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Confict-of-interest absurdity cries out for change to the law


 

There’s room for honest disagreement about whether the government’s recent advertising blitz touting the benefits of its economic plan was really designed to promote the Conservative Party of Canada.

So it was never a slam-dunk that Mary Dawson, the federal conflict of interest and ethics commissioner, was going to rule that the ads violated the law forbidding government spending to further private interests. Dawson was asked to examine the matter by Liberal MP Martha Hall Findlay in a complaint filed last October.

But even to those who think these particular ads didn’t cross the line into taxpayer-funded partisanship, Dawson’s reason for dropping the matter this week should be cause for alarm. She said the law in question does nothing to stop public office holders from using their positions to the advantage of their political parties.

Of course that sounds absurd. After all, the Conflict of Interest Act, the law that prevents misuse of public office for private gain, forbids government officials from using their positions to “improperly further another person’s private interests.”

But Dawson tells us that, under law, the word “person” is “conventionally understood to include both an individual and a corporation (legal person).” A political party is neither; it’s an association. Thus, she decided to halt her examination of Hall Findlay’s complaint “on the basis that the Conservative Party of Canada is not a person.”

It’s a staggering bit of reasoning. It’s hard to believe the act was drafted with that technical limitation in mind. If Dawson is right, the Conflict of Interest Act must be amended immediately (well, as soon as Parliament sits again) to specify that illegal conflicts can arise not just with respect to individuals and companies, but also any sort of association, including, of course, a political party.


 
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Confict-of-interest absurdity cries out for change to the law

  1. "If Dawson is right, the Conflict of Interest Act must be amended immediately (well, as soon as Parliament sits again) to specify that illegal conflicts can arise not just with respect to individuals and companies, but also any sort of association, including, of course, a political party."

    Much though I may agree with you, what, pray tell, do you think are the odds of that happening, given the current government's course of action, Mr Geddes?

    • Totally agree LynnTO. I'd also like to see those 10%'ers curtailed. I don't recall the Libs using such crass use of those 10%'ers when they were in power. Correct me if I'm wrong.

      • The 10%'ers aren't the real problem as nasty as they are. The real issue is the use and abuse of government advertising buys by the Tories, whose content and timing serve no other purpose than to shore up support for the incumbent government.

        In Canada, there used to be investigative journalists who would look into such abuses.

        • I get 10%ers from Maria Minna – they are horrendous. Perhaps they weren't when Liberals were in power but they sure are now.

  2. BTW, JG, glad you brought this topic up. When I read Dawson's reasoning I was astounded.

  3. Well, in a court, a Judge may look to the spirit of the law if not the technical wording and find this ruling to be complete B.S.

    • Where is the technical wording here? She seems to arbitrarily decide that "person" means only legal persons. There is no "conventionally understood" – it is, as a legal matter, inclusive of non-legal entities or not under this particular statute.

      The Conservative Party of Canada is a person under the Income Tax Act, for example.

      "Conventionally understood" when it means the Conflict of Interest Act doesn't apply to political parties, is not sufficient grounds.

  4. Isn't an association a gaggle of persons?

    • …honk…honk

      On November 30, 2009, I received a response letter from Mr. Arthur Hamilton, counsel for the Conservative Party of Canada. He provided me with a joint response on behalf of the Prime Minister, the ministers and the parliamentary secretaries identified in Ms. Hall Findlay‟s request. I also received supplemental letters directly from two of the public office holders who were subjects of the request.

      • I note that registered political parties, including the Conservative Party of Canada, are deemed to be “persons” for the purposes of judicial proceedings and compliance agreements under the Canada Elections Act, S.C. 2000, c.9, s.504. There is, however, no similar deeming provision in the Conflict of Interest Act. I note as well that there are provisions of the Conflict of Interest Act, itself, that apply to a broader range of entities. They refer expressly to “any person or organization” or “any person or entity” (for example, sections 7 and 16 and subsection 35(2)). Similarly, the conflict of interest rule found in section 8 of the Conflict of Interest Code for Members of the House of Commons, which is analogous to section 4 of the Conflict of Interest Act, is cast more broadly than the Act to cover “persons” or “entitity."

        • There is, however, no similar deeming provision in the Conflict of Interest Act.

          In the absence of specific wording, the Commissioner could have read in what the legislators intended. Perhaps even looking at parliamentary/committe debate at the time.

