Commentaires reçus - Consultation sur la version préliminaire de la mise à jour du Code de déontologie des lobbyistes

The Centre for Israel and Jewish Affairs (CIJA) is the advocacy agent of the Jewish Federations of Canada. CIJA is a national, non-partisan, non-profit organization dedicated to protecting and enhancing Jewish life in Canada through advocacy. CIJA represents approximately 200,000 Jewish Canadians affiliated with Jewish Federations across Canada.

We appreciate the effort and careful consideration that the Office of the Commissioner of Lobbying has put into the revised draft Code of Conduct of May 2022. It is clear that responses in the first consultation were reviewed and feedback has been incorporated in order to create a Code that protects Canada’s democratic process while still allowing stakeholder engagement and advocacy.

We are supportive of the content of the May 2022 draft Code as written, and particularly appreciate the inclusion in Section 4 – Hospitality of the ability to grant exemptions to the low-value limit for dietary requirements and restrictions. As many of our lobbyists and stakeholders observe Jewish dietary laws (kashrut), CIJA must often provide kosher food at our meetings and events. Kosher meals are often significantly more costly than non-kosher ones.

We have one element of draft Code that we would like to raise a concern about. Section 4 of the May 2022 draft Code reads “The total value of hospitality you provide to the same official within a 12-month period cannot exceed the low-value limit.”

The previous draft Code from December 2021 reads that “Never offer – directly or indirectly – hospitality to an official that you lobby or expect to lobby, other than low value food or beverage for consumption during an in-person meeting, event or reception.” The 2015 Code currently in effect does not cover hospitality.

The low-value limit is set at $30. Under the current wording in the May 2022 draft, this would mean that only $30 of food could be offered to an individual over an entire year. This would severely limit ability to invite officials to participate in celebrations of Jewish holidays, where this could encompass the value of a single meal. Taking into account the aforementioned high cost of kosher food, applying for exemptions from the OCL may become onerous for Jewish organizations like CIJA or risk cutting off officials from partaking in Jewish cultural and religious events. This would similarly negatively effect other ethno-cultural organizations who wish to invite officials to their religious or cultural celebrations.

We ask that the sentence “The total value of hospitality you provide to the same official within a 12-month period cannot exceed the low-value limit.” in Section 4 – Hospitality be removed and replaced with “The value of food or beverage provided for consumption to an official during an in-person meeting, event, or reception cannot exceed the low-value limit.”

We thank you once again for the opportunity to contribute to this process.

The Canadian Labour Congress (CLC) is Canada’s largest labour organization, representing three million workers in all sectors of the economy and all parts of Canada.

We welcome the opportunity to provide input to the third and final consultation regarding updates to the Lobbyists’ Code of Conduct.

First of all, we appreciate some of the changes that have been made after previous rounds of consultation, specifically:

• Rule 2 (Integrity and Honesty): We are pleased that all references to “grassroots lobbying appeals to the public” have been removed from this section as this was a major overreach that was far beyond the mandate of the OCL and the Code.
• Rule 6 (Political Work): To be clear, we continue to oppose standards and regulations which restrict the fundamental right of our members to meaningfully participate in the electoral process. That being said, we acknowledge the new language which clarifies the definition of “other political work” to only include campaign work which “either involves frequent and/or extensive interaction with a candidate or official, or performed on a full-time or near-full-time basis for a candidate, official or political party.” We believe this definition will provide more flexibility for our members to engage in low-risk campaign activities that do not create a sense of obligation for elected officials.
• Rule 5 (Close Relationships): We are pleased the definition of “close working relationships” has been clarified to say: “such as prominent or longstanding professional relationship developed by working closely together (working for the same entity, employer or client does not, on its own, qualify as having a close relationship.” We are pleased the reference to “having closely collaborated for a common goal … or being partners, colleagues or allies in the same office, sitting together on a board of directors, delivering a program or service,” has been removed.

However, we still have serious concerns and are strongly opposed to several sections of the updated Code, which go far beyond ensuring transparency and are a major overreach by the OCL.

Specifically, we are concerned about the latest updates for Rule 4 Hospitality; Rule 5 Close Personal Relationships; and Rule 7.2 Sense of Obligation.

The proposed updates in these three areas are unwarranted, unreasonable, unworkable and unenforceable. We urge the OCL to carefully consider our input and to not proceed with the updates that are proposed in these three sections of the Code.

Rule 4 Hospitality

Unfortunately, the latest update to the Code makes this section even more problematic than before. We remain opposed to the definition of “low-value” for hospitality and we strongly oppose the new addition of a “12-month period.”

In the latest update, Rule 4 (Hospitality) says the following: “Never offer – directly or indirectly – hospitality to an official that you lobby or expect to lobby, other than low value food or beverage for consumption during an in-person meeting, event or reception. The total value of hospitality you provide to the same official within a 12-month period cannot exceed the low-value limit.”

We repeat our concerns about the term “low value” which is defined as follows: “Low-value is set at $30 in 2022 dollars, including taxes.”

We oppose this definition of “low-value” as $30 for two reasons.

First, it is illogical to suggest that normal hospitality (such as serving coffee, wine, sandwiches or hors d’oeuvres, at an in-person meeting, event or reception) could influence the actions of a public office holder and therefore this definition is unwarranted.

Second, this is an arbitrary threshold. What is the OCL’s rationale for proposing $30 as the threshold instead of another value?

In addition to these concerns, the new definition is more problematic because it now includes the following: “The total value of hospitality you provide to the same official within a 12-month period cannot exceed the low-value limit.”

The addition of “within a 12-month period” is unreasonable, unworkable, curtails the ability of public office holders to work with stakeholders and undermines democratic discourse about important public policy matters.

It is unreasonable and unworkable to expect organizations like ours to monitor how much “value” a public office holder consumes at every in-person meeting, event or reception where hospitality is provided and ensure they do not attend any other events within a 12-month period once they reach the $30 threshold. It is simply not tenable for us to monitor or enforce this $30 threshold for every public office holder that attends our events. We host many events throughout a 12-month period and it is unreasonable for the OCL to expect us to monitor, track and enforce how much hospitality each public office holder consumes at each event and ensure they do not attend any other events once they reach the $30 threshold.

Further, this $30 threshold significantly diminishes democratic discourse and the duties of public office holders by curtailing the number of events a public office holder can attend. For example, the CLC holds an annual lobby day on Parliament Hill, typically in February each year, and this includes an evening reception attended by our members and public office holders. There is no doubt the market value of the hospitality provided at this reception per person would amount to the $30 low-value threshold. That would mean any public office holder attending our reception in February could not attend another one of our events in the next 12 months if hospitality is provided. This is unreasonable, unworkable, curtails the ability of public office holders to do their jobs of consulting stakeholders on important policy matters, and in turn undermines democratic discourse in this country.

Rule 5 Close Personal Relationships

The CLC opposes the definition of “close personal relationships” in the latest draft update of the Code.

Rule 5 of the Code says: “Never lobby an official where the official could reasonably be seen to have a sense of obligation towards you because you have a close relationship with the official.”

The Code then defines “close personal relationships” as follows: “Such as close or best friends (people who socialize outside of a work-related context or who have developed longstanding bonds), intimate or romantic partners (excludes casual acquaintances or other persons known only through broad social circles or networks).”

It is extremely problematic to include “people who socialize outside of a work-related context” in the definition of close personal relationships. There are many social opportunities outside of a work-related context which lead to a relationship that goes beyond a “casual acquaintance” but do not extend to a “special kinship that extends beyond simply being acquainted.”

The definition of “people who socialize outside of a work-related context” is a major overreach by the OCL, it is extremely subjective, and it is unenforceable.

Rule 7.2 Sense of Obligation

We oppose the inclusion of the new clause 7.2 with respect to creating a sense of obligation.

The new clause 7.2 says: “If you know that your client or employer has either a close relationship with an official or taken an action that benefited an official, never lobby the official where they could reasonably be seen to have a sense of obligation towards you – as a representative of your client or employer – because of that close relationship or action.”

