Monday, May 31, 2010

OTTAWA - Today, Justice Jeffrey Oliphant released his fact-finding and recommendations reports of the commission he headed inquiring into the Mulroney-Schreiber affair.

As the only organization that made extensive policy proposals to the Oliphant Commission, and as the only organization that did not demand payment for its work for the commission, Democracy Watch applauded Justice Oliphant for recommending closing four of the more than 20 loopholes in ethics rules apply to Cabinet ministers and full-time senior government officials, and recommending correcting 14 of the more than 20 flaws in the ethics enforcement system.

However, while Justice Oliphant had a limited mandate, Democracy Watch believes he could and should have recommended closing the many other loopholes in the rules, and correcting many other flaws in the enforcement system, that allow others in federal politics to act unethically.

Democracy Watch also applauded Justice Oliphant for concluding that former Prime Minister Brian Mulroney violated his own ethics rules when he was prime minister by giving preferential treatment to, and having an unethical relationship with, Karlheinz Schreiber, and also that Mulroney did not tell the whole truth about this relationship when questioned by federal lawyers in 1995.

Based on Justice Oliphant's findings, Democracy Watch believes that Mr. Mulroney should return the money paid to him by the federal government in the settlement reached in the mid-1990s.  If he does not, Democracy Watch believes the federal government should attempt to recover the money.

Democracy Watch also called for another inquiry into the $10 million or so Airbus many that remains in question in part because the Oliphant Commission's terms of reference barred it from investigating where that money went.

"Justice Oliphant has done his job partially well by recommending closing four loopholes in ethics rules for Cabinet ministers and senior government officials, and correcting 14 flaws in the ethics enforcement system,"  said Duff Conacher, Coordinator of Democracy Watch.  "However, Justice Oliphant has unfortunately ignored many other loopholes that allow for secret donations and lobbying, and unethical actions by part-time Cabinet staff, MPs and their staff, and others in federal politics.

It is a sad fact that it is more likely people in cities and towns across Canada will be caught and penalized for parking illegally than it is likely a federal politician, government official or lobbyist will be caught and penalized for acting unethically or secretively.  Why?  Because the rules against parking illegally are stricter and more well-defined than government ethics and openness rules, and the enforcement agencies for parking rules are more fully independent, empowered and resourced than the ethics and openness enforcement agencies, and, most incredibly, the penalty for parking illegally is often more significant than the penalty for acting unethically or secretively.

"The system is the scandal, and until the system is cleaned up scandalous situations will continue to occur regularly," said Conacher.

The four loopholes in rules that apply to Cabinet ministers and full-time senior government officials that Justice Oliphant recommended closing are as follows:

1. The definition of "conflict of interest" in the Conflict of Interest Act should be expanded to cover "apparent" conflicts of interest;
2. The definition of "employment" in the Act should be expanded to include contracts so that ministers and senior government officials are required to disclose offers of contracts while they are in office;
3. The definition of "offer of employment" in the Act should be expanded to include any type of offer so that all offers are disclosed, and;
   
4. The restrictions on activities that apply to activities after they leave office should apply to activities outside of Canada.

1. Everyone in government can lie to voters about almost anything with no penalty in many cases (For more details, go to Democracy Watch's Honesty in Politics Campaign);
2. Cabinet ministers, their staff, and Cabinet appointees (including deputy ministers) and MPs and Senators can make policy decisions in areas in which they have financial interests;
3. Lobbyists can work for Cabinet ministers part-time;
4. Lobbyists can work for all MPs (including opposition party leaders);
5. Some Cabinet appointees don’t have any ethics rules (For more details about #s 2-5, go to Democracy Watch's Government Ethics Campaign);
6. Documents the public has a clear right to see can be hidden for years, or for decades (For more details, go to Democracy Watch's Open Government Campaign);
7. Part-time lobbyists for for-profit corporations, and unpaid lobbyists, can lobby in secret, and not all lobbying communications by registered lobbyists is required to be disclosed;
8. Part-time and junior ministerial staff and “employment exchange program” staff can lobby their Minister the day after they leave;
9. Staff of MPs and Senators don’t have any ethics rules;
10. Cabinet ministers, their staff, and Cabinet appointees (including deputy ministers) can leave and lobby part-time the next day (with only a few restrictions on who they can lobby);
11. MPs, Senators and their staff can lobby the government and their former colleagues the day after they leave;
12. A lobbyist can become a Cabinet minister responsible for the issues they lobbied about very soon after they are elected;
13. Cabinet ministers can lobby anyone part-time two years after they leave;
14. All Ministerial staff and Cabinet appointees (including Deputy Ministers) can lobby anyone part-time one year after they leave;
15. All of the above loopholes also exist in some form for all public servants;
16. Lobbyists can give MPs and Senators the gift of unlimited “sponsored travel” (For more details about #s 7-16, go to Democracy Watch's Government Ethics Campaign);
17. Anyone can give an unlimited secret gift of money, property or services to any nomination race or non-MP political party leadership candidate (and they do so based on the principles of the science of influence and persuasion -- for more details, click here);
18. Political parties and riding associations can maintain secret trust funds for defeated or retiring MPs, and any senator or political staffperson;
19. Anyone can give a secret, unlimited loan to any Cabinet minister, their staff, Cabinet appointee, MP or senator (For more details about #s 17-19, go to Democracy Watch's Money in Politics Campaign);
20. It seems, because of lack of effective enforcement and/or vague laws, that MPs can be given appointments, money, property or services by other political parties in return for switching parties in between elections (For more details, go to Democracy Watch's Government Ethics Campaign);
21. The Prime Minister and Cabinet can appoint cronies and party supporters to more than 3,000 positions without any public or merit-based review (For more details, go to Democracy Watch's Voter Rights Campaign).
    

