[Democracy Watch Logo] [Op-ed]

Weak ethics rules and enforcement undermine everyone in Canadian politics

Set out below is a op-ed by Democracy Watch Coordinator Duff Conacher which was published in shorter, edited form in the April 27, 2010 issue of the Edmonton Sun, and the May 3, 2010 issue of the Hill Times

Whatever ends up being proven true about the situation involving (now former) Conservative Cabinet minister Helena Guergis and her husband, former Conservative MP Rahim Jaffer, what is clear is that the loopholes in the rules governing their activities and weak enforcement continue to undermine the legitimacy of everyone involved in federal politics.

Yes, believe it or, Canada's federal government is almost 143 years old but clear lines have still not been drawn to define proper vs. improper actions by Cabinet ministers, MPs and senators, their staff and government officials in their most important roles, making policy decisions, spending the public’s money and providing assistance to voters.  Nor have clear lines been drawn concerning the activities of federal lobbyists.

Politicians from all parties are to blame because they have ignored recommendations again and again to clean up the system by passing clear, comprehensive rules, but enforcement agencies are more to blame because they have either refused to draw clear lines by letting people off the hook who should have been found guilty or they have issued confusing rulings.

Federal Liberals and Conservatives are most to blame for this situation because they have been in power and therefore have mainly controlled changes to laws, but the NDP and Bloc are also to blame because they have not made closing loopholes and strengthening enforcement a priority (even when it has been very possible during the minority governments of the past six years).

Given the inaction of federal politicians, one could assume that most of them want it this way so that they can exploit the loopholes themselves.  What they should realize is that many of the currently legal activities are viewed by the public as unethical, and their inaction on cleaning things up is only increasing voter distrust and disgust for politicians.

Voters are particularly upset that politicians spend so much time passing strict laws and penalties for all sorts of things ordinary people do each day, while they spend so little time strengthening laws that apply to people in politics.

The federal Liberals were correct when they stated in their 1993 Red Book election platform, “If government is to play a positive role in society, as it must, honesty and integrity in our political institutions must be restored.”  A government that acts unethically, including repeatedly breaking promises, has no legitimacy, and will not win the cooperation it needs from everyone else involved in politics, including voters, that it needs to make any societal changes.

Ethics rules for federal Cabinet ministers were enacted in the late 1970s, but were not in force until 2005 for MPs and senators, so before then standards were very loose (and before 1983 the lack of an access-to-information law meant many scandalous activities remained secret).

Before 2004, federal ethics rules were enforced by the Prime Minister, so essentially the lines drawn by the rules were based as much on the politics of the situation as on the actual words in the rule.  Sinclair Stevens was kicked out of Cabinet by Brian Mulroney in the late 1980s for violating ethics rules, but won a court ruling 14 years later that it was not reasonable to expect him to follow the rules because the rules were so vague.

Between 1994 and 2004, former Ethics Counsellor Howard Wilson advised then-Prime Minister Jean Chrétien in secret, and only a few public rulings were issued that clarified federal ethics rules (three of which were eventually overturned by courts because the rulings were legally incorrect, and because Wilson was under the control of Chrétien).  Chrétien penalized only three of more than 20 Cabinet ministers and political staff who clearly violated ethics rules.

Wilson’s lack of independence and powers was made clear through that decade, and the ineffectiveness of the ethics enforcement system eventually became a running joke that shattered the public’s trust of Chrétien.

While Paul Martin, in 2004, finally kept the Liberals’ 1993 promise to establish an independent ethics watchdog, his highly questionable relationships with lobbyists who helped him become Liberal leader, as well as the Liberals’ Adscam sponsorship scandal, undermined his brief term as Prime Minister and destroyed voters’ trust of the Liberals.

Liberals searching today for leaders and policies to reconnect with voters should realize that 13 years in power marked by broken promises and ethics and spending scandals are the root cause of their current problems, just as they are the root cause of the limited public support the Harper Conservatives have been able to garner.

In one of the most hypocritical and deeply ironic moves in Canadian political history, the Conservatives failed to include half of their promised 60 measures in their so-called Federal Accountability Act.  The key measures they left out would have made the government significantly more transparent (instead the Conservatives have been tarnished as excessively secretive) ethical (instead the Conservatives have been exposed as politics-as-usual promise breakers with ties to high-powered lobbyists) and democratic (instead the Conservatives have appointed loyal candidates and senators as much as past ruling parties). (To see Democracy Watch's December 2009 Report Card on the Conservatives' 29 broken promises, click here)

Weak actions by ethics enforcement agencies have also undermined the legitimacy of federal politicians as much as the politicians’ own inaction on government integrity issues.

According to media reports, a crown prosecutor in Montreal decided 10 years ago not to prosecute a man named René Fugère even though a person who had hired and paid him to lobby for a federal grant publicly stated that Fugère had guaranteed him he could win the grant because Fugère was an unpaid aide who helped out then-Prime Minister Jean Chrétien with activities in his Shawinigan, Québec riding.

If René Fugère had been prosecuted, we would now have a court ruling that would hopefully have clarified the lines drawn by the Criminal Code measures that prohibit anyone asking for any kind of benefit in return for influencing a politician or government official (or pretending to have influence over them).  We would also have a court ruling clarifying the lines drawn by the Lobbying Act that require people who lobby the federal government to disclose their activities on a public registry.