Once again, this is a major overreach by the OCL. It is unreasonable to expect either an in-house lobbyist or a consultant lobbyist to be aware of every relationship their employer or client has with every public office holder and whether that relationship has created a sense of obligation or not. In addition, it is untenable for a lobbyist to monitor all of these relationships and it is impossible for the OCL to enforce this clause.

Conclusion

The CLC believes that the Lobbyists’ Code of Conduct plays an important role in ensuring that the activities of lobbyists adhere to the highest standards of transparency, respect for government institutions, integrity and honesty.

We support the OCL’s goal to ensure the Code is clear and detailed so lobbyists understand all of their obligations. However, we believe several sections of the updated Code are unwarranted, unreasonable, unworkable and unenforceable.

We have outlined our concerns with respect to proposed changes in the sections that deal with Rule 4 Hospitality; Rule 5 Close Personal Relationships; and Rule 7.2 Sense of Obligation.

We urge the OCL to carefully consider our input and to not proceed with the updates that are proposed in these three sections of the Code. We are available to meet to discuss our feeback at your convenience.

Recommendation

CSAE recommends that the current clause and guidance regarding food and refreshments at a reception remain “reasonable”.

Introduction

The Canadian Society of Association Executives (CSAE) would like to thank the Office of the Commissioner of Lobbying for considering its recommendations in the previous consultation. CSAE is glad to see that further clarity has been added for low-risk political activities and for associates of public office holders. However, we are asking that the proposed limits placed on hospitality be reviewed in order to allow for the continuance of parliamentary receptions and events.

Recommendation 1: Support the continuance of parliamentary receptions

In CSAE’s submission from February 2022, it was clearly laid out how the recommendation for a more precise amount in regards to hospitality would likely end receptions and other events on Parliament Hill. The most revised draft Code from May 2022 unfortunately has not solved this issue, but continues to describe low-value as “$30 in 2022 dollars, including taxes” within a 12-month period. This continues to be a significant change to the current guidance from August 2020 which provides details on exceptions and reasonable hospitality.

Parliamentary receptions and events remain an important function on Parliament Hill. They allow Members of Parliament and Senators from all political parties to network with Canadians of various backgrounds from across the country. For associations, receptions are a great way for their members to meet public office holders that they otherwise may not have the opportunity to meet while in Ottawa. Furthermore, like most receptions off Parliament Hill, it has become commonplace for food and beverages to be offered at no cost.

We would like to thank the Office of the Commissioner of Lobbying for adding more clarity to the low-value application to hospitality, but would ask that it be reviewed again. With the revised Code, if an association holds a reception for 50 individuals, the total cost of catering for that reception would need to be $1,500, including taxes. Currently, the average cost to cater a reception of 50 people would be between $4,000 to $5,000, depending on the caterer, due the cost of products, labour and taxes. There are no caterers in Ottawa currently available that could cater at $30 a person, including taxes, and all other costs.

Should the Office of the Commissioner of Lobbying continue to move forward with a $30 limit for hospitality, we would ask that the office provide new guidance for organizations to follow in order for them to continue to hold receptions on Parliament Hill. Otherwise, Members of Parliament will no longer be able to connect with Canadians that they otherwise wouldn’t have the chance to meet.

To solve this issue, CSAE is again recommending that the current clause and guidance regarding food and refreshments at a reception remain “reasonable”. This allows public office holders to attend receptions without putting themselves or the reception host in a position to contravene the Lobbyists’ Code of Conduct. Receptions have been held on Parliament Hill for decades, if not since its inception, and have become an important function of networking between officials and Canadians.

Recommendation 2: Refine the definition of political activities

The current guidance to mitigate conflicts of interest resulting from political activities1 from August 2020 clearly lays out the differences between high-risk and low-risk political activities. CSAE agrees that serving in an official role for a candidate, such as a campaign manager, can create a sense of obligation from that public office holder. CSAE also agrees that there should be a cooling off period for high-risk political activities.

CSAE would like to thank the Office of the Commissioner of Lobbying for adding clarity on low-risk political activities. We agree that if activities such as canvassing are done on a full-time, or near-full-time basis, they would likely create a sense of obligation from that public office holder. These changes ensure that democratic participation by Canadians, such as canvassing, door knocking and distributing campaign materials, would not be infringed upon.

Recommendation 3: Prevent infringements on the duties of association executives

In CSAE’s submission from February 2022, it was explained how the definition of “associates” could infringe on association executives’ duties to their organizations. In the previous draft, the cooling off period application to associates of the public officer holder would impact an association executive’s ability to carry out their responsibility to the interests of their membership. For example, if an individual was a campaign manager for a candidate who was successfully elected, then became a Parliamentary Secretary, they wouldn’t be able to lobby the corresponding Minister.

The revised Code makes it clear that if that new Member of Parliament becomes a Minister, then the individual wouldn’t be able to lobby them, their staff, or their Parliamentary Secretary. CSAE believes this is reasonable as all of those individuals fall under the role of the Minister, but not vice-versa. CSAE would like to thank the Office of the Commissioner of Lobbying for rectifying this issue related to “associates” and agrees with the way this section is now currently built.

About CSAE

Incorporated in 1962, the Canadian Society of Association Executives (CSAE) is Canada’s only member-based not-for-profit organization committed to delivering the knowledge, resources and environment to advance association excellence. CSAE, also known as an “association of associations,” offers robust networking and learning opportunities, both in person and online, including an education program leading to the Certified Association Executive (CAE®) designation. We also produce publications, conduct research and pursue other knowledge transfer opportunities to keep members informed about the latest trends, innovations and best practices in the sector and beyond. With a current membership of approximately 3,000, CSAE has central operations in Toronto and eight regional networks across Canada.

Our firm has the unique opportunity of working with associations from across Canada who hold annual Parliament Hill Days in Ottawa. As part of these lobby days, many of them hold receptions to build their industries profile.

Lobby days are a great opportunity for association members to meet with a targeted amount of Members of Parliament. For example, if members of the Canadian Counselling and Psychotherapy Association were in town, they’d likely look to meet with MPs on the Health Committee or with a health background.

Receptions are a great opportunity for those same associations to connect with a larger crowd of Members of Parliament, many of whom they wouldn’t have thought of connecting with before. For our clients on the mental health side of things for example, many have met with MPs who have personal mental health stories through receptions. They are also a great opportunity for industries to raise their profiles, especially when MPs are hearing from dozens, if not hundreds, of different industries on a weekly basis.

The current draft Code would unilaterally end receptions on Parliament Hill. I have personally had conversations with various caterers over the past couple of weeks, and none of them would be able to provide a reception for $30 a person, and this includes the least expensive caterer that we’ve used before. I would propose that for hospitality, the barometer remains as “reasonable”, meaning that associations can provide reasonable drinks and food, but they cannot be providing expensive champagne and caviar. There is a clear distinction when the term “reasonable” is used. This would allow a centuries old practice to continue, and allow MPs to continue enjoying their evenings connecting with various stakeholders that are important to their role.

Thank you for consulting on this Code, and I would be happy to answer any questions.

Introduction

We appreciate the opportunity to comment on the draft Lobbyists’ Code of Conduct. These comments are jointly submitted by the Government Relations Institute of Canada (GRIC) and the Public Affairs Association of Canada (PAAC) after thorough consultation with our respective memberships.

GRIC is a national, not-for-profit organization, founded in 1994 by government relations professionals in response to the growth and maturing of the industry over the previous several decades. GRIC fosters high standards of practice through professional development and adherence to a code of professional conduct.

PAAC is a national, not-for-profit organization founded in 1984. Its principal objective is to help public affairs professionals succeed in their work by providing them with forums for professional development, the exchange of new ideas and networking.

