Federal Commissioner of Lobbying Fails in
Past Year to Rule on Five Longstanding Ethics Complaints
Along with Federal Ethics
Commissioner Also Taking Too Long to Rule on Complaints About Fundraising Events Held by Federal Conservatives
Rick Dykstra and Lisa Raitt Last Fall
Thursday, April 8, 2010
OTTAWA - Today, Democracy Watch criticized the federal
Commissioner of Lobbying Karen Shepherd for failing to rule in the past
fiscal year on five outstanding complaints that allege violations of
the Lobbyists' Code of Conduct
that were filed by Democracy Watch from
2001 to 2004.
Democracy Watch also criticized Commissioner Shepherd and
federal Conflict of Interest and Ethics Commissioner Mary Dawson for
taking months to rule on ethics complaints filed last October by
Democracy Watch about fundraising events held by federal Conservative
Cabinet minister Lisa Raitt and Parliamentary Secretary Rick Dykstra.
"Democracy Watch's opinion
is that, like past ethics enforcement lapdogs, the current federal
Commissioner of Lobbying
and Ethics Commissioner are sitting on serious ethics complaints and
continuing to let federal lobbyists and politicians off the hook for
highly questionable actions," said Duff Conacher, Coordinator of
In July 2004, the Federal Court of Canada ruled that former
federal Ethics Counsellor Howard Wilson was biased in part because he
unjustifiably delayed ruling on complaints filed by Democracy
Watch. In March 2007, former federal Ethics Commissioner Bernard
Shapiro resigned rather than face a court challenge of his lapdog
enforcement record that was filed by Democracy Watch.
In 2008, federal Ethics Commissioner Mary Dawson issued a Guideline
on Gifts (including Invitations, Fundraisers and Business Lunches)
that made it clear that federal Cabinet ministers, staff, appointees
and senior government officials cannot accept gifts of money, property
or services from lobbyists.
In March 2009, the Federal Court of Appeal ruled unanimously that federal lobbyists who give or do anything for any federal politician, political staff or government official that creates a sense of obligation to return the favour violate Rule 8 of the federal Lobbyists' Code. In the ruling, the Court of Appeal rejected the actions and decisions of past lapdog Registrars of Lobbyists Howard Wilson and Michael Nelson. In November 2009, Commissioner of Lobbying Shepherd issued a new guideline on Rule 8 that complies with the Court of Appeal's ruling.
"Democracy Watch's opinion is that given federal ethics rules for politicians and lobbyists, and federal political donation rules, and given related Canadian court rulings, the information known about the fundraising and other favours provided by lobbyists for past politicians and Conservative MP Rick Dykstra and Conservative Cabinet Minister Lisa Raitt raises serious questions that merit investigation and rulings by the federal ethics enforcement agencies," said Conacher.
In Commissioner Shepherd's 2008-2009 annual report which
period up to March 31, 2009, she wrote the following:
"A transitional provision set out in the Federal Accountability Act regarding pending investigations gave authority to the Commissioner to continue conducting investigations initiated by the Registrar prior to July 2, 2008. In the past year, six investigations initiated by the Office of the Registrar of Lobbyists were transferred to the Commissioner of Lobbying. One investigation report has been submitted for the Commissioner's consideration, with the remaining five still under review."
To see details about
the five longstanding Democracy Watch ethics complaints, click here.
See below for details about the complaint Democracy Watch
filed on on
October 16, 2009 concerning a fundraising event held by Conservative
Parliamentary Secretary and MP Rick Dykstra at the Rogers Centre on
September 4, 2009, and the request for investigation it filed on
October 21, 2009 concerning a fundraising event held by Conservative
Minister of Natural Resources Lisa Raitt at a restaurant in Toronto on
September 24, 2009.
New November 2009 information
the Rick Dykstra fundraising event at Rogers Centre
Also according to media reports, Mr. Dykstra has claimed that
no Cabinet ministers were at the event, and that the cost of a ticket
for the event was a $400 donation to Mr. Dykstra's riding association.
However, Democracy Watch confirmed again on October 23, 2009
with a Rogers Centre staffperson that the Owner's Box is not offered
for rent to anyone
(and the Box is not offered for rent on the Rogers Centre website).
Democracy Watch also confirmed with the same staffperson that
the rental cost for a
Luxury Suite, which holds 20 people, is minimum $3,500, and for a
Double Box (which holds 40 people) is minimum $4,500, and for the
Executive Lounge (which holds 80 people) is minimum $6,500.
Therefore, given that Rick Dykstra invited 60 people to his fundraising
event in the Owner's Box, by its own rental rates (which clearly
establish the market value of renting boxes at the Rogers Centre),
Rogers should have charged Mr. Dykstra minimum $5,500 to rent the
In addition, neither Rogers nor Mr. Dykstra have provided
information concerning the cost, and amount paid (if any), for the
other perk offered to attendees of the event, namely attending batting
practice before the baseball game between the Blue Jays and the New
York Yankees (who are now leading in the Major League Baseball World
Championship Series) that was held the day of the event, and meeting
the Blue Jays team.
As a result, despite Mr. Dykstra's claims, Democracy Watch's
opinion is that the three commissioners clearly have reasonable grounds
to investigate the situation to determine whether federal ethics and
political donations rules have been violated (and, in fact, the Ethics
Commissioner has confirmed that she is investigating the event).
