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Ethics Commissioner should find Nigel Wright and Mike Duffy guilty right now

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The Ethics Commissioner has covered up twice already for Nigel Wright -- but public evidence is so clear another cover-up would be an even bigger scandal.

The Senate Committee controls whether a Senate Ethics Officer can investigate, and the Committee can overrule her rulings

Today, Democracy Watch set out the details of why it believes Ethics Commissioner Mary Dawson should find Nigel Wright guilty now of violating the Conflict of Interest Act (the Act) for making the secret $90,000 payment to Senator Duffy, and why Senate Ethics Officer Lyse Ricard should find Senator Duffy guilty now of violating the Conflict of Interest Code for Senators (the Code) for accepting the payment.

The Act requires Ethics Commissioner Dawson to notify the proper authorities and suspend her investigation if there is reason to believe that another law has been violated, or if another investigation of a law violation is underway (section 49).  The Code allows Ethics Officer Ricard or the Senate Committee that controls her to suspend her investigation under the same circumstances (section 47).

However, the RCMP has not announced an investigation of the payment, and there is enough clear, public evidence for the Ethics Commissioner to find Mr. Wright guilty right now, and for Ethics Officer Ricard to find Senator Duffy guilty right now.

"Based on the clear public evidence available, in my opinion no further investigation or delay is needed for Ethics Commissioner Dawson to find Nigel Wright guilty right now of violating the federal ethics law for making the secret payment to Senator Duffy, and for Ethics Officer Ricard to find Senator Duffy guilty right now of violating the Senate ethics code for taking the money," said Duff Conacher, Board member of Democracy Watch and Adjunct Professor of Law at the University of Toronto.

"More evidence may come out that the payment was clearly made in return for an action or inaction by Senator Duffy and that would raise the issue of bribery, or that other people were involved in arranging the payment, and if so the RCMP, Ethics Commissioner and Ethics Officers can investigate further, but there is no good reason for the Ethics Commissioner and Ethics Officer to fail to issue rulings by next week based on the clear evidence already available."

Based on his own public statements, Mr. Wright made the payment to Senator Duffy, and this has been confirmed several times and in several ways by Prime Minister Harper and representatives in his office.

Section 17(1) and (2) of the Conflict of Interest Code for Senators (PDF) apply to Senator Duffy's acceptance of the payment, and it is clearly prohibited because "neither a Senator, nor a family member, shall accept, directly or indirectly, any gift or other benefit, except compensation authorized by law, that could reasonably be considered to relate to the Senator's position" (ss.17(1)) except gifts and benefits that are "a normal expression of courtesy or protocol, or within the customary standards of hospitality that normally accompany the Senator's position" (ss.17(2)).  The payment clearly relates to the Senator's position because it was to pay back improperly claimed Senate housing expenses, and it is clearly far more than a normal courtesy or hospitality gift.

Sections 4, 5, 6(1), 8 of the Conflict of Interest Act apply to Nigel Wright secret payment to Senator Duffy, and Mr. Wright:

1. Either violated sections 4 and 6(1) of the Act because he made a decision "related to the exercise of an official power, duty or function" (ss.6(1)) when he "reasonably should know that, in the making of the decision" he "would be in a conflict of interest" (ss.6(1)) because the decision provided "an opportunity to further his or her private interests or those of his or her relatives or friends or to improperly further another person’s private interests" (s.4).

Some reports have claimed Mr. Wright and Senator Duffy are friends, in which case Mr. Wright's payment furthered the private interest of his friend, but even if they are not friends Mr. Wright clearly improperly furthered Senator Duffy's private interest (the secrecy of the payment; the fact that Senator Duffy accepting such a gift is a violation of the Senate Code, and; Mr. Wright's resignation all show clearly that the payment was improper).

2. Or, if the Ethics Commissioner tries to make the dubious claim that Mr. Wright's payment was not "related to the exercise of an official power, duty or function," then the Ethics Commissioner must find Mr. Wright guilty of violating section 5 of the Act for failing to  "arrange his or her private affairs in a manner that will prevent the public office holder from being in a conflict of interest."  By making the secret payment, Mr. Wright placed himself in a conflict of interest between his duty to uphold the law and his interest in protecting Senator Duffy, and himself, from public accountability for the payment;

3. As well, given that Mr. Wright made the payment in secret, he also violated section 8 of the Act which prohibits using "information that is obtained in his or her position as a public office holder and that is not available to the public" to further the interest of a friend "or to improperly further or to seek to improperly further another person’s private interests."

Finally, there seems to be enough evidence for the Ethics Commissioner to rule that Mr. Wright also violated section 9 of the Act because he contacted and tried to influence senators who were overseeing the audit and issuing a report with rulings on whether the Senate expense rules had been violated by Senator Duffy.  Section 9 prohibits using your "position as a public office holder to seek to influence a decision of another person so as to further the public office holder's private interests or those of the public office holder's relatives or friends or to improperly further another person’s private interests."

At least one senator has stated publicly that he was in contact with Mr. Wright about the audit reports, and it is clearly improper for Mr. Wright to intervene in a quasi-legal decision-making process deciding whether Senate rules, and even federal laws, were violated (see for details Prime Minister Harper's Accountability Guide for ministers and other senior officials, the rules in Annex A, Part 1 of the Guide).

There is also evidence that others in the Prime Minister's Officer were involved in contacting the senators on the committee, and the Ethics Commissioner should definitely investigate to determine who this people were because if they also tried to influence senators then they also violated section 9 of the Act.

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