To test Liberal government Cabinet appointments process, Democracy Watch Co-founder applied for Lobbying Commissioner position last November

Was shortlisted for position in 2007 – 10 years more experience now but not even contacted for an interview by Liberals

Liberals haven’t changed appointment process at all – still partisan and political (not merit-based) as Cabinet ministers still control every step of the process

Trudeau Cabinet can’t appoint new Lobbying Commissioner because he is being investigated by Commissioner right now – would be a charade even if he recuses himself 5 weeks before new Commissioner is due to be appointed

Ontario and United Kingdom judicial appointment processes are world-leading models, and Liberals could easily make changes to match them by the end of June

FOR IMMEDIATE RELEASE:
Tuesday, June 6, 2017

OTTAWA – Today, Democracy Watch’s Co-founder Duff Conacher revealed that he has tested the Trudeau Liberal’s Cabinet appointment process by applying last November (before the deadline) for the federal Commissioner of Lobbying position. Conacher also applied in 2007 for the position, and was shortlisted by the consultant whom the Conservatives hired to search for candidates.

Ten years later, with much more legal experience with the Lobbying Act, the Lobbyists’ Code, and with investigations, and more functionally bilingual, and more fully qualified in every way listed in the posting for the position (including demonstrating strict non-partisanship through a more than 20-year record of both praise and criticism of every federal political party), Conacher has not even been contacted for more information under the Liberals’ supposedly “merit-based” appointment process.

In fact, as detailed further below, the Liberals haven’t changed the federal Cabinet appointment process at all from what the Conservatives used other than adding the goal of diversity). Ministers still control every step of the process – which means it is a partisan and political, not merit-based, process (as the recent appointment of former Ontario Liberal Cabinet minister Madeleine Meilleur as the federal Languages Commissioner has revealed so clearly).

Also, the Trudeau Cabinet can’t appoint the new Commissioner of Lobbying because the office is currently investigating two complaints concerning people tied to companies that lobby the PMO who hosted fundraising events attended by Trudeau, as well as a complaint about a lobbyist who helped organize a fundraising event attended by Finance Minister Bill Morneau. The Commissioner’s office: 1. is investigating Democracy Watch’s complaint about about an August 26, 2015 fundraising event attended by Justin Trudeau and hosted by Apotex Inc. chairman Barry Sherman (Apotex lobbies the PMO); 2. is investigating Democracy Watch’s complaint about an August 25, 2014 fundraising event attended by Justin Trudeau hosted by a Clearwater Seafoods co-founder and board member (Clearwater lobbies the PMO), and; 3. is investigating Democracy Watch’s complaint about the situation revealed in an October 25th Globe and Mail article involving Apotex Inc. chairman Barry Sherman who assisted with selling tickets for a fundraising event that Finance Minister Bill Morneau attended (Apotex lobbies Finance Canada).

“Is the Trudeau Liberals’s Cabinet appointment process really merit-based, and are they really looking to appoint a qualified, fair watchdog to enforce the federal lobbying law and code, if they don’t even contact an applicant who has spent as much time as anyone in Canada over the past 20 years focused on strong, non-partisan enforcement of the law and code?” asked Conacher. “The Trudeau Cabinet is also in a conflict of interest that prohibits it from choosing the next Lobbying Commissioner as the Commissioner is currently investigating Trudeau’s relationship with two companies that lobby the PMO, as well as a lobbyist who helped organize a fundraising event for Finance Minister Morneau, which is yet another reason to change the appointment process now.”

Two weeks ago, Democracy Watch called on the federal Liberals to suspend the appointment of the next Ethics Commissioner and Commissioner of Lobbying, and all other judicial and watchdog appointments, until they make the appointment process actually independent and merit-based.

Democracy Watch filed complaints with the Ethics Commissioner in mid-December and at the end of January asking for a ruling that it is violation of the Conflict of Interest Act for the Trudeau Cabinet to appoint or reappoint those and other watchdogs, especially when the watchdogs are investigating the Prime Minister (as the Ethics Commissioner was in December and is now, and as the Lobbying Commissioner is now). The Ethics Commissioner essentially refused to rule on the complaints in a ruling she finally sent to Democracy Watch at the end of March.

Democracy Watch also filed a complaint at the end of April about former Conservative Minister of Justice Peter MacKay appointing some of his friends as judges, including his former Cabinet colleague Vic Toews (Toews was finally found guilty in April by the Ethics Commissioner of violating the federal ethics law (two years after the complaint was filed).

Democracy Watch’s Stop Bad Government Appointments Campaign proposes that the way to ensure the appointment of fully independent, merit-based judges and watchdogs is to have a fully independent commission whose members are approved by all federal party leaders (along with entities such as the Canadian Judicial Council) do a public, non-partisan merit-based search for candidates, and to require the Trudeau Cabinet to choose from a short-list of 1-3 candidates that the commission nominates.

Ontario uses this kind of independent appointment system to appoint provincial judges (the advisory committee provides a shortlist of three candidates to the Cabinet). The United Kingdom uses it to appoint judges and judicial tribunal members (like the Ethics Commissioner and Lobbying Commissioner are) – its advisory committee provides only one candidate to the Cabinet, and the Cabinet has to accept the candidate or reject the candidate and provide written reasons. Both of their systems are considered to be world leading.

The Liberals haven’t changed the appointment process at all from what the Conservatives used for 10 years (after they broke their 2006 election promise to establish an independent Public Appointments Commission). Liberal Cabinet ministers still choose all advisory committee members, and are given long lists of candidates for all appointments (which allows them to choose essentially whomever they want) – even for the appointment of federal and provincial superior court judges.

