Preliminary consultation on future changes to the Lobbyists' Code of Conduct

Canadian Advocacy Network

• “Ultimately, many of the groups which CAN volunteers support are small and have access to limited people and financial resources. For these groups, it is particularly important that the rules governing lobbying be straight-forward and easy to navigate. Especially with these groups in mind, the Government of Canada should seek to ensure that these rules strike a balance between furthering transparency and accountability while not placing unnecessarily onerous requirements on those seeking to engage with government on important matters of public policy. These groups in particular should be provided with a regulatory environment that respects and encourages their contributions.”

Democracy Watch

• “A few key problems have been revealed in the version of the Lobbyists’ Code of Conduct (the “Code”) that has been in place since December 1, 2015. However, most of the problems are created by key loopholes in the ethics rules for public office holders that create loopholes in the application of the conflict of interest section of the Code, and by the huge loopholes in Lobbying Act that allow for secret, unregistered lobbying and, as a result, also unethical lobbying as the Code does not apply to unregistered lobbying.”
• “Because of these loopholes, the Code really should be called the ‘Some Lobbying Code of Conduct’ as the Code does not apply to many people who are lobbying the federal government.”
• “No changes are needed to the Introduction or to the Preamble of the Code.”
• “The Interpretation Act requires interpreting a legal provision in accordance with its text, context, and purpose, and to give it ‘…such fair, large, and liberal construction and interpretation as best ensures the attainment of its objects.’ The Commissioner is, therefore, required to interpret and apply the Principles and Rules of the Code in a way that assures the Canadian public that lobbying ‘is done ethically and with the highest standards with a view to enhancing public confidence and trust in the integrity of government decision making.’”
• “The wording of some parts of the Lobbyists’ Code could be made stronger, in part by changing the wording back to the original version of the Code that was in effect from 1997 until the new Code was enacted in December 2015, and in part by adding more expansive terms or wording to some of the rules.
  However, to make these wording changes really effective, loopholes must be closed in the Lobbying Act so that the Code applies to all lobbying activities.”

Government Relations Institute of Canada / Public Affairs Association of Canada

• “Overall, the principles of the Lobbyists’ Code of Conduct (the Code) remain valid, and are reflective of GRIC’s own Code of Professional Conduct, and PAAC’s Statement of Principles, which require members of our organizations to conduct their affairs in accordance with the highest standards of integrity, honesty, openness, and professionalism.”
• “The purpose of the Code is appropriately, to assure the Canadian public that when lobbying of public office holders takes place, it is done ethically and with the highest standards, with a view to enhancing public confidence and trust in the integrity of government decision-making. To achieve this, the Code should (i) identify the principles we need for a free and open dialogue between government and its stakeholders, (ii) permit interpretation in a way that is consistent with the Charter of Rights and Freedoms, (iii) not create undue red tape for stakeholders, and (iv) above all else, ensure public confidence in the framework administered by the Office of the Commissioner of Lobbying (OCL). The Code needs to contain common sense, logical rules, that will stand the test of time and assure Canadians of the integrity of the system for years to come.”
• “The current format and structure of the Code itself generally remains appropriate. It should be as straightforward as possible. Too many sections and sub-sections and sub-sub-sections detract from efficiency of interpretation and application. However, the Code as it stands necessitates, in some cases, pages of guidance, to help lobbyists understand how to meet their obligations under several different rules. This poses a bit of a conundrum in that the Code itself must be straightforward and practical, but the rules need detailed guidance to be meaningful, so lobbyists know how to meet their obligations. One consideration could be to give current guidances greater standing by examining the possibility of including them as commentaries to the relevant rules within the Code. This is exemplified by some other professional codes of conduct such as the Law Society of Ontario’s, ‘Rules of Professional Conduct’ and its ‘Paralegal Rules of Conduct’.”
• “The scope of the Code is sufficient and does not need to be expanded. Clients who are not lobbyists, and who are not subsequently captured under the Lobbying Act in their role as lobbyists, should not be subject to the provisions of the Code.”
• “The clarity of the Code could be improved by providing more concrete guidance around certain concepts like ‘use of information’, ‘conflicts of interest’, ‘preferential access’, ‘political activities’, and ‘gifts and hospitality’.”
• “Whether as legislators, regulators, or customers, governments interact constantly with every sector of the economy, and vice versa. Efforts to ensure that these interactions are carried out in a transparent and ethical fashion are to be applauded. Efforts to curtail or limit interactions between stakeholders and government should be avoided. Rules that limit individual Canadians’ involvement in the democratic process that chooses governments are unconstitutional and should be addressed on a priority basis in this proceeding.”
• “GRIC and PAAC appreciate the efforts the Commissioner of Lobbying has made in educating public officer holders and Canadians in general about the legitimate and important role that lobbyists play in informing Canada’s democratic process and ensuring transparent participation in public policy development. To further this goal, we recommend that a line be added to the introduction or preamble of the Code to explicitly state that advocacy is an integral and important part of Canada’s democratic process that strengthens how public policy is developed.”
• “In the final part of the Code’s introduction, it outlines that anyone suspecting non-compliance with the Code should forward information to the Commissioner. Given recent court determinations, GRIC and PAAC submit the introduction should be revised to better detail the complaint handling process, especially when the Commissioner has a duty to investigate complaints.”