Comments on Round 3 of Consultation

We wish to begin by commending the Commissioner of Lobbying for holding a multi-stage consultation and we acknowledge several improvements from previous drafts of the code. These include:

• Revising the Preamble of the Code to explicitly note that transparent and ethical lobbying is a legitimate activity and that it supports informed decision making by public officials.
• Revisions to Rule 1.2 that addressed our previous concerns.
• We welcome the title change on Rule 2 in this version of the Code to now read ‘Integrity and Honesty’, which reflects more positively on the important work of professionals in our sector.
• Improvements to the definition of ‘close working relationships,’ such that it is now clear that “former colleagues” must carry a deeper relationship than just the mere fact of having been colleagues.
• We also acknowledge that the definition of ‘political work’ has been revised positively to ensure that only significant involvement or near full-time involvement in campaigns is associated with the newly proposed cooling-off periods.

Canada’s lobbying regime functions well because it is based on sensible, easy-to-follow rules that promote transparency and openness and ensure that nobody is permitted to take actions that would create a sense of obligation with any public office holder (POH). Better public policy results when decision makers can have discussions and regular access to those stakeholders who are the most knowledgeable about an issue or will experience the greatest impact from decisions that are being made.

While we appreciate having been heard on the above items, there remain some serious areas of expressed concern for GRIC and PAAC.

Rule 4 (Hospitality) and definition of ‘low-value’

GRIC consulted our members (including holding a member-only townhall), while PAAC solicited their members for comments, and it is clear from that feedback that there continues to be widespread concern about the proposed hospitality section (Rule 4) - especially from members who represent associations and charities. The concern relates to the definition of the “low-value” limit for hospitality for a POH being set at $30 (including taxes, gratuities and catering), which cannot exceed this amount during a 12-month period.

Beyond the challenges of conducting a reception for this average amount in most places in Canada and in tracking which MPs, Senators or other POHs have previously attended receptions or received hospitality, there are serious concerns that imposing this limit will curtail the ability to meet and have discussions with POHs at receptions or coffee meetings, something that we do not believe legislators intended when they gave the Commissioner of Lobbying the authority to create a Lobbyists’ Code of Conduct.

These concerns appear quite valid and may be an unintended consequence put forward in the most recent draft. For illustrative purposes, it would be all but impossible to host a reception for 50 people for under $1,500 for food and beverage, catering, taxes and gratuities. While we appreciate this version of the Code introduces an ‘exemption request’, we respectfully submit that the Commissioner is not envisioning exemption requests for every single event as would be required. And, if a gathering were possible in the most limited of circumstances, tracking each POH over rolling 12-month periods will be impossible. Given this, it will equally be impossible for the OCL to enforce these provisions.

What a lobbyist can offer a POH in terms of hospitality should logically align with what a POH can accept under their respective codes or conflicts of interest legislation, and we acknowledge that the $30 low-value limit appears to come out of efforts by the Conflict of Interest and Ethics Commissioner to establish a specific monetary value.

Our members have told us that this will severely limit or effectively end the ability of many associations, charities and organizations to host receptions, lunches or even provide coffee at meetings in cases where there are multiple engagements with a POH in a 12-month period. In particular, industry associations often hold receptions more than once a year as a useful means to inform and have discussions with Parliamentarians and other POHs. Many of our members have told us they will have to cancel these planned engagements if the $30 low-value limit is adopted.

We submit this is not the result legislators desired when Parliament created the various statutes that have become our ethics and lobbying regimes. In doing so, the Conflicts of Interest and Ethics Commissioner and Commissioner of Lobbying will be moving beyond enforcing their statues and regulations, and will in fact be creating law, a role strictly reserved for Parliamentarians.

Establishing such a restrictive definition of hospitality even appears to be in direct contravention of the Conflict of Interest Act, which states (in section 11 (2) (c)) that a public office holder is permitted to accept anything which, “is a normal expression of courtesy or protocol, or is within the customary standards that normally accompany the public office holder’s position.”

Public office holders attend receptions because they are efficient ways to meet and share information with many stakeholders rather than holding individual meetings with each stakeholder. Providing coffee or wine and cheese at a reception should certainly fall within the definition of “normal expression of courtesy” and should not therefore be limited to one event during a 12-month period.

Since most associations, by practice, open their events to all Parliamentarians, it is nearly impossible to know who will attend until the event takes place and not reasonable to expect associations to “police the door” and bar entry to any Parliamentarian or POHs who may have attended another reception or coffee meeting in the previous 12 months. As many receptions take place within the Parliamentary precinct, it is even possible that barring certain MPs and Senators from entering these receptions would infringe on their Parliamentary privilege.

Presently, the Code functions on the basis that lobbyists should be limited to providing reasonable hospitality. Public office holders subject to the Conflict of Interest Act are already required to disclose gifts totaling over $200 in value over a 12-month period. In our view, these provisions already prevent lobbyists from offering any unreasonable level of hospitality over a 12-month period. For greater clarity, we would support having these limits, which have been duly established by statue, included in the definitions section of the Lobbyists’ Code of Conduct

Both the Lobbying Act and the Conflict of Interest Act prohibit gifts that could be reasonably seen to have been offered to influence the public office holder or create a sense of obligation. It is unreasonable to suggest that $31 worth of coffees or drinks at a reception over the course of 12 months could compromise the integrity of POHs and influence their decisions.

It is in the public interest that POHs are able to take advantage of the efficiency of receptions, coffee meetings or working lunches to become better informed and build working relationships with stakeholders. It simply acknowledges the limited bandwidth in a public office holders schedule. It is our sincere hope that a more reasonable and workable standard for low-value hospitality can be set in the Code and we recommend that the Commissioner of Lobbying submit the draft code to the appropriate House and Senate Standing Committees for review to ensure it aligns with a regime that Parliamentarians agree is reasonable and supports open access to government, transparency and a positive public policy environment where stakeholder can freely engage officials.

To be clear, GRIC and PAAC respectfully submit that the low-value limit must be amended. The notion that a POH receiving more than $30 of hospitality in a twelve-month period somehow calls into question their integrity is simply unreasonable and will severely impact the ability for associations and charities to engage POHs.

Rule 6 - Political Work

GRIC and PAAC still firmly believe that any limitation on registrable activities as a result of political activity is a prima facie violation of Section 2 and Section 3 of the Charter of Rights and Freedoms. The appropriate venue for limiting Charter rights is not a consultation on a non-statutory instrument such as the Code.

Knowing that the rights of Canadian citizens are being potentially compromised, it is for Parliament to be deliberate in its considerations of this serious matter. We urge the Commissioner to ask Parliament to be precise in its instructions to the Commissioner and successors on what should be part of a Code of Conduct.

Supporting this view, in June 2010, the Canadian Bar Association (CBA) issued its Opinion Respecting the Constitutionality of Rule 8 of the Lobbyists’ Code of Conduct. In its opinion, CBA expresses its, “… fundamental concern with the Guidance, and in particular, questions whether the Guidance on Rule 8 (political activities) is consistent with the Charter of Rights and Freedoms.” Ultimately CBA finds that OCL’s treatment of political activities under Rule 8 to be a violation of ‘lobbyists’ freedom of expression under s2(b) of the Charter and . . . not reasonably justified in a free and democratic society under s. 1 (of the Charter).”

Rule 7.2 – Sense of Obligation

This rule is completely new in this version of the Code and we submit that it is impractical, wholly unnecessary and unenforceable. It relies on consultant lobbyists having foreknowledge of every prior personal relationship a prospective client may have had with a POH (or more to the point, that every single employee who works for any prospective client may have had with a POH). This one-step-removed conflict-of-interest calculation is unreasonable in an environment where every person we may encounter from time-to-time has worked with or knows every other person we’ve ever encountered in our careers.

In the case of organizations and corporations, the issue is precisely the same. It is impossible to source out every single relationship with board members and employees that may exist in various forms across hundreds, sometimes tens of thousands, of employees worldwide.

