- Bill C-2, the so-called "Federal Accountability Act", passed into law on Dec. 12, 2006, contains a measure that must be approved by the federal Cabinet to create the position of an independent Commissioner of Lobbyists, to replace the current Registrar of Lobbyists who is under the control of a Cabinet minister who has the legal power to fire the person holding the Registrar position at any time for any reason -- [ LINK ] The role of the Registrar (and, hopefully, the role of a new Commissioner) includes enforcing the Lobbyists' Code of Conduct -- [ LINK ] -- which contains rules concerning the relationship between lobbyists and federal politicians and government officials.

- The Public Sector Integrity Commissioner office -- [ LINK ] -- is newly created (first Commissioner appointed on July 9, 2007) with the mandate to investigate complaints from "whistleblowers" and resolve violations of the Values and Ethics Code for the Public Service and all other federal government laws, regulations, codes, policies and guidelines.

References: - Conflict of Interest and Ethics Commissioner -- [ LINK ] -- who enforces the Conflict of Interest Act (2006, c. 9, s. 2) -- [ LINK ] -- and the Conflict of Interest Code for Members of the House of Commons -- [ LINK ]

- Senate Ethics Officer -- [ LINK ] -- who enforces the Conflict of Interest Code for Senators -- [ LINK ]

- Auditor General of Canada -- [ LINK ] -- who is the front-line investigator helping ensure that the federal government complies with the Financial Administration Act and regulations, and its own spending codes, policies and guidelines, and receives value for money spent.

- Royal Canadian Mounted Police (RCMP), the national police force -- [ LINK ]

- Financial Transactions Reports Analysis Centre of Canada (FINTRAC) -- [ LINK ] -- which enforces the Proceeds of Crime (Money Laundering) and Terrorist Financing Act ( 2000, c. 17 ) -- [ LINK ]

- Bill C-2, the so-called "Federal Accountability Act", passed into law on Dec. 12, 2006, contains a measure that must be approved by the federal Cabinet to create the position of an independent Commissioner of Lobbyists, to replace the current Registrar of Lobbyists who is under the control of a Cabinet minister who has the legal power to fire the person holding the Registrar position at any time for any reason -- [ LINK ] The role of the Registrar (and, hopefully, the role of a new Commissioner) includes enforcing the Lobbyists' Code of Conduct -- [ LINK ] -- which contains rules concerning the relationship between lobbyists and federal politicians and government officials.

- The Public Sector Integrity Commissioner office -- [ LINK ] -- is newly created (first Commissioner appointed on July 9, 2007) with the mandate to investigate complaints from "whistleblowers" and resolve violations of the Values and Ethics Code for the Public Service and all other federal government laws, regulations, codes, policies and guidelines.

References: - Conflict of Interest and Ethics Commissioner -- [ LINK ] -- who enforces the Conflict of Interest Act (2006, c. 9, s. 2) -- [ LINK ] -- and the Conflict of Interest Code for Members of the House of Commons -- [ LINK ]

- Senate Ethics Officer -- [ LINK ] -- who enforces the Conflict of Interest Code for Senators -- [ LINK ]

- Auditor General of Canada -- [ LINK ] -- who is the front-line investigator helping ensure that the federal government complies with the Financial Administration Act and regulations, and its own spending codes, policies and guidelines, and receives value for money spent.

- Royal Canadian Mounted Police (RCMP), the national police force -- [ LINK ]

- Financial Transactions Reports Analysis Centre of Canada (FINTRAC) -- [ LINK ] -- which enforces the Proceeds of Crime (Money Laundering) and Terrorist Financing Act ( 2000, c. 17 ) -- [ LINK ]

References: - There is no public evidence that the following agencies have been interfered with by federal politicians or their staff: - Auditor General of Canada -- [ LINK ] -- who is the front-line investigator helping ensure that the federal government complies with the Financial Administration Act and regulations, and its own spending codes, policies and guidelines, and receives value for money spent.

