Thank you very much for this opportunity to testify on one of the most important democratic good government laws that exists in any country, including in Canada, namely the Conflict of Interest Act. I welcome this opportunity, slightly overdue, for this five-year review of the act.
First, just to anticipate questions that I usually get when I appear before a committee, and so we don't have to spend time answering them later, I'm here as a representative of the Government Ethics Coalition. It's a coalition made up of just a bit more than 30 organizations from across the country. The total membership of the organizations is over three million Canadians. We've been working together as a coalition now for more than a decade pushing for changes both to ethics rules and lobbying rules. As some of you will likely remember, I was here almost exactly a year ago testifying on the Lobbying Act.
As with the Lobbying Act, I see that the committee and the government has a simple choice. We're recommending 30 changes to the act. You will not have received my brief. Essentially I took a bit longer with the brief because I wanted to review the Ethics Commissioner's report, which was not short. I just got the brief in to the clerk yesterday, but you will receive it soon. You'll see that I and the coalition address in the brief not just the act but also the MP's code and the senator's code and also related laws like the Lobbying Act because they are all interrelated in terms of setting standards and enforcement systems to ensure democratic ethical good government.
The simple choice in terms of the committee making recommendations and the government making changes is either to make what the coalition sets out as 30 much needed changes to the act and the codes and another 14 changes to the related laws, or leave loopholes open and enforcement weak and ineffective, which essentially allows for unethical decision-making and unethical relations mainly with lobbyists by everyone involved in federal politics. Even the Ethics Commissioner, who has been mostly, from our perspective, an ineffective lapdog for the past five and a half years, has made 75 recommendations for changes to the act, most of them to strengthen the act, a few to weaken it.
I think there's a general consensus that the act is a bad joke. The act and the MP and senator ethics rules are so full of loopholes they should really be called the “almost impossible to be in a conflict of interest rules”. Even worse, the rules don't apply to some cabinet appointees, some ministerial staff and advisers, nor do they apply to the staff and the advisers of MPs and senators. So there are lots of people in federal politics who have no ethics rules that they have to follow at all.
The Ethics Commissioner's recommendations, 75 of them, didn't even address the two biggest loopholes in the act. Because of these huge loopholes, which also exist in the MP's code and senator's code, the act and the codes do not apply to 99% of the decisions and actions of the people covered by the act and codes. You currently have a law and codes that only apply to 1% of what people do who are covered by those codes. I'll talk about that a bit further.
The ethics rules that federal politicians have imposed on public servants through the values and ethics code of the Treasury Board and the conflict of interest policy do not contain most of the loopholes and flaws that are in the rules for politicians and their staff and cabinet appointees, so they're much stronger. Also, the Prime Minister has set an accountability guide for ministers that does not contain these loopholes. The MP's code and the senator's code have principles and purpose sections that are unenforceable, but if they were made enforceable most of the loopholes and flaws would be actually closed and we'd have meaningful ethical standards that would apply to 100% of what people do, not 1%.
An overall easy fix to the act and the codes would be just to take these rules from the public servants' codes, which politicians have imposed on them, and impose them on yourselves. Make these enforceable rules. In other words, the standards are already there, and they're in print; they're just not enforceable and not applicable to everybody.
There are also many enforcement problems. The cases of dozens of cabinet ministers and MPs being let off the hook with no penalty since 2007, along with many others who have escaped accountability for unethical behaviour in the past decades, show just how much the federal ethics rules and enforcement system are an ongoing bad joke. In the past 20 years, about 50 cabinet ministers have violated federal ethics rules, and only two have been penalized in any way: they were kicked out of cabinet. That's not a great enforcement record.
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. There could be more, because she didn't even disclose the total number of complaints she received in 2008-09 or in 2010-11. There is a total of 100 situations that she mentions in her annual reports, and she has issued 17 rulings, but that means there are 83 secret rulings at least. We don't even know how much she might have covered up, and there's good reason to suspect that she has covered up some cases, as she has repeatedly interpreted and applied the act and codes in very narrow, bizarre, and legally incorrect ways since 2007 and has let dozens of people off the hook.
