Tyler Sommers2013-05-25T18:08:03-04:00Tyler Sommershttp://www.huffingtonpost.ca/author/index.php?author=tyler-sommersCopyright 2008, HuffingtonPost.com, Inc.HuffingtonPost Blogger Feed for Tyler SommersGood old fashioned elbow grease.Biased Lapdog Investigations Require Real Responsestag:www.huffingtonpost.com,2013:/theblog//3.33213522013-05-22T17:11:20-04:002013-05-22T17:11:56-04:00Tyler Sommershttp://www.huffingtonpost.com/tyler-sommers/
Nigel Wright and Mike Duffy should be found guilty of violating federal ethics rules, but the fact that the same secretive, Conservative-controlled Senate Committee of Internal Economy, Budgets and Administration that watered down the conclusions in its initial report is still controlling the review of expenses is just the tip of the iceberg of investigation problems.
Ethics Commissioner
Federal Ethics Commissioner Mary Dawson is investigating Nigel Wright's role in the scandal, but she has had a very weak enforcement record since 2007, including letting dozens of Conservatives off the hook for very questionable actions, and making more than 80 secret rulings. Commissioner Dawson has also already covered up twice for Nigel Wright and could, as she has many times in the past, abandon her investigation secretly without issuing a public ruling.
Commissioner Dawson's first cover-up for Nigel Wright was her creation of an illegal, so-called ethics screen when Wright first took the job that violated the requirement in subsection 25(1) of the Conflict of Interest Act to make a public declaration within 60 days every time Wright recused himself from a decision-making process because of a conflict of interest. This "screen" was supposedly enforced by the Deputy Chief of Staff. As a result of this cover-up, all of Wright's recusals have been kept secret, and there is no way to tell if he ever failed to recuse himself as required by the Act.
Commissioner Dawson's second cover-up for Wright was when she abandoned her investigation last fall without issuing a notice, let alone a ruling, of whether Wright violated the Act by taking part in discussions of issues that affect Barrick Gold. The Ethics Commissioner is allowed to do this under s. 45 of the Act. The cover-up only came to light because Canadian Press journalist Joan Bryden pressed Commissioner Dawson to make a public statement about the case. Commissioner Dawson's statement failed to set out any reasons why she concluded that Wright had not violated the Act.
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, as Prime Minister Harper instead put those rules in his Accountability Guide for ministers and other senior officials so he could ignore them (as he has since - see the rules in Annex A, Part 1 of the Guide).
Because of section 66 added to the new 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. There are no mandatory penalties for violating the ethics rules in the Act. As well, if Prime Minister Harper approves it, Commissioner Dawson's term in office can be renewed for another seven years in 2014 so she has an incentive to please him
Overall, there is no reason to trust that Ethics Commissioner Dawson will do a full investigation or rule correctly, even though there is already enough clear, public evidence for her to find Nigel Wright guilty of violating at least one or more of sections 4, 5, 6(1), 8 of the Conflict of Interest Act because he used inside information to make the secret, clearly improper payment that furthered the interests of his (maybe) friend Mike Duffy during the audit of Senator Duffy's expenses.
Senate Ethics Officer
The Senate Ethics Officer may investigate Senator Duffy's role in the scandal, but the Ethics Officer is even more of a lapdog than the Ethics Commissioner because the Conflict of Interest Code for Senators puts the Officer under the control of a secretive, Conservative-controlled committee of senators who have the power to decide what the Code's rules mean, how the rules will be applied, whether an investigation can even happen, and (along with the whole Senate) what the final ruling, and penalties, will be.
Under the Conflict of Interest Code for Senators the Senate Ethics Officer is essentially under the control of a committee of senators (ss.35 and 41(1)) that operates in secret (s.36), currently has a majority of Conservative members, and (among other powers) has the following powers:
defines what the rules in the Code mean, and how they are applied by the Ethics Officer (subsection 37(2));
controls whether the Ethics Officer can investigate a situation (s.44(1) and 44(8));
if an investigation is approved, controls (along with the whole Senate) whether the Ethics Officer has access to "persons, papers, things and records" (s.44(13);
can overrule the ruling of the Ethics Officer (s.46), although the Ethics Officer's ruling must be made public (ss.45(2) to (3)), and;
along with the whole Senate, decides whether a senator is guilty, and whether there will be any penalty (s.48).
