Thursday, March 6, 2003

OTTAWA - Today, Democracy Watch held a news conference to release details about its court challenge of federal Ethics Counsellor Howard Wilson's structural bias and recent ruling on what lobbyists have to do to put a politician in a conflict of interest in violation of the Lobbyists' Code of Conduct (the Lobbyists' Code).

On January 20, 2003, the Ethics Counsellor issued an advisory opinion ruling that set out his interpretation of Rule 8 of the Lobbyists' Code, and what a lobbyist has to do to break Rule 8 (See ruling at: http://strategis.ic.gc.ca/SSG/lr01113e.html).  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.

"The Ethics Counsellor has ruled that a lobbyist can't put a politician in a conflict of interest unless the lobbyist enslaves the politician, a ruling designed to protect the Prime Minister, Liberal Cabinet ministers, and Liberal lobbyists from ever being found guilty of breaking ethics rules," said Duff Conacher, Coordinator of Democracy Watch.

Howard Wilson holds two legally separate positions, both called "Ethics Counsellor".  Under the Lobbyists Registration Act, the Ethics Counsellor (Lobbyists) is required to investigate where he believes there are reasonable grounds that a violation of the Lobbyists' Code has occurred.  He has the full powers of a judge in his investigation, and is required to report his ruling to Parliament.  However, in his other position as Ethics Counsellor for Cabinet ministers and other senior public officials under the Conflict of Interest and Post-Employment Code for Public Office Holders (the Public Office Holders Code), Wilson is fully controlled by the Prime Minister, and the Prime Minister can (under section 24 of the Code) overrule him.

In order to find a lobbyist guilty of violating Rule 8 of the Lobbyists' Code, the Ethics Counsellor must also find a Minister, MP or other public official guilty of violating the Public Office Holders Code.  Because the Prime Minister controls the Ethics Counsellor in one of his two positions, Democracy Watch's court challenge claims that the Ethics Counsellor cannot fairly, impartially, or effectively fulfill his legal duty to investigate lobbyists and uphold the Lobbyists' Code.

"We believe the Ethics Counsellor is biased because he is controlled by the Prime Minister, and that his recent ruling shows his bias because it makes it almost impossible for a lobbyist and a politician, especially the Prime Minister, to be involved in a conflict of interest situation," said Conacher.

Democracy Watch has filed nine complaints with the Ethics Counsellor since April 2000 about situations in which a lobbyist is possibly in violation of Rule 8 of the Lobbyists' Code because the lobbyist has done something to put a politician in a conflict of interest (such as fundraising or working for a minister whom the lobbyist is lobbying).  In his rulings on two of the nine complaints, the Ethics Counsellor did not say anything resembling what he says in his January 20th ruling on the meaning of Rule 8.

The Ethics Counsellor has not ruled on the other seven complaints, even though three of the complaints are more than two years old, and two are more than one year old.  Since April 2000, when Democracy Watch filed its first complaint, the Ethics Counsellor has ruled on several other conflict of interest situations, sometimes within days of receiving a complaint.  Many of these situations were much more complex than the situations involved in most of Democracy Watch's complaints.

A win in the court would force the federal government to replace Howard Wilson with another person in the role of enforcer of either Public Office Holders Code or the Lobbyists' Code, to eliminate the conflict caused by one person holding both positions.  A win in the court would also overturn the Ethics Counsellor's interpretation of Rule 8 and set a different standard for what actions by lobbyists put politicians in a conflict of interest.

Democracy Watch filed its new challenge in Federal Court on February 19th (Court file #T-297-03).  Martin Doane of the Toronto law firm of Paliare Roland Rosenberg Rothstein LLP is representing Democracy Watch in the case.

On December 11, 2002, Democracy Watch filed a different  court challenge  of the Ethics Counsellor's bias and failure to uphold his legal duties because of his delay in ruling on Democracy Watch's outstanding past complaints (Federal Court file #T-2077-02). Martin Doane is also acting for Democracy Watch in that court case.