- Royal Canadian Mounted Police (RCMP), the national police force -- [ LINK ] -- with its mandate under the Royal Canadian Mounted Police Act ( R.S., 1985, c. R-10 ) -- [ LINK ]

- Financial Transactions Reports Analysis Centre of Canada (FINTRAC) -- [ LINK ] -- which enforces the Proceeds of Crime (Money Laundering) and Terrorist Financing Act ( 2000, c. 17 ) -- [ LINK ]

- There is public evidence that the following agencies have been interfered with by federal politicians and their staff: - Conflict of Interest and Ethics Commissioner -- [ LINK ] -- who enforces the Conflict of Interest Act (2006, c. 9, s. 2) -- [ LINK ] -- and the Conflict of Interest Code for Members of the House of Commons -- [ LINK ] See details in the following September 2005 Democracy Watch news release -- [ LINK ]

- Senate Ethics Officer -- [ LINK ] -- who enforces the Conflict of Interest Code for Senators -- [ LINK ] -- under the Conflict of Interest Code for Senators, the Senate Ethics Officer is under the control of a committee of senators, and cannot investigate, hold an inquiry, or issue an inquiry report without the approval of the committee.

- Bill C-2, the so-called "Federal Accountability Act", passed into law on Dec. 12, 2006, contains a measure that must be approved by the federal Cabinet to create the position of an independent Commissioner of Lobbyists, to replace the current Registrar of Lobbyists who is under the control of a Cabinet minister who has the legal power to fire the person holding the Registrar position at any time for any reason -- [ LINK ] -- See details in the following January 2007 Democracy Watch news release -- [ LINK ]

- The following agency is newly created and so has no track record to judge concerning political interference: - the Public Sector Integrity Commissioner office -- [ LINK ] -- is newly created (first Commissioner was appointed on July 9, 2007) with the mandate to investigate complaints from "whistleblowers" and resolve violations of the Values and Ethics Code for the Public Service and all other federal government laws, regulations, codes, policies and guidelines.

References: - The head of the following agencies serves a fixed term of office (or until retirement) and cannot be removed during their term in office without relevant justification: - Auditor General of Canada -- [ LINK ] -- fixed term of 10 years -- is the front-line investigator helping ensure that the federal government complies with the Financial Administration Act and regulations, and its own spending codes, policies and guidelines, and receives value for money spent, under the Auditor General Act --

- Conflict of Interest and Ethics Commissioner -- [ LINK ] -- renewable fixed term of five years -- enforces the Conflict of Interest Act (2006, c. 9, s. 2) -- [ LINK ] -- and the Conflict of Interest Code for Members of the House of Commons -- [ LINK ]

- Senate Ethics Officer -- [ LINK ] -- renewable fixed term of five years -- enforces the Conflict of Interest Code for Senators -- [ LINK ] Under the Conflict of Interest Code for Senators, the Senate Ethics Officer is under the control of a committee of senators, and cannot investigate, hold an inquiry, or issue an inquiry report without the approval of the committee.

- the Public Sector Integrity Commissioner office -- [ LINK ] -- is newly created (first Commissioner was appointed on July 9, 2007) with a renewable fixed term of five years and the mandate to investigate complaints from "whistleblowers" and resolve violations of the Values and Ethics Code for the Public Service and all other federal government laws, regulations, codes, policies and guidelines.

- Royal Canadian Mounted Police (RCMP), the national police force -- [ LINK ] -- head serves until retirement and fulfills mandate under the Royal Canadian Mounted Police Act (R.S., 1985, c. R-10) -- [ LINK ]

- The head of the following agencies can be removed from office by the federal Cabinet of politicians at any time for any reason: - Bill C-2, the so-called "Federal Accountability Act", passed into law on Dec. 12, 2006, contains a measure that must be approved by the federal Cabinet to create the position of an independent Commissioner of Lobbyists, to replace the current Registrar of Lobbyists who is under the control of a Cabinet minister who has the legal power to fire the person holding the Registrar position at any time for any reason -- [ LINK ] -- See details in the following January 2007 Democracy Watch news release -- [ LINK ]

- Financial Transactions Reports Analysis Centre of Canada (FINTRAC) -- [ LINK ] -- which enforces the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (2000, c. 17) -- [ LINK ] Under section 43 of the Act head of FINTRAC appointed by minister of Finance to a term of five years and can be dismissed at any time for any reason.

Peer Review Comments: The general auditor and ombudsman for the Canadian Military as well for the provincial level cannot be removed without serious justification.

- While under Bill C-2 (the so-called "Federal Accountability Act") the new position of Conflict of Interest and Ethics Commissioner (replacing the Ethics Commissioner position) does have professional criteria for the appointee, the yet to be proclaimed into law "Lobbying Act" creates the position of Commissioner of Lobbying (to replace the Registrar of Lobbyists) but does not require that appointees fulfill any specific professional criteria.