While the NDP has filed a complaint, in fact the Senate Ethics Officer can only investigate if the committee directs the Officer to investigate on its own or prompted by a complaint from a senator.
Overall, there is no reason to trust that the Senate committee will allow a full investigation, let alone a legally correct ruling, even though there is already enough clear public evidence to find Senator Duffy guilty of violating section 17.1 of the Code for taking the clearly prohibited gift of the payment of money from Nigel Wright.
The Ethics Officer does not have to issue a public ruling if the Officer's conclusion is that no Code violations occurred. Also, if Senator Duffy or any other senator resigns, any investigation is suspended forever unless the committee decides to continue it.
Auditor General
The Auditor General has full powers to audit Senate expenses under the Auditor General Act, and should have exercised those powers already, and should begin an audit immediately of all senators' expenses, and also of all MPs' expenses.
Elections Canada
The NDP has filed a complaint with the Commissioner of Canada Elections concerning the possibility that Senator Duffy's claims of Senate expenses during the 2011 federal election may have covered costs that should have been covered by the Conservative Party, in violation of the Canada Elections Act.
The problem is that the Commissioner, in conjunction with the Director of Public Prosecutions, has a very secretive and questionable enforcement record, with more than 3,000 secret rulings since 1997, and many weak actions including a deal with the Conservative Party that let senators who participated in the Conservatives' illegal in-and-out ad spending scheme during the 2006 federal election off the hook with no penalty.
RCMP
There are measures in the Parliament of Canada Act (s.16), and in the Criminal Code (s.119) that prohibit offering or giving any kind of benefit to a senator or other federal or provincial politician in return for any action or inaction by the politician.
There are media reports that allege that the payment by Nigel Wright to Senator Duffy was in return for cooperation by the senator, and the Senate committee reviewing Senator Duffy's expenses, and the NDP has filed a request for investigation with the RCMP.
There are also media reports that the RCMP is looking into the Senate expenses violations generally to determine if any laws were broken.
The problem is that, in a widely criticized new policy, the RCMP Commissioner has aligned his office with the office of the Minister of Public Safety in all communications about the RCMP's actions. Many commentators have raised concerns about how this policy affects the ability of the RCMP to make independent law enforcement decisions (See criticisms here, and here, and here).]]>How The Parties Stack Up: Democracy Watch Report Cardtag:www.huffingtonpost.com,2013:/theblog//3.32544212013-05-13T01:18:25-04:002013-05-13T13:20:50-04:00Tyler Sommershttp://www.huffingtonpost.com/tyler-sommers/
Today, Democracy Watch released its Report Card on the 2013 Democratic Good Government Election Platforms of the five main British Columbia political parties, the only election report card on these issues.
The Green Party receives a C-, the best grade of bad overall grades in Report Card on British Columbia Parties' Democratic Good Government Platforms -- Conservatives receive a D-, NDP a D-, and Liberals an F. A Dishonesty Downgrade of one full grade is also shown in the Report Card results -- usually only half of all promises are kept because of the lack of an honesty-in-politics law which is needed to effectively penalize promise-breakers and those who deliberately mislead.
"All the B.C. parties have failed to respond to high voter concern about democracy and trust issues so the party leaders should not be surprised by the lack of support they will receive from voters on election day and no one should be surprised by likely low voter turnout," said Tyler Sommers, Coordinator of Democracy Watch and its four nation-wide coalitions. "One can only hope that the parties will actually address these concerns when the legislature opens again so that everyone in B.C. politics will finally be effectively required to act honestly, ethically, openly, representatively and to prevent waste.
