A Supreme Court judgment that allows Democracy Watch to keep pursuing its challenge of an ethics report on Justin Trudeau’s involvement in government decisions related to WE Charity has “enormous” implications, Tim Harper writes.
Time and again, over three decades, Duff Conacher has been described by observers as a “tireless advocate.” But with a wry chuckle, Conacher politely dismisses the overused label. “Oh, I’m tired a lot of the time,” he says. “I’ve been sick and tired a lot of the time, too.”
But he has had success, quite a bit of it, and that keeps him going.
Over its 33 years, Democracy Watch, the national non-profit Conacher founded and still heads today, boasts of more than 220 changes it forced in federal, provincial, territorial, and municipal legislation dealing with democratic reform, ethics in government, bank accountability, and corporate responsibility.
Likely no victory, however, was bigger than a Supreme Court judgment that dropped in the middle of the summer heat. It could quietly, but definitively, change Canadian democracy. The top court ruling stemmed from a challenge from Democracy Watch to the 2021 decision by then–ethics commissioner Mario Dion to clear the prime minister of the day, Justin Trudeau, of any conflict of interest in the awarding of a sole-sourced $43-million contract to WE Charity to oversee a pandemic-era program. The contract was subsequently cancelled, but Conacher appealed Dion’s decision to the Federal Court of Appeal. The federal government brought a motion to quash the appeal on the grounds that the Conflict of Interest Act contained a so-called privative clause that prohibited a judicial review.
The appeal court judge ruled that Democracy Watch had a public interest right to challenge but deferred a decision, instead passing it to a full judicial panel, splitting the case into two phases. The first phase dealt with whether Democracy Watch had a right to appeal, and the second focused on the WE case. The full panel ruled against Conacher’s organization, pointing to the political process as a means of remedy (which would have made Trudeau the arbiter on the ruling affecting him).
When the case went up to the Supreme Court, however, the decision was unanimous: a judicial review of such decisions was a constitutional right. The privative clause could not block that right, the court said, and no administrative decision was beyond the right of anyone to appeal through the judicial process. “The Constitution guarantees the availability of legality review of all aspects of an administrative decision,” the court said in its decision, “and every exercise of public authority is subject to the courts’ supervisory jurisdiction to ensure that it does not exceed its legal limits.”
Political oversight is not “an adequate alternative to judicial review,” the decision said.
The implications of the decision are enormous. The ruling covers all federal, provincial, and territorial commissions, boards, agencies, and tribunals. There are hundreds of them across the country. Manitoba has 160 alone. As many as 150 such federal bodies could be affected by the ruling. Their judgments can be reviewed in court.
The decision has been hailed as transformative in making Canadian democracy more accountable. If the court, in phase two, rules in Conacher’s favour, that too would have systemic implications across the country. But he understands why some analysts feel he has already prevailed in the more important ruling.
Why am I still doing this 33 years later? I still see the problem and I still get outraged.
Duff Conacher, Democracy Watch
It wasn’t the first time Conacher had taken this specific battle to court. Rebuffed, he merely reloaded. “Why am I still doing this 33 years later? I still see the problem and I still get outraged,” he says. But even he cannot explain his persistence, day in and day out, a determination that has driven change even if his single-minded focus has rubbed a few the wrong way over the years.
He did not come from a political family, although his grandfather Lionel Conacher, better known as “The Big Train” as one of this country’s greatest athletes, was a two-time Liberal member of Parliament after exiting the hockey arenas and football fields.
Duff Conacher learned from the most famous consumer advocate. He was a summer intern for Ralph Nader in the late 1980s, and Conacher’s career as an ethics activist was born. “Everything that Nader did, his work on democratic reform and corporate responsibility, made sense to me. I can’t even explain why.”
The proceeds from a bestselling book he co-wrote with Nader provided the seed money to begin Democracy Watch.
But it almost didn’t happen. Conacher had a law degree and was looking for something to do with it. He applied to work in Colombia as a coordinator of a human rights project with Canadian University Service Overseas (CUSO), but the funding for the project was frozen. That option was off the table. He spent six months in Nicaragua at a time when the Sandinista government was winning international attention. He had witnessed and become immersed in a revolution. “When I came back from that, selling widgets didn’t really make sense,” he says. Public interest work held the appeal.
Elizabeth McIsaac, the president of Maytree, calls Conacher “a purist. He’s a sort of caped crusader for democracy. He’s single-minded. There aren’t many people like that, but they get things to the finish line.” (Maytree funds Democracy Watch.) “He scours the machinery of transparency and accountability and democracy, to ensure the democracy hygiene is taken care of,” McIsaac says.
It has been made clear that privative clauses are a danger to the constitution and to our democracy. This [decision] is a sea change in terms of accountability.
Howard Sapers, Canadian Civil Liberties Association
Howard Sapers, the executive director of the Canadian Civil Liberties Association, calls the Supreme Court decision “transformational, in the true sense of that word. It has been made clear that privative clauses are a danger to the constitution and to our democracy,” he says. “This is a sea change in terms of accountability.”
But he also says the courts are not the only ways to address such concerns. The same kind of transparency and accountability can be attained through ombudspersons, an avenue that is often overlooked but is nevertheless powerful, Sapers believes.
Ombuds decisions are usually considered the last word after all other avenues have been exhausted. Ombuds have access to persons, documents, and all pertinent information and are free of charge to the complainant. But, Sapers concedes, they cannot make binding orders. “They do have the moral authority to make recommendations,” he says. “I have no less enthusiasm for this ruling than anybody else who cares about government transparency and accountability, but I also have enthusiasm for alternative processes.”
As the correctional investigator of Canada for 12 years, Sapers acted on his own to address what he deemed to be a systemic problem with Indigenous people who were incarcerated, after receiving a deluge of complaints about their treatment behind bars. To deal with that in court would have taken a class action suit and all that entails in work and time, Sapers says, but as an ombudsperson he could deal with systemic issues based on complaints. Since his initial special report in 2012, a series of reforms have come into force, specialized programs have begun, and federal money has been invested in dealing with myriad complaints. But many of the problems remain, Sapers says, and the work is not close to complete.
“It’s not a contest that one is better than the other,” he says. “As Canadians, we should have access to both avenues of redress. We should never be told the door is slammed.”
Like Sapers’s work, Conacher’s progress is not linear. Before this summer’s victory, Democracy Watch has challenged other similar decisions in the past. It challenged Stephen Harper’s 2008 appointment of Justice Jeffrey Oliphant to investigate Brian Mulroney’s dealings with German-Canadian businessman Karlheinz Schreiber. Mary Dawson, the ethics commissioner of the day, said there was no conflict in Mulroney’s previous dealings with Harper. Democracy Watch argued that Harper had admitted that Mulroney had been a “mentor” to him and that Harper should have appointed an independent agency to set the terms of a commission of inquiry into Mulroney’s dealings. The fact Dawson did not investigate precluded any court challenge. “That created a barrier,” Conacher says, “and that barrier remains today.”
That barrier extended to the Supreme Court decision. When Conacher first sought to challenge the Dion decision, he was told that only MPs or senators can launch such an action. So, in this case, two MPs – New Democrat Charlie Angus and Conservative Michael Barrett – filed individual complaints on the Trudeau-WE matter, the commissioner issued a ruling, and Democracy Watch was able to mount a challenge. The complaints from the MPs were the only way Democracy Watch was able to get this case out the door, Conacher says. “The next time an ethics commissioner issues a ruling on his or her own, not spurred by an MP or senator complaint,’’ he says, “we will challenge this and cite this Supreme Court ruling. We will say the fact that Parliament did not give the public the right to file complaints is illegal, based on this ruling.”
The right to challenge an ethics commissioner who chooses not to investigate appears to be a hurdle too far, Conacher believes. The problem remains, he says, because various commissioners and board heads are appointed by governments and decide to look the other way when allegations surface. Third parties are still not able to challenge decisions not to investigate.
Conacher says the former lobbying commissioner, Karen Shepherd, and the former ethics commissioner, Dawson, did not issue rulings in 85% of the cases they looked at. The current lobbying commissioner, Nancy Bélanger, has refused to rule on almost 100% of violations sent to her office, he says. “It’s like having a speed trap and your radar gun goes off 1,000 times per day, but you don’t stop anyone and give them a ticket.”
Conacher has also had to deal with fundraising challenges. One year, he was able to raise only $12,000, and he has had little support from foundations in this country, he says, meaning there were lean years where Democracy Watch did not look sustainable.
Beyond Maytree, Metcalf Foundation has also delivered funding. “So many foundations are set up to lose in a system that is established to benefit dishonesty, secrecy, unethical deals with lobbyists, and unrepresentative decisions,” Conacher says. He credits those who are organizing coalitions to make decision-making processes better for society, but he has been making the same argument for more than three decades.
“For those in the sector concerned with democracy, this is pretty fundamental because this gets to the heart of whether we have the right checks and balances if we have political appointees in positions like the ethics commissioner,” McIsaac says. “We have political appointees on the Immigration and Refugee Board, the [Ontario] landlord-tenant board, and so many other boards and agencies.” Without the power to challenge the substance of these decisions, we have a democratic deficit, she says.
For those in the sector concerned with democracy, this is fundamental because this gets to the heart of whether we have the right checks and balances if we have political appointees in positions like the ethics commissioner.
Elizabeth McIsaac, Maytree
But Conacher makes one argument that many in the sector may find counterintuitive. He thinks Canadian democracy is stronger now than when he began his advocacy work. Canadians are as active on issues as they have ever been, he adds. The parliamentary budget officer did not exist 30 years ago, nor did the lobbying commissioner or ethics commissioner, he says. It was impossible for the prime minister or any cabinet minister to be found to have breached ethics 30 years ago, and lobbyists had to declare virtually nothing.
“I’m not helping to restore democracy,” he says. “We never had it. We’re not moving back to some golden age.” He adds: “People say things were better in the 1970s, but the Access to Information Act didn’t exist. Things were very likely worse.” He says he understands that people point to a democratic crisis today; he just thinks that has been the norm. “I’m just saying it has always been the case, and I am glad to see these funders realize this is fundamental to everything they do and every other group they fund.”
Sapers says our democracy is more complex, but the wave of oversight doesn’t mean it is more compliant. “That requires vigilance. Democracy Watch bells the cat and says, ‘This cannot stand.’”
Despite improvements, Conacher sees backsliding, citing Ontario’s Bill 5 that provides cabinet with the power to override existing legislation and establish “special economic zones.” Democracy Watch is among a number of organizations challenging its constitutionality. He also cites Prime Minister Mark Carney’s C-5, which similarly can skirt environmental laws by fast-tracking regulatory approvals for projects in the “national interest.” Eleven organizations have launched a constitutional challenge to the so-called Building Canada Act.
Conacher also cites Ontario Premier Doug Ford’s “gutting” of access-to-information legislation and Alberta Premier Danielle Smith’s weakening of ethics rules and stated goal of taking over judicial appointments in her province.
It seems certain, however, that where there is democratic backsliding, Conacher will be there to shore up the foundation.
(Disclosure: Tim Harper briefly did work for WE Charity in 2017.)
