbyist.

Rule 8 is as follows:

“8. Improper Influence
Lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder.”

Ethics Counsellor Howard Wilson's interpretation bulletin essentially states that a lobbyist only violates Rule 8 if the lobbyist enslaves a federal politician or other federal government official by or extorts them, thereby forcing them to do something they would not do if they had a free will.  In other words, the Ethics Counsellor ruled that in order to violate Rule 8, a lobbyist would also have to violate the Criminal Code of Canada measures that outlaw enslavement and extortion. 

At the same time, according to Ethics Counsellor Howard Wilson's interpretation of Rule 8, a lobbyist could violate the Criminal Code of Canada measures that outlaw bribery without violating Rule 8 (because bribery would not force a federal politician or other federal government official to do something they would not do if they had a free will, as they would take the bribe willingly).

Using this interpretation of Rule 8, Ethics Counsellor Howard Wilson proceeded through March 2003 to rule on 4 of Democracy Watch's 8 complaints about lobbyists violating Rule 8.  As none of the complaints were about a lobbyist enslaving or extorting a federal politician or other federal government official, the Ethics Counsellor ruled that none of the lobbyists had violated Rule 8.

The three Democracy Watch complaints federal Ethics Counsellor Howard Wilson ruled on between January 2003 and April 2003 are summarized below:

1. On March 27, 2001, Democracy Watch petitioned the Ethics Counsellor to investigate René Fugère, who was investigated by the RCMP for failing to register as a lobbyist.  Fugère was not charged even though clear evidence exists that Fugère was lobbying.  Given that Fugère is an unpaid aide to Prime Minister Jean Chrétien, and that the Prime Minister's office was involved in at least one of the same grant decisions, Democracy Watch also believes that Fugère's lobbying activities put the Prime Minister in a conflict of interest. (NOTE: The Ethics Counsellor ruled on this complaint on March 21, 2003; Democracy Watch's court challenge was filed on April 23, 2003, Federal Court File #T-642-03)
2. On June 17, 2002, Democracy Watch petitioned the Ethics Counsellor to investigate possible violations of the Public Office Holders' Code and the Lobbyists' Code arising from activities of nine particular lobbyists who have worked with either the Prime Minister, a Cabinet minister or opposition MP while also lobbying the federal government.  (NOTE: The Ethics Counsellor ruled on this complaint on March 21, 2003; Democracy Watch's court challenge was filed on April 23, 2003, Federal Court File #T-641-03)
3. On October 17, 2002, Democracy Watch petitioned the Ethics Counsellor to investigate possible violations of the Public Office Holders' Code and the Lobbyists' Code arising from secret donations of lobbyists to the leadership campaigns of John Manley, Sheila Copps and Allan Rock. (NOTE: The Ethics Counsellor ruled on this complaint on March 31, 2003; Democracy Watch's court challenge was filed on May 5, 2003, Federal Court File #T-711-03)

4. On April 12, 2001, Democracy Watch petitioned the Ethics Counsellor to investigate possible violations of the Public Office Holders' Code and the Lobbyists' Codearising from the employment of John Dossetor, former Senior Policy Advisor to the Minister of Health, by Monsanto Canada as its Vice-President, Government Affairs.  (NOTE: The Ethics Counsellor ruled on this complaint on March 27, 2003; Democracy Watch's court challenge was filed on April 30, 2003, Federal Court File #T-690-03).  On May 31, 2007, the Registrar of Lobbyists issued a new ruling about Dossetor -- Democracy Watch did not challenge this ruling in court only because it had already filed a court challenge of a Registrar's ruling on complaint #7 (see details set out below) and it did not have proof that Dossetor had lobbied before registering as a lobbyist.

On Thursday, May 13, 2004, with the hearing of Democracy Watch's applications scheduled for Monday, May 17th, the federal government had the gall to file a motion with the Federal Court for dismissal of Democracy Watch's applications, on the basis that the federal Cabinet proclaimed Bill C-4 into law on May 10, 2004.  Bill C-4 eliminated the Ethics Counsellor position and created the new positions of Ethics Commissioner (to enforce the then-in-force Public Office Holders Code and other ethics rules established by the Prime Minister, and the MPs Code that first came into force in October 2004) and the position of Registrar of Lobbyists (to enforce the Lobbyists Registration Act and the Lobbyists' Code).  The federal government's argument was that since the Ethics Counsellor position had ceased to exist, the issues raised by the judicial review applications were moot (meaning no longer relevant) and therefore Democracy Watch could no longer challenge the Ethics Counsellor in court.