Given the lack of a provincial honesty-in-politics law voters should be wary of trusting any political promises, but one good sign was that the B.C. Greens promised to enact such a measure, the first party to make such a promise in Canada," said Duff Conacher, Founding Director of Democracy Watch.
The Report Card grades the four main parties' platform pledges based upon 16 sets of key changes in five areas that Democracy Watch and its coalitions believe are the changes that will most effectively require everyone in the federal government to act honestly, ethically, openly, efficiently, representatively and, if they don't act in these democratic ways, easily and thoroughly held accountable. In total, the 16 sets of changes add up to 100 key changes needed to the British Columbia government's democracy, ethics and accountability system.
Many national surveys over the past several years have shown that a large majority of Canadians support the 100 democracy, ethics and government accountability reforms set out in the Report Card, as do many commentators on democratic reform. The federal government, and every province and territory and municipality across Canada, all have a similar list of 100 loopholes and flaws in their government systems (each with a slightly different set of loopholes flaws, depending on which have been closed or corrected in the past).
The 16 sets of changes, divided into five areas, all reflect the following five key elements for ensuring that large, powerful government institutions act responsibly and follow rules: 1. strong laws with no loopholes; 2. requirement to disclose details of operations and violations; 3. fully independent, fully empowered watchdog agencies to enforce laws; 4. penalties that are high enough to encourage compliance; and 5. empowerment of citizens to hold governments and watchdog agencies accountable.
The parties were given a grade ranging from A (Platform makes clear promise to implement proposal) to I (Platform does not mention proposal), with grades B for a vague or partial promise to implement the proposal, C and D for clear to vague promises to explore the proposal, E for mentioning proposal and F for mentioning the theme of the proposal. Grades were averaged for each of the five sections, and the averages of section grades were used to calculate the overall grade for each party.
Democracy Watch graded the parties' election platforms by reviewing the platforms. Statements by party leaders or representatives were not taken into account as they are not fully accessible to all voters, nor are they binding in any way on the party (as admitted by many party leaders) and as a result are even less reliable than promises made in the parties' platforms.]]>Canada's Ethics Commissioner Shouldn't Let Harper Off the Hooktag:www.huffingtonpost.com,2013:/theblog//3.32528722013-05-10T17:38:44-04:002013-05-10T17:38:47-04:00Tyler Sommershttp://www.huffingtonpost.com/tyler-sommers/refusal to investigate yet another clear case -- Prime Minister Harper helping Peter Penashue with a funding announcement and a by-election call while Elections Canada is investigating Mr. Penashue's last election campaign. It calls for key changes to ensure effective ethics enforcement in Canada.
More than 61,000 messages have been sent through Democracy Watch's letter-writing campaign to MPs on the House of Commons Ethics Committee that is reviewing the federal Conflict of Interest Act, and to other key politicians across Canada.
Democracy Watch submitted a complaint to the Ethics Commissioner after Prime Minister Stephen Harper allowed Mr. Penashue to make a $1.35 million spending announcement in his riding on March 11, 2013, just days before he resigned his seat and after Prime Minister Harper called the by-election before prosecutors had decided whether to charge Mr. Penashue or others involved in his 2011 election campaign for violations of the Canada Elections Act.
"This is yet another clear case where the lapdog federal Ethics Commissioner is ignoring clear ethics rules, and instead using a dangerously narrow and legally incorrect enforcement approach to protect a politician who has improperly furthered the private interest of a friend and colleague," said Tyler Sommers Coordinator of Democracy Watch.
"The Ethics Commissioner actually makes the absurd claim in her ruling that the ethics law never covers any political decisions Cabinet ministers make, no matter what the situation."
Duff Conacher, Board member of Democracy Watch, agreed:
"Ethics Commissioner Mary Dawson is so ineffective that the media, not her, have revealed all of the ethics violations in federal politics in the past five years, while she has let dozens of Conservatives off the hook for clear violations and made more than 80 secret rulings, and so clearly the ethics law needs to be strengthened to ensure proper and effective enforcement and thousands of Canadians are calling on the House Committee to strongly recommend these and other key changes to stop unethical politicians and lobbyists."
