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Stephen Harper's Worst Nightmare 
Volume II

[PoliticsWatch Updated 5:10 p.m. March 6, 2006]

OTTAWA  —  While his office won't publicly declare it, what is becoming very clear is that Prime Minister Stephen Harper and the Conservative government no longer has confidence in Ottawa's top ethics watchdog. 

And a showdown may be in the works that could end with Harper having to fire the ethics commissioner.

On Friday, Ethics Commissioner Bernard Shapiro announced he was investigating Harper after complaints from three MPs about Industry Minister David Emerson's defection. 

Just two weeks after being elected as a Liberal, Emerson crossed the floor to sit as a Conservative and in cabinet again. 

Shapiro will be examining if Harper violated conflict of interest guidelines in his party's efforts to snatch Emerson from Liberals. 

Emerson's defection may have sparked outrage amongst Canadians and created a division with the Conservative party. 

But Shapiro's decision to investigate the Emerson defection when the Belinda Stronach defection occurred under his watch is angering Conservatives. 

An e-mail sent out to reporters Friday from Harper's director of communications, Sandra Buckler, suggested the Tories are leaning towards taking an approach similar to the Clinton administration's take-no-prisoners handling of independent counsel Ken Starr during the Monica Lewinsky investigation.

In the e-mail Buckler outlined other bi-partisan past criticism of Shapiro and describes him in one of the paragraphs as a "Liberal's appointee."

The ethics commissioner is an independent officer of Parliament, but he is appointed by the prime minister. 

Shapiro, a former president of McGill University with no previous experience in the ethics field, is the first independent federal ethics commissioner in Canada. Previously, there was an ethics counselor, but that person reported directly to the prime minister, raising questions about many of his rulings. 

Buckler also expressed confusion over Shapiro's reasoning that he would not investigate a Conservative complaint about Liberal cabinet minister Tony Valeri over a land deal because the House was not in session. The House is currently not in session, nonetheless Shapiro has decided to investigate the Emerson affair. 

And it's not the first time Harper and Shapiro have butted heads. 

Earlier this year, Shapiro issued a report into the Grewal affair in which he noted that Harper did not make himself available for an interview during his investigation. 

Given that the Conservatives rode to victory in the recent election on a campaign with a No. 1 priority to strengthen accountability and ethics in Ottawa, this whole strategy places Harper in a difficult position. 

Harper and the Tories' concerns about Shapiro may be legitimate, but the optics of dumping the ethics commissioner could be terrible. 

"We just came out of an election campaign that was all about ethics," says NDP MP Pat Martin. "For the prime minister to run and hide from an ethics investigation by the ethics commissioner and then fire him because they don't like what he's doing, it's like a banana republic."

The questioning about Shapiro's abilities is not a knee-jerk reaction to the investigation into the Harper-Emerson affair. 

In fact, Shapiro survived a vote of non-confidence last spring by a parliamentary committee. 

NDP MP Ed Broadbent's motion had the support of the NDP and Conservatives, but was defeated 7-4 after the Bloc Quebecois decided not to support it. 

Bloc Quebecois MP Mario Laframboise admitted the Bloc had concerns about Shapiro's performance, but suggested they would give him a pass because it amounted to "a lack of political experience." 

However, Broadbent was an outspoken critic of the ethics commissioner in the spring.

"I've said many times, I don't question Mr. Shapiro's motives at all, but I think he has done a bad job," he said. "It's a serious position and he should now leave it.

"I've followed him carefully at the committee stage. On decision after decision he's made simply the wrong decision."

After presenting his motion to the committee, Broadbent outlined several problems he had with the ethics commissioner. They included:

> Shapiro's delay in producing a list of policy areas former prime minister Paul Martin had to recuse himself from.

> Selecting a law firm known for its ties to the Liberal party to assist in the investigation of former immigration minister Judy Sgro. 

> Shapiro sent an edited letter to Sgro that suggested to her at the time that she had been vindicated in a scandal involving her staff.

> His decision to not investigate Martin and his chief of staff Tim Murphy in the Grewal taping case, arguing that his job only involved investigating cabinet ministers and parliamentary secretaries, even though the code of conduct covers public office holders such as Murphy.