On May 17th, the Federal Court dismissed the federal government's motion, ruling that the applications were not moot, and that even if the issues raised in the applications were moot, there were still issues raised by the treatment of Democracy Watch's complaints by the Ethics Counsellor, and there were still issues of national importance that warranted rulings by the court. Federal Court 2004 ruling (See especially paragraphs 25-31 in the ruling).

On July 9, 2004, the Federal Court ruled that the Ethics Counsellor was institutionally biased (because of his lack of independence from the Prime Minister) and also specifically biased against Democracy Watch (because of his delay in dealing with Democracy Watch's complaints).   The Federal Court in effect ordered that Democracy Watch's complaints must be re-considered by the new Ethics Commissioner and the new Registrar for Lobbyists. Federal Court 2004 ruling

In September 2002, Democracy Watch had filed the following complaint with the Ethics Counsellor, which the Ethics Counsellor ruled on in April 2004.  As a result, this ruling was not addressed by the Federal Court's July 2004 ruling, but the federal government agreed that given that the Ethics Counsellor was found to be biased, that the Ethics Counsellor's ruling on the September 2002 complaint must also be re-considered by the Ethics Commissioner and the Registrar for Lobbyists.

5. On September 26, 2002, Democracy Watch petitioned the Ethics Counsellor to investigate possible violations of the Public Office Holders' Code and the Lobbyists' Code arising from the activities of numerous lobbyists paying to attend (and paying to golf with Cabinet ministers) at a federal Liberal Party golf tournament  held on August 19, 2002 in Chicoutimi, Quebec.

6. The complaint was filed against Paul Martin, Sheila Copps, and John Manley, alleging that they had violated the Public Office Holders Code by taking large donations from several corporations registered to lobby them and the federal government, and that the corporations had violated the Lobbyists' Code by making the donations (January 30, 2004 news release about the ethics complaints).

Democracy Watch had also filed other complaints with the Ethics Counsellor, dating back to April 2000.  The Ethics Counsellor never ruled on the following two complaints.  As set out below, the Registrar of Lobbyists finally ruled on complaint #7 on October 10, 2006 (6.5 years after the complaint was filed):

7. A letter dated April 13, 2000 called for an investigation into whether lobbyist and former Liberal MP Barry Campbell violated the Lobbyists' Code of Conduct, and whether junior finance minister Jim Peterson violated the Public Office Holders Code, when Campbell organized a fundraising event in September 1999 that raised about $70,000 for Peterson (at the time, Campbell represented 10 corporations that were lobbying the Department of Finance); the letter also called for an investigation of other similar events for other ministers.  The Registrar of Lobbyists finally ruled on this complaint on October10, 2006, and Democracy Watch filed a court challenge of the Registrar's ruling in November 2006 -- for details, and to see the Registrar's ruling and the Federal Court of Appeal's March 2009 ruling, click here.

8. A letter dated November 9, 2000 called for an investigation into the Liberals' Transitional Jobs Fund (TJF) grant approval process in Quebec, which involved ministers, Liberal Party officials and Party members and raises serious questions about whether the ministers and others involved have broken the Public Office Holders Code and the Lobbyists' Code.  On September 7, 2007, the Registrar of Lobbyists issued the first ruling on this complaint -- Democracy Watch did not challenge this ruling in court only because it had already filed a court challenge of a Registrar's ruling on complaint #7 (see details set out above under #7 and in the section below) and it did not know the identities of the Liberal Party members nor did it have proof that they were lobbyists.

2. 2005-2007 Time Period

As noted above, as a result of Democracy Watch's court challenge of the Ethics Counsellor, the federal Liberals eliminated the position of Ethics Counsellor in May 2004 when it passed Bill C-4.  The Ethics Counsellor was replaced by the Ethics Commissioner (to enforce the then-in-force Public Office Holders Code and other ethics rules established by the Prime Minister, and the MPs Code that first came into force in October 2004), and replaced by the position of Registrar of Lobbyists (to administer the Lobbyists Registration Act and enforce the Lobbyists' Code).

