Forced By Federal Court of Appeal Ruling,
Federal Commissioner of Lobbying Finally Bans Lobbyists From Giving
Gifts and Doing Favours For Politicians, Their Staff and Government
Thursday, November 12, 2009
OTTAWA - Last Friday, forced by a March 2009 Federal Court of
Appeal ruling won by Democracy Watch, federal Commissioner of Lobbying
Karen Shepherd finally set out an ethics enforcement Guideline
that, if effectively enforced, will essentially mean
rule that federal lobbyists violate Rule 8 of the Lobbyists' Code of Conduct if they
give significant gifts to, or do significant favours (such as
fundraising or campaigning) for federal
politicians, staff, appointees and government officials they lobby or
will lobby in the future.
The March 2009 Federal Court of Appeal ruling won by Democracy
Watch completely rejected a guideline on Rule 8 of the Lobbyists' Code that was issued in
2002 by former lapdog Ethics Counsellor Howard Wilson and applied by
his lapdog successor Registrar of Lobbyists Michael Nelson.
Together, Wilson and Nelson totally undermined enforcement of Rule 8
and federal lobbying ethics from 1997 (when the Lobbyists Code came into effect)
The new Guideline
complies not only the Federal Court of Appeal ruling, but also aligns
with the 2008 Guideline on Gifts
issued by federal Conflict of Interest and Ethics Commissioner Mary
Dawson, and with United Nations, OECD and OAS conventions and
guidelines on good government and prevention of conflicts of interest
(See details below).
"While the Commissioner of
Lobbying's new ethics guideline for lobbyists will help stop the
unethical and undemocratic ways some lobbyists use to influence federal
Canadian policymakers, closing loopholes that allow for secret
lobbying, regular and comprehensive audits of the
lobbyists, and new strong penalties are all needed to ensure all
comply with the guideline,"
Duff Conacher, Coordinator of Democracy Watch. "Recent scandals show clearly that closing
lobbying disclosure loopholes, and similar
ethics guidelines and enforcement measures, are also needed by
provincial, territorial and municipal governments to reduce the undue
influence of high-powered lobbyists across Canada." (To see some
details, click here)
Currently, loopholes in the federal Lobbying Act (and similar
provincial laws) mean that unpaid lobbyists, and part-time, in-house
corporate lobbyists are not required to register and disclose their
activities. Aslo, according to federal Commissioner Shepherd's
June before the Oliphant Commission of Inquiry into the
Mulroney-Schreiber affair, the Commissioner does not effectively audit
lobbyist's activities and instead relies solely on media reports and
complaints before she undertakes any investigation or other enforcement
As well, federal lobbyists currently face no penalties for
violating Rule 8 or any other rule of the Lobbyists' Code of Conduct.
Democracy Watch has five outstanding ethics
complaints against federal lobbyists that the Commissioner of
Lobbying acknowledged in her 2008-2009 annual report to Parliament are
still under investigation and still awaiting rulings by her (because
they were never ruled on fairly and impartially by either former Ethics
Counsellor Howard Wilson or former Registrar of Lobbyists Michael
Nelson -- both of whom were negligent lapdogs who delayed
ruling on complaints for years, and let people off the hook, for
reasons the March 2009 Federal Court of Appeal described as "deeply
The five outstanding complaints concern lobbyists who helped
with campaigns, donated to campaigns or provided other services to
various federal politicians including (among others) former prime
ministers Jean Chrétien and Paul Martin, and former Cabinet
ministers John Manley, Allan Rock, Sheila Copps.
Democracy Watch recently filed two new complaints with the Commissioner of Lobbying (and other federal enforcement agencies) that will also test the effectiveness of the Commissioner's enforcement of the new Rule 8 guideline. A complaint was filed on October 16, 2009 concerning a fundraising event held by Conservative Parliamentary Secretary and MP Rick Dykstra at the Rogers Centre on September 4, 2009, and another complaint was filed on October 21, 2009 concerning a fundraising event held by Conservative Minister of Natural Resources Lisa Raitt at a restaurant in Toronto on September 24, 2009 (To see details about the two complaints, click here).
new Guideline for Rule 8 of the Lobbyists'
Based on its very close review of the federal Conflict of Interest Code for Members of
the House of Commons (the MPs
Code) and relevant court rulings, Democracy Watch’s opinion is
that it is a violation of the MPs
Code for an MP to accept any gift of money, property or the use
of property or services (volunteer or otherwise, such as fundraising)
from a registered lobbyist, as such a gift can reasonably be seen to be
given to influence the MP’s exercise of their public duties.
And based on its very close review of the federal Lobbying Act and Lobbyists' Code of Conduct and
relevant court rulings (including the Federal Court of Appeal's unanimous
ruling in March 2009), Democracy Watch’s opinion is that it is a
violation of Rule 8 of the Lobbyists’
Code for any lobbyist (whether legally and properly registered
under the Act or not) to
provide, directly or indirectly, to any public office any more money
than is allowed to be contributed annually under the Canada Elections Act, or any more
property or use of property the commercial value of which exceeds the
annual contribution limits under the Canada
Act, or any services (whether paid or volunteer) that
are significant enough to create within the public office holder a
personal sense of obligation to the lobbyist.
Rule 8 of the 12-year-old federal Lobbyists' Code of Conduct (Lobbyists’ Code) 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."
The Federal Court of Appeal's March 2009 unanimous ruling
stated that Rule 8 of the Lobbyists'
Code simply "prohibits
lobbyists from placing public
office holders in a conflict of interest" because "Any conflict of interest impairs public
confidence in government decision-making" (para. 48).
The Court of Appeal's ruling went on to clarify specifically
that "A lobbyist's stock in trade is
his or her
ability to gain access to decision makers, so as to attempt to
influence them directly by persuasion and facts. Where the
lobbyist's effectiveness depends upon the decision maker's personal
sense of obligation to the lobbyist, or on some other private interest
created or facilitated by the lobbyist, the line between legitimate
lobbying and illegitimate lobbying has been crossed."
The Court of Appeal's ruling follows
the same logic, and sets
the same ethical standard, as the federal Conflict of Interest and
Commissioner's 2008 Guideline
on Gifts (including Invitations, Fundraisers and Business Lunches),
covers gifts of money, property or services as defined
Interest Act and strongly reaffirms that federal Cabinet
ministers and other
officials (and their family members) essentially cannot accept any
gifts or favours from anyone
who is trying to influence, or will be trying to influence, or has or
have dealings with, the minister or government official, even if the
lobbyist is a friend or a relative. (NOTE:
the Ethics Commissioner's guideline is based upon the principles of the
of influence and persuasion -- for more details, click here)
The Ethics Commissioner's Guideline on Gifts offers
examples of gift givers
Commissioner views as giving gifts or doing favours in order to
a minister or government official, including anyone who is associated
or lobbying for, any entity that has or may have dealings of any kind
the government institution(s) that the minister or official directs
The Guideline on Gifts contains the following key
The Preamble of the federal Lobbyists' Code states that together it and the Conflict of Interest Act and other 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, Democracy Watch has always argued that the interpretation of Rule 8 of the Lobbyists' Code must be based on public office holders' ethics rules.
There are rules that clarify what types of influence are improper and cause conflicts of interest in the two-year-old Conflict of Interest Act, and in the four-year-old Conflict of Interest Code for Members of the House of Commons and in the four-year-old Conflict of Interest Code for Senators and in the 12-year-old federal 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
Given that lobbyists, by definition, try to influence the decisions of
public office holders, Democracy Watch believes that a proper
application of the Court of Appeal's interpretation and application of
Rule 8 of the Lobbyists'
Code prohibits lobbyists from providing money, property
services to public office holders because that can create, in the words
of the Court of Appeal, a “personal sense of obligation” by the public
office holder to the lobbyist or a “competing private interest” (paras.
The Commissioner of Lobbying's new Guideline
Rule 8 of the Lobbyists' Code of
Conduct upholds this good government principle.
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FOR MORE INFORMATION, CONTACT:
Democracy Watch's Government Ethics Campaign
Democracy Watch's Money in
TV INTERVIEW (Part 1): Duff Conacher
interviewed by StraightGoods.com about lobbying, ethics and political
donation rules and
weak enforcement in Canada and unethical lobbying activities
Democracy Watch homepage