2000 to 2004 Time Period
2005 to 2008 Time Period
2008 and on Time Period
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 InfluenceIn response to Democracy Watch's December 2002 court application, Ethics Counsellor Howard Wilson in January 2003 issued an interpretation bulletin of Rule 8 (that Wilson backdated to September 2002) of the Lobbyists' Code of Conduct that stated that in order to violate Rule 8 a lobbyist would, among other things, have to "interfere with the decision, judgment or action" of a federal politician or federal government official in a way that amounts to "a wrongful constraint whereby the will of the public office holder was overpowered . . . and induced to do or forbear an act which he or she would not do if left to act freely" involving "a misuse of position of confidence" or taking "advantage of a public office holder's weakness, infirmity or distress".
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:
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.In January 2004, Democracy Watch filed the following ethics complaint with the Ethics Counsellor:
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).Also in April 2004, the Ethics Counsellor ruled on this complaint. As a result, this ruling was also not addressed by the Federal Court's July 2004 ruling, but as with the September 2002 complaint the federal government agreed that given that the Ethics Counsellor was found to be biased, that the Ethics Counsellor's ruling on the January 2004 complaint must also be re-considered by the Ethics Commissioner and the Registrar for Lobbyists.
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.As a result of Ethics Counsellor Howard Wilson's bias and negligence, none of the above 8 complaints had received a fair and impartial hearing before the end of 2004.
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
changed (through the so-called "Federal Accountability Act" (FAA)) the
Commissioner position into the Conflict
of Interest and Ethics Commissioner, and the Public
Code into the Conflict
Act. To see the details about the FAA
here. As a result of passage of the FAA, Bernard Shapiro
as Ethics Commissioner, and the new Conflict
of Interest and Ethics Commissioner Mary Dawson was appointed on
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
ruling, and the Federal Court of Appeal hearing of the appeal was on
January 12, 2009 -- To see details about Frenette's ruling and
appeal of the ruling, click
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).
FOR MORE INFORMATION, CONTACT:
Democracy Watch's Ethics Court Cases and Complaints information page
Democracy Watch's Government Ethics Campaign
Page last updated
October 15, 2010
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