The Liberals claim there is a “new” general Cabinet appointments process – but it is essentially the same process the Conservatives used to appoint whomever they wanted (the only change is that “diversity” is now a goal). In the answers in the “Frequently Asked Questions” document describing the Liberals’ Cabinet appointment process (which was just updated on April 28th), it is clear that Cabinet ministers control everything about all appointment processes. The answer to one of the questions says that even if an appointment advisory committee is used for any appointment process, the members of the committee “will be chosen by a Cabinet minister — and any committee is only advisory — the minister’s power to appoint whomever they want is not restricted in any way.” That is a recipe for patronage and crony appointments, and the appointment of lapdogs.

Democracy Watch also called on the Liberals, and all governments, to change the law to ensure all Cabinet appointees who watch over the government or oversee key democracy laws and processes (especially every Officer of Parliament) be only allowed to serve one term.

The new appointment process, and prohibition on being reappointed, should apply to the judicial advisory committees and appointments of all 1,123 federal and provincial superior court judicial appointments listed here, and to the new public appointments commission that must be established to ensure a merit-based selection process for a short list of candidates for appointment to the 32 federal administrative tribunals and 108 agencies/boards listed here.

“The Trudeau Liberals’ Cabinet appointment system is essentially the same as the Harper Conservatives used, and it allows Cabinet ministers to choose their own Liberal party cronies as judges and lapdogs as supposed watchdogs,” said Duff Conacher, Co-founder of Democracy Watch. “To stop this dangerously undemocratic and unethical appointment process for judges and watchdogs, as in the UK and Ontario a fully independent public appointment commission must be created to conduct public, merit-based searches for nominees and send a short list to Cabinet, with Cabinet required to choose from the list.”

“Like judges, all government and law-enforcement watchdogs must only serve one term, with no possibility that the government can reappoint them, to ensure watchdogs don’t try to please the government in order to keep their job,” said Conacher. “To safeguard our democracy the ruling party must not be allowed to reappoint any government and law-enforcement watchdogs.”

The past 10 years cannot be repeated if Canada wants to claim it is a democracy, as the federal Ethics Commissioner Mary Dawson’s very weak enforcement record and Commissioner of Lobbying Karen Shepherd’s very weak enforcement record have done as much to undermine democracy in Canada as the dishonest, unethical and secretive actions of various politicians (See Part 1 of the Backgrounder below for details).

Democracy Watch and the nation-wide Government Ethics Coalition continue to call for key changes to strengthen federal political ethics rules and the enforcement system (See Part 2 of the Backgrounder below for details).

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FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
info@democracywatch.ca

Democracy Watch’s Stop Bad Government Appointments Campaign and Government Ethics Campaign



Backgrounder

1. Federal Ethics Commissioner Mary Dawson’s weak enforcement record

Federal Ethics Commissioner Mary Dawson has had a very weak enforcement record since 2007, including (as of June 2015) making 149 secret rulings, issuing only 25 public rulings, and letting 75 (94%) of people who clearly violated ethics rules off the hook.

Ethics Commissioner Dawson has greatly undermined various sections of the Conflict of Interest Act (COIA) in past rulings by creating loopholes in the COIA that do not exist – such as:

  1. her April 29, 2010 “Cheques Report” ruling claiming that political parties are not “persons” under the COIA and therefore it was fine for Conservative MPs and Cabinet ministers to hand out government cheques with the Conservative Party logo on them;
  2. her May 13, 2010 “Raitt Report” ruling that it was fine for two lobbyists who were lobbying Minister Lisa Raitt to help raise thousands of dollars for her riding association because, you claimed, that only helped the association not her;
  3. her December 2016 ruling that it was fine for Health Minister Jane Philpott to use the driving service company of one of her former campaign volunteers because it was the only such company Minister Philpott claimed she knew about (a ruling that creates a loophole allowing any Minister or other senior government officlal to use the same invalid excuse Minister Philpott used to give contracts to their friends or other party loyalists);
  4. her baseless decision that the COIA only applies to financial interests despite the fact that the COIA’s section 2 definition of “private interest” does not in any way even suggest that the definition of “private interest” is restricted to only financial interests, and;
  5. her baseless decision that the COIA only applies to close personal friends (there is no such definition of “friends” in the COIA).

Because of section 66 added to the then-new Conflict of Interest Act by the Conservatives in 2006, the Ethics Commissioner’s rulings cannot be challenged in court if she has factual or legal errors in her rulings. If this section had not been added to the Act, Democracy Watch would have challenged several of Commissioner Dawson’s rulings since 2007 in court.

Democracy Watch is currently challenging Ethics Commissioner Dawson’s use of conflict-of-interest screens in court on the basis that the screens are unlawful.

2. Federal ethics law and codes missing key rules and accountability measures

The Conservatives broke a 2006 election promise (one of their many broken accountability promises) to include key ethics rules in the new Conflict of Interest Act prohibiting dishonesty and being in even an appearance of a conflict of interest. Prime Minister Harper instead put those rules in his Accountable Government code for ministers and other senior officials so he could ignore the rules (as he did until the Conservatives were defeated in the 2015 election – see especially rules in Annex A, Part 1 of the code).

The Liberals made no promises in their 2015 election platform to close the huge loopholes in the Conflict of Interest Act (and they also made no promises to close the huge loopholes in the Lobbying Act or the Public Servants Disclosure Protection Act). Instead, Prime Minister Trudeau re-named and re-issued the Accountability Government code as his Open and Accountable Government code. He has ignored the rules in his code just like Prime Minister Harper did.