If OCL has evidence that a consultant lobbyist is being employed by client because the client wants to circumvent other of the Code’s provisions, it already has sufficient scope to act on that matter, based on the specific fact-case, as that would constitute a conflict of interest under current definition/application of the Code (i.e., do not put clients or POHs in a conflict of interest).

This is an unworkable overreach, and we believe it is a solution in search of a problem given that, to our knowledge, the OCL has never reported on a single circumstance where a consultant lobbyist was engaged solely so a client can circumvent any other conflict of interest provision relating to a prior relationship with a POH.

The wording in Rule 7.1 on sense of obligation already covers situations not already captured in the Code. Rule 7.2 should be omitted from this version of the Code. It is, of course, possible for a lobbyist to manage their own relationships, but to know of every single client and client company's employees’ relationships is impossible and unenforceable.

Definition of Close Personal Relationships

We believe the previous version of the Code was clearer in that a close personal relationship was defined as a "special kinship that extends beyond simply being acquainted". That phrase was removed in the latest version of the Code and we believe it was clearer with the original language.

Conclusion

GRIC and PAAC believe that the Lobbyists’ Code of Conduct plays an important role in ensuring that our members work in an industry that adheres to the highest standards of integrity, honesty, openness, professionalism and transparency.

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, and the Code must be detailed in a manner that permits lobbyists to clearly understand their obligations. Virtually all lobbyists, since the Code has been established, have followed it and the pursuit of greater Code clarity can only ensure that continues.

Specifically, GRIC and PAAC respectfully recommend the following:

• Hospitality: The $30 low-value limit will eliminate receptions on the Hill with parliamentarians – a key means of communicating with busy parliamentarians. It is impossible for all 338 Members of Parliament to accept one-on-one meetings with every interest group. Receptions permit opportunities for organizations to reach out more broadly in a less resource-heavy way. Furthermore, the 12-month aspect of measuring this low-value limit will be impractical, if not impossible. It will be unenforceable and may infringe on the Parliamentary privilege afforded to our elected officials. Lobbyists should be able to offer what public office holders are able to accept.
• Newly proposed Rule 7.2 places a one-step-removed conflict-of-interest calculation on registered lobbyists that is both impossible to address and unenforceable. Rule 7.1 already provides the Commissioner coverage to address any issues related to sense of obligation not already outlined in the Code. Rule 7.2 must be omitted from the final version of the Code.
• Close personal relationships: We prefer the wording from the previous version of the draft Code which specified the personal relationships contemplated are those holding a "special kinship that extends beyond simply being acquainted".
• Political activities: A limitation on registrable activities as a result of political activity is a prima facie violation of Section 2 and Section 3 of the Charter of Rights and Freedoms. The appropriate venue for limiting Charter rights is not a consultation on a non-statutory instrument.

We appreciate the Commissioner holding another round of consultation on proposed changes to the Lobbyists’ Code of Conduct. We encourage the Commissioner to consider submitting the finalized draft Code to honourable members of the appropriate House and Senate committees to seek their advice on certain aspects of the current draft that will curtail their ability to freely engage with stakeholders of all stripes.

We are available to meet to discuss any of this feedback or to provide additional details in support of ensuring Canada continues to have lobbying rules and a regime of which we can all be proud.

Thank you for the opportunity to comment on the draft Code.

I (we) am (are) writing to you today to fully endorse the GRIC submission on behalf of our industry and specifically want to draw attention to the following items that must be addressed:

1. Hospitality: The $30 low-value limit will eliminate receptions on the Hill with parliamentarians – a key means of communicating with busy parliamentarians. It is impossible for all 338 Members of Parliament to accept one-on-one meetings with every interest group. Receptions permit opportunities for organizations to reach out more broadly in a less resource-heavy way. They are a key advocacy tool that must remain accessible to stakeholders. Furthermore, the 12-month aspect of measuring this low-value limit per public office holder will be impractical, if not impossible. It will be unenforceable and may infringe on the Parliamentary privilege afforded our elected officials. Lobbyists should be able to offer what public office holders are able to accept.
2. Newly proposed Rule 7.2 places a one-step-removed conflict-of-interest calculation on registered lobbyists that is both impossible to address and unenforceable. It relies on consultant lobbyists having foreknowledge of every prior personal relationship a prospective client may have had with a public office folder (or more to the point, that every single employee who works for any prospective client may have had with a POH). It also extends to in-house lobbyists who would be required to know of every POH relationship that may exist with board members and employees. Rule 7.1 already provides the Commissioner coverage to address any issues related to sense of obligation not already outlined in the Code. Rule 7.2 must be omitted from the final version of the Code.
3. Close personal relationships: We prefer the wording from the previous version of the draft Code which specified the personal relationships contemplated are those holding a "special kinship that extends beyond simply being acquainted".
4. Political activities: A limitation on registrable activities as a result of political activity is a prima facie violation of Section 2 and Section 3 of the Charter of Rights and Freedoms. The appropriate venue for limiting Charter rights is not a consultation on a non-statutory instrument.

Thank you for the opportunity to comment.

Introduction

Universités Canada est la porte-parole des universités canadiennes au pays et à l’étranger. Elle est une association mutuelle faisant la promotion des intérêts des universités canadiennes à l’échelon fédéral, et offre aux recteurs une voix unie pour l’enseignement supérieur, la recherche et l’innovation. De plus, l’association collabore étroitement avec les bureaux responsables des relations gouvernementales au sein de ses établissements membres partout au pays, pour faire progresser les priorités du secteur.

Universités Canada figure parmi les membres de l’Institut de relations gouvernementales du Canada (GRIC) et appuie à ce titre son mémoire. Elle est également heureuse de soumettre ses propres commentaires concernant la version préliminaire du Code de déontologie des lobbyistes fournie par le Commissariat au lobbying du Canada dans le cadre de la troisième et dernière consultation sur sa mise à jour. Les commentaires supplémentaires d’Universités Canada visent essentiellement à apporter des précisions nécessaires dans la version préliminaire proposée, et à faire en sorte que les modifications proposées n’imposent pas d’entraves involontaires empêchant les lobbyistes d’agir de façon éthique et adéquate ou qu’elles n’entraînent pas de contraintes excessives sur le plan de la conformité et de la production de rapports.

Commentaires

Sections 3 et 4 – Cadeaux et Marques d’hospitalité

Pour les établissements de grande taille comme les universités, l’application des nouvelles règles du Code en matière de cadeaux et de marques d’hospitalité porte à confusion. Selon la portée prévue, ces règles risquent de leur imposer des contraintes déraisonnables sur le plan de conformité. L’énoncé préliminaire sur les cadeaux est par exemple formulé ainsi :

La valeur combinée des articles en guise de reconnaissance et des articles promotionnels que vous fournissez à un fonctionnaire dans une période de douze mois ne doit pas dépasser la limite de faible valeur.

Selon l’interprétation d’Universités Canada, comme le Code s’applique aux personnes1 et non aux établissements, la période de douze mois pendant laquelle la limite de faible valeur ne doit pas être dépassée s’applique à chaque lobbyiste employé par l’organisation. Pour préciser qu’il s’agit bien de la portée voulue, cet énoncé devrait à notre avis être modifié ainsi :

La valeur combinée des articles en guise de reconnaissance et des articles promotionnels qu’un lobbyiste fournit à un fonctionnaire dans une période de douze mois ne doit pas dépasser la limite de faible valeur.

Ainsi, il serait établi qu’il incombe à chaque personne de respecter le seuil, et non que la limite s’applique à l’échelle de l’organisation, ce qui obligerait tous les lobbyistes employés par une université, dont le nombre varie grandement d’une université à l’autre, à rester au fait des cadeaux offerts par chacun au cours de l’année. Sans cette modification, il serait pratiquement impossible pour les universités de remettre de petits articles en guise de reconnaissance (p. ex. des tasses), ce qu’elles font souvent pour remercier les représentants élus qui prennent le temps de venir parler aux étudiants ou d’assister aux collations des grades.