  5. Yeah, we're not talking about a dog or a tree.

  6. Assume, for a moment, that the federal conflict of interest and ethics commissioner's interpretation was correct.

    The complaint was filed against specific ministers. The conflict of interest was in using their public role to further their own future electoral successes. You elect persons, not associations. It seems to me this situation still falls under the Act. Or am I interpreting it incorrectly?

    • I believe the complaint was about the theme of the advertising, ie. it respembled Conservative party advertising. That is why I think it applies to the party, and not the individuals. The advertising would have boosted the prospects for all Conservative candidates, not just those currently elected. Those are just my thoughts.

      • If I am a Minister in the Gov't, I have a personal interest in having myself re-elected, as well as my party forming a majority. Ministers receive a personal benefit (higher salary) and perks.

        But, your point about the nature of the complaint is a good one – would have to see how Martha Hall Findlay worded it.

  7. Even if political parties were brought into the Code, it would be absurd to make it a conflict of interest for a politician to use their political office for political gain. The novelty cheques were not transferring public money to a private person or association or allowing anyone to enrich themseleves, and that's what the Code is aimed st. The federal identity policy is the right way to police stunts like the cheques.

    • Hey, the commish seems inclined to agree with me – "In my view it is questionable whether those political interests are included within the meaning of “private interest” under the Act, but it is not necessary to decide that issue at this time."

    • This isn’t about the novelty cheques, this is about the Economic Action! Plan ads, most egregiously the Prime Ministerial photo gallery on the EA!P website (including the pianoman shot, which has precisely nothing to do with EA!P), and the “must stay the course” ads paid for by the taxpayer when there was a threat to bring down the government. All these things cost taxpayers millions of dollars.

      • All of the EA!P stuff I think Style is correct about. Is strikes that the Federal Identity Policy is the one that we can clearly say was violated.

        However, the "must stay the course" adverts are, I think, a different matter entirely. Again though, I'm not sure whether conflict of interest is, indeed, the correct place for it to go. This isn't just a conflict of interests. This is wholesale corruption. What we need is a full-scale inquiry into it, headed, perhaps by a former justice with some experience in these matter. I seem to remember there being a John Gomery or somebody like that who did some looking into advertising scandals…

        • But Gomery wasn't looking into an advertising scandal – he was looking into the use of ad agencies as a way to transfer federal funds to a political party. The content of the advertising wasn't the problem, the flow of the money was the problem. There may be ads that the federal government shouldn't pay for, but that is a very different issue from diverting public funds to private interests.

          • So if there are ads the federal government shouldn't pay for, how is that different from diverting public funds (federal government) to private interests (CPC party, advertising providers)?

          • What is the difference between a overly partisan ad and theft? This is one of those questions which is difficult to answer simply because you can't find a place to start…

          • Might I suggest you can't find a place to start because there's no difference?

          • It's the difference between claiming an invalid item on an expense claim and running a scheme to embezzle money from your employer. There are similarities but the two are not equivalent.

  8. Anyone else find the quibbling between the French & English versions of the Act disengenius? (or maybe dis-ingenius?)

    Can someone whose French is better than mine comment whether retenir really limits the application of the Act to groups represented by lobbyists?

  9. So, essentially this ruling says not "those taxpayer funded ads aren't just ads for the Tories paid for by taxpayers" it says "it DOESN'T MATTER if those ads are just taxpayer funded ads for the CPC".

    Nice.

    • That's it in a nutshell.

  10. Mr Geddes, you are incorrect. An absurdity cannot 'cry out' because it isn't a person.

  11. Me here, just goin against the flow… then I will wait to get hammered.

    I think the judge ducked, but for good reason. If the gain sought by the Conservatives was directly financial (and surely it partly was) then I imagine the case could have stood, but given that it was primarily for political purposes any legislation is bound to be ineffective.

    What seems to be the consensus is that advertising the activities of the government should not lead to PR benefits to the party in power. If the activities being advertised are widely viewed as good activities then how can then not reflect well on the current government? If they reflect well on the current government, then all that is required is a reminder to the public of which party is in power.