New November 2009 information
the Lisa Raitt fundraising event
By recusing herself, Minister Raitt has essentially admitted
that the services provided to her by Mr. McSweeney are a prohibited
“gift” under the Conflict of
Interest Act (and, it is Democracy Watch’s opinion, also under
the Conflict of Interest Code for
Members of the House of Commons (MPs Code)) because the services
could “reasonably could be seen to influence”
Minister Raitt’s decisions and create a private interest that puts her
in a conflict of interest.
In Democracy Watch's opinion, if the two commissioners do not
issue these rulings, they will not be properly enforcing federal ethics
rules (NOTE: the Ethics Commissioner has confirmed that she is
investigating the event).
Based on its very close review of the federal Conflict of Interest Act and
federal Ethics Commissioner's 2008 Guideline
on Gifts (including Invitations, Fundraisers and Business Lunches)
under that Act, and relevant
court rulings, Democracy Watch’s opinion is that the only gifts and/or
contributions that are permitted to be given to federal Cabinet
ministers (including Parliamentary Secretaries) under the Canada Elections Act exemption in
clause 11(2)(a) of the Conflict of
Interest Act are money, property or the use of property or
services provided by an individual up to the contribution limit of
$1,100 (or equivalent commercial value) annually, and volunteer labour
provided by an individual outside of their area of work and outside of
their working hours.
Based on its very close review of the federal Conflict of Interest Code for Members of
the House of Commons (the MPs
Code) and relevant court rulings, Democracy Watch’s opinion is
that it is a violation of the MPs
Code for an MP to accept any gift of money, property or the use
of property or services (volunteer or otherwise, such as fundraising)
from a registered lobbyist, as such a gift can reasonably be seen to be
given to influence the MP’s exercise of their public duties.
And based on its very close review of the federal Lobbying Act and Lobbyists' Code of Conduct and
relevant court rulings (including the Federal Court of Appeal's unanimous
ruling in March 2009), Democracy Watch’s opinion is that it is a
violation of Rule 8 of the Lobbyists’
Code for any lobbyist (whether legally and properly registered
under the Act or not) to
provide, directly or indirectly, to any public office any more money
than is allowed to be contributed annually under the Canada Elections Act, or any more
property or use of property the commercial value of which exceeds the
annual contribution limits under the Canada
Act, or any services (whether paid or volunteer) that
are significant enough to create within the public office holder a
personal sense of obligation to the lobbyist.
Rule 8 of the 12-year-old federal Lobbyists' Code of Conduct (Lobbyists’ Code) states:
"8. 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."
The Federal Court of Appeal's March 2009 unanimous ruling
stated that Rule 8 of the Lobbyists'
Code simply "prohibits
lobbyists from placing public
office holders in a conflict of interest" because "Any conflict of interest impairs public
confidence in government decision-making" (para. 48).
The Court of Appeal's ruling went on to clarify specifically
that "A lobbyist's stock in trade is
his or her
ability to gain access to decision makers, so as to attempt to
influence them directly by persuasion and facts. Where the
lobbyist's effectiveness depends upon the decision maker's personal
sense of obligation to the lobbyist, or on some other private interest
created or facilitated by the lobbyist, the line between legitimate
lobbying and illegitimate lobbying has been crossed."
The Court of Appeal's ruling follows
the same logic, and sets
the same ethical standard, as the federal Conflict of Interest and
Commissioner's 2008 Guideline
on Gifts (including Invitations, Fundraisers and Business Lunches),
money, property or services as defined
Act and strongly reaffirms that federal Cabinet
ministers and other
officials (and their family members) essentially cannot accept any
gifts or favours from anyone
who is trying to influence, or will be trying to influence, or has or
have dealings with, the minister or government official, even if the
lobbyist is a friend or a relative. (NOTE:
the Ethics Commissioner's guideline is based upon the principles of the
of influence and persuasion -- for more details, click here)
The Guideline on Gifts offers examples of gift givers
Commissioner views as giving gifts or doing favours in order to
a minister or government official, including anyone who is associated
or lobbying for, any entity that has or may have dealings of any kind
the government institution(s) that the minister or official directs
The Guideline on Gifts contains the following key
The Preamble of the federal Lobbyists' Code states that together it and the Conflict of Interest Act and other ethics codes for public office holders (politicians, their staff and government officials) “play an important role in safeguarding the public interest in the integrity of government decision-making”. Therefore, Democracy Watch has always argued that the interpretation of Rule 8 of the Lobbyists' Code must be based on public office holders' ethics rules.
There are rules that clarify what types of influence are improper and cause conflicts of interest in the two-year-old Conflict of Interest Act, and in the four-year-old Conflict of Interest Code for Members of the House of Commons and in the four-year-old Conflict of Interest Code for Senators and in the 12-year-old federal Values and Ethics Code for the Public Service.
Specifically, all of these codes state that it is improper to
receive a gift of money, property or services that could influence a
Given that lobbyists, by definition, try to influence the decisions of
public office holders, Democracy Watch believes that a proper
application of the Court of Appeal's interpretation and application of
Rule 8 of the Lobbyists'
Code prohibits lobbyists from providing money, property
services to public office holders because that can create, in the words
of the Court of Appeal, a “personal sense of obligation” by the public
office holder to the lobbyist or a “competing private interest” (paras.
For all these reasons, Democracy Watch believes that is
reasonable for the Commissioner of Lobbying, the Ethics Commissioner
and the Commissioner of Canada Elections to investigate MP Dykstra's
and Minister Raitt's fundraising
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FOR MORE INFORMATION, CONTACT:
Democracy Watch's Government Ethics Campaign
Democracy Watch's Money in
Democracy Watch homepage
To see the
history of the five complaints, click here