Le nouvel énoncé concernant les marques d’hospitalité entraîne la même confusion. Il est moins facile de faire la distinction entre le seuil individuel et le seuil organisationnel visant les aliments et les boissons, puisque les marques d’hospitalité, surtout lors de réceptions, ne sont pas tout à fait de nature personnelle. L’énoncé préliminaire est le suivant :

La valeur totale des marques d’hospitalité que vous fournissez à un fonctionnaire dans une période de douze mois ne doit pas dépasser la limite de faible valeur.

Il importe ici aussi qu’il soit précisé si l’énoncé, et par conséquent la limite annuelle, s’appliquent à chacun des lobbyistes ou à l’organisation.

Si la limite s’applique aux personnes, le Commissariat au lobbying devrait exposer son mode de raisonnement concernant la façon d’établir les coûts associés à une réception.

Recommandation : Préciser à qui s’appliquent les limites de faible valeur dans les sections 3 et 4 de la version préliminaire du Code de déontologie.

Section 7.2 – Sentiment d’obligation

L’énoncé de la section 7.2, « Sentiment d’obligation », est le suivant :

Si vous savez que votre client ou employeur entretient une relation étroite avec un fonctionnaire ou a entrepris une action dont un fonctionnaire a bénéficié, ne faites jamais de lobbying auprès de ce fonctionnaire lorsqu’on pourrait raisonnablement penser qu’il a un sentiment d’obligation envers vous – en tant que représentant de votre client ou employeur – en raison de cette relation étroite ou cette action.

Comme le terme « employeur » désigne une personne morale ou une organisation selon la définition fournie en annexe du Code de déontologie préliminaire, la section 7.2 interdit bel et bien à une université de ne jamais faire de lobbying auprès d’un fonctionnaire si elle peut raisonnablement penser qu’il a un sentiment d’obligation envers elle. La définition du terme « sentiment d’obligation » en annexe présente trois exemples, dont « avoir employé un fonctionnaire avant qu’il ne devienne fonctionnaire » et « avoir fourni des cadeaux fréquents ou de valeur au fonctionnaire avant qu’il ne devienne fonctionnaire ».

Il peut être possible pour une petite organisation de se conformer aisément aux règles associées à ces exemples, mais il est beaucoup plus complexe de le faire pour les organisations comme les universités canadiennes. En effet, de nombreuses grandes universités au Canada ont par exemple des effectifs de 30 000 à 90 000 étudiants2 et comptent des milliers de membres du personnel et du corps professoral.

Parmi les parlementaires en fonction en 2015, 227 députés détenaient un baccalauréat, 97, une maîtrise et 14, un doctorat3. Beaucoup d’entre eux peuvent avoir reçu une bourse d’études ou une subvention d’un établissement universitaire. Par ailleurs, les titulaires d’une charge publique désignée ayant été assistants à l’enseignement ou adjoints à la recherche pendant leurs études seraient considérés comme d’anciens employés de l’organisation. Les bourses d’études et les emplois dont ont profité les titulaires d’une charge publique désignée dans un établissement universitaire pendant leurs études, des années avant d’être élus dans bien des cas, ne devraient raisonnablement pas être pris en compte dans les critères visant à déterminer s’il y a un sentiment d’obligation envers l’établissement. Or, les exemples fournis à la définition de « sentiment d’obligation » laissent entendre qu’ils peuvent l’être. S’il n’établit pas de période limite ou de distinction particulière entre le rôle des universités et celui des nombreuses autres organisations dans la société à la section 7.2, le Commissariat au lobbying risque de faire du Code de déontologie des lobbyistes un obstacle aux échanges entre les universités et les titulaires d’une charge publique fédérale.

Recommandation : Établir une période limite pour les situations considérées comme créant un sentiment d’obligation, ou prévoir une exception pour que les bourses d’études et de recherche, les subventions, les postes d’assistant à l’enseignement ou d’adjoint à la recherche et les autres postes universitaires habituels n’empêchent pas les universités de faire du lobbying auprès des futurs fonctionnaires.

A. Summary: Loopholes and Commissioner’s Weak Enforcement Causing Most Problems with Lobbyists’ Code

As set out in Democracy Watch’s first submission and second submission, most of the problems with the Lobbyists’ Code of Conduct (the “Code”) that has been in place since December 1, 2015 exist because of huge loopholes in the Lobbying Act that allow for secret, unregistered lobbying and, as a result, also unethical lobbying as the Code does not apply to unregistered lobbying, and key loopholes in the ethics rules for federal public office holders that create loopholes in the application of the gifts and conflict of interest sections of the Code.

The other problems with the Code have, very unfortunately, been created by negligent and legally incorrect enforcement by new Commissioner of Lobbying Nancy Bélanger, including especially a failure to enforce the enforceable Principles in the current Code, and a failure to enforce key ethics Rule 6 in the current Code which prohibits any action or proposed action by a lobbyist that places an office holder in even an apparent conflict of interest. Commissioner Bélanger’s lack of enforcement very unfortunately continues the long history of negligently weak and secretive enforcement of the Code since it was enacted in 1997 by former Ethics Counsellor Howard Wilson, former Registrar of Lobbyists Michael Nelson, and former Registrar and Commissioner of Lobbying Karen Shepherd.

The current Lobbyists’ Code of Conduct can be viewed by clicking here, and the latest draft of the Commissioner of Lobbying’s proposed new Lobbyists’ Code that was posted on her website in May 2022 can be viewed by clicking here. The Commissioner’s initial December 2021 draft new Code can be viewed by clicking here, and the responses by stakeholders to that initial draft can be viewed by clicking here. The Commissioner’s initial December 2020 consultation document, and responses by stakeholders to it, can be viewed by clicking here.

The following is the list of changes needed to the latest draft of the Commissioner’s proposed new Code because the latest draft:

• will delete much-needed rules from the current Code or narrow existing rules, and;
• will also create loopholes that will allow for even more unethical lobbying and corrupt favour-trading than is currently allowed, including lobbying right after a lobbyist fundraises or campaigns for politician or party up to nearly full-time during a campaign or other time period.

B. Responses to the Commissioner’s Proposed new Lobbyists’ Code

1. Add anti-avoidance rule as Rule 1

As noted in its first and second submissions, an anti-avoidance rule exists in the current Code, as the current Principles are enforceable as the former Commissioner, Registrar and courts have ruled, and the current “Professionalism” Principle requires lobbyists to “conform fully with the letter and the spirit of the Lobbyists' Code of Conduct as well as with all relevant laws, including the Lobbying Act and its regulations.”

As in any law, an anti-avoidance rule is needed simply to prohibit anti-avoidance actions that are aimed at “legalizing” violations of the Code. As a result, a new Rule 1 should be added to the new Code, right at the top to remind lobbyists that there is no way to escape complying with the Code, and that there will be zero tolerance for violations of the Code. The new Rule 1 should be similarly worded as the current Professionalism Principle, or worded as a standard anti-avoidance clause is by prohibiting any action or arrangement that is designed to exploit technical or other gaps in the Code’s rules in order to violate the Code.

2. Re: Proposed Rule 1.1: Require disclosure to officials of apparent conflicts of interest

In order to fulfill the Objectives and “Respect for Government Institutions” Expectation set out in the proposed new Code that say no lobbying should ever take place when there is even the appearance of a conflict of interest, and in order to help ensure officials comply with their ethics rules, Rule 1.1 of the proposed new Code should be changed to add at the end the following additional requirement:

When you lobby, inform the official of your relationship with, or past political activities connected to, any other official who may be involved or may become involved in the decision-making process you are communicating in respect of, if the relationship and/or the political activities could reasonably be seen to create a sense of obligation or appearance of a conflict of interest on the part of the office holder.

3. Re: Proposed Rule 2.1: Ensure honesty prohibition applies to all communications by lobbyists

Add at the end of the Commissioner’s proposed new “Integrity and honesty” Rule 2.2, add the words “including in any communication technique as defined in clause 5(2)(j) of the Lobbying Act or advertising related in any way to a lobby effort or lobbying an official” to ensure that all lobbyists are clearly aware that they are prohibited from communicating false claims in any way to an official or to the public.

