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 Whistleblowers Need Protection


Patronage games will continue until the rules are changed

By Duff Conacher, The Ottawa Citizen
August 06, 2009

The judge's ruling finding Ottawa mayor Larry O'Brien not guilty won't change the government appointments game in Canada, but given that it has cleared up some questions, it will hopefully encourage some long overdue changes to the game, and more directly to the lobbying game.

Some commentators (Sheila Copps, Don Martin) have incorrectly claimed that a guilty ruling would make the usual process for political appointments criminal.

However, the O'Brien case was not about the usual patronage appointments when a prime minister, premier or minister rewards a party loyalist. Instead, the case was about whether O'Brien violated the Criminal Code which prohibits "pretending to have influence with the government or with a minister of the government or an official" while "directly or indirectly" offering any government benefit to another person (including an appointment) in return for any benefit (clause 121(1)(d)).

O'Brien was alleged to have pretended to have influence with federal Conservative cabinet minister John Baird, essentially guaranteeing to deliver Terry Kilrea the benefit of an appointment to the National Parole Board in return for Kilrea benefitting O'Brien by dropping out of the 2006 election campaign for mayor of Ottawa (which O'Brien ended up winning).

In this scenario, O'Brien would have been acting as a lobbyist for Kilrea, and his alleged pretending to have influence would have been illegal specifically to counter the lobbyist/influence peddlers and favour-trading mentality that are so common in politics across Canada (and around the world).

Even though O'Brien was acquitted, his case has highlighted this democracy-damaging crime, and sends a warning message to lobbyists across Canada that they cannot even pretend to have influence with government as a way of attracting clients. Given that some lobbyists are great pretenders, hopefully some whistleblowers (such as disappointed clients who paid but got no results) will come forward and more charges will be laid and convictions handed out.

As for government appointments processes and favour-trading in this area generally, the O'Brien case is only the first step in cleaning up that unethical game, and it will continue to roll on as it has for the past 142 years until other key actions are taken and changes made.

Beyond the influence-peddling measure described above, the Criminal Code also prohibits any judge or politician or other government official from accepting any offer of any benefit or job for themselves or another person in return for changing their decisions or actions in any way, and prohibits anyone from offering any such benefit or job (sections 119 to 121, and 123 to 125).

Government ethics laws across Canada essentially prohibit similar activities, but are aimed more at prevention than criminal punishment.

The problem is, despite clear evidence in many recent cases, no one has ever been prosecuted, let alone found guilty, of violating these measures. To end this negligent record, the federal director of public prosecutions must review all of the investigations of recent federal party-switching cases, and initiate police investigations of other cases, as well as investigations of some cabinet appointments from the past decade that smelled very fishy.

The people involved should either be charged and prosecuted or the director should explain publicly what his prosecution policy is when these situations arise.

There has been evidence in several cases that people switched parties or gave up their seats in Parliament in return for cabinet or other appointments, or cash, and the public has a right to a full explanation of why none has been prosecuted.

Government ethics commissioners across Canada should also clarify the laws they enforce by issuing public guidelines, as the federal ethics commissioner did last year when she published her world's best guideline that made it clear federal cabinet ministers, their staffs and cabinet appointees cannot accept any gift from anyone lobbying or dealing with them now or in the future.

And if the public finds the director's prosecution policy, and ethics commissioners' guidelines unacceptably weak, governments across Canada should strengthen key measures in the laws to make bribery and favour-trading clearly illegal in all cases.

To prevent ongoing questions about the appointments process, the federal Conservatives promised that an independent Public Appointments Commission would be established to search for, screen and nominate qualified candidates for federal appointments.

Ironically, the Conservatives could have escaped Baird facing allegations he played a role in the O'Brien affair if they had kept their 2006 election promise to establish the appointments commission. Instead, very unfortunately, the Conservatives have continued patronage and crony politics as usual, appointing many friends and party supporters to the Senate and other positions (among the more than 1,000 appointments they have made since being elected).

The Conservatives recently reaffirmed their election promise. However, until they or opposition parties change the law to require cabinet to create and maintain the independent commission, Canadians can justifiably assume that federal appointments will continue to be offered as a reward for doing something for the ruling party, and that at least some cabinet ministers are involved in such illegal favour-trading.

And given that provincial and territorial governments of all political stripes across Canada are often guilty of the same patronage and cronyism, they all need to create such a commission.

Anyone looking for one of the root causes of the high level of voter distrust and disgust with politicians across Canada can find it in this all-too-typical, multi-decade delay in setting up key good-government bodies such as public appointments commissions. v So, will the director of public prosecutions do his job properly, and will any political party finally take the lead in cleaning up the government appointment process in Canada, or will the corrupt patronage games continue for decades more?

Duff Conacher is the co-ordinator of Democracy Watch, Canada's leading democratic reform and government accountability organization.

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