    What has offended many of use is the crass, tasteless approach employed by the Conservatives in their governmental advertising which looks very much like party advertising in normal times. (Of course, they could successfully argue that they have maintained separation by taking their party ads to entirely new lows.) However, what if the ads instead were thoughtful, informative and nonpartisan (but still featured SH and his hair) In many respects, such "classy" ads might be much more effective advertising for the Conservatives since they would certainly leave swing voters with a better impression. We can expect corporations (say perhaps Home Depot) to have "ads" out soon that describe how the public can work with them to aid in Haiti. Most of these will not make any direct attempt to bring new customers to their stores, but they will link the brand name to a good deed. Corporations do this in part because there are usually good people within them, but it also makes economic sense for them in the long run. Legislating government advertising such that it does not promote the party in power is like legislating good taste in advertising.

    • If the activities being advertised are widely viewed as good activities then how can then not reflect well on the current government? If they reflect well on the current government, then all that is required is a reminder to the public of which party is in power.

      I would have said this myself, but you already did so no need.

      The law as it stands makes perfect sense. It's essentially impossible for the government to do a good job without benefiting their own party, as you have pointed out.

  12. Thank you for the work you do and for helping us stay informed here.

  13. the law that prevents misuse of public office for private gain, forbids government officials from using their positions to "improperly further another person's private interests"

    While I do not disagree with John's accurate characterization of the preposterous nature of the law/ruling, it seems to me that if we are going to make explicit the COI of parties here, some limits are gonna have to be defined on what kind of actions "improperly" "further another person's private interests" and what kind of actions "acceptably" use public office and its powers to do so. Do we want to limit by types of power's? Short of defining specific spheres that we are most worried about we have the potential to get into some messy situations with the COI and E Commish or courts sorting through the entrails of public policy like the OAG.

    For example, if there could be shown to be a partisan bias in how the Tories spent the stimulus funds (i.e., in a manner clearly designed to maintain riding that may be at risk/garner support in winnable riding) do we really want the courts or the commissioner making that call? I think not.

  14. Mary Dawson sounds like a Harper stooge.

    • Ask Linda Keen about what happens if you're not in this government.

  15. Looks like we've got 21st century Person's Case on our hands. Years from now, we'll be erecting a representation of the Conservative Party on the lawn of Parliament.

  16. Easy fix: amend the Act by removing the words "another person's". The clause would then read "“improperly further private interests,” and would be broad enough to cover such nonsense.

    Opposition parties could get this passed in the House (Senate…another matter)

    • Better fix: Make it so that the Ethics Commissioner is a position always appointed by the Opposition.

      • Why not both?

  17. The commissioner seems to disagree with you on the definition of "private interest". ""In my view it is questionable whether those political interests are included within the meaning of “private interest” under the Act, but it is not necessary to decide that issue at this time." That seems reasonable in the context of the Act.

  18. I guess with all the other fooforah going on, and with Mr, Ignatieff being out of the coutry when this ruling was brought down – Ms. Hall-Findlay – who is a lawyer – specializing in International Law – has not had chance to get instructions from her principals as to her next move.
    Myself – as a mere layperson – would consider that Ms. Dawson has made an egregiously narrow interpretation of the legislation that she operates under – and no doubt will be soon buried in the avalanche of rebuttals and charges…

  19. What's absurd is the line of argument being pursued by some people on this thread.

    Hall Findlay took the Conflict of Interest Code and Act and attempted to use it to smear a bunch of Conservative MPs. Have you actually read her complaint she filed? It has the most sophomoric arguments I've ever seen. “The website has some blue sky on it and the Conservative party logo is blue – SCANDAL!” Please.

    Other than Duff Conacher who reports to no one and was appointed by himself, no one is accusing Mary Dawson of being a Conservative shill. She happened to make a ruling that some Liberals don't like. Well boo-hoo. Hall Findlay did such a crappy job of making her argument that the Ethics Commissioner threw out her complaints under the Code within about 48 hours of receiving them. She only was then looking at the Act.

    And the Elections Commissioner and the Parliamentary Budget Officer have ruled against the Conservatives and people shilling for the Libs like Wherry think that those people are the protectors of all that is right and good. Get over yourselves.
    And someone suggested the Opposition should appoint the Ethics Commissioner. That's ridiculous.

    All MPs should, and in fact they did. By ratifying her nomination in a recorded vote in the House of Commons. Seems like only the Bloc had a problem with her. What could be more democratic than that

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