- The Federal Accountability Act (passed into law on Dec. 12, 2006) contains provisions that change the federal Salaries Act (R.S., 1985, c. S-3) -- [ LINK ] -- to give the Federal Cabinet the power to create a Public Appointments Commission (as of Sept. 10, 2007, the federal Cabinet had not created the Commission and had given no indication that it ever intended to create the Commission); the Commission is given the legal mandate to ensure that all Cabinet appointments are made through processes that are "widely made public and conducted in a fair, open and transparent manner and that the appointments are based on merit"

- The members of the newly created Public Servants Disclosure Protection Tribunal (which rules on complaints about retaliation taken against public servant "whistleblowers" filed with the Tribunal by the Public Sector Integrity Commissioner) will be appointed without any public process by the federal Cabinet, chosen from amongst members of the Federal Court of Canada, under section 20.7 of the Public Servants Disclosure Protection Act (2005, c. 46) -- [ LINK ]

- The members of the Public Service Commission (which, in addition to making appointments and hirings itself, also conducts audits and also investigates and rules on complaints about non-merit-based appointments) are appointed without any public process or professional criteria by the federal Cabinet under subsection 4(5), and members of the Public Service Staffing Tribunal (which hears and rules on appeals of the Commission's rulings) are appointed without any public process or professional criteria by the federal Cabinet under sections 88 and 90 of the Public Service Employment Act (2003, c. 22, ss. 12, 13) -- [ LINK ]

References: - There are also many examples of non-qualified people appointed to the anti-corruption agencies, mainly because there are no requirements in law that people appointed to head or be members of these entities have specific professional skills or knowledge (for example, federal Ethics Commissioner Bernard Shapiro (who was in the position between March 2004 and April 2007), and Registrar of Lobbyists Michael Nelson (who began serving in the position in March 2004 and was still serving as of September 10, 2007) both had no experience in ethics rules or law enforcement, even though they were appointed to quasi-judicial positions). For details, see Democracy Watch's April 5, 2007 news release about the Ethics Commissioner -- [ LINK ] and Democracy Watch's January 25, 2007 news release about the Registrar -- [ LINK ]

- The Senate Ethics Officer is appointed by senators without any public process or professional criteria required, and is under the control of a committee of senators, and cannot investigate or publicly rule on a complaint without the approval of the committee, and so lacks key facets of independence to be an effective public protector -- [ LINK ]

- In contrast, the Auditor General of Canada -- [ LINK ] -- is the front-line investigator helping ensure that the federal government complies with the Financial Administration Act and regulations, and its own spending codes, policies and guidelines, and receives value for money spent, is always a fully qualified professional auditor -- (Auditor General Act R.S., 1985, c. A-17) -- [ LINK ] -- Financial Administration Act (R.S., 1985, c. F-11) -- [ LINK ]

- Royal Canadian Mounted Police (RCMP), the national police force -- [ LINK ] RCMP Commissioner is usually a career RCMP officer and serves until retirement and fulfills mandate under the Royal Canadian Mounted Police Act (R.S., 1985, c. R-10) -- [ LINK ] The current Commissioner William Elliott (appointed in spring 2007) is a career public servant with experience in public and national security agencies, but no experience as a police officer. The appointment has created significant public controversy and concern also amongst RCMP officers.

- Financial Transactions Reports Analysis Centre of Canada (FINTRAC) -- [ LINK ] -- which enforces the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (2000, c. 17) -- [ LINK ] -- under section 43 of the Act head of FINTRAC appointed by minister of Finance to a term of five years and can be dismissed at any time for any reason, and it is not required that the head of Fintrac fulfill specific professional criteria.

Peer Review Comments: Shapiro's case is a good example of a political nomination not based on the individual's expertise for the position. Corruption is more visible on the provincial level, where replacements after a political election are not unusual. However, for low-level employees working in those agencies, promotion, recruitment, and selection are mainly based on expertise and knowledge.

References: - As the annual reports and other reports of all of the anti-corruption agencies make clear, none of them have adequate staff to fulfill their legally mandated responsibilities of enforcing anti-corruption laws. See annual reports on Web sites referenced below:

- The following anti-corruption agency has a professional, full-time staff: - Auditor General of Canada -- [ LINK ] -- who is the front-line investigator helping ensure that the federal government complies with the Financial Administration Act and regulations, and its own spending codes, policies and guidelines, and receives value for money spent. The AG has a fixed term under the law of 10 years.

