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Canada's Ethics Commissioner Shouldn't Let Harper Off the Hook

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Democracy Watch has released federal Ethics Commissioner Mary Dawson's 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.

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