Democracy Watch

• “Only one change is needed to the four Principles of the Code. The ‘Integrity and Honesty’ Principle should be changed back to its previous wording of:
  • ‘Lobbyists should conduct with integrity and honesty all relations with public office holders, clients, employers, the public and other lobbyists.’
  This change is needed to ensure that lobbyists act with integrity and honesty in all their relations, not just in their relations with public office holders.”
• “The Principles of the Code are set out below the Preamble, along with the Rules. Clearly, lobbyists must abide by both the Principles and the Rules.
  As well, the predecessor to the Commissioner, the Registrar of Lobbyists, concluded that the Principles were enforceable, and enforced them, and those rulings were upheld in Federal Court and by the Federal Court of Appeal. As a result, lobbyists are clearly required to comply with the Principles, and the Commissioner is clearly required to consider and rule on whether a lobbyist has complied with the Principles when ruling on the lobbyist’s activities.”
• “. . . the ‘Professionalism’ Principle also sets out an interpretation standard that the Commissioner is required to apply when considering allegations of violations of the Code or Act by a lobbyist. The Commissioner is required to consider whether the lobbyist complied with not only the ‘letter’ but also with the ‘spirit’ of the Code and the Act.”
• “The four Principles do not only set out broader goals and objectives of the Code. They also set out eight requirements that lobbyists are required to comply with, as follows:
  1. Act in a manner that demonstrates respect for democratic institutions, including the duty of public office holders to serve the public interest.
  2. Conduct with integrity all relations with public office holders;
  3. Conduct with honesty all relations with public office holders;
  4. Be open about their lobbying activities;
  5. Be frank about their lobbying activities;
  6. Observe the highest professional standards;
  7. Observe the highest ethical standards;
  8. Conform fully with the letter and the spirit of the Code and all relevant laws, including the Act.”

Government Relations Institute of Canada / Public Affairs Association of Canada

• “The principles that underpin the Code remain valid. GRIC and PAAC note that the preamble to the Code (which reflects four concepts stated in the Lobbying Act), as well as its principles (of respect for democratic institutions, integrity and honesty, openness and professionalism) are reflective of both organizations’ own guidelines for our members. As such, GRIC and PAAC submit that the current principles remain valid, and do not need to be supplemented or changed. The principles ensure that Canada has a lobbying industry that upholds high ethical standards and contributes to informing public policy following clear rules and processes.”
• “The Code is built around ensuring transparency and preventing actions that would create a sense of obligation for a public office holder. These are undeniably the right principles to enforce as Canadians need to know that public policy decisions are being made on their merits after informed discussions held in a transparent manner.”