- Serious questions have been raised about the professionalism of the following anti-corruption agency: - Royal Canadian Mounted Police (RCMP), the national police force -- [ LINK ] -- RCMP Commissioner is usually a career RCMP officer and serves until retirement and fulfills mandate under the Royal Canadian Mounted Police Act (R.S., 1985, c. R-10) -- [ LINK ] -- the current Commissioner William Elliott (appointed in spring 2007) is a career public servant with experience in public and national security agencies, but no experience as a police officer. The appointment has created significant public controversy and concern also amongst RCMP officers.

- The following agencies do not have full-time, professional staff: - Conflict of Interest and Ethics Commissioner -- [ LINK ] -- who enforces the Conflict of Interest Act and the Conflict of Interest Code for Members of the House of Commons. The Commissioner has a fixed term under the Act of seven years. The Ethics Commissioner from March 2004 until April 2007 was Bernard Shapiro, who had no legal training, had never been in a similar enforcement position, and who hired the same lawyers to advise him as the prime minister and Cabinet ministers used as legal counsel. See details in Democracy Watch's news release about its court challenge of the Ethics Commissioner at: [ LINK ]" target="_blank">[ LINK ]" target="_blank">[ LINK ]

- Also with regard to the Conflict of Interest and Ethics Commissioner, the new Commissioner (appointed on July 9, 2007) must (under changes made by the Federal Accountability Act (which became law in December 2006) keep the same staff as the old Commissioner had, and the staff has demonstrated incompetence and bias in their enforcement practices in the past . See details in Democracy Watch's news release about its court challenge of the Ethics Commissioner at: http://www.dwatch.ca/camp/RelsSep2905.html

- Bill C-2, the so-called "Federal Accountability Act", passed into law on Dec. 12, 2006, contains a measure that must be approved by the federal Cabinet to create the position of an independent Commissioner of Lobbyists, to replace the current Registrar of Lobbyists who is under the control of a Cabinet minister who has the legal power to fire the person holding the Registrar position at any time for any reason. Between 1988 and March 2004 the Registrar was Howard Wilson, who had no legal training and no experience enforcing any legal regime. In March 2004 he was replaced by new appointee Michael Nelson, who also has no legal training and no experience enforcing any legal regime -- [ LINK ]

- Also with regard to the Registrar of Lobbyists, the to-be-appointed Commissioner of Lobbying must keep the same staff as the current Registrar has, and the staff has demonstrated incompetence and bias in their enforcement practices in the past. See details in Democracy Watch's 2005 news release about its court challenge of the Registrar at: http://www.dwatch.ca/camp/RelsSep2905.html and Democracy Watch's 2007 news release about its second court challenge of the Registrar at: [ LINK ]

- The Senate Ethics Officer also has no prior experience in enforcing ethics or similar rules, and is under the control of a committee of senators, and cannot investigate or publicly rule on a complaint without the approval of the committee, and so lacks key facets of independence to be an effective public protector -- [ LINK ]

- The following anti-corruption agencies are new, and so the professionalism and adequacy of their staff is not yet determined: - Financial Transactions Reports Analysis Centre of Canada (FINTRAC) -- [ LINK ] -- which enforces the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (2000, c. 17) -- [ LINK ] Under section 43 of the Act head of FINTRAC appointed by minister of Finance to a term of five years and can be dismissed at any time for any reason, and it is not required that the head of Fintrac fulfill specific professional criteria.

- The Public Sector Integrity Commissioner office -- [ LINK ] -- is newly created (first Commissioner was appointed on July 9, 2007) with the mandate to investigate complaints from "whistleblowers" and resolve violations of the Values and Ethics Code for the Public Service and all other federal government laws, regulations, codes, policies and guidelines.

Peer Review Comments: It is true that heads of those agencies are quite often nominated through political means. The investigation staff, as well as the administrative staff, are hired through a rigorous selection process. Some political interference may have been seen for attorneys, but that is quite rare.

References: - The following four anti-corruption agencies have shown clearly that they do not have adequate, regular funding by the backlog of open files in their annual reports (or, in the case of the Auditor General, the fact that the Auditor acknowledges that large government spending initiatives are usually audited only once every five years (at most)): - Auditor General of Canada -- [ LINK ] -- who is the front-line investigator helping ensure that the federal government complies with the Financial Administration Act and regulations, and its own spending codes, policies and guidelines, and receives value for money spent.