1. Require Cabinet ministers, their full-time senior staff, and Cabinet appointees (including deputy ministers), to report to the Ethics Commissioner about their work activities after they leave office;
2. Require the Ethics Commissioner to approve any such work activity;
3. Require the Ethics Commissioner to make approvals of work activity public;
4. Allow the Ethics Commissioner to make advice that accompanies the approval of work activity public;
   
5. Allow a re-consideration of the approval or disapproval of work activity if new developments in the situation occur;
6. Make it a punishable offence to fail to disclose such work activity;
7. Allow former public office holders to appeal a conviction for failing to disclose such work activity through a fair and transparent process;
   
8. Require MPs to disclose income received in their last two months in office to the Ethics Commissioner to ensure they are not in a conflict of interest;
9. Require current Cabinet ministers and senior government officials to confirm with the Ethics Commissioner that former public office holders they deal with are complying with ethics rules;
10. Make it a violation of a contract with the federal government if a former public office holder wins the contract while in violation of ethics rules;
11. The Ethics Commissioner should define "direct and significant officials dealings" in the Conflict of Interest Act so that Cabinet ministers and other senior government officials know who they cannot work with during their cooling-off period;
12. The Ethics Commissioner should define many other vague words and phrases in the Act, and also make public summaries of the currently secret advice and rulings she gives, and has given in the past, to public office holders (NOTE: The Senate Ethics Officer includes such summaries in his annual report);
13. All federal politicians and their staff should participate in ethics training conducted by the Ethics Commissioner;
14. All federal politicians and others covered by the Act or MPs Code should meet once each year with a staff person of the Ethics Commissioner to review their possible conflicts of interest.

1. The Ethics Commissioner and Senate Ethics Officer ignore complaints about general unethical behaviour and conflicts of interest, and can refuse to rule on any complaints filed by the public;
2. The Ethics Commissioner and the Senate Ethics Officer do not audit anyone covered by federal ethics rules (and the bank accounts of Canadian public officials are not tracked for suspicious transactions, as required under the UN Convention Against Corruption);
3. The Ethics Commissioner cannot be challenged in court even if s/he makes serious factual or legal errors in a ruling (To see details, click here):
   
4. The Commissioner of Lobbying does not audit anyone covered by the Lobbying Act;
5. No one effectively enforces any of the rules in the Values and Ethics Code for the Public Service, let alone conducts regular audits;
6. Because the Ethics Commissioner, Senate Ethics Officer and Elections Canada do not conduct audits, anyone including lobbyists can easily give a Cabinet minister, their staff, a Cabinet appointee (including a deputy minister), an MP or a Senator or their staff, or any public servant money, property or services in secret, as Karlheinz Schreiber gave former Prime Minister Brian Mulroney money and services in secret;
7. The Senate Ethics Officer has no independence;
8. There are no penalties for violating many of the conflict of interest and ethics rules;
9. There are no penalties for violating open government rules, and the Information Commissioner does not have the power to order the release of documents even if it is in the public interest and no one would be harmed;
   
10. The approval of opposition party leaders should be required for the appointment of the Ethics Commissioner, Commissioner of Lobbying, Senate Ethics Officer, Public Sector Integrity Commissioner, Information Commissioner, Director of Public Prosecutions and Chief Electoral Officer to make them more independent from the government, and;
11. Political staff are not protected if they blow the whistle on wrongdoing, and the overall whistleblower protection system is flawed.
    

To see details about these 10 flaws, go to Democracy Watch's Government Ethics Campaign (To see details about flaw #8, go to Democracy Watch's Open Government Campaign)

Democracy Watch made two submissions to the Part II Policy Review hearings of the Oliphant Commission, including its final submission on July 31st, and took part in five days of hearings last June and July.

• To see a summary of Democracy Watch's initial June 2009 submission to the Commission, click here;
• To see Democracy Watch's full initial June 2009 submission, click here;
• To see a broadcast by CPAC of the Commission's Part II Policy Review June 15 hearing, click here, June 16 hearing, click here, June 17 hearing, click here; June 22 hearing, click here and; July 28 hearing, click here;
  
• To see the transcripts of the June 15-17, June 22 and July 28 hearings, click here, and;
  
• To see the Commission's Policy Review schedule and research papers and submissions, click here.