Commissioner of Lobbying of Quebec

• “With regard to the requirement of disclosure of the identity of the person, organization or company on whose behalf a communication is made, provided for in rule 1 of the federal code, we find a similar provision in the Quebec code (article 16). However, the latter adds a component to this requirement, in article 17, by providing that ‘Lobbyists shall not, by any means whatsoever, conceal or try to conceal the identity of the client, business or organization whose interests they are representing'.” [translation]
• “With regard to the accuracy of the information provided by a lobbyist, the Quebec code also extends the obligation with respect to what is provided for in the federal code. In addition to providing public office holders with information that is, to their knowledge, accurate and complete, section 6 of our code requires that this information be kept up to date. Also, the obligation for the accuracy of information is not limited to what is provided to the public office holder. In effect, article 7 generally provides that the lobbyist must also respect the public's right to accurate information where, in support of lobbying activities, they use written or electronic means of communications to influence public opinion.” [translation]
• “In June 2019, the Commissioner of Lobbying of Quebec submitted to the National Assembly of Quebec a statement of principles on the oversight of lobbying, based on best practices identified at the national and international level. Among the principles outlined, number 11 suggests establishing ‘an ethical and deontological framework applicable to entities and representatives of interests with regard to the disclosure, performance and monitoring of lobbying activities, so as to maintain the highest standards of integrity and professionalism and to foster citizens' confidence in public institutions’. We note with interest that rule 4 of your code is an example of a concrete step in this direction.” [translation]
• “With respect to the use of information, we note that rule 5 of your code focuses on the use and disclosure of information obtained from a public office holder. Article 12 of the Quebec code, for its part, is worded more broadly by prescribing the use of any confidential information of which the lobbyist is aware in the exercise of their lobbying activities.” [translation]

Democracy Watch

• “Rule 1 of the Code should be changed to add at the end the following additional requirement:
  • ‘A lobbyist, when communicating with a public office holder, shall also inform the office holder of the lobbyist’s relationship with any other office holder and/or the lobbyist’s political activities on behalf of any other office holder who may be involved or may become involved in the decision-making process the lobbyist is communicating in respect of, if the relationship and/or the political activities could reasonably be seen to create a sense of obligation on the part of the office holder.’
  Of course, the Act should be amended to require public disclosure of such relationships and political activities in the Registry of Lobbyists. However, adding this rule to the Code would be helpful until the Act is amended in this way.”
• “Rule 2 of the Code should be changed by adding at the end the second requirement from the previous version of the Code:
  • ‘Moreover, lobbyists shall not knowingly mislead anyone and shall use proper care to avoid doing so inadvertently.’
  This change is needed to ensure that lobbyists act with honesty in all their relations, not just in their relations with public office holders.”
• “Rule 3 of the Code should be changed to add at the end:
  • ‘and shall confirm that the lobbyist has done this by indicating it in the Registry of Lobbyists.’
  This change is needed, along with a related change to the form in the Registry of Lobbyists to allow lobbyists to click a box confirming that they have informed each client of their obligations under the Act and Code, to nudge lobbyists to comply with this rule.”
• “Rule 4 of the Code should be changed to add after the word “behalf” the following:
  • ‘(even if their lobbying is not required to be registered in the Registry of Lobbyists)’
  to ensure that responsible officers inform all employees who communicate with public office holders in respect of their decisions of the requirements of the Act and the Code, whether or not their lobbying is registered in the Registry.
  Rule 4 of the Code should also be changed to add at the end:
  • ‘and shall confirm that the responsible officer has done this by indicating it in the Registry of Lobbyists.’
  This change is needed, along with a related change to the form in the Registry of Lobbyists to allow responsible officers to click a box confirming that they have informed each employee of their obligations under the Act and Code, to nudge responsible officers to comply with this rule.”
• “Rule 5 of the Code should be changed by changing the word “document” in the second sentence to “record as defined in the Access to Information Act” and by adding at the end:
  • ‘and the lobbyist shall not retain a copy of the record, and shall return the record to the head of the institution that created the record and inform them, and the Information Commissioner of Canada and the Public Sector Integrity Commissioner who provided the record to them.’
  These changes are needed so that the rule covers all types of records not just documents, and so that the rule has a built-in enforcement mechanism that makes it effectively illegal for the lobbyist to use or disclose the record. Currently the rule establishes an unrealistic standard that relies entirely on the lobbyist’s honour not to act in a self-interested way after obtaining a document, likely secretly. Changing the rule to make it illegal for the lobbyist to keep the document secretly adds a much-needed incentive to comply with the rule.”