In a recent ruling involving a situation with Jim Flaherty, the Ethics Commissioner made it clear that the definition of "improperly" includes the standards set out in Prime Minister Harper's Accountable Government guide for ministers. That guide requires ministers to "uphold the highest ethical standards so that public confidence and trust in the integrity and impartiality of government are maintained and enhanced," to "make decisions in the public interest," and to "perform their official duties and arrange their private affairs in a manner that will bear the closest public scrutiny. This obligation is not fully discharged merely by acting within the law." (Annex A, Part I: Ethical Guidelines and Statutory Standards of Conduct).
It seems very clear that Prime Minister Harper's recent decisions concerning Mr. Penashue do not uphold the highest ethical standards and are not impartial in a way that enhances public confidence and trust, as they are favours that help Mr. Penashue; they are not in the public interest because they deny voters key information they have a right to know before they vote in the by-election; and, as a result, they do not bear the closest public scrutiny, given how clearly they help Mr. Penashue's private career interest in keeping his job (and pay) as a Member of Parliament.
Despite the Flaherty ruling and the clear and serious ethical issues the Prime Minister's decisions raise, the Ethics Commissioner dismissed Democracy Watch's complaint. In her ruling, the Ethics Commissioner claimed, without providing any convincing evidence or reasons:
That Prime Minister Harper and Peter Penashue are not friends (despite all the very friendly things the Prime Minister has done for Mr. Penashue recently)
That the Accountable Government guide's rules apply only if the exact, specific situation complained about is referenced in the guide
That the spending announcement was acceptable because it was focused on enhancing the image of the party (even though clearly in the context it also furthered Mr. Penashue's private interests)
That such spending announcements and by-election calls are "political advantages" that are a "government prerogative" and that ethics rules can't touch them, no matter how unethical and abusive the exercise of the advantage or prerogative is
There are more than 200 similar cases across Canada of people being let off the hook with no penalty, especially at the federal level, including the following (along with many others who escaped accountability for very questionable actions in past decades): Prime Minister Harper (who decided in 2007 not to have a full public inquiry into his then-friend Brian Mulroney's affair with Karlheinz Schreiber), Nigel Wright, Tony Clement, Christian Paradis, Lisa Raitt, Rick Dykstra, Jim Flaherty, and 25 Conservative Cabinet ministers, ministers of state and parliamentary secretaries in total, who, along with 35 Conservative MPs, handed out government cheques with Conservative Party logos on them and all MPs who accept sponsored travel from lobbyists.
The Ethics Commissioner is a major part of the problem with ethics enforcement -- since 2007, she has rejected at least 80 complaints filed with her without issuing a public ruling (it could be more as she did not disclose the total number of complaints she received in 2008-2009 nor in 2010-2011). She has received complaints about, or become aware of, a total of at least 100 situations, but has only issued 17 public rulings. In other words, the Ethics Commissioner may be covering up more than 80 dangerously undemocratic ethics violations.
