The Watchdogs Who Never Bite
With her surprise resignation last month from her post as the federal government's first public sector integrity commissioner, Christiane Ouimet left a swirl of questions in her wake. Why quit less than four years into a seven-year term? What caused the unusually high turnover among her staff? Auditor general Sheila Fraser is auditing the commissioner's operations, and answers will likely have to wait for her report. But the biggest puzzle of all looks less particular to Ouimet than symptomatic of a wider pattern: she fielded about 170 complaints in her stint as integrity watchdog, but found not a single case of wrongdoing by a public official.
Appointed by Prime Minister Stephen HARPER in 2007, Ouimet was charged with enforcing his government's new Public Servants Disclosure Protection Act. The CONSERVATIVES touted the law as a long-overdue guarantee that whistleblowers on the federal payroll could confidentially expose bad behaviour by their superiors without fear of repercussions. The revelation that Ouimet had looked into so many whistleblowers' allegations, and yet never found anything to act on, prompted an outcry. But the watchdogs she might be benchmarked against, especially those charged with enforcing the lobbying and conflict of interest rules, have also failed to bring to light any revelations of serious wrongdoing.
There's been a federal law on lobbying on the books since 1989, but in all those years not a single lobbyist has been charged with violating the government's rules about disclosing their paid attempts to influence Ottawa's decision-makers. In a post with a much shorter track record, the conflict of interest and ethics commissioner, created by Harper in 2007, veteran federal government lawyer Mary Dawson has conducted eight investigations, but never found a cabinet minister or other senior official at fault. Dawson has reported just one minor contravention of the conflict of interest code she oversees, and in that case she concluded that a backbench LIBERAL MP was guilty of only an "error in judgment made in good faith."
Some other watchdogs appear more eager to be forceful, but they are severely limited by laws that restrict their powers. Information commissioner Suzanne Legault, for instance, lacks the authority to order government departments to release information. The government has turned down her pleas to be given even the limited power to instruct departments and agencies to speed up their administrative processes in cases where Access to Information Act requests, which are supposed to be answered in 30 days, have languished without action for many months. Similarly, the government has refused to update the powers of the privacy commissioner.
It seems the watchdogs too often just watch. They might occasionally bark, but rarely bite. In some cases, those charged with ensuring ethics and accountability sound quite satisfied to be playing a rather unassertive role. When Dawson appeared recently before the House committee on information, privacy and ethics, a Liberal MP asked her an open-ended question about what suggestions she could make to strengthen the conflict of interest law she oversees. "Well, I'm nervous about getting too draconian a piece of legislation," Dawson told the committee, "because I think the more important thing is to instill the values in people that they follow."
These days, there's little danger of Dawson being viewed as too draconian. In three inquiry reports issued so far this year, she has cleared a Tory cabinet minister and a parliamentary secretary over conflict of interest allegations about their fundraising activities, and given the government a gentle tap on the wrist for plastering Conservative logos on those giant cheques they used to publicize federal infrastructure spending. Commenting on the fact that she hasn't taken strong action against any rule-breakers, Dawson told the House committee, "The bright side, to look on it, is maybe people are obeying the rules."
Maybe. Details of her inquiries, though, have raised eyebrows. Last spring, Dawson looked into how industry lobbyists had helped raise money for Conservative MP Lisa Raitt's riding association. (She was natural resources minister at the time, but has since been reassigned as labour minister.) In clearing Raitt, Dawson stressed her finding that the minister didn't personally solicit or receive money from lobbyists; that work was done by her riding officials, and the money flowed into her riding association's accounts. It was a surprisingly sharp distinction between the politician and her local campaign operation and war chest. Dawson did, though, make a point of calling for clearer rules to cover cases where "lobbyists or other stakeholders" take part in political fundraising, particularly for cabinet ministers.
Setting those boundaries between lobbying and political activity is a tricky problem that successive governments, both Liberal and Tory, have sidestepped. And successive lobbying watchdogs have also been reluctant to sort it out. Democracy Watch, a tiny but tenacious government-ethics advocacy group, won a prolonged legal battle last year when a federal court judge finally ruled that a 1999 fundraising dinner organized by a Liberal lobbyist for a Liberal cabinet minister had indeed created a conflict of interest. It took that court decision to prod the lobbying commissioner into issuing guidelines last summer about when lobbyists should think twice about approaching politicians they've helped in the past. For the first time, lobbyists were explicitly warned about lobbying ministers for whom they've raised money, say, or chaired an election campaign.
The mix of partisan political activity and the pursuit of private interests with the government is frequently messy. Last year, Natural Resources Minister Christian Paradis, then public works minister, attended a fundraiser with several businessmen whose companies had won contracts for Parliament Hill restoration work. The RCMP is investigating allegations that an unregistered lobbyist was involved in at least one of those contracts. In fact, the lobbying commissioner has referred five files to the RCMP for criminal investigation since spring 2009. (In the past, such referrals to the Mounties, including five from 2004-2009, didn't lead to charges being laid.)
Promoting ethical behaviour and transparency are often linked. Back in his 2006 election campaign, Harper promised a sweeping reform of the access to information law to promote open government. But that push now appears stalled indefinitely. The House committee on information, privacy and ethics issued a report on "first steps toward renewal" of the information regime last year. One of its key recommendations was to grant the information commissioner the power to order the government to speed up the processing of access requests. Under the current law, the federal commissioner can't issue orders of any kind, only issue findings when she sees a failure to properly release documents, and hope government officials show respect for her opinions.
Allowing the commissioner at least some order-making power might have been a turning point. In British Columbia, Ontario and Quebec, the information commissioners already have that authority, and they wield the threat of issuing orders to encourage public officials to come to terms with those seeking information. David Loukidelis, B.C.'s information commissioner, told the House committee the prospect of binding orders "encourages dispute resolution" in the vast majority of cases. But Justice Minister Rob Nicholson rejected all the House committee's recommendations, just as he did the committee's similar call for reforms to the powers of the privacy commissioner.
It's no great mystery why the Tories' appetite for reform has diminished during their years in government. "Opposition parties are keen on access laws; they make their job easier," says David Fraser, a Halifax lawyer specializing in information and privacy law with the firm McInnes Cooper. "It's common that once one gets into power, one's enthusiasm wanes." The same thing could be said about the whole range of watchdog functions designed, at least in theory, to ensure more open, accountable government.
Still, it's not impossible for an obstinate watchdog to make waves, even one with limited power. Kevin Page, the parliamentary budget officer, has emerged in less than three years as a figure who can't be ignored. The Conservatives created his position after what they saw, back when they were in opposition, as repeated Liberal fudging on budget numbers. Charged with independently analyzing the nation's finances, Page has repeatedly annoyed the Tories by questioning their deficit forecasts, and producing eye-popping projections for the costs of everything from the Afghanistan war to locking up more criminals for longer sentences.
He's dared to do all this even though he could be fired if the Prime Minister got too fed up with him. As a mere officer of the Library of Parliament, Page is more vulnerable to dismissal than the integrity, ethics and lobbying commissioners, who all enjoy special independence as officers of Parliament. Firing Page, though, would look bad, since he's such a visible thorn in the side of the government. "He's politically protected," says Democracy Watch coordinator Duff Conacher, "because of the job he's doing." It's an example the other watchdogs might want to consider.
Maclean's November 22, 2010