Wednesday, April 14, 2010

OTTAWA - Today, Democracy Watch criticized the federal ethics and lobbying commissioners for continuing to fail to enforce the Conflict of Interest Act and MPs Code and Lobbying Act and Lobbyists' Code effectively, as recent cases have highlighted.

"The Supreme Court of Canada warned in a 1996 ruling that if key ethics and good government rules are not strictly and strongly enforced the government will not function democratically, but unfortunately federal ethics enforcement commissioners continue to ignore that warning just like past commissioners did," said Duff Conacher, Coordinator of Democracy Watch.  "Incredibly, the laws against illegal parking across Canada are more strictly and strongly enforced than key federal government ethics and good government rules."

Recent situations involving former Conservative MP Rahim Jaffer and Conservative Cabinet ministers Helena Guergis and Gail Shea have only added to the weak enforcement records of both Conflict of Interest and Ethics Commissioner Mary Dawson and Commissioner of Lobbying Karen Shepherd.  Both have taken too long to rule on past complaints and, in the case of the Ethics Commissioner, let people off the hook for very questionable technical reasons even when they have been involved in highly questionable actions.

"The federal ethics and lobbying commissioners told the Oliphant Commission last June that they don't do audits to ensure that politicians, political staff, Cabinet appointees and lobbyists are obeying the law, and that's as ineffective as police failing to patrol the streets or Revenue Canada failing to audit tax filings," said Duff Conacher, Coordinator of Democracy Watch.  "In addition, both commissioners have been taking too long to rule on past complaints, and the ethics commissioner has let people involved in highly questionable situations off the hook and created loopholes through very questionable enforcement actions."

"Both the Ethics Commissioner and the Commissioner of Lobbying's weak enforcement records must be examined by a Commons committee, and if they cannot justify their records new commissioners should be appointed and changes finally made to ensure future commissioners are required to enforce these key good government laws effectively," said Conacher.  "As well, Democracy Watch is planning to challenge the commissioners in court if they continue to fail to enforce the laws effectively."

• Conflict of Interest and Ethics Commissioner Mary Dawson's weak enforcement record
• Commissioner of Lobbying Karen Shepherd's weak enforcement record
• Changes needed to ensure ethical federal government decision-making and to ensure the Conflict of Interest and Ethics Commissioner enforces rules effectively
  
• Changes needed to ensure transparent, ethical federal government lobbying and to ensure the Commissioner of Lobbying enforces rules effectively
  

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FOR MORE INFORMATION, CONTACT:
Duff Conacher, Coordinator of Democracy Watch
Tel: (613) 241-5179  
dwatch@web.net

Democracy Watch's Government Ethics Campaign

Democracy Watch's Money in Politics Campaign

Conflict of Interest and Ethics Commissioner Mary Dawson's weak enforcement record
(NOTE: Democracy Watch urged the Oliphant Commission to recommend strengthening the Commissioner's enforcement in its May 2010 report)

Democracy Watch's opinion is that Commissioner Dawson has not been enforcing the Conflict of Interest Act (Act) and the Conflict of Interest Code for Members of the House of Commons (MPs Code) effectively, as follows:

• Commissioner Dawson does not randomly audit for accuracy any of the financial statements she receives and reviews annually from public office holders that are Cabinet ministers, political staff, Cabinet appointees (and their spouses and dependent children) under sections 22, 25(2)-(4) and 28 of the Act, and from MPs (and their spouses and dependent children) under sections 20-24 of the MPs Code, even though these statements are the key basis for determining whether they are in a conflict of interest;
  
• Commissioner Dawson does not randomly audit the activities of any public office holder or their families even though she is the sole enforcer of rules that prohibit public office holders from: taking part in decisions in which they are in a conflict of interest (section 6 of the Act); giving preferential treatment (section 7); using insider information or their influence to further their own or their relatives, friends or others interests (section 8 and 9); make decisions when influenced by an offer of outside employment (section 10); accept gifts that could influence them (section 11) including flights on private aircraft (section 12); receive a benefit from a contract with a government institution (section 13); employing their family members or other Cabinet ministers family members (section 14); own or take part in a business or union (section 15); solicit funds if it would cause a conflict of interest (section 16);
  
