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Supreme Court of Canada Refuses To Hear Ethics Law Appeal Case

Ruling Means Cabinet Ministers Can Control Investigations of Themselves, Their Staff, Family and Friends
June 12, 2009

Ruling Also Allows Ethics Commissioner to Refuse to Rule on Complaints Filed by the Public, and to Ignore Law in Her Rulings -- Commissioner Will Answer Questions About Her Enforcement Standards before Oliphant Commission on June 17 Democracy Watch Still Seeks MPs and Senators to Re-file Complaint to Ensure Commissioner Rules On Issue, and to Change Ethics Law to Ensure Public Rulings on Complaints Filed by Anyone

OTTAWA - Today, with the Oliphant Commission Part II Policy Review hearings beginning next week, Democracy Watch announced that the Supreme Court of Canada has refused its application for leave to appeal the Federal Court of Appeal's January 2009 refusal to review federal Conflict of Interest and Ethics Commissioner Mary Dawson's January 2008 decision that Prime Minister Harper and his Cabinet were not in a conflict of interest when they made decisions about the investigation of the Mulroney-Schreiber affair, and further that the Ethics Commissioner is not required to investigate and rule on complaints filed by the public.

Democracy Watch called again on MPs and Senators from all political parties to re-file the request for an investigation and ruling that it filed in November 2007 with the Ethics Commissioner.

The request questioned whether Prime Minister Stephen Harper and some of his Cabinet ministers were in violation of the Conflict of Interest Act when they discussed and chose whether an inquiry into the Mulroney-Schreiber situation would take place; set the terms of reference for the inquiry; chose as inquiry commissioner Justice Oliphant who will judge their own actions and Mr. Mulroney's actions, and; continued to control legal proceedings against Karlheinz Schreiber even though he made allegations about them.

Even though the purpose of the Act is to "establish clear conflict of interest" rules and to "minimize the possibility of conflicts" and to give the Commissioner "the mandate" to "determine whether a contravention" has occurred (as set out in section 3), the Court of Appeal ruled that the Commissioner is only required to rule on whether a contravention has occurred if an MP or Senator requests that she make such a ruling.

Democracy Watch also called on MPs and Senators to pass a bill as soon as possible changing the Conflict of Interest Act to give the public the right to file and have their complaints investigated and ruled on by the Commissioner, and to require the Commissioner to investigate and rule publicly on every situation she learns about that presents clear evidence that a Cabinet minister, ministerial staff or senior government official may be in a conflict of interest.

"It is outrageous in 2009 in a country that calls itself a democracy that the public has no right to file ethics complaints about the most powerful federal politicians and government officials in Canada, and that the Ethics Commissioner has no duty to investigate and rule on complaints even when presented with clear evidence of a violation of the key ethics law," said Duff Conacher, Coordinator of Democracy Watch.

The Court of Appeal also made the extraordinary ruling that the 7-page letter the Commissioner sent in January 2008 to Democracy Watch in response to its November 2007 complaint, which ruled that neither the Prime Minister nor any minister or government official was in a conflict of interest concerning the Mulroney-Schreiber situation (a ruling based entirely on the Commissioner's very restrictive and highly questionable interpretation of key measures in the Conflict of Interest Act) was not a legal ruling. The Court of Appeal ruled that the letter was just the Ethics Commissioner's opinion which could change based on future evidence. "The Supreme Court of Canada has allowed the Federal Court of Appeal to undermine the enforcement of the federal ethics law by ruling that the federal Ethics Commissioner can ignore clear evidence of a conflict of interest and has no duty to enforce the federal ethics law, and that even if the Commissioner makes a decision based on a highly questionable interpretation of the law, the Court will not review her decision," said Conacher.

The Ethics Commissioner will appear on a panel the morning of Wednesday, June 17 at the Oliphant Commission to answer questions about how she interprets and enforces the Conflict of Interest Act and also the Conflict of Interest Code for Members of the House of Commons.

Democracy Watch is a party to the Part II Policy Review of the Oliphant Commission, and will be making its submission and questioning other participants in the Part II hearings which will be held next Monday, June 15, June 16 and 17, and Monday, June 22.

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