- Conflict of Interest and Ethics Commissioner -- [ LINK ] -- who enforces the Conflict of Interest Act and the Conflict of Interest Code for Members of the House of Commons. See Democracy Watch's September 2005 news release at: [ LINK ]" target="_blank">[ LINK ]

- Registrar of Lobbyists -- [ LINK ] See details in Democracy Watch's 2005 news release about its court challenge of the Registrar at: http://www.dwatch.ca/camp/RelsSep2905.html and Democracy Watch's 2007 news release about its second court challenge of the Registrar at: [ LINK ]

- Royal Canadian Mounted Police (RCMP), the national police force -- [ LINK ] -- has acknowledged in reports that it does not have adequate resources to enforce white-collar crime measures (including government anti-corruption measures, namely cases for investigation referred to the RCMP by FINTRAC (see information below about FINTRAC).

- The following three anti-corruption agencies are relatively new, so their funding track records are not yet determined: - Financial Transactions Reports Analysis Centre of Canada (FINTRAC) -- [ LINK ] -- which enforces the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (2000, c. 17) -- [ LINK ] Under section 43 of the Act head of FINTRAC appointed by minister of Finance to a term of five years and can be dismissed at any time for any reason, and it is not required that the head of Fintrac fulfill specific professional criteria.

- Public Sector Integrity Commissioner -- [ LINK ] -- who addresses complaints about public servants violating laws, regulations, codes, policies and guidelines. Tthe Commissioner has a fixed term under law of seven years.

- The Senate Ethics Officer also has no prior experience in enforcing ethics or similar rules, and is under the control of a committee of senators, and cannot investigate or publicly rule on a complaint without the approval of the committee, and so lacks key facets of independence to be an effective public protector -- [ LINK ]

Peer Review Comments: It is true that these agencies do not receive sufficient financial support to investigate all complaints and allegations. However, these agencies are funded on a regular basis, which allows them to staff their different units properly.

References: - The following four anti-corruption agencies make regular public reports, but also have a backlog of open files (according to their annual reports or, in the case of the Auditor General, the fact that the Auditor acknowledges that large government spending initiatives are usually audited only once every five years (at most)): - Auditor General of Canada -- [ LINK ] -- who is the front-line investigator helping ensure that the federal government complies with the Financial Administration Act and regulations, and its own spending codes, policies and guidelines, and receives value for money spent.

- Conflict of Interest and Ethics Commissioner -- [ LINK ] -- who enforces the Conflict of Interest Act and the Conflict of Interest Code for Members of the House of Commons .

- Registrar of Lobbyists -- [ LINK ] See details in Democracy Watch's 2005 news release about its court challenge of the Registrar at: [ LINK ] and Democracy Watch's 2007 news release about its second court challenge of the Registrar at: [ LINK ]

- Royal Canadian Mounted Police (RCMP), the national police force -- [ LINK ] -- has acknowledged in reports that it does not have adequate resources to enforce white-collar crime measures (including government anti-corruption measures, namely cases for investigation referred to the RCMP by FINTRAC (see information below about FINTRAC).

- The following three anti-corruption agencies are relatively new, so their track records in issuing reports are not yet determined: - Financial Transactions Reports Analysis Centre of Canada (FINTRAC) -- [ LINK ] -- which enforces the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (2000, c. 17) -- [ LINK ] Under section 43 of the Act head of FINTRAC appointed by minister of Finance to a term of five years and can be dismissed at any time for any reason, and it is not required that the head of Fintrac fulfill specific professional criteria.

- Public Sector Integrity Commissioner -- [ LINK ] -- who addresses complaints about public servants violating laws, regulations, codes, policies and guidelines. The Commissioner has a fixed term under law of seven years.

- The Senate Ethics Officer also has no prior experience in enforcing ethics or similar rules, and is under the control of a committee of senators, and cannot investigate or publicly rule on a complaint without the approval of the committee, and so lacks key facets of independence to be an effective public protector -- [ LINK ]

References: - The following two anti-corruption agencies have sufficient powers to penalize offenders: - Royal Canadian Mounted Police (RCMP), the national police force -- [ LINK ] While the RCMP has sufficient investigative powers, it has acknowledged in reports that it does not have adequate resources to enforce white-collar crime measures (including government anti-corruption measures, namely cases for investigation referred to the RCMP by FINTRAC (see information below about FINTRAC).