A lot of the Ethics Commissioner's recommendations don't really have to be implemented. All that has to happen is for her to reverse her bizarre rulings and start enforcing the act and codes properly, legally, correctly, and in the spirit of the act and the codes. The real intent is to prohibit anyone from making a decision or undertaking any action if they're in any type of conflict of interest, real, potential, or apparent.
However, because of these loopholes and flaws, because the government has ignored recommendations over the past five years from the Ethics Commissioner and from others, including the Oliphant commission, and because the Ethics Commissioner shows no signs that she will reverse any of her bizarre rulings, there are 30 changes needed to the act and the codes, and another 14 changes, to actually clean up federal politics after the more than 145 years since Canada became a country.
There are no valid excuses for failing to close the loopholes and strengthen enforcement. It's really just a choice. If you as a committee don't recommend closing these loopholes and strengthening enforcement, you'll essentially be confirming that you think unethical decision-making and unethical relations by everyone in federal politics is just fine.
You face the same choice that past committees have faced. None of the committees has made the recommendations, and governments haven't made the changes, even though both the Chrétien and the Harper governments promised ethical decision-making and relations in federal politics. This is the 10th time that I've testified in the past 20 years. I'm hoping finally that it will have some effect and that we will finally get these changes that will make corruption effectively illegal.
We should be trying to match not just the standards that the Supreme Court of Canada has set out in several rulings but also those of the UN, the OECD, the World Bank, and the IMF. Every international institution says that if you don't have a democratic good government in which unethical decisions and relations are prohibited, you do not have democracy.
Therefore, I appeal to you to think about yourselves, to look in the mirror or look at your kids and your grandkids, and to think about whether you want to tell them in the future that you had an opportunity to push to close loopholes to end unethical decisions and relations in federal politics but that you did nothing.
Hopefully you will do something, as you did with the Lobbying Act. I think the committee made a good try. The minister rejected most of them. There were some loopholes the committee didn't address, but it was definitely a step forward, and hopefully the minister will respond more favourably in the future.
I will turn to the recommendations of the coalition.
First, as I mentioned already, ensure that everyone is covered by ethics rules. Some people are not, currently, but everyone should be, including the MPs' and senators' staff and advisers. We need to extend the codes to cover them.
Second, enact a general ethics integrity rule, essentially an anti-avoidance rule, such that if someone tried to exploit a technical loophole, they would not be able to but would still be found to be guilty for not maintaining high ethical standards and acting in a way that shows integrity. This rule already exists for public servants, so apply it to everybody else.
Third, enact an honesty in politics rule that everyone is required to comply with at all times. This rule already exists for public servants. It's also set out in the accountability guide for ministers and in the MPs' code in the principles section, so just apply it to everybody and make it enforceable. To paraphrase Gandhi, a lie for a lie will make the whole world dumb. As long as we allow lying in federal politics, we're going to continue turning off most voters. It's the number one hot button issue that Canadians want accountability for. Again, it's already in the rules; just make the rule enforceable.
Fourth, enact a rule prohibiting everyone from being in an apparent or foreseeable potential conflict of interest. Again, this rule already exists for all public servants, except the most senior people, who are covered by the act. This rule is in place for B.C. politicians in their act. It's also, again, set out in the principles in the accountability guide for ministers, in the MPs' code, and in the senators' code. Just make it enforceable. There has to be an apparent conflict of interest standard in force.
The huge loophole that exists in the act and in the MPs' and senators' codes is that you cannot be in a conflict of interest if you are dealing with a matter of general application. Ninety-nine per cent of what you do involves matters of general application. This loophole has to be eliminated, or the act and the codes will continue to apply to only 1% of what federal politicians, their staff, cabinet appointees, and advisers do. There's no reason to have that law if it's only going to apply to 1%.