[Democracy Watch Logo] [Op-ed]

Ruling in O’Brien case only a first step to stopping lobbying and Canadian governments' patronage games

Set out below is an op-ed by Democracy Watch Coordinator Duff Conacher which was published in slightly different, edited form in the August 6, 2009 issue of the Ottawa Citizen and in the August 7th edition of the Montreal Gazette and in the August 13th edition of the Halifax Chronicle Herald

The judge’s ruling finding Ottawa Mayor Larry O’Brien not guilty won’t change the patronage game in Canada, but given that it has highlighted and somewhat cleared up the meaning of key good government laws, it will hopefully encourage some long overdue changes to that game, and more directly to the lobbying game.

Some commentators (Sheila Copps, Don Martin) have incorrectly claimed that a guilty ruling would make the usual process for political appointments criminal.

However, the O’Brien case was not about the usual patronage appointments when a federal or provincial Premier, Cabinet or specific minister rewards a party loyalist. 

Instead, the case was about whether O’Brien violated the measures in the Criminal Code which prohibit "pretending to have influence with the government or with a minister of the government or an official" while "directly or indirectly" offering any government benefit to another person (including an appointment) in return for a benefit (clause 121(1)(d)), and/or negotiating an appointment in return for a benefit (section 125).

O’Brien was essentially alleged to have acted as a lobbyist for Terry Kilrea for a reward, allegedly pretending to have influence with federal Conservative Cabinet minister John Baird, essentially guaranteeing to deliver Kilrea the benefit of an appointment to the National Parole Board in return for Kilrea benefitting O’Brien by dropping out of the 2006 election campaign for mayor of Ottawa (which O’Brien ending up winning).

Even though prosecutors did not present enough, and strong enough, evidence to convince the judge beyond a reasonable doubt that O’Brien was guilty of influence-peddling (the judge concluded that O’Brien “walked a fine line” with his actions, but acquitted him of both charges), the case has highlighted this democracy-damaging crime, and sends a warning message to lobbyists across Canada that it is illegal even to pretend to have influence with government as a way of attracting clients, and to be paid to lobby for an appointment for a client. 

Given that some lobbyists are great pretenders, and likely have been paid to lobby for appointments, hopefully more whistleblowers (such as disappointed clients who paid but did not receive the results “guaranteed” to them) will come forward and that will lead to more court cases and more rulings that draw clear lines about what is legal vs. illegal.

As for government appointments processes and favour-trading in this area generally, the O’Brien case ruling is only the first step in clearing and cleaning up that unethical game, and it will continue to roll on as it has for the past 142 years until other key actions are taken and changes made.

Beyond the influence-peddling measure described above, the Criminal Code also prohibits any judge or politician or other government official from accepting any offer of any benefit or job for themselves or another person in return for changing their decisions or actions in any way, and prohibits anyone from offering any such benefit or job (sections 119 to 121, 123 and 124). 

Government ethics laws across Canada essentially prohibit similar activities, but are aimed more at prevention than criminal punishment.

The problem is, despite clear evidence in many other recent cases, no one has ever been prosecuted, let alone found guilty, of violating these measures, with no explanation ever provided.

To end this negligent record, the federal Director of Public Prosecutions must review all of the investigations of recent federal party-switching cases, and initiate police investigations of other cases, as well as investigations of some Cabinet appointments from the past decade that smelled very fishy.

The people involved should either be charged and prosecuted or the Director should explain publicly what his prosecution policy is when these situations arise.

Several people have stated publicly that they switched parties or gave up their seats in Parliament in return for Cabinet or other appointments, or cash payments, and the public has a right to a full explanation of why none has been prosecuted.

Government ethics commissioners across Canada should also clarify the laws they enforce by issuing public guidelines, as the federal ethics commissioner did last year when she published her world’s best Guideline on Gifts (including Invitations, Fundraisers and Business Lunches) that made it clear federal Cabinet ministers, their staff and Cabinet appointees cannot accept any gift from anyone lobbying or dealing with them now or in the future.

And if the public finds the Director’s prosecution policy and ethics commissioners’ guidelines unacceptably weak, governments across Canada should strengthen key measures in the laws to make bribery and favour-trading clearly illegal in all cases.

Also, to prevent ongoing questions about the appointments process, the federal Conservatives’ promised independent Public Appointments Commission must be established to search for, screen and nominate qualified candidates for Cabinet appointments. 

Ironically, the Conservatives could have escaped Minister Baird facing allegations he played a role in the secret deal at the heart of the O'Brien affair if they had kept their 2006 election promise to establish the Commission.

Instead, very unfortunately, the Conservatives have continued patronage and crony politics as usual, appointing many friends and party supporters to the Senate and other positions (among the more than 1,000 appointments they have made since being elected). 

The Conservatives recently reaffirmed their election promise.  However, until they or opposition parties change the law to require Cabinet to create and maintain the independent Commission, Canadians can justifiably assume that federal Cabinet appointments will continue to be offered as a reward for doing something for the ruling party, and that at least some Cabinet ministers are involved in such illegal favour-trading.

And given that provincial and territorial governments of all political stripes across Canada are guilty of the same patronage and cronyism, they all need to create such a commission.

Anyone looking for one of the root causes of the high level of voter distrust and disgust with politicians across Canada can find it in this all-too-typical, multi-decade delay in setting up key good government bodies like public appointments commissions.

So, will the Director of Public Prosecutions and ethics commissioners across Canada issue clear public rulings concerning illegal political favour-trading, and will any political party finally take the lead in cleaning up the government appointment process in Canada, or will the corrupt patronage games continue for decades more?

For more details, go to Democracy Watch's Voter Rights Campaign and Government Ethics Campaign