Date:
20090121
Docket:
A-174-08
Citation:
2009 FCA 15
CORAM: RICHARD
C.J.
DÉCARY
J.A.
NOËL
J.A.
BETWEEN:
DEMOCRACY
WATCH
Applicant
and
CONFLICT OF
INTEREST AND ETHICS COMMISSIONER
Respondent
and
ATTORNEY GENERAL OF CANADA
Intervener
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Ottawa, Ontario, on January 21, 2009)
RICHARD C.J.
[1]
This
is an application for judicial review by Democracy Watch pursuant to section 28
of the Federal Courts Act, R.S.C. 1985, c. F-7 arising out of a request
to the Conflict of Interest and Ethics Commissioner (the ‘Commissioner) dated November
26, 2007 for an investigation of and ruling on decisions and participation in
decisions by Prime Minister Stephen Harper and Minister of Justice and Attorney
General Robert Nicholson, and for a recusal ruling for all Cabinet ministers
concerning the Mulroney-Schreiber situation.
[2]
On
January 7, 2007, the Commissioner responded to the applicant, explaining that
she did not have sufficient credible evidence to suggest that Mr. Harper, Mr.
Nicholson, or any other individual mentioned in the applicant’s letter was in a
conflict of interest in violation of the Conflict of Interest Act, S.C.
2006, c. 9, s. 2 (the ‘Act’). Accordingly, the Commissioner found that she did
not have sufficient grounds to begin an examination pursuant to subsection
45(1) of the Act.
[3]
The
applicant requests the following in its notice of application:
·
An
order quashing the decision of the Commissioner and directing the Commissioner
to proceed with a full investigation into the applicant’s complaint or, in the
alternative, an order quashing the decision of the Commissioner and sending it
back with directions for reconsideration by the Commissioner;
·
A
declaration that Democracy Watch was deprived of its right to a fair hearing;
and
·
A
declaration that subsections 44(1) to 44(6) of the Conflict of Interest Act
violate sections 2(b) and 2(d) of the Canadian Charter of Rights and
Freedoms
Legislative Scheme
[4]
An
Act to establish conflict of interest and post-employment rules for public
office holders (the Conflict of Interest Act) was introduced on
April 11, 2006 during the first session of the 39th Parliament
as part of Bill C-2, now entitled the Federal Accountability Act, S.C.
2006, c. 9. This legislation was given Royal Assent in December 2006 and came
into force on July 9, 2007.
[5]
Section
3 of the Conflict of Interest Act (the ‘Act’) declares that the purpose
of the Act is to:
|
(a) establish clear conflict of interest
and post-employment rules for public office holders;
(b) minimize the possibility of conflicts
arising between the private interests and public duties of public office
holders and provide for the resolution of those conflicts in the public
interest should they arise;
(c) provide the Conflict of Interest and
Ethics Commissioner with the mandate to determine the measures necessary to
avoid conflicts of interest and to determine whether a contravention of this
Act has occurred;
(d) encourage experienced and competent
persons to seek and accept public office; and
(e) facilitate interchange between the
private and public sector.
|
a) d’établir à l’intention des titulaires
de charge publique des règles de conduite claires au sujet des conflits
d’intérêts et de l’après-mandat;
b) de réduire au minimum les possibilités
de conflit entre les intérêts personnels des titulaires de charge publique et
leurs fonctions officielles, et de prévoir les moyens de régler de tels
conflits, le cas échéant, dans l’intérêt public;
c) de donner au commissaire aux conflits
d’intérêts et à l’éthique le mandat de déterminer les mesures nécessaires à
prendre pour éviter les conflits d’intérêts et de décider s’il y a eu
contravention à la présente loi;
d) d’encourager les personnes qui
possèdent l’expérience et les compétences requises à solliciter et à accepter
une charge publique;
e) de faciliter les échanges entre les
secteurs privé et public.
|
[6]
The
Conflict of Interest and Ethics Commissioner was created to replace the
position of the Ethics Commissioner. In addition to certain supervisory and
enforcement roles, the Act gives the Commissioner investigatory powers to
determine whether a contravention of the Act has occurred.