Unfortunately, the new federal Ethics Commissioner Bernard Shapiro refused to re-consider any of the 8 complaints.  As a result of this decision and several other biased actions and statements of the federal Ethics Commissioner, Democracy Watch filed a complaint with the Ethics Commissioner on June 29, 2005 alleging that the Ethics Commissioner himself was violating the federal Public Office Holders Code and calling on the Commissioner to arrange an independent review of his actions and statements. Link to June 29, 2005 news release

In early August, Ethics Commissioner Shapiro responded to Democracy Watch's complaint, refusing to ensure an independent review of his actions and statements.

Also unfortunately, the Registrar of Lobbyists position is structured in a similar way as the former Ethics Counsellor's position.  The former Ethics Counsellor had no independence from the Prime Minister, while the new Registrar had no independence initially from the Industry Minister, and more recently (after September 2005) from the Treasury Board minister.  As a result, Democracy Watch believes that the Registrar is also biased and incapable of fairly and impartially upholding the Lobbyists Registration Act and Lobbyists' Code.  Democracy Watch's Op-ed About Problems with the Registrar for Lobbyists

As a result of the biased actions and statements of federal Ethics Commissioner Bernard Shapiro, and the biased structure of the Office of the Registrar of Lobbyists, Democracy Watch launched a court challenge in September 2005 of the bias and incompetence of the Commissioner and Registrar. Link to September 29, 2005 news release

As a result of Democracy Watch's September 2005 court challenge of Ethics Commissioner Shapiro, the federal government changed (through the so-called "Federal Accountability Act" (FAA)) the Commissioner position into the Conflict of Interest and Ethics Commissioner, and the Public Office Holders Code into the  Conflict of Interest Act.  To see the details about the FAA changes, click here.  As a result of passage of the FAA, Bernard Shapiro resigned as Ethics Commissioner, and the new Conflict of Interest and Ethics Commissioner Mary Dawson was appointed on July 9, 2007.
 

3. 2008 and on Time Period

Also as a result of Democracy Watch's September 2005 court challenge of the Registrar, the federal government proposed to change (through the so-called "Federal Accountability Act" (FAA)) the Commissioner position into a Commissioner of Lobbying position.  These changes had not been implemented by the federal Cabinet as of mid-April 2008, but to see details about the FAA changes, click here.

As noted above, Registrar of Lobbyists Michael Nelson finally issued the first ruling on Democracy Watch's complaint #7 (see details about the complaint set out above) on October10, 2006, and Democracy Watch filed a court challenge of the Registrar's ruling in November 2006 -- for details about the court challenge, and to see the Registrar's ruling, click here. 

In addition, as noted above, Registrar of Lobbyists Michael Nelson issued on May 31, 2007 a new ruling on complaint #4 (see details set out under #4 above), and issued on September 7, 2007 the first ruling on complaint #8 (see details set out under #8 above).  Democracy Watch did not challenge either of these rulings in court for the reasons set out in the section above for each complaint.

On January 28, 2008, a hearing of Democracy Watch's court challenge of the Registrar of Lobbyists ruling on Democracy Watch's complaint #7 occurred in the Federal Court of Canada in Toronto.  On February 19, 2008 (just three weeks after the court hearing), Deputy Judge Frenette issued his ruling upholding the Registrar of Lobbyists’ ruling and ordering Democracy Watch to pay the costs of the other parties. 

In March 2008, Democracy Watch filed an appeal of Deputy Judge Frenette's ruling, and the Federal Court of Appeal hearing of the appeal was on January 12, 2009 -- To see details about Frenette's ruling and Democracy Watch's appeal of the ruling, click here.

On March 12, 2009, the Federal Court of Appeal overturned Deputy Judge Frenette's ruling in every way -- To see details, click here. 

Democracy Watch is still waiting for rulings on five complaints from the Commissioner of Lobbying (who, as of July 2, 2008 replaced the Registrar of Lobbyists) -- complaint #s 1, 2, 3, 5 and 6 (SEE set out above the details about these complaints).