Challenge of Federal Registrar of Lobbyists’ Ruling that Lobbyists Can Fundraise for Ministers They Lobby, and of Federal Lobbying Ethics Enforcement System, in Federal Court in Toronto on Monday
Friday, January 25, 2008
OTTAWA - Today, Democracy Watch announced the court hearing date, next Monday, January 28 at the Federal Court in Toronto (180 Queen St. W., 4th Floor), for the case filed in November 2006 challenging the ruling by federal Registrar of Lobbyists Michael Nelson in which he concluded that a lobbyist raising money for a Cabinet minister they lobby does not create a conflict of interest. The Registrar issued the ruling in October 2006, more than six years after Democracy Watch filed the complaint. (To see the Registrar's ruling, click here -- To see Democracy Watch's court application, click here -- To see Democracy Watch's affidavit for the court case, click here -- To see Democracy Watch's factum for the case, click here)
NOTE: Federal Court Deputy Judge Orville Frenette heard the case on January 25, 2008, and on February 19, 2008 issued his ruling rejecting Democracy Watch's application and ordering Democracy Watch ot pay the costs of the other parties -- To see Deputy Judge Frenette's ruling, click here)
Democracy Watch is challenging the ruling because it believes it sets a legally incorrect standard that ignores and contradicts rules that clearly state that federal politicians and government officials cannot receive gifts of money, property or services that could influence their decisions. Democracy Watch is also challenging the ruling because the Registrar of Lobbyists is not adequately independent of the federal Cabinet (he can be fired at any time for any reason by the Treasury Board minister), and as a result the Registrar cannot make impartial rulings. (To see details about Democracy Watch's court challenge of the federal Registrar's lack of independence, which was launched in September 2005, and which Democracy Watch withdrew in spring 2007 after filing its current case, click here)
By having the Registrar rule on Democracy Watch’s complaint, Democracy Watch believes the federal government violated a July 2004 Federal Court order requiring that an independent, impartial person review Democracy Watch’s complaint (and seven other complaints filed by Democracy Watch between April 2000 and January 2004. (To see a summary of the history of the 8 complaints, click here)
"The Registrar of Lobbyists is a lapdog under the control of a Cabinet minister, and his ruling sets a precedent that allows federal lobbyists do things for federal politicians and government officials that Democracy Watch believes their ethics rules prohibit," said Duff Conacher, Coordinator of Democracy Watch. "Democracy Watch’s court challenge is aimed at overturning this precedent and ensuring that federal ethics rules are finally properly and effectively enforced by an independent watchdog."
The Registrar’s ruling was on the complaint filed by Democracy Watch on April 13, 2000 about former Liberal MP-turned lobbyist Barry Campbell organizing and holding a fundraising event that raised more than $70,000 for Jim Peterson, then-Secretary of State (International Financial Institutions), Department of Finance. Campbell was registered as Chairman of the company APCO Canada to lobby the Department of Finance at the time on issues for which Peterson was responsible. The invitation to the fundraising event was sent out on letterhead, in an envelope and with a return envelope all identifying APCO Canada as the main organizer of the event on behalf of Peterson and his riding association. (To see Democracy Watch's April 13, 2000 complaint, click here)
Democracy Watch alleged in the complaint that Campbell’s actions violated Rule 8 of the 10-year-old federal Lobbyists' Code of Conduct (Lobbyists’ Code), which states:
8. "Lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder."Former Ethics Counsellor Howard Wilson did not issue a public ruling on Democracy Watch’s April 2000 complaint about Mr. Campbell and Mr. Peterson, even though he was responsible for enforcing the Lobbyists’ Code until May 2004, and former Ethics Commissioner Bernard Shapiro refused to rule on whether Mr. Peterson had violated ethics rules that apply to him (To see details about Democracy Watch's court challenge of the Ethics Commissioner's failure to enforce ethics rules, which was launched in September 2005, and which Democracy Watch withdrew in spring 2007 after Commissioner Shapiro resigned, click here). However, in September 2002 Wilson issued, in the opinion of Democracy Watch, a legally incorrect interpretation of Rule 8 that stated that the only way a federal lobbyist could violate Rule 8 is if the lobbyist’s actions:
interfere with the decisions of a public office holder (meaning a federal politician, member of their staff, Cabinet appointee, or a public servant) in a way that amounts to a “wrongful constraint whereby the will of the public office holder was overpowered” and/or if the public office holder “was induced to do or forbear an act which he or she would not do if left to act freely” and/or “whether the lobbyist took advantage of a public office holder's weakness, infirmity or distress to alter that public office holder's actions or decision.”(To see the full text of interpretation, go to: Interpretation Bulletin for Rule 8 of Lobbyists' Code)The federal Registrar of Lobbyists used the Ethics Counsellor’s interpretation as the basis of his ruling (even though the Federal Court ruled in July 2004 that the Ethics Counsellor was biased -- To see a summary of the 2004 Federal Court ruling, click here), and the Registrar concluded that Mr. Campbell had been lobbying, but that lobbying does not interfere with a Cabinet minister’s decisions, and organizing the fundraising event did not wrongfully constrain, induce or take advantage of Mr. Peterson, and therefore did not affect Mr. Peterson’s decisions.
Democracy Watch’s position is, given that the Preamble of the Lobbyists' Code states that together it and the ethics codes for public office holders (politicians, their staff and government officials) “play an important role in safeguarding the public interest in the integrity of government decision-making”, therefore the interpretation of Rule 8 of the Lobbyists' Code must be based on public office holders' ethics rules.
There are rules that make it clear what types of influence are improper and cause conflicts of interest in the 21-year-old federal Conflict of Interest and Post-Employment Code for Public Office Holders (which applies to Cabinet ministers, ministerial staff, and many senior government officials) and the Conflict of Interest Act which replaced this Code last July, and in the three-year-old Conflict of Interest Code for Members of the House of Commons and in the three-year-old Conflict of Interest Code for Senators and in the 10-year-old Values and Ethics Code for the Public Service.
Specifically, all of these codes state that it is improper to receive a gift of money, property or services that could influence a decision. Given that lobbyists, by definition, try to influence the decisions of public office holders, Democracy Watch’s position is that Rule 8 of the Lobbyists' Code prohibits lobbyists from providing money, property or services to a public office holder. (To see Democracy Watch's court application, click here -- To see Democracy Watch's affidavit for the court case, click here -- To see Democracy Watch's factum for the case, click here)
The Registrar of Lobbyists has ruled on another two of the eight complaints Democracy Watch filed between April 2000 and January 2004, but Democracy Watch has not filed a court challenge of those two rulings. Democracy Watch is still waiting for rulings on five complaints. (To see a summary of the history of the 8 complaints, click here)
Bell Phillips Gill Young LLP, a Toronto law firm, is representing Democracy Watch in the court challenge of the Registrar on a pro bono basis. The Federal Court file number for the case is T-1942-06.
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FOR MORE INFORMATION, CONTACT:
Democracy Watch's Government Ethics Campaign
Democracy Watch homepage