Government Relations Institute of Canada / Public Affairs Association of Canada

• “GRIC and PAAC believe that Rule 1 (Identity and purpose), Rule 2 (Accurate information) and Rules 3 and 4 (Duty to disclose) are sufficiently clear and uphold important principles that ensure the transparency and integrity of the system for lobbyists and those who interact with them.”
• “Changes to the Code stemming from the 2013 review, laid out that the “most senior paid” employee of an organization or a corporation has the duty to ensure that those who lobby for an organization or corporation are informed of their obligations under the Lobbying Act and the Code. GRIC and PAAC submit that the Code must preserve the flexibility that permits the “most senior paid” employee to delegate this responsibility. GRIC and PAAC believe that the current wording that mandates that the responsible officer “shall ensure that” is sufficiently flexible and reflects the reality that the top executive of most large organizations will not perform this role themselves.”
• “GRIC and PAAC support the spirit of Rule 5 ‘Use of information’. While it is reasonable for the Code to mandate how lobbyists interact with public office holders and the information that they disclose, in our view, it is beyond the scope of the Code to direct how lobbyists use information that they obtain.
  Specifically, the first part of the second sentence in Rule 5 as written, does not provide enough detail about the measure by which a lobbyist should be aware they have received a document they “should not have”. For example, are these documents that are clearly marked as secret or classified information, such as cabinet confidences?
  Additionally, the last part of the second sentence, “they shall neither use or disclose it” is reasonable as it relates to documents they should not have that were received from public office holders. On the other hand, curtailing the use of documents received from clients, journalists or other sources outside of government is, in our opinion, beyond the scope of the Code. This also ties back to the need to understand that a government document is one you should not have.”

Democracy Watch

• “Rule 7
  • Because the Commissioner of Lobbying, in the Bergen and O’Born rulings, did not even consider that Rule 7 had been violated by them, it seems that Rule 7 needs to be amended to clarify that the phrase ‘meeting with a public office holder’ includes a meeting with anyone who reports to the office holder and is, therefore, representing the public office holder in any meeting.
  • Alternatively, the Commissioner could simply begin enforcing Rule 7 taking into account Rule 6 (of which Rule 7 is a particular subsection), and taking into account the purpose of the Code of ensuring Canadians that lobbying complies with the highest ethical standards that enhance the public’s trust and confidence in the integrity of government decision-making. Such an approach to enforcement would mean that, of course, meeting with a public office holder directly or indirectly (by meeting people who report to them) is the same thing, and that both are covered by Rule 7, as the people who report to a public office holder provide reports to the office holder about meetings with lobbyists.”
• “Rule 8
  • Because the Commissioner of Lobbying, in the Bergen and O’Born rulings, did not even consider that Rule 8 had been violated by them, it seems that Rule 8 also needs to be amended to clarify that the phrase “lobby a public office holder” includes lobbying anyone who reports to the office holder and is, therefore, representing the public office holder in any communications.
  • Alternatively, the Commissioner could simply begin enforcing Rule 8 taking into account Rule 6 (of which Rule 8 is a particular subsection), and taking into account the purpose of the Code of ensuring Canadians that lobbying complies with the highest ethical standards that enhance the public’s trust and confidence in the integrity of government decision-making. Such an approach to enforcement would mean that, of course, lobbying a public office holder directly or indirectly (by lobbying people who report to them) is the same thing, and that both are covered by Rule 8, as the people who report to a public office holder provide reports to the office holder of communications from lobbyists.”