• Commissioner Dawson does not randomly audit any former public office holder's activities, even though she is the sole enforcer of rules that prohibit them: forever from taking improper advantage of their former position (section 33 of the Act); forever from acting for anyone involved in any transaction they were involved in during their former position (subsection 34(1)); forever from giving advice to anyone using secret information they obtained while in their former position (subsection 34(2)), and; for one to two years, working with, or making representations on behalf of, any organization they had significant dealings with during their last year in office, or contacting former Cabinet minister colleagues (sections 35-38);
• Commissioner Dawson does not randomly audit the activities of any MPs, even though she is the sole enforcer of rules that prohibit MPs from: furthering their own or others' private interests or using their influence or inside information to do so (sections 8 to 10 of MPs Code); taking part in decisions in which s/he has a private interest (section 13); accepting gifts (or their family accepting gifts) that could influence them (section 14); receiving a benefit from a government contract (sections 16 and 18); owning significant shares in a public corporation that does business with the federal government (section 17); taking any action to circumvent these and other prohibitions (section 25);
  
• Commissioner Dawson did not require Cabinet minister Helena Guergis or Cabinet minister Gail Shea (or likely other ministers) to put recusal statements on their public registration even though ministers are required to do so when in a conflict of interest under section 21 and subsection 25(1) of the Act and even though the Commissioner is empowered to order recusals under section 30 of the Act (CBC Radio's The Current Part 1, April 15, 2010)
  
• Commissioner Dawson seems to have created a loophole in the Act's enforcement regime by arranging with Cabinet ministers and other public office holders to recuse themselves from issues about which they have a conflict of interest without them publicly disclosing the recusal as clearly required under subsection 25(1) of the Act (CBC Radio's The Current Part 1, April 15, 2010);
• Commissioner Dawson refused on April 12, 2010 (without providing any reasons other than lack of information) to investigate Prime Minister Harper's referral to her of allegations concerning unspecified actions of Cabinet minister Helena Guergis, even though media reports claimed that she was providing preferential treatment to her spouse which, if true, would be a violation of the Act (CBC Radio's The Current Part 1, April 15, 2010);
• Commissioner Dawson refused on April 8, 2010 (without providing any reasons) to investigate the complaint about Cabinet minister Helena Guergis receiving an $880,000 mortgage (CBC Radio's The Current Part 1, April 15, 2010);
  
• Commissioner Dawson has taken six months to rule on complaints that included all the key facts about fundraising events held in September 2009 by Conservative Cabinet minister Lisa Raitt and Conservative Parliamentary Secretary Rick Dykstra;
• Commissioner Dawson created a loophole in the Act when she refused to rule on a complaint about Conservative Cabinet ministers who handed out government cheques with Conservative Party logos on them did not violate the Act because, she claimed (PDF), political parties are not legal "persons" under the Act and therefore ministers cannot improperly further the interests of their party;
• because she does not conduct any audits, Commissioner Dawson failed to find out that Cabinet Minister Peter MacKay was on the board of two companies (in violation of the Act) until she was alerted by a newspaper article;
  
• Commissioner Dawson's December 2008 ruling (PDF) let Finance Minister Jim Flaherty off the hook when his staff handed out a sole-source contract to a former political colleague in violation of contracting rules, and failed to find his staff guilty of violating the Act as she is empowered to do under section 45;
  
• Commissioner Dawson ruled in January 2008 that neither Prime Minister Harper nor any minister or government official was in a conflict of interest concerning the Brian Mulroney-Karlheinz Schreiber situation even though some of them were friends of Mr. Mulroney and the Act prohibits making decisions that affect the interests of friends;
• Commissioner Dawson decided in her first months as Commissioner, based on highly technical and questionable reasons that directly contradict the purpose of the Conflict of Interest Act, that dozens of public office holders were not covered by the Act.
  

Commissioner of Lobbying Karen Shepherd's weak enforcement record
(NOTE: Democracy Watch urged the Oliphant Commission to recommend strengthening the Commissioner's enforcement in its May 2010 report)

Democracy Watch's opinion is that Commissioner of Lobbying Karen Shepherd has not been enforcing the Lobbying Act (Act) and the Lobbyists' Code of Conduct (Lobbyists' Code) effectively, as follows:

• Commissioner Shepherd does not randomly audit anyone's activities, including former public office holder's activities, to ensure they are complying with the rules she enforces that: require anyone paid to lobby to register and disclose details about their lobbying (sections 5, 7 and 7.1 of the Act); prohibit any registered lobbyist from being paid a contingency (success) fee (section 10.1 of the Act); prohibit former public office holders from being a registered lobbyist for five years after they leave office (section 10.11 of the Act), and; prohibit lobbyists from proposing or doing anything that puts a public office holder in a conflict of interest (Rule 8 of the Lobbyists' Code);
  
• Commissioner Shepherd has taken six months to rule on complaints that included all the key facts about fundraising events held last September by Conservative Cabinet minister Lisa Raitt and Conservative Parliamentary Secretary Rick Dykstra, and;
• Commissioner Shepherd has taken more than 1.5 years to rule on five past complaints filed by Democracy Watch concerning favours lobbyists have done for past public office holders, and has not even contacted Democracy Watch about the complaints.