RelsMay1710.html

OTTAWA - Today, Democracy Watch called on federal MPs to dismiss federal Conflict of Interest and Ethics Commissioner Mary Dawson based on her ridiculous ruling last week on the fundraising event held by Conservative Cabinet minister Lisa Raitt last September, a ruling that only adds to the Ethics Commissioner's dangerously weak enforcement record.

This is the eighth time in a row that the Commissioner has created loopholes in federal ethics rules to let a Conservative Cabinet minister off-the-hook for actions that clearly seem to violate the rules.

Democracy Watch also called on MPs to pass a bill as soon as possible to strengthen federal ethics laws and increase the accountability of all the ethics enforcement agencies, especially the Ethics Commissioner who is not required to investigate all complaints and whose rulings cannot be challenged in court in most cases no matter how error-filled her rulings are.

"Federal Ethics Commissioner Mary Dawson's most recent ruling shows yet again that she is a lapdog who refuses to enforce federal ethics rules effectively, and MPs have all the justification they need to replace her with someone who will do the job properly," said Duff Conacher, Coordinator of Democracy Watch. "Commissioner Dawson's ruling also reveals that every single loophole in the federal ethics rules and enforcement system must be closed or politicians, staff, appointees and lobbyists will continue to be let off-the-hook for clearly unethical activities."

Incredibly, Ethics Commissioner Dawson ruled last week that no conflict of interest is created, and no benefit is received by a Minister/MP, when a lobbyist who lobbies the Minister/MP helps organize a fundraising event for the riding association of the Minister/MP, as long as the Minister/MP claims s/he did not know the lobbyist helped with the event. Commissioner Dawson made this ruling even though Minister and MP Lisa Raitt sits on the board of the riding association.

As one of the complainants about the Raitt fundraising event, Democracy Watch would challenge the Ethics Commissioner's incredibly bad ruling in court, but such court challenges are illegal no matter how many legal or factual errors the Commissioner makes in a ruling.

Democracy Watch expects that Commissioner of Lobbying Karen Shepherd will, essentially, reject and overrule the Ethics Commissioner's ridiculous ruling when she rules on Democracy Watch's complaint that the lobbyist who helped with Lisa Raitt's fundraising violated Rule 8 of the federal Lobbyists' Code of Conduct, which prohibits lobbyists from doing anything to put politicians and other public office holders' in a conflict of interest. If Commissioner Shepherd does not find the lobbyist guilty of violating Rule 8, she will fail to comply with both the March 2009 Federal Court of Appeal ruling won by Democracy Watch, and her own November 2009 Guideline on Rule 8.

In making her negligent ruling, Commissioner Dawson ignored the purpose of, and rules in, the Conflict of Interest Act, and also ignored her own 2008 Guideline on Gifts (including Invitations, Fundraisers and Business Lunches), and also the March 2009 Federal Court of Appeal ruling won by Democracy Watch that made it clear that a lobbyist who helps with a fundraising event for a politician the lobbyist is lobbying puts the politician in a conflict of interest.

Democracy Watch also again called on Justice Oliphant to do his job properly and recommend strongly in his report to be released on May 31st closing all the loopholes that allow for dishonesty, secret, unethical donations and lobbying, and that allow for secret, weak and unaccountable enforcement by the Ethics Commissioner, Commissioner of Lobbying, Senate Ethics Officer and Public Sector Integrity Commissioner.

Even if Justice Oliphant ignores the loopholes in his recommendations report, federal political parties should immediately take the steps necessary to enact the recent unanimously supported changes to the Lobbying Act, and also close all the loopholes and correct all the enforcement weaknesses in that Act, and in the Conflict of Interest Act, the Conflict of Interest Code for Members of the House of Commons, the Conflict of Interest Code for Senators, the Values and Ethics Code for the Public Service, and the Public Servants Disclosure Protection Act.

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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

Democracy Watch homepage

Measures that make it illegal to challenge in court most rulings of the federal Ethics Commissioner

Conflict of Interest Act
Orders and decisions final
66. Every order and decision of the Commissioner is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.

Federal Courts Act
Grounds of review
18.1(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

(e) acted, or failed to act, by reason of fraud or perjured evidence; or

(f) acted in any other way that was contrary to law.

As a result of these measures, a ruling or decision by the federal Conflict of Interest and Ethics Commissioner can only be challenged in court if the Commissioner acts without jurisdiction or refuses to exercise jurisdiction (18.1(4)(a) of the Federal Courts Act) or fails to observe a principle of natural justice or procedural fairness (18.1(4)(b) of the Federal Courts Act) or acts or fails to act based on fraudulent evidence (18.1(4)(a) of the Federal Courts Act).

Even if the Commissioner makes dozens of errors of law or fact in a ruling, no one is allowed to challenge the ruling in court.

Rule 8 of the Lobbyists' Code of Conduct and March 2009 Federal Court of Appeal ruling

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."

In November 2009, finally, Commissioner of Lobbying Karen Shepherd issued a Guideline on Rule 8 that complied with the Federal Court of Appeal ruling.

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.

Conflict of Interest Act and Guideline on Gifts

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 Elections 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.

The federal Conflict of Interest and Ethics Commissioner's 2008 Guideline on Gifts (including Invitations, Fundraisers and Business Lunches), covers gifts of money, property or services as defined under the Conflict of Interest Act and strongly reaffirms that federal Cabinet ministers and other senior government 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 will 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 science of influence and persuasion -- for more details, click here)

The Guideline on Gifts offers examples of gift givers who the Commissioner views as giving gifts or doing favours in order to influence a minister or government official, including anyone who is associated with, or lobbying for, any entity that has or may have dealings of any kind with the government institution(s) that the minister or official directs (p.5).

The Guideline on Gifts contains the following key statements (among others):

"The purpose of prohibiting public office holders or their family members from receiving gifts is to preserve confidence in the integrity of public decision-making. The determining factor is whether the gift might reasonably be seen to have been given to influence the public office holder's decision-making.” (pp. 4-5);
"It is important to consider who is offering the gift and why it is being offered. The donor's existing, or future relationship to the public office holder is of particular relevance." (p. 5);
"A public office holder or family member should consider why a gift is being offered. If a gift is being offered by someone whose interests could be affected by a decision the public office holder may be called upon to make, then the Act will likely apply and prohibit its acceptance." (p. 5), and;
"If a friend is offering a gift in a context not normally associated with gift-giving and the friend is also doing or likely to do business directly or indirectly with the public service entity of the public office holder, then the gift should not be accepted." (p. 7)

There are also 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 decision. 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 or 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. 52-53).