Government Relations Institute of Canada / Public Affairs Association of Canada

• “Rules 7 and 8 generally rely on the interpretation of a ‘relationship that could be reasonably seen to create a sense of obligation’. These Rules require guidance for lobbyists to understand which relationships are covered and which are not. Currently, the Guidance to mitigate conflicts of interest resulting from preferential access, generally outlines those high-risk relationships sufficiently (family, close friends and business partnerships). GRIC and PAAC specifically recommend preserving guidance language that ensures ‘friends’ is defined by including relationships with a public office holder where you share a close bond of friendship, a feeling of affection, or a special kinship that extends beyond simple association. As well, we believe it is important to preserve, for the sake of clarity, the statement that, ‘This excludes casual acquaintances or members of your broad social or business circles’.”

Democracy Watch

• “Because the Commissioner of Lobbying, in the Bergen and O’Born rulings, concluded that Rule 9 does not apply to political activities of a lobbyist before they became a lobbyist, it seems that Rule needs to be amended to make it clear that it applies to political activities of a lobbyist before they became a lobbyist.
  Alternatively, the Commissioner could simply begin enforcing Rule 9 taking into account Rule 6 (of which Rule 9 is a particular subsection), and taking into account the purpose of the Code of ensuring Canadians that lobbying complies with the highest ethical standards that enhance the public’s trust and confidence in the integrity of government decision-making. Such an approach to enforcement would mean that a person undertaking political activities on behalf of someone who is or becomes a public office holder would, of course, include activities before the office holder takes office, and therefore before the person becomes a lobbyist (given that the Act only requires registering as a lobbyist when one begins lobbying a public office holder).”
• “The webpage about this consultation on the Commissioner’s website makes the proposal, drawn from the Observations section of the Bergen and O’Born rulings, that Rule 9 be amended to change the second line from:
  • ‘If that person is an elected official, the lobbyist shall also not lobby staff in their office(s).’
  to include people other than staff. If this change was made, the second line would read something like:
  • ‘If that person is an elected official, the lobbyist shall also not lobby staff in their office(s) or anyone else who reports to them.’
  That change is fine but, at the same time, unnecessary if the Commissioner would just adopt the purposive interpretations suggested above for Rules 7 and 8, based on the broad Rule 6 and the purpose of the Code, which would mean that lobbyists would be (as all these rules clearly intend) prohibited from lobbying office holders directly or indirectly if the office holder has a sense of obligation to the lobbyist or any entity the lobbyist is representing.”
• “In any case, if the wording of the second line is amended it should be made much more comprehensive than proposed on the consultation webpage, as people can undertake political activities on behalf of people who become Cabinet staff and senior government officials (for example, working or volunteering for them when they are managing a campaign for a political party or a candidate. The amended wording should be as follows:
  • ‘Whether or not that person is an elected official, the lobbyist shall also not lobby staff in their office(s) or anyone else who reports to them.’”

Government Relations Institute of Canada / Public Affairs Association of Canada

• “The current Guidance to mitigate conflicts of interest resulting from political activities, revised in 2019, was a welcome update to the previous version. While seen as helpful for laying out some guardrails for our members that participated in the last federal election, GRIC and PAAC continue to hear concerns from members that the Code restricts the fundamental freedom of Canadians to participate in the political process.”
• “The 2019 revised guidance outlined activities that carry a higher level of risk as opposed to those activities which pose lower or no risk at all. The guidance also limits the sense of obligation from political activities to the equivalent of one electoral cycle which is rational, particularly when there is a minority government which historically have not lasted the full mandates allowable under Canada’s Constitution. We appreciate that the guidance clearly outlines that political activities that are not strategic in nature and do not involve significant interaction with candidates pose a lower risk or no risk of creating a sense of obligation.”
• “With respect to the person benefiting from the political activities (becomes a public office holder), GRIC and PAAC submit that Rule 9 sufficiently captures that, ‘the lobbyist shall also not lobby staff in their office(s)’. We do not believe it is necessary to expand the scope of Rule 9.”

