Democracy Watch Would Challenge Federal
Commissioner's Error-Filled Ruling on Lisa Raitt Fundraiser in Court,
But Such Court Challenges are Illegal
Group Calls For Dismissal of Ethics
Commissioner, and Changes to Strengthen Federal Ethics Laws
Monday, May 17, 2010
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
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
"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
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:
Democracy Watch's Government Ethics Campaign
Democracy Watch's Money in
Democracy Watch homepage
Measures that make it illegal to challenge in court most rulings of the federal Ethics Commissioner
Conflict of Interest 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;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(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).
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.
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):
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).