[7]
Specifically,
the Act contemplates two
mechanisms by which an investigation may be commenced by the Commissioner.
First, under subsection 44(3) of the Act, the Commissioner must examine
possible contraventions of the Act if a member of the Senate or the House of
Commons so requests, as long as the Commissioner does not determine that the
request is frivolous, vexatious, or is made in bad faith. Second, subsection
45(1) provides that the Commissioner may conduct an examination on his or her
own initiative if he or she has reason to believe that the Act has been
contravened.
[8]
Section
66 states that all decisions and orders of the Commissioner are final and are
not reviewable in any court except in accordance with the Federal Courts Act.
Analysis
[9]
We are all of the view
that the Commissioner’s letter is not judicially reviewable by this Court,
since the Commissioner did not issue a decision or order within the meaning of
section 66 of the Act or subsection 18.1(3) of the Federal Courts Act.
[10]
Where
administrative action does not affect an applicant’s rights or carry legal
consequences, it is not amenable to judicial review (Pieters v. Canada
(Attorney General), 2007 FC 556 at paragraph 60; Rothmans,
Benson & Hedges Inc. v. Canada (Minister of National Revenue) (1998), 148
F.T.R. 3 at paragraph 28; see also Canadian Institute of Public and Private
Real Estate Cos. v. Bell Canada, 2004 FCA 243 at paragraphs 5 & 7).
[11]
The applicant has no statutory
right to have its complaint investigated by the Commissioner and the
Commissioner has no statutory duty to act on it. There is no provision in the
Act that allows a member of the public to request that the Commissioner begin
an examination. Indeed, the Act specifically contemplates the route which a
member of the public should take if it wishes to present information to the
Commissioner:
|
44. …
(4) In conducting an examination, the Commissioner
may consider information from the public that is brought to his or her
attention by a member of the Senate or House of Commons indicating that a
public office holder or former public office holder has contravened this Act.
The member shall identify the alleged contravention and set out the reasonable
grounds for believing a contravention has occurred. …
|
44. […]
(4) Dans le cadre de l’étude, le commissaire peut
tenir compte des renseignements provenant du public qui lui sont communiqués
par tout parlementaire et qui portent à croire que l’intéressé a contrevenu à
la présente loi. Le parlementaire doit préciser la contravention présumée
ainsi que les motifs raisonnables qui le portent à croire qu'une
contravention a été commise. […]
|
[12]
Furthermore, any
statement made by the Commissioner in her letter does not have any binding
legal effect. The Commissioner retains the discretion to commence an
investigation into the applicant’s complaint if, in the future, she has reason
to believe that there has been a contravention of the Act.
[13]
The applicant submits
that a similar decision made by the Ethics Counsellor, the predecessor to the Ethics
Commissioner, was deemed to be judicially reviewable by the Federal Court in Democracy
Watch v. Canada (Attorney General), [2004] 4 F.C. 83, 2004 FC 969. While
we take no position as to whether the Ethics Counsellor’s decision was properly
reviewable by the Federal Court, it is nonetheless clear that this decision was
made pursuant to a different regime than the one with which we are concerned.
The Ethics Counsellor was not acting pursuant to the legislation with which we
are presently concerned.
[14]
Since
we find that the Commissioner’s letter was not a reviewable decision or order
under section 66 of the Act, this Court does not have the jurisdiction to grant
the remedies requested by the applicant.
[15]
With
respect to the applicant’s request for a declaration that subsections 44(1) to
44(6) violate their section 2(b) and 2(d) Charter rights, we find that while
this Court can properly hear constitutional challenges within applications for
judicial review, the applicant cannot simply tack a constitutional challenge
onto an application for judicial review which was inappropriately brought.
[16]
Accordingly,
the application for judicial review will be dismissed with costs to the
respondent only.
"J.
Richard"
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