Democracy Watch

• “. . . the Code does not apply to some registered lobbyists’ unethical lobbying tactics. Most especially, the Code’s Rule 10 does not prohibit lobbyists from giving the unethical gift of unlimited travel (known as ‘sponsored travel’) to MPs and senators (and their families and associates) whom they are lobbying’ because the MP and senator codes explicitly allow them to receive the gift of sponsored travel, no matter how unethical the gift is.”
• “. . . Rule 10 of the Code is explicitly connected to the ethics codes for MPs and senators, as Rule 10 allows lobbyists to ‘provide or promise a gift, favour or other benefit to a public office holder’ if the office holder is allowed to accept it.
  This loophole is most problematic concerning the unethical practice of lobbyists giving the gift of unlimited travel (known as ‘sponsored travel’) to MPs and senators (and their families and associates) whom they are lobbying. Lobbyists are allowed to do this because the MP and Senator codes explicitly allow them to receive the gift of sponsored travel, no matter how unethical the gift is.”
• “Other gifts and benefits are not a problem as the MP and Senator codes prohibit them from accepting any gift or benefit that could be seen as being given in order to influence them (although the Senate code’s disclosure threshold of $500 in gifts annually from any person or entity is too high to prevent gifts being used as a secret, unethical means of influence).”
• “There is no reason to allow sponsored travel, even in its relatively benign form of an invitation for an MP or Senator to speak at a conference at the invitation of another country’s politicians or government. The number of such conferences recorded annually in the sponsored travel report are minimal, and Canadians can afford to pay the costs of MPs and Senators taking these few trips.
  Having Canadians pay for such trips also provides a disincentive for MPs and Senators to take trips that are just junkets, and also prevents foreign politicians and governments from doing the favour of offering to pay for a trip as a means of influencing MPs and Senators.”
• “Deleting the sections in the MP and Senator codes that allow them to accept the gift of sponsored travel is the only effective solution. If the Lobbyists’ Code was amended to prohibit lobbyists from giving the gift of sponsored travel, that prohibition would only apply to registered lobbyists. All the people and organizations that are not registered because of loopholes in the Lobbying Act (including employees of corporations who lobby less than 20 percent of their work time) would be allowed to continue to give the gift of sponsored travel.”

Government Relations Institute of Canada / Public Affairs Association of Canada

• “On rule 10, GRIC and PAAC note from the related reports highlighted as part of the Code consultation, the Commissioner has had challenges providing guidance on what types of gifts and hospitality are appropriate since the Lobbyists’ Code of Conduct is directly linked to what a public office holder can receive and therefore other codes for MPs, Senators and public servants.
  While we appreciate that there is rationale to unlinking what lobbyists can offer from what public office holders can accept to enable more independence of the Office of the Lobbying Commissioner to exercise its duties, we are concerned that this could create a perverse situation whereby a lobbyist could be found guilty of offering a gift or benefit which another ethics officer deems acceptable for a public office holder to receive. We believe a linkage in some form must be preserved.
  If a public office holder is permitted by the Ethics Commissioner to accept a gift, it should generally not be deemed to have created a sense of obligation based on assessment by both Commissioners as to the facts of the matter.”
• “. . . we recommend rephrasing Rule 10 as follows:
  • 10. To avoid the creation of a sense of obligation, A lobbyist shall not provide or promise a gift, favour, or other benefit to a public office holder, which could reasonably be seen to create a sense of obligation, to a public office holder whom they are lobbying or will lobby, which the public office holder is not allowed to accept.
  This language, ‘reasonably be seen to create a sense of obligation’, is consistent with similar use in other Rules under the conflict of interest section of the Code. It also more clearly depicts in Rule 10 that gifts and hospitality are not prohibited.”
• “It should go without saying that this provision of the Code should be aimed at prohibiting the offering of any sort of benefit or gift which could reasonably influence the actions of a public office holder, and not normal hospitality such as buying a cup of coffee or serving hors d’oeuvres at a reception.”
• “The Guidance to mitigate conflicts of interest with respect to gifts, as revised in 2019, made clear that thank you gifts of nominal value, promotional items of minimal value and meals of minimal value during meetings are acceptable. These are elements that should be preserved as future changes are considered.”