Believe it or not, Democracy Watch is still waiting for a ruling on a complaint it filed in March 2001 alleging that Fugère had broken lobbyist ethics rules by failing to register as a lobbyist.  Democracy Watch is also waiting for federal Commissioner of Lobbying Karen Shepherd to rule on four other ethics complaints it filed between 2002 and 2004 about lobbyists doing favours for Cabinet ministers they were lobbying.

Five years ago, a few cases occurred of MPs resigning their seats or switching parties in return for appointments or other rewards, but the RCMP did not investigate all the cases, and Crown prosecutors did not pursue any of the cases.  If they had, we would now have a court ruling clarifying the lines drawn by the Criminal Code that prohibit politicians and government officials from "corruptly" attempting to obtain, or accepting, a benefit in return for doing something or not doing something in their official position.

The federal ethics commissioner at the time, Bernard Shapiro, refused to investigate and rule on complaints filed with him that these MPs had broken the ethics rule that requires them to be "honest".  In 2006, that key government accountability rule was removed from Cabinet ministers' rules by the Conservatives’ so-called Federal Accountability Act, while MPs from all parties voted in 2008 to make the same rule in their code unenforceable.

In January 2008, federal Ethics Commissioner Mary Dawson issued a ruling that claimed that in order to be in a conflict of interest, a Cabinet minister or other senior government official must have a "financial, business or some other interest" in a decision they were making.  More than two years have passed and she still hasn't clarified what "some other interest" includes.

In that same ruling, the Ethics Commissioner ruled that Prime Minister Harper and some of his Cabinet ministers were not in a conflict of interest when making decisions about whether and how the past actions of their friend former-Prime Minister Brian Mulroney would be investigated (actions that had taken more than a decade to be revealed), but soon afterwards the Ethics Commissioner ruled that a Liberal MP was in a conflict of interest because Mr. Mulroney had sued him.

In December 2008, the Ethics Commissioner ruled that even though Finance Minister Jim Flaherty admitted that a contract had been handed out without a bidding competition, Minister Flaherty did not violate ethics rules because his staff had made the decision.  Incredibly, the Ethics Commissioner did not find the staff guilty (even though they are also covered by the rules) because the complainant had only complained about Minister Flaherty.

In January 2009, the Ethics Commissioner ruled that Cabinet ministers handing out cheques with Conservative Party logos on them (in violation of spending rules) did not further the interests of the Party improperly because doing favours for a political party is not explicitly and specifically prohibited by the ethics rules.

Most recently, the federal Ethics Commissioner and Commissioner of Lobbying have been delaying rulings on two complaints about lobbyists assisting politicians with fundraising events, even though all of the facts about the events were filed with them six months ago, and the Ethics Commissioner has been playing games with complaints filed about the actions of Helena Guergis. (To see details about the commissioners' weak enforcement records, click here)

There are many more examples of weak enforcement, including that the Senate Ethics Officer can’t even investigate a complaint unless a committee of senators approves the investigation.  As well, the federal ethics watchdogs don’t actually do much watching -- they all refuse to conduct audits to ensure everyone is following the rules -- and protection for those who may want to blow the whistle on wrongdoing is inadequate.  Even if someone is caught, there are no mandatory penalties for violations of the ethics rules (except, in some limited, serious cases, for lobbyists).

Beyond dishonesty being legal, there are many other loopholes in ethics rules for those involved in federal politics.  It is still legal:
  • to make unlimited, secret donations to nomination race and party leadership race candidates;
  • to give a loan of any amount to any candidate or party; for parties and riding associations to maintain secret trust funds for politicians for when they retire;
  • for Cabinet ministers and senior government officials to make decisions on almost all matters even if they have a direct financial interest in the matter;
  • to lobby in secret if you are unpaid, a part-time in-house lobbyist at a corporation or lobbying about the enforcement of a law;
  • for a part-time lobbyist to work for part-time for a Cabinet minister (and full-time for other politicians);
  • for Cabinet ministers, their staff and all government officials to lobby on some issues the day after they leave office;
  • for opposition MPs, senators and their staff to lobby on any issue the day after they leave office, and;
  • for a lobbyist to become a Cabinet minister responsible for the issues they lobbied about very soon after they are elected.
Unfortunately, similar loopholes and weak enforcement undermine good government rules, and everyone involved in politics, in provinces, territories and municipalities across Canada.

Until all the loopholes are closed by politicians, and specific rulings or enforcement policies issued by ethics watchdogs that clarify the lines drawn by all the rules, everyone involved in Canadian politics will have to continue to guess what actions cross the line.

And the public’s distrust will only grow as more and more people are let off the hook on technicalities.

That’s not in the public interest, nor is it in the interest of good, democratic government that has the legitimacy needed to solve societal problems.

Polls over the past decade show clearly that any political party that stakes out the high ground by making titanium-clad promises to close all the loopholes and increase enforcement and all penalties for political wrongdoing will reap the reward of greater voter support. 

The ongoing, longstanding question is, will any political party in Canada finally respond to voters’ concerns and give them the honest, ethical, open, representative and waste-preventing government they want, and deserve?

For more details, go to Democracy Watch's Clean Up the System page