- Financial Transactions Reports Analysis Centre of Canada (FINTRAC) -- [ LINK ] -- which enforces the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (2000, c. 17) -- [ LINK ] FINTRAC has sufficient investigative powers, but as a relatively new agency its track record in using those powers is not yet determined

- The following two anti-corruption agencies do not have the sufficient powers to penalize offenders: - Auditor General of Canada -- [ LINK ] -- who is the front-line investigator helping ensure that the federal government complies with the Financial Administration Act and regulations, and its own spending codes, policies and guidelines, and receives value for money spent. If a violation of the Act is suspected, the Auditor General is required to refer the matter to the police.

- Conflict of Interest and Ethics Commissioner -- [ LINK ] -- who enforces the Conflict of Interest Act (new as of July 2007) and the Conflict of Interest Code for Members of the House of Commons. (NOTE: a new Conflict of Interest Commissioner was appointed on July 9, 2007). Before July 9, 2007, the Commissioner did not have the power to penalize offenders, only to recommend penalties. As of July 9, 2007, the Commissioner has the power to penalize offenders of the Conflict of Interest Act (which applies to the prime mInister, Cabinet ministers, some ministerial staff, and some Cabinet appointees) only a maximum of $500 (US$505), and continues to have the power to recommend penalties for members of the House of Commons. See details of the Ethics Commissioner's record from March 2004 until April 2007 in Democracy Watch's 2005 news release about its court challenge of the Commissioner at: [ LINK ]" target="_blank">[ LINK ] and Democracy Watch's April 2007 news release about the Commissioner's overall record between March 2004 and April 2007: [ LINK ]

- The following two anti-corruption agencies have a very poor record of bringing charges to the point of penalizing offenders: - Elections Canada -- [ LINK ] -- Chief Electoral Officer and Commissioner of Canada Elections enforce the Canada Elections Act (which include political finance laws) . The CEO and Commissioner usually only require offenders to correct their actions (return illegal donations, correct incorrect financial statements, etc.)

- Registrar of Lobbyists -- [ LINK ] If the Registrar suspects that the Lobbyists Registration Act is being violated, the Registrar is required under the Act to refer the matter to the police. The Registrar has the power to find a lobbyist guilty of violating the Lobbyists' Code of Conduct (which came into force in 1997), but the only penalty is a public report stating that the lobbyist has violated the Code (only one lobbyist has been found guilty of violating the Code, in spring 2007, despite allegations that more than 20 lobbyists have violated the Code). -- See details in Democracy Watch's 2005 news release about its court challenge of the Registrar at: http://www.dwatch.ca/camp/RelsSep2905.html and Democracy Watch's 2007 news release about its second court challenge of the Registrar at: [ LINK ]

The following agency is new as of spring 2007, so its record of bringing charges to the point of penalizing offenders is not yet determined: - Public Sector Integrity Commissioner -- [ LINK ] -- who addresses complaints about public servants violating laws, regulations, codes, policies and guidelines. The Commissioner(first appointed on July 9, 2007) is required by law to file a report with a tribunal (still to be created) and the tribunal will impose penalties (if any).

References: The following anti-corruption agency usually initiate investigations when necessary: - Auditor General of Canada -- [ LINK ] -- who is the front-line investigator helping ensure that the federal government complies with the Financial Administration Act and regulations, and its own spending codes, policies and guidelines, and receives value for money spent.

- The following two agencies and watchdogs have a very poor record over the past three years of failing to initiate investigations when necessary: - Conflict of Interest and Ethics Commissioner -- [ LINK ] -- who enforces the Conflict of Interest Act and the Conflict of Interest Code for Members of the House of Commons (NOTE: a new Conflict of Interest Commissioner was appointed on July 9, 2007). See details in Democracy Watch's 2005 news release about its court challenge of the Commissioner at: [ LINK ]" target="_blank">[ LINK ] and Democracy Watch's April 2007 news release about the Commissioner's overall record between March 2004 and April 2007: [ LINK ]

- Registrar of Lobbyists -- [ LINK ] See details in Democracy Watch's 2005 news release about its court challenge of the Registrar at: http://www.dwatch.ca/camp/RelsSep2905.html and Democracy Watch's 2007 news release about its second court challenge of the Registrar at: [ LINK ]

- Because of the nature of their investigations (police investigations which are never disclosed unless charges are laid), the track record in initiating investigations of the following two anti-corruption agencies have sufficient powers to penalize offenders: - Royal Canadian Mounted Police (RCMP), the national police force -- [ LINK ] While the RCMP has sufficient investigative powers, it has acknowledged in reports that it does not have adequate resources to enforce white-collar crime measures (including government anti-corruption measures, namely cases for investigation referred to the RCMP by FINTRAC (see information below about FINTRAC).