4. Re: Proposed Rule 2.2: Require disclosure of confidential information obtained to authorities

While it is good that the Commissioner has added Rule 2.2 to the latest draft of the proposed new Code, which is similar to current Code Rule 5, it is not enough to trust a lobbyist not to use or share confidential information provided by an official. And Rule 2.2 as currently drafted fully trusts the lobbyist as it establishes an unrealistic standard that relies entirely on the lobbyist’s honour not to act in a self-interested way after obtaining the secret information, especially given that no one will know that the lobbyist has the information except the official who provided it.

In order to ensure compliance with proposed Rule 2.2, and help ensure compliance with official’s obligations in their ethics rules not to give preferential treatment to anyone or any entity and not to share confidential government information, the following built-in compliance measures should be added at the end of Rule 2.2:

and the lobbyist shall not retain the information if it is in the form of a 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 or information to them.

5. Re: Proposed Rule 3: Only allow one low value gift to an official during a lobbying effort or, even better, ban all gifts

The simplest and most effective solution, given that testing of thousands of people around the world by psychologists has shown that even small gifts and favours influence decisions, is to ban all gifts from lobbyists to public office holders.

The other option is to set a very low limit for a gift that can be given by all the lobbyists involved in a lobbying effort to all the office holders involved in the decision that is targeted by the lobbying effort. Proposed Rule 3 of the new Code does not do this, as it still allows firms and organizations that employ dozens of lobbyists to give dozens of gifts annually (one gift worth $30 per lobbyist or employee per year) to each of the officials involved in a decision-making process.

To prevent this giving of multiple gifts that could amount to hundreds of dollars of gifts given to each official each year of a decision-making process, the following sentence must be added at the end of the Commissioner's new proposed Rule 3:

In total, only one thing of low value is permitted to be given during any 12-month period by all lobbyists at a lobbying firm, or by anyone involved in any lobbying effort, to all of the office holders (and their staff) involved in a decision targeted by the lobbying effort.

6. Re: Proposed Rule 4: Only allow one instance of low-value hospitality to an official during a lobbying effort or, even better, ban all hospitality

For the same reasons as set out above re: proposed Rule 3, the simplest and most effective solution is to ban all hospitality.

If low-level hospitality is allowed, only one instance should be allowed each year in total by all lobbyists at a firm or all lobbyists involved in a lobbying effort. To prevent this multiple hospitality events that could amount to hundreds of dollars of wining and dining of each official each year of a decision-making process, the following sentence must be added at the end of the Commissioner's new proposed Rule 4:

In total, only one instance of hospitality of low value is permitted to be given during any 12-month period by all lobbyists at a lobbying firm, or by anyone involved in any lobbying effort, to all of the office holders (and their staff) involved in a decision targeted by the lobbying effort.

7. Re: Proposed Rule 5: Do not dilute the definition of “close relationship” any further

The current definition of “close relationship” in the Appendix should not be diluted any further than it has been in the latest draft of the Code compared to the initial draft of the proposed new Code.

8. Re: Proposed Rule 6: Add “a real apparent conflict of interest” to the Rule

As set out in the joint letter submitted to the Commissioner by Democracy Watch and 13 other organizations with total supporters of more than one million Canadians, proposed Rule 6 must be changed by adding the words “or a real or apparent conflict of interest” after the words “sense of obligation” to make Rule 6 consistent with the statements in the Objectives and the “Respect for Government Institutions” Expectation in the proposed new Code, both of which clearly prohibit lobbying when a real or apparent conflict of interest exists.

9. Re: Proposed Rule 6: Add “or their party” to the Rule

The words “or, if they are an elected official, their political party” should be added after the words “for the benefit of the official” to make it more clear that assisting a party creates an appearance of the conflict of interest and sense of obligation on the part of everyone elected under the party banner. Research clearly shows that assisting a party’s central campaign is a major assistance to every candidate, and that few voters vote based on who the local candidate is.

10. Re: Proposed Rule 6: Add “even before you registered as a lobbyist” to the Rule

The cooling-off periods should clearly apply to lobbyists who were not registered lobbyists under the Lobbying Act when they undertook the political activities. If this is not the case, it creates a huge loophole in the Code that will allow for unethical lobbying.

As a result, the words “even before you registered as a lobbyist” must be added to proposed Rule 6 after the words “you have done for the benefit of the official”.

This clarification is needed because Commissioner Bélanger ruled incorrectly in her Bergen and O’Born rulings that some of their political activities were not covered by current Rule 9 because they did those activities before they registered as lobbyists. Even though all of their activities were still taken into account under current Rule 6, it makes no sense to have a gap between the application of Rule 6 and the application of Rule 9 to a lobbyist’s activities. See subsection B.3(e) in Democracy Watch’s second submission for more details about this loophole.

11. Re: Proposed Rule 6: Do not allow reductions in the cooling-off periods

As set out in the joint letter submitted to the Commissioner by Democracy Watch and 12 other organizations with total supporters of more than one million Canadians, proposed Rule 6 must be changed to remove the power of the Commissioner to grant exemptions to the cooling-off periods.

12. Re: Proposed Rule 6 Appendix definitions: Increase the cooling-off period to 10 years, except for occasional canvassing or volunteering

As set out in the joint letter submitted to the Commissioner by Democracy Watch and 12 other organizations with total supporters of more than one million Canadians, the cooling-off periods for the activities listed in the definitions of “political work” and “other political work” in the Appendix of the latest draft of the proposed new Code should be extended to 10 years, not reduced (as the draft proposes) to no time or one or two years.

The definitions of “political work” and “cooling-off periods” set out in the "Political Work" in the Appendix essentially say that a person only has a two-year cooling-off period from lobbying after essentially being a senior campaign official and/or organizing fundraising efforts and/or developing or coordinating political research (including polling), data analysis, messaging or advertising and/or organizing campaign, candidate or party event.

The definition of “other political work” and “cooling-off periods” set out in the "Political Work" in the Appendix essentially say that a person only has a one-year cooling-off period from lobbying after essentially being less than a nearly full-time assistant campaign official, office manager, researcher, pollster or event organizer and/or campaigning through distributing campaign materials and/or fundraising through soliciting donations (known as a "bundler" in the U.S.) and/or canvassing up to nearly full time.

The definition of “other political work” also essentially says, incredibly, that if a person does any of those activities anything less than nearly full-time, or without frequent contact with the candidate or party official, then they won’t have any cooling-off period from lobbying.

These proposed no time, one- and two-year cooling-off periods will allow for rampant unethical lobbying and corrupt favour-trading, as lobbyists fundraise and campaign for politicians and parties full-time or up to nearly full-time, and then cash in on their favours right after, or soon after, they have done these huge favours.

Another important point is that the federal Conflict of Interest Act (which applies to Cabinet ministers, their staff, Cabinet appointees and top government officials) and the Conflict of Interest Code for Members of the House of Commons (which applies to MPs) both prohibit taking part in a decision-making process if it will "improperly further the interests of another person or entity." This is a key, overriding ethics rule for Cabinet ministers, their staff and MPs. But if the cooling-off periods are gutted to allow lobbying right after, or 1-2 years after, a lobbyist fundraises or campaigns in a significant way for a politician or party, it will then make it "proper" for the politician (Cabinet minister or MP) and their staff to take part in decisions that affect the lobbyist and the lobbyist's clients or organization.

In other words, gutting key ethics rules for lobbyists will also gut key ethics rules for Cabinet ministers, their staff, and top government officials, and for MPs.