Shapiro's later handling of the Grewal case also left some scratching their heads. Grewal was the Tory MP who secretly recorded conversations he had with Murphy and then cabinet minister Ujjal Dosanjh. Grewal alleged that the Liberals were trying to get him and his wife, MP Nina Grewal, to abstain from a confidence for future rewards. 

The Liberals say no offer was made to Grewal and on Grewal's secretly-recorded tapes both Murphy and Dosanjh are careful in their discussions, referring to everything in a hypothetical or abstract way. 

In his report on the Grewal matter, Shapiro developed a principle that any inducement to have an MP cross the floor and join another party was a "serious breach" of the conflict of interest code. That finding is behind the NDP's referral of the Emerson case to Shapiro. The NDP suggests that Emerson's higher salary and benefits as cabinet minister could be an inducement. 

Although it is unclear whether Shapiro even listened to the tapes, he was able to single out Grewal in his report for taping his colleagues, while Murphy and Dosanjh escaped any criticism for their involvement.

Although Shapiro could not conclusively say that Grewal was entrapping the two Liberals, he felt comfortable making the following hypothesis in his report: "If Mr. Grewal had sought to entrap Mr. Dosanjh into offering him a reward for changing his vote, he would have induced Mr. Dosanjh into committing an extremely serious breach."

All the more interesting is the question about whether Shapiro listened to the Grewal tapes since he is specifically mentioned on them. 

On that tape, Murphy discusses with Grewal Shaprio's probe into the Conservative MP for information forwarded to him by former immigration minister Joe Volpe. 

On the tape, Murphy raises the idea of Shapiro issuing an interim report "to take the cloud" off Grewal.

Shortly after the information raising questions about the independence of the ethics commissioner came out, Shapiro denied when asked by reporters that he was controlled by the PMO. He said Murphy never approached him to do such a thing.

"If he wanted to he couldn't because I don't regard that kind of interference as at all acceptable," he said. "But he hasn't tried."

Nonetheless, coupled with his decision not investigate Murphy or Martin in the matter, Conservatives began to question Shapiro's independence at that time.

"Does it taint the office?" asked Tory Peter MacKay. "Does it give the appearance of bias? Does it look as if the Prime Minister's Office was prepared to interfere or make representations on behalf of a member who was going to cross the floor in exchange for doing so? That's how it appears."

MacKay also called Shapiro a "toothless, anemic Chihuahua" for his handling of investigations at the time. 

And the criticism of Shapiro does not end with political parties. 

The ethics group Democracy Watch has called for Shapiro to resign and is currently in the midst of a court challenge, accusing him of being biased against holding a "reasonable standard of enforcement" of federal ethics rules. 

But despite their questions about Shapiro, Democracy Watch announced it would file a complaint about Emerson's floor crossing on the day it was revealed, saying it raised "serious questions about violations of the Cabinet ethics rules that require ministers to act with honesty and to maintain the highest ethical standards in a way that enhances the public's confidence in the integrity of the federal government."

Conacher says Harper should have fired Shapiro immediately upon entering office because he had cause because of past complaints about Shapiro. 

Broadbent did not run in the last election and while the NDP still have questions about Shapiro, they are comfortable with him investigating the Emerson defection. 

"Mr. Shapiro is still the ethics commissioner," said the NDP's Martin. "We have to separate the person from the office.

"I don't think it matters who is in the office. It's the office of the commissioner, not the commissioner himself.

"We have confidence in the office. We believe that we can hold them to task. I think we can get a clean, solid investigation out of the current office as it stands. We were critical of the performance of the office of the ethics commissioner, but we believe we can get a satisfactory investigation."

Martin believes the only way out of this "no-win situation" for Harper would be to cut bait and call a byelection for Emerson's Vancouver riding. 

Kanman Wong, the Conservative candidate in Emerson's Vancouver Kingsway riding, won just 18 per cent of the popular vote in January's election. 

Polls suggest Emerson would probably lose running as Tory and the NDP could pick up the seat. 

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