To finally make corruption in federal politics effectively illegal, the House of Commons Ethics Committee, which is currently reviewing federal ethics rules, must recommend the following key changes:
Ensure everyone is covered by ethics rules (currently some ministerial staff and advisers, Cabinet appointees, and staff and advisers of MPs and senators are not covered by any rules)
Add a general ethics/integrity rule to the Act and codes to ensure that no one can escape accountability by exploiting technical loopholes (as already applies to public servants, and as is set out in the Prime Minister's Accountable Government guide for ministers)
Add an honesty-in-politics rule to the Act and codes that everyone is required to comply with at all times, even in statements made in Parliament (as already applies to public servants, and as is set out in the Prime Minister's Accountable Government guide for ministers)
Add a rule to the Act and codes prohibiting everyone from being in an apparent or foreseeable potential conflict of interest (as already applies to public servants, and as applies to B.C. politicians, and as the Oliphant Commission report recommended) with anyone or any entity, including for their political interests like fundraising or campaigning for re-election
Delete the loopholes in the Act's and codes' definition of "private interest" that allow everyone to take part in general application decisions even if they have a conflict of interest
Require disclosure of all assets worth more than1,000 (the current threshold of 10,000 is much too high) and require divestment of more assets
Strengthen gift rules to make it clear gifts from anyone, including family and friends, that create even the appearance of a conflict of interest must be refused, and delete the loopholes that allow MPs to accept sponsored travel and volunteer service from lobbyists
Add a rule to the codes prohibiting acceptance of any benefit in return for switching parties, or giving up one's seat or nomination as a candidate in an election
Add a rule to the Act and codes prohibiting the personal use of government property, especially for political activities
Change to a sliding scale for everyone prohibiting lobbying after leaving office from one year to five years (increasing in length as the decision-making power and potential conflicts of the person increase) to ensure everyone must take a cooling-off period
Require everyone to report to the Ethics Commissioner their post-employment activities to ensure they are complying with their cooling-off period (as the Oliphant Commission recommended)
Require the Ethics Commissioner to issue a public ruling for every complaint received, and every time advice is given to anyone
Require the Ethics Commissioner to do regular, random audits
Ban the use of the illegal "conflict of interest screens" the Ethics Commissioner is currently using, and require disclosure of all recusals from decision-making
Require the Ethics Commissioner to impose mandatory minimum penalties for ethics violations that match the penalties for lobbying violations (ie. 50,000 to 200,000 fines and jail terms)
Allow anyone to challenge any decision or ruling by the Ethics Commissioner in court for any error of fact or law
Establish the Public Appointments Commission, and close the loopholes in the Lobbying Act to prohibit secret, unethical lobbying, and in Canada Elections Act to prohibit secret donations and loans, and in the Public Servants Disclosure Protection Act to strengthen whistleblower protection and extend it to everyone (including political staff), and strengthen enforcement of all of these laws to prevent related unethical actions.
Democracy Watch and the Government Ethics Coalition will continue pushing all governments across Canada and will encourage Canadians to send a message to politicians until all of these needed changes, and more, are made to ensure honest, ethical politics.
]]>Forget Reform -- Let's Abolish the Senate!tag:www.huffingtonpost.com,2013:/theblog//3.26720542013-02-21T16:01:22-05:002013-04-23T05:12:01-04:00Tyler Sommershttp://www.huffingtonpost.com/tyler-sommers/
While there are many proposals to reform the Senate, they all leave or create more problems than they solve, and all require changes to the Constitution (as Prime Minister Harper will soon learn when the Supreme Court of Canada rules on his reference case) -- so abolishing the Senate is no more difficult than any other option.
An elected Senate will result in gridlock with the House, as happens in the U.S., because both bodies will have the democratic legitimacy to reject each other's proposals. And term limits for senators will not solve any of the Senate's many other accountability problems.
The Senate supposedly exists to provide a "sober second thought" review of House bills, but many senators are on the boards of big businesses and so are essentially inside-government lobbyists -- again a system undermined by rampant conflicts of interest.
As well, the Senate has never developed a new proposal that was not already being advocated by some think-tank or advocacy organization -- so it is not needed to generate new policy ideas in any area.
Finally, the Senate is supposed to balance the representation of Canada's regions in the federal Parliament. This goal could easily be achieved by increasing the number of seats from some regions in the House of Commons. This would go against the democratic principle of representation by population, but so does an elected Senate, and in any case in a federation like Canada that principle is always ignored somewhat in order to fulfill the goal of ensuring all regions are well-represented.
For all these reasons, the most simple, least costly, and therefore best solution is to abolish the Senate and incorporate more regional representation into the House of Commons.
If Prime Minister Harper had initiated a broad consultation seven years ago to make these changes, instead of playing games by introducing so-called Senate reform bills again and again but doing nothing to move them through Parliament, we would be much closer to the goal of having an equal, elected and effective Parliament (which has always been the goal of Senate reform).