The Guidance document on current Code Rule 9 (re: Political Activities) that was issued by former Commissioner Karen Shepherd in summer 2016 (after the current Code came into force in December 2015) is still available through the Internet Archive site at: https://web.archive.org/web/20160815213919/https://lobbycanada.gc.ca/eic/site/012.nsf/eng/01182.html/ states clearly that Commissioner Shepherd required a cooling-off period of five years after political activities like those listed in the proposed new Code’s definitions of “political work” and “other political work.” As Commissioner Shepherd’s Guidance document says under the heading “The risk diminishes over time”:

When a lobbyist has carried out political activities that pose a risk of creating a sense of obligation, the Commissioner is of the view that five years is a sufficient period of time to wait before lobbying the public office holder and/or his or her staff, in order to avoid creating a conflict of interest for that public office holder. [emphasis added]

This is not to say that Commissioner Shepherd made a strong case for a five-year cooling-off period. Likely it was simply based on the five-year period set out in section 10.11 of the Lobbying Act during which, after they leave office, a former public office holder is prohibited from being a registered lobbyist.

The length of the time period should be based on an actual assessment of the depth of the sense of obligation someone would feel to someone who helps them obtain a very well-paying job (as the salaries of MPs are in the top five percent salaries of all jobs in Canada, and a Cabinet minister’s salary is in the top one percent), as that is what people who help federal candidates win elections are doing. And when someone helps a party leader and the party win the election, they are also helping that person obtain an enormous amount of power.

Again, as with proposed new Rule 3 (gifts) and 4 (hospitality) discussed in above, this assessment must take into account the fact that testing of thousands of people around the world by psychologists has shown that even small gifts and favours influence decisions. Helping someone win a very well-paying job is a huge favour that results in a lot of influence. Why would a politician’s sense of obligation to someone who helps them win election ever disappear while they remain a politician? They arguably owe that person for their entire career, especially if they happen to be in a “safe” electoral district in which the party they represent has always won elections. In that situation, anyone who helped them win their first election helped them obtain a very well-paying job for the rest of their life.

Based on these factors, and others, former Commissioner Shepherd was at least heading in the correct direction by establishing a minimum five-year cooling-off period for all political activities. In contrast, Commissioner Bélanger’s proposal to reduce the cooling-off periods to none, one to two years for the same political activities blatantly contradicts current Rule 6 in the current Code, and the proposed new Objectives and Expectations sections, and proposed Rules 5, 7.1 and 7.2, in the proposed new Code, all of which strictly prohibit lobbying when there is even an appearance of a conflict of interest. New Rule 6 also blatantly contradicts proposed new Rules 3 and 4 that prohibit lobbyists giving gifts or hospitality to politicians, government officials and other office holders worth more than $30 annually. New Rule 6 also blatantly contradicts section 10.11 of the Lobbying Act, which prohibits Cabinet ministers, their staff, Cabinet appointees and MPs from lobbying the federal government for 5 years after they leave their position.

Instead, an even longer cooling-off period of 10 years should be established for anyone doing any of the activities listed in the definition of “political work” or “other political work” in the Appendix of the proposed new Code, even if the activity is done just with the knowledge of the candidate or official (frequent contact should not be required). Even better, a cooling-off period after these activities should be imposed lasting for the entire time period the politician or official is in office, as politicians continue to owe those who help them win an election for their entire political career.

13. Re: Proposed Rule 6 Appendix definitions: Create new cooling-off period of 5 years for lower-level political activities

As set out in the joint letter submitted to the Commissioner by Democracy Watch and 12 other organizations with total supporters of more than one million Canadians, and for all the reasons set out above in section 12, in the Appendix of the latest draft of the proposed new Code a new category of “low-level political work” should be created (i.e. part-time or occasional canvassing, campaigning, fundraising, research, data analysis, polling or event organizing) for which the cooling-off period is 5 years. To be clear, frequent contact with the candidate or party official should not be required in this category of political work for the cooling-off period to apply. If you do these activities, you should automatically be prohibited from lobbying for 5 years.

14. Re: Proposed Rule 6 Appendix definitions: Add canvassing or volunteering a couple of times to list of no cooling-off period activities

As set out in the joint letter submitted to the Commissioner by Democracy Watch and 12 other organizations with total supporters of more than one million Canadians, and for all the reasons set out above in section 12, and to allow lobbyists to participate in campaigns at a very low level, the words “canvassing or volunteering a couple of times during a campaign period” should be added to the list of political activities at the end of “Political work” section of the Appendix, as these are (like the other activities listed) activities that many voters do and are, therefore, activities that can be done without having to sit out from lobbying for any time period.

15. Re: Rule 6 and definition of political work: Going to multiple events should require a cooling-off period of 5 years

In the Commissioner’s proposed new list of exempt political work "simply attending a fundraising or campaign event" should be changed to "simply attending a fundraising or campaign event once or twice during any 12-month period.” Frequently attending those events amounts to a favour for any politician or candidate, and offers an opportunity to lobby the candidate or politician and/or their assistants. As a result, attending multiple events during one year should require sitting out from lobbying the politician, their staff or party officials for 5 years.

16. Re: Proposed Rule 7.1: Ensure that creating even an apparent conflict of interest continues to be prohibited

As set out above in section 8, to stop the Commissioner from gutting the current Rule 6 in the current Code that prohibits lobbying anyone when there is any type of appearance of a conflict of interest, change the Commissioner's proposed new Rule 7.1 to read:

Never lobby an official when actions or decisions you have taken or propose to take create a real or apparent conflict of interest or sense of obligation for the official.

Even better, reject proposed new Rule 7.1 and just keep existing Rule 6 from the current Code in the new Code. The Commissioner’s proposed new Rule 7.1 is an attempt to narrow the scope of the Code’s current conflict of interest rule (Rule 6), and escape from the binding unanimous 2009 ruling of the Federal Court of Appeal in the case Democracy Watch v. Campbell, which defined the scope of former Rule 8 (now Rule 6) on the basis of its interpretation and application of the phrase “conflict of interest”.

Proposed new Rule 7.1 also directly contradicts the Objectives and Expectations sections of the proposed new Code, both of which state that preventing lobbying when there is an “apparent conflict of interest” is key (neither include the phrase “sense of obligation”).

Proposed Rule 7.1 is also an attempt by the Commissioner to escape the binding rulings on Rule 6 (and Rule 9) that will very likely be issued by the Federal Court in the ongoing consolidated judicial review applications Democracy Watch v. Canada (Attorney General) concerning two rulings of the Commissioner issued in spring 2020 that interpreted and applied Rules 6 and 9.

If Rule 7.1 is approved in the form proposed by the Commissioner, these court rulings would not apply to it, and the Commissioner would be free once again to ignore or misapply the new rule in future situations that are investigated, until the courts rule (likely years from now) on the Commissioner’s new interpretation of new Rule 7.1. This would set back effective enforcement of the conflict of interest rule in the Code for years (not that it has ever been effectively enforced in the past, as every official who has enforced the rule since the Code was enacted in 1997 has tried to ignore the rule). See subsections B.(c)(i) and C.5 of Democracy Watch’s second submission for more details.

17. Re: Several Proposed New Rules: Ensure that lobbyists are prohibited from lobbying everyone who serves under any official with whom they have an apparent conflict of interest

The current wording of Rules 7 and 8, and several of the proposed rules in the Code, allow for gifts, hospitality to be given to the staff and Parliamentary Secretary of a Cabinet minister, and staff of MPs and Senators and top government officials, and lobbying of all these people even when the lobbyist has an apparent conflict of interest with the minister, MP, Senator or official.

This creates a charade that could be interpreted as allowing for unethical lobbying (although all the rules should be interpreted as encompassing any lobbying of anyone who works for an official). Proposed new Rule 6 does not allow this lobbying of staff and others who work under the authority of the official who has the conflict of interest, so to be consistent, and to close this huge loophole, add to existing Rule 7 in the current Code or, if the Commissioner's proposed new Code is enacted, add to proposed new Rules 3, 4, 5, 7.1 and 7.2, a second sentence that says:

The words "an official" in this rule means the official and any "associate" of the official as defined in the Appendix.