- Financial Transactions Reports Analysis Centre of Canada (FINTRAC) -- [ LINK ] -- which enforces the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (2000, c. 17) -- [ LINK ] FINTRAC has sufficient investigative powers, but as a relatively new agency its track record in using those powers is not yet determined.

- The following agency is new as of spring 2007, so its record of initiating investigations is not yet known: - Public Sector Integrity Commissioner -- [ LINK ] -- who addresses complaints about public servants violating laws, regulations, codes, policies and guidelines.

Peer Review Comments: Even if it is right that the Ethics Commissioner and Registrar of Lobbyist have a poor record, these agencies are marginal compared to the others in term of capacity to investigate, scope of investigations and nature of investigations.

References: The following anti-corruption agency usually act on complaints in a timely way (although self-admitted lack of adequate staff and resources does cause delays in some cases): - Auditor General of Canada -- [ LINK ] -- who is the front-line investigator helping ensure that the federal government complies with the Financial Administration Act and regulations, and its own spending codes, policies and guidelines, and receives value for money spent.

- The following two agencies and watchdogs have a very poor record over the past three years of acting on complaints in a timely manner: - Conflict of Interest and Ethics Commissioner -- [ LINK ] -- who enforces the Conflict of Interest Act and the Conflict of Interest Code for Members of the House of Commons. (NOTE: a new Conflict of Interest Commissioner was appointed on July 9, 2007). See details in Democracy Watch's 2005 news release about its court challenge of the Commissioner at: [ LINK ]" target="_blank">[ LINK ] and Democracy Watch's April 2007 news release about the Commissioner's overall record between March 2004 and April 2007: [ LINK ]

- Registrar of Lobbyists -- [ LINK ] -- See details in Democracy Watch's 2005 news release about its court challenge of the Registrar at: http://www.dwatch.ca/camp/RelsSep2905.html -- and Democracy Watch's 2007 news release about its second court challenge of the Registrar at: [ LINK ]

- Because of the nature of their investigations (police investigations which are never disclosed unless charges are laid), the track record of acting on complaints for the following two anti-corruption agencies have sufficient powers to penalize offenders: - Royal Canadian Mounted Police (RCMP), the national police force -- [ LINK ] While the RCMP has sufficient investigative powers, it has acknowledged in reports that it does not have adequate resources to enforce white-collar crime measures (including government anti-corruption measures, namely cases for investigation referred to the RCMP by FINTRAC (see information below about FINTRAC).

- Financial Transactions Reports Analysis Centre of Canada (FINTRAC) -- [ LINK ] -- which enforces the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (2000, c. 17) -- [ LINK ] FINTRAC has sufficient investigative powers, but as a relatively new agency its track record in using those powers is not yet determined.

- The following agency is new as of spring 2007, so its record of acting on complaints is not yet known: - Public Sector Integrity Commissioner -- [ LINK ] -- who addresses complaints about public servants violating laws, regulations, codes, policies and guidelines.

- As a result, while there is a constitutional right to freedom of expression, whether citizens are actually free (ie. free from potential harm) to complain to federal agencies about federal government wrongdoing remains to be seen.

References: - Public Servants Disclosure Protection Act (2005, c. 46) which came into force in March 2007 -- [ LINK ] -- with complaints going to the Public Sector Integrity Commissioner -- [ LINK ] -- addresses complaints about public servants violating laws, regulations, codes, policies and guidelines. NOTE: citizens (non-public servants) can file complaints with the Commissioner, but the Act does not protect them from retaliation by the federal government if they do so (for example, suppliers of goods and services to the federal government are not protected if they report corruption). The Act also has several other flaws (see list further below in this sources section).

- Constitution Act, 1982, Schedule B, Part 1, Canadian Charter of Rights and Freedoms, subsection 2(b) "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication" -- [ LINK ]" target="_blank">[ LINK ]

- Court cases in the past resulted in rulings that the Charter of Rights and Freedoms -- http://lois.justice.gc.ca/en/Const/annex_e.html#I -- "freedom of expression" right covers those who blow the whistle on government actions or decisions that endanger the public, but these cases did not result in effective protection of "whistleblowers" because they were still on their own (sometimes aided by their union) facing retaliation for their actions, no matter how justified. See leading cases Haydon v. Canada (T.D.), 2000 CanLII 16081 (F.C.) -- [ LINK ] Haydon v. Canada (Treasury Board) (F.C.), 2004 FC 749 (CanLII) -- [ LINK ] and Chopra v. Canada (Treasury Board), 2006 FCA 295 (CanLII) -- [ LINK ]

