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Scandal is also that Carson's secret lobbying is legal, that Ethics, Lobbying and RCMP Commissioners didn't know about his lobbying, and that no one will likely find he violated any laws

Loopholes must be closed, and enforcement strengthened, to end secret, unethical lobbying of the federal government

Monday, March 21, 2011

OTTAWA - Today, Democracy Watch pointed out that the situation revealed by the Aboriginal Peoples Television Network (APTN) about former PMO adviser Bruce Carson is scandalous not only because of Carson's activities, but also because his secret lobbying is legal (because of loopholes in federal laws), the Ethics Commissioner and Commissioner of Lobbying and RCMP didn't catch him (because they don't do random inspections), and no one will likely find Carson violated any laws (again because of loopholes, and also because of vague laws and very weak enforcement agencies).

"In Democracy Watch's opinion, the Bruce Carson situation will, like so many other recent situations, prove that secret, unethical lobbying of the federal government is effectively legal because of loopholes in federal lobbying and ethics laws and weak enforcement by the ethics and lobbying commissioners, and RCMP and Crown prosecutors," said Duff Conacher, Coordinator of Democracy Watch and Chairperson of the nation-wide Government Ethics Coalition"How many more people have to be let off the hook before federal politicians will close the loopholes and strengthen enforcement to make secret, unethical lobbying clearly illegal."

Last Saturday, Prime Minister Harper made the false claim that the Conservatives had enacted "very strong rules" in the 2006 Federal Accountability Act.  Hopefully, the House Access, Privacy and Ethics Committee will begin the process of closing the many huge loopholes in the federal Lobbying Act when hearings begin on Wednesday, March 23rd, and will continue to push to close the many other huge loopholes in the other key laws changed by the so-called Accountability Act as those laws are reviewed over the next year (To see details about loopholes in the federal Access to Information Actclick here -- in the whistleblower protection law, click here -- in the Conflict of Interest Actclick here -- in the political finance part of Elections Act, click here).

Carson's lobbying activities are legal under the Lobbying Act and Lobbyists' Code of Conduct because of loopholes that only require people to register as lobbyists and disclose their activities if they are paid as a consultant to lobby, or paid as an employee of a business to lobby 20 percent or more of their work time (NOTE: there is also another loophole that allows secret lobbying about the enforcement or application of federal laws).

The evidence revealed so far is that Carson was not paid to contact anyone in the federal government about the water filtration systems a company was trying to sell to First Nations and aboriginal reserves.

The so-called five-year ban on lobbying by former Cabinet ministers, staff and appointees is actually only a ban on being a registered lobbyist, and so it also does not apply to Carson because, again, according to the evidence revealed so far he was not required to register as a lobbyist.

According to other evidence revealed so far, Carson's fiancée would have been paid if the company had sold its systems, but not Carson.

In any case, the RCMP and Crown Prosecutors have never charged, let alone successfully prosecuted, anyone for violating the Lobbying Act since 1988 when it became law (even though at least six cases have been referred to them in just the past three years).  As well, Commissioner of Lobbying Karen Shepherd has a very weak enforcement record over the past three years that includes failing to issue public rulings on dozens of complaints and letting at least 16 lobbyists who were in violation of the Act or Lobbyists' Code off the hook with secret rulings.

There are measures in the Conflict of Interest Act that prohibit former public office holders from taking "improper advantage" of their former office (section 33), and from giving "advice to his or her client, business associate or employer using information that was obtained in his or her capacity as a public office holder and is not available to the public" (subsection 34(2)).

However, Carson's secret lobbying was legal, and therefore Conflict of Interest and Ethics Commissioner Mary Dawson will likely find that it was proper.  Commissioner Dawson has never issued interpretation bulletins concerning these measures to define what is "improper" and the Federal Court ruled in 2004 in Sinclair Stevens case that he could not be found guilty for violating a vague rule that was not clearly defined (see paras. 41 to 49 of the ruling).  As well, Commissioner Dawson has a very weak enforcement record and has let every Conservative alleged to have violated the ethics measures in the Conflict of Interest Act off the hook since she became Commissioner in July 2008, including by creating loopholes in the Act that don't actually exist (and also by refusing to rule on valid complaints, such as the complaint Democracy Watch filed on May 6, 2010 about Helena Guergis and various other Conservative ministers and ministerial staff giving preferential treatment to Rahim Jaffer).

There are also measures in the Conflict of Interest Act that prohibit former senior Cabinet staff from working in any way with any type of organization they had "direct and significant official dealings" with during their last year in office (subsection 35(1)), and from making "representations" to any government institutions they had such dealings with during their last year in office (subsection 35(2)) -- and former Cabinet ministers cannot lobby their former Cabinet colleagues (subsection 35(3)). 

However, these measures apply for only one year after Cabinet senior staff leave office (two years for former Cabinet ministers (section 36)).  So even though he was a senior adviser on aboriginal issues, because Carson left the PMO in 2008 his contact with government officials in 2011 is not prohibited by the measures.

Finally, to be guilty of "influence peddling" under the Criminal Code (clause 121(1)(d) -- which only a few people have been found guilty of in Canadian history), a person must clearly have or pretend to have influence with the government or a Cabinet minister or government official, and clearly demand or accept a benefit for themselves or another person in return for using (or not using) their influence. 

Based on the evidence revealed so far, Carson did not clearly have, or pretend to the water filtration company to have, influence with anyone in the federal government, nor did he clearly demand or accept a benefit in return for using his influence.

Finally, another part of the scandal is that it was, yet again, the media who discovered the questionable activities by a lobbyist.  Ethics Commissioner Dawson and Commissioner of Lobbying Shepherd are empowered under the laws they enforce to conduct random inspections and audits to determine what former public office holders are doing, and whom in government they are contacting, but both have refused to use these powers.  And the RCMP is also not watching lobbying activities closely.

These same loopholes in laws, and weak enforcement, exists in provincial, territorial and municipal governments across Canada, and as a result similar secret, unethical lobbying is likely occurring at every level of government.

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Duff Conacher, Coordinator of Democracy Watch
Organizer of the CoffeeParty.ca movement
Tel: (613) 241-5179  

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