As well, the definition of "associate" should be moved into the list of general definitions and changed to include:

for a Minister, anyone in any government institution or department when the lobbying is about any decision or action for which the Minister has decision-making authority, unless the Minister has recused themselves publicly and publicly delegated their decision-making authority entirely to someone who is fully independent of the Minister and not under their control in any way, directly or indirectly.

In addition, the following should be added to the definition of "associate":

for any government appointee or employee, anyone who works for them when the lobbying is about any decision or action for which the official has decision-making authority, unless they have recused themselves publicly and publicly delegated their decision-making authority entirely to someone who is independent of them and not under their control in any way, directly or indirectly.

Finally, the following should also be added to the definition of "associate":

In relation to members of the Senate of Canada, their staff but not their fellow Senators.

All of these changes are needed to prevent Rules 3, 4, 5, 6, 7.1 and 7.2 from being a charade that allows for unethical lobbying. First, the current definition of associate means these rules don’t even apply to Senate staff, which is a negligent omission by the Commissioner. Secondly, as currently drafted, these rules would allow lobbyists to lobby department officials of every Cabinet minister, right up to the Deputy Minister and Assistant Deputy Minister, even when they have a relationship with the minister that causes a conflict of interest.

Given that department officials regularly communicate the concerns and proposals of lobbyists to their minister’s office, every lobbyist would be legally allowed to lobby those officials even though they would, in effect, be lobbying the minister. This would essentially void the prohibition on lobbying a minister when the minister has a sense of obligation to you. In other words, it would gut Rules 3, 4, 5, 7.1 and 7.2 of the proposed Code.

C. Conclusion

As set out in section B of Democracy Watch’s second submission, 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.

It is an option for the House of Commons Standing Committee on Access to Information, Privacy and Ethics to instead adopt the Commissioner’s proposed new Code. However, if the new Code is adopted without the changes set out above in section B, key rules of the existing Code will be removed, and new loopholes will be created, and that will result in even more unethical lobbying and corrupt favour-trading being allowed than is currently allowed.

In any case, to make these wording changes to the existing Code, or the Commissioner’s proposed new Code, actually effective, as set out above in section A, loopholes must be closed in the Lobbying Act so that the Code applies to all lobbying activities. The only exception to registering lobbying communications in the Registry should be when someone signs a mass email letter appeal that an individual or organization has set up (as the individual or organization will be required to register that lobbying effort). Loopholes must also be closed and in MP and Senator ethics codes to prohibit unethical lobbying tactics, most specifically gifts like sponsored travel. A summary of the key changes needed to the MP Code as proposed by Democracy Watch and the Government Ethics Coalition can be seen by clicking here.

As well, Commissioner of Lobbying Nancy Bélanger must stop enforcing the Lobbyists’ Code in the usual negligent and secretive weak way it has been enforced since it was enacted in 1997. The Commissioner must take into account the Code’s purpose of ensuring ethical lobbying so public confidence in the integrity of government is enhanced, and must also take into account the Code’s strong Principles.

If Commissioner Bélanger does not strengthen her enforcement approach, even if the all of the loopholes in the proposed new Code were closed, illegal, secret, unethical and dishonest lobbying of Cabinet ministers, their staff and appointees, MPs and senators and their staff, and federal government employees will continue to be allowed, and will continue to undermine and corrupt many federal policy-making processes.

We, the undersigned 14 organizations with supporters totalling more than 1 million Canadians, and the undersigned 2 individuals, oppose your proposed new Rule 6 in the Lobbyists' Code of Conduct, and most specifically the 1- to 2-year "cooling-off periods" and lists of political activities that Rule 6 refers to that are set out in the Appendix of your proposed new Code, and also the possibility in Rule 6 that you could grant a further reduction of the cooling-off periods.

Your proposed new Rule 6 blatantly contradicts current Rule 6 in the current Code, and the proposed new Objectives and Expectations sections, and proposed Rules 5, 7.1 and 7.2, in the proposed new Code, all of which strictly prohibit lobbying when there is even an appearance of a conflict of interest. New Rule 6 also blatantly contradicts proposed new Rules 3 and 4 that prohibit lobbyists giving gifts or hospitality to politicians, government officials and other office holders worth more than $30 annually. New Rule 6 also blatantly contradicts section 10.11 of the Lobbying Act, which prohibits Cabinet ministers, their staff, Cabinet appointees and MPs from lobbying the federal government for 5 years after they leave their position.

If, to have ethical lobbying, lobbyists need to be stopped from giving gifts or hospitality worth more than $30 annually, and stopped from lobbying anytime there is an apparent conflict of interest, and stopped from lobbying for 5 years after they leave public office, they also need to be stopped from raising money and campaigning for politicians and parties and then lobbying them only 1 to 2 years later.

Doing any fundraising or campaigning for a politician or their party is a significant favour that creates an appearance of a conflict of interest that lasts for several years, and arguably for the entire time the politician remains in politics. Clinical testing by leading psychologists such as Robert Cialdini over several years has shown clearly that doing favours for someone creates a powerful sense of obligation to return the favour that lasts for years.

For example, Prime Minister Trudeau and any of his Cabinet ministers and MPs who were first elected in 2015 clearly still owe the people who fundraised or campaigned for them in any way to help them first win power, as does every other party leader and MP still owe everyone who first helped them win election. They wouldn't have the pay, perks or power they have today if they had not won that first election.

As a result, we call on you to:

1. Delete proposed new Rule 7.1 from the proposed new Lobbyists' Code and replace it with current Rule 6 in the current Code, which prohibits a lobbyist from doing or proposing to do anything that places a public office holder in a real or apparent conflict of interest;
2. With regard to proposed new Rule 6 in the proposed new Code, in the Appendix increase the proposed cooling-off periods for high-level "political work" (i.e. being a senior campaign official and/or organizing fundraising efforts and/or developing or coordinating political research (including polling), data analysis, messaging or advertising and/or organizing campaign, candidate or party events) and for “other political work” (i.e. being a part-time or almost near full-time assistant campaign official, campaign office manager, researcher, pollster or event organizer and/or campaigning through distributing campaign materials and/or fundraising through soliciting donations and/or canvassing nearly full-time) from your proposed 1-2 years to 10 years;
3. Create a new category of “low-level political work” (i.e. part-time or occasional canvassing, campaigning, fundraising, research, data analysis, polling or event organizing) for which the cooling-off period is 5 years;
4. Add “canvassing or volunteering a couple of times during a campaign period” to the list of activities at the end of Appendix section on “political work” – activities that many voters do and, therefore, activities that can be done without having to sit out from lobbying for any time period;
5. Remove the requirement that the "other political work" activities have to be done full-time with frequent interaction with the candidate or official, as any of the listed activities done even once (other than canvassing a couple of times) with the candidate or official just knowing about it is enough to create an apparent conflict of interest that lasts for years, and;
6. Remove from the new Code Rule 6 the possibility of the Commissioner granting any reduction of these cooling-off periods.

If you do not make the above changes to your proposed new Code, you will be gutting current Rule 6 in the current Code, and the current cooling-off periods of 5 years, and you will allow for rampant, corrupt favour-trading in federal politics. You will also make it legal for federal Cabinet ministers and MPs to make decisions under the Conflict of Interest Act and Conflict of Interest Code for Members of the House of Commons that help the lobbyists (and their clients) who fundraised or campaigned for them because their relationship with those lobbyists will no longer be "improper" given it will be legalized under your proposed new Rule 6 of the Code.

The above listed changes are needed to clearly prohibit anyone who fundraises or campaigns in any substantial way for a politician or party from lobbying the politician or top party politicians and officials until at least 5 years later and, for top-level fundraising and campaigning, 10 years later.

Please do the right thing by making the above changes to your proposed new Code. You have said several times since you took office in January 2018 that you are dedicated to ensuring transparent, ethical lobbying. Your proposed new Code will instead increase the level of unethical lobbying exponentially.

We are leaders of Canadian environmental not-for-profits and are concerned about several elