Commissioner says old version raises constitutional issues – lawyer says proposed changes do too
A group of lawyers, law profs, and other academics have signed an open letter calling on a House of Commons Ethics Committee to deny the Office of the Commissioner of Lobbying’s proposed changes to the Lobbyists’ Code of Conduct.
The proposed rule changes would shorten, and, in some cases, eliminate the “cooling off period” following significant political campaign work during which a person is prohibited from lobbying elected officials. Commissioner of Lobbying Nancy Bélanger said the proposed changes are intended to resolve Charter issues that stakeholders raised during consultations. The proposed changes are currently before the Standing Committee on Access to Information, Privacy and Ethics.
The open letter includes 11 lawyers and 21 law and political science professors from across Canada, and they are joined in their opposition with more than two-dozen civil society organizations, including the BC Civil Liberties Association, as well as David Suzuki and Alan Broadbent.
The lobbying commissioner’s proposals are the biggest change to federal law that is before Parliament right now, says Duff Conacher, co-founder of Democracy Watch. “It's a huge systemic change.”
Ottawa is currently embroiled in a scandal over election interference by the Chinese government. Conacher says that the proposed rule changes will facilitate interference by foreign governments, “because they’ll be able to sponsor groups here in Canada, who will be able to fundraise and campaign for politicians, and then lobby them right afterwards.”
The commissioner’s office said that during consultation stakeholders raised concerns that a rule prohibiting political engagement could violate a lobbyist’s Charter rights. The commissioner lowered the “cooling off period” from a full-election cycle to either 12 or 24 months, “depending on the significance of the work and the level of interaction the lobbyist had with the official carrying out the work.” The commissioner also has discretion to reduce the cooling-off period on her own.
Conacher notes that where a person's political activities are "less than near-full-time or without frequent, extensive interaction with a candidate or party official," there will be no cooling-off period and that person can transition immediately from working on a campaign to lobbying party officials.
While the commissioner intended for the proposed changes to resolve Charter issues, Scott Thurlow, founder of Thurlow Law & Public Affairs, says that the commissioner’s updated rules are an “assault” on freedom of expression and assembly.
While the previous four-year cooling-off period was longer, it captured a smaller segment of polticial volunteers, says Thurlow, who advises clients registered under the Lobbying Act, as well as those regulated under the Canada Elections Act.
“Now, it's everyone,” he says. “So, the ban is shorter, but the width of the ban is broader… The campaign manager, that is someone who should have restrictions on what they do, in terms of lobbying. But if I'm just knocking on doors, no, that is free speech. That's effective political participation.”
According to Manon Dion, manager of communications services at the lobbying commissioner’s office, “the updates respond to gaps in application and enforcement issue that have come to light as the commissioner has administered the 2015 Lobbyists’ Code of Conduct, as well as issues raised during three rounds of public consultation.”
“The updated Code addresses some of these challenges by focusing the actions of lobbyists and using clear and accessible language to support understanding and compliance with the rules,” she says.
The commissioner’s view that the four-year cooling-off period violates the Charter right to freedom of expression is also based on a legal opinion that she has not made public. Dion says that the commissioner will not publicize the legal opinion in the interests of client-solicitor privilege.
“The most systemic gutting of federal government ethics rules is proposed by the commissioner of lobbying, based on a secret legal opinion that she refuses to make public,” says Conacher.
As to whether the rule changes will lead to influence peddling and the undermining of the policy-making process, Dion notes that rule 7 in the Code “prohibits lobbying where a reasonable person would believe that a sense of obligation exists.”
Rule 7 states: "Never lobby an official where the official could reasonably be seen to have a sense of obligation towards you in circumstances beyond the scope of other rules." People covered by Rule 6, who work for "less than near-full-time" or "without frequent/extensive interaction" are not covered by Rule 7, says Conacher.
Dion adds that going after those who improperly trade favours for political influence is not under the commissioner’s jurisdiction.
“Given the non-statutory nature of the Lobbyists’ Code of Conduct, founded concerns of influence peddling are beyond the scope of the lobbying conduct code and fall instead within the scope of possible Criminal Code offences,” she says. “When conducting any investigation under the Lobbying Act or the Lobbyists’ Code of Conduct, if the commissioner believes on reasonable grounds that a person has committed an offence under the Act or any other Act of Parliament or of the legislature of a province, the commissioner must advise a peace officer having jurisdiction to investigate the alleged offence.”
In 1996 the Lobbying Act was amended to create a Lobbyists’ Code of Conduct, which was established in 1997. The original edition had three overarching principles: integrity and honesty, openness, and professionalism.
The lobbying commissioner updated the Lobbyists’ Code of Conduct in 2015. The second edition added the fourth principle of “respect for democratic institutions” and adjusted many of the rules.
Under the Lobbying Act, the commissioner must consult with stakeholders and refer proposed Code changes to a parliamentary committee, and then the Code must be published in the Canadian Gazette before coming into effect.
In late 2020, consultations began for the Code’s third edition. More than 90 stakeholders gave submissions, and after the commissioner came up with a draft update, stakeholders were invited again to comment. Another round of consultations followed, and the final product was sent to the parliamentary committee in November 2022.
The updated Rule 6 in the Code reads: “Never lobby an official or their associates where the official could reasonably be seen to have a sense of obligation towards you because of political work – paid or unpaid – you have done for the benefit of the official, unless the cooling-off period has expired.”