- Before the Public Servants Disclosure Protection Act was proclaimed into law by the federal Cabinet in March 2007 and the Commissioner position created, an Internal Disclosure Policy had existed since November 2001, enforced by the Public Sector Integrity Officer (which was not a legislated position, and as a result lacked independence from the prime minister and Cabinet, and also lacked key powers) . See problems with PSIO ruled on, for example, in case Chopra v. Canada (Attorney General), 2005 FC 595 (CanLII) -- [ LINK ]

- The Public Sector Integrity Commissioner position was created in spring 2007, and the first Commissioner was appointed on July 9, 2007. Between November 2001 and spring 2007, there was a Public Sector Integrity Officer with limited independence and powers. As a result, while the protection processes exist, they are still not well-established or well-known, nor is their effectiveness determined in any way.

- based upon the U.S. 20-year experience with a legislated whistleblower protection system (as documented in chapter entitled "Whistleblowing in the United State: The Gap Between Vision and Lessons Learned" by Tom Devine in the book "Whistleblowing Around the World" (ed. Richard Calland and Guy Dehn, pubs. ODAC & PCaW in partnership with the British Council: Southern Africa: 2004), the new Canadian Public Servants Disclosure Protection Act has several identifiable flaws, as follows: - not all whistleblowers all covered by the Act, not even all public servants; - whistleblowers are not allowed to disclose wrongdoing to any legal authority, they must follow the avenue established in the Act or they will likely not be protected; - it is not clear that protection covers the full scope of reprisals (whistleblowers can file a complaint if they have "reasonable grounds for believing that a reprisal has been taken" but it is not clear if they have to provide "prima facie" evidence of their belief (NOTE: full protection would entail shifting the burden of proof to the employer to prove that no reprisal took place); - the Act does not override other federal laws, and so the government may override the Act in some cases in order to hide wrongdoing or thwart an investigation; - whistleblowers have no right to a jury trial (they must file their submission re: wrongdoing or complaint about a reprisal with the Commissioner, who then designates an investigator, who then reports back to the Commissioner, who then files an application with the Public Servants Disclosure Protection Tribunal (made up of three to seven judges chosen by the federal Cabinet from amongst the Federal Court justices); - whistleblowers do not have the right to determine who will arbitrate their case (if the Commissioner attempts to settle the case through arbitration); the Commissioner appoints the "conciliator"; - whistleblowers only have 60 days to complain about a reprisal (should be at least 1 year limitation period); - no interim compensation (while a case is being investigated/heard by Tribunal) is available, and if there is undue delay in investigations/hearings whistleblowers will suffer; - the full scope of compensation is not available (pain and suffering is limited to $10,000 - US$10,266), and Tribunal rulings may limit compensation even further (as occurred in the U.S.); - if a whistleblowers has been fired, they cannot win preference in transferring to another government job, the Tribunal can only reinstate them in their position or compensate them financially; - it seems like anonymous disclosures are allowed, but it is not clear (NOTE: if a person blows the whistle, their identity must be kept secret by the Commissioner throughout the investigation to the extent possible); - there is no clearly defined right to refuse to violate a law, regulations, code, policy or guideline (although general rights under the Values and Ethics Code for the Public Service may apply); - there is no clearly defined duty to disclose wrongdoing (although general duties under the Values and Ethics Code for the Public Service may apply); - the Act seems to cover all types of wrongdoing, but Tribunal rulings may limit the definition significantly (as happened in the U.S.); - - the Commissioner can only provide up to $1,500 (US$1,520) in funding for legal advice for a whistleblower (in exceptional cases, up to $3,000-US$3,040) which will likely not be adequate, although it seems possible that the Tribunal could award full costs if a whistleblower wins their case; - it seems like the Tribunal can make orders for corrective action and penalties for those who have done wrong or retaliated against whistleblowers, but what will actually happen is unknown (NOTE: the penalties for retaliators are limited to $10,000 fine and maximum two years imprisonment) -- wrongdoing must be made public, but not necessarily identity of wrongdoer, and; - extensive education and training of employee rights under the Act is not required by the Act (but will hopefully occur).

Peer Review Comments: I agree that the level of protection for civil servants is quite weak. But having a new law does not mean it is not working. On the contrary, it shows that the government is addressing the problem and taking it seriously. We will see in the future how serious the government is, but at least we should give it credit for doing something.