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Biased Lapdog Investigations Require Real Responses

05/22/2013 05:11 EDT | Updated 07/22/2013 05:12 EDT
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WASHINGTON, DC - MAY 20: The Senate Judiciary Committee holds a markup session on the immigration reform legislation in the Hart Senate Office Building on Capitol Hill May 20, 2013 in Washington, DC. The Judiciary Committee is hoping to wrap up work on the landmark immigration reform bill this week after wading through the 300 amendments that were filed to the bipartisan bill. (Photo by Chip Somodevilla/Getty Images)

Today, Democracy Watch set out the details of why biased, lapdog investigations mean that a cover-up of the Senate expenses scandal is the most likely outcome, and why a public inquiry will likely be needed to ensure a full investigation.

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).