]]>Liberal Leadership Race: Ready, Set, Spend!tag:www.huffingtonpost.com,2012:/theblog//3.18659732012-09-07T17:05:38-04:002012-11-07T05:12:01-05:00Tyler Sommershttp://www.huffingtonpost.com/tyler-sommers/
tarnished, as past races have been, by unethical, secretive, unfair, and unrepresentative actions by candidates and officials, the party failed to go far enough in doing so.
To uphold the democratic principles of one person, one vote, and of honesty, openness, ethics and fair and accurate representation, the Liberal Party should have made decisions to eliminate or drastically limit the entry fee and require the disclosure of key information regarding the race.
Setting the entry fee at $75,000 poses an undue hurdle for many potential candidates and should have been replaced through allowing candidates to qualify by gathering signatures and support, not by buying their way into the race.
In law, because of loopholes, candidates for leadership are not required to disclose all of the donations they receive nor are they required to disclose the support they receive through volunteer labour. The party could have remedied this and in doing so established a much more open,
transparent, and democratic leadership election through requiring the disclosure of all donations and requiring disclosure so that anyone who does a favour for a candidate will be known and potential conflicts of interest could be avoided.
Learning from past leadership races and the incredible amount of debt that candidates have taken on loans to candidates by themselves should have been prohibited, and the amount of any loan should have been limited to the same level that donations are limited ($1,300).
To ensure that every voter can cast a ballot and exercise their democratic right of voting for whom they want everyone should be given the option of voting "none-of-the-above" if they don't like any of the
candidates.
These changes should be instituted by all parties and added to the Elections Act, as promised by the federal Conservatives in 2006, to ensure that political parties choosing a potential Prime Minister
operate democratically. Unfortunately, the Liberal party has missed out on an opportunity to establish a strong and democratic precedent for future leadership elections not only within their party, but for all
federal and provincial political parties.]]>Forget the Rules, Harper Won't Penalize You if You're Conservativetag:www.huffingtonpost.com,2012:/theblog//3.17116062012-07-27T16:19:38-04:002012-09-26T05:12:33-04:00Tyler Sommershttp://www.huffingtonpost.com/tyler-sommers/
This is a deeply hypocritical statement from the Conservatives whose leader, Prime Minister Harper, has done nothing to penalize dozens of Conservative Cabinet ministers and MPs who violated federal good government rules by handing out government cheques labelled with the Conservative Party logo, and has done nothing to penalize Cabinet ministers Christian Paradis (who violated the federal ethics law), Tony Clement (who violated federal spending rules in the G8-G20 fiasco), Jim Flaherty and Peter MacKay (who violated federal budget rules by hiding the actual cost of the fighter jets), Peter MacKay again (who violated rules by using a military helicopter for a personal purpose), and Bev Oda (who violated rules governing expenses, and also misled Parliament).
In some cases, these ministers and others have faced no consequences for violating key rules also because a watchdog agency like the Auditor General or Ethics Commissioner has no power to penalize them, or has failed to enforce the law effectively and properly and no one is allowed to challenge their improper enforcement in court.
Because nothing can be done to force a Prime Minister to penalize Cabinet ministers and politicians who violate rules, the watchdog agencies must be required to conduct random audits and to investigate all complaints and situations in which there is evidence of a violation, and must be given the power to, and required to, penalize violators, and everyone must be allowed to challenge any watchdog in court who fails to enforce rules properly.
As well, the huge loopholes must be closed in key good government laws because these loopholes currently make it legal in many cases for people involved in politics to be dishonest, unethical, secretive and wasteful.
For example, loopholes in the federal lobbying law, and weak enforcement, have meant that no one has been prosecuted for failing to register as a lobbyist since the law was enacted in 1988, and dozens of lobbyists have been let off the hook. Recently, a House of Commons Committee has recommended some changes to close some of the loopholes in that law, and to strengthen enforcement, but not enough changes to stop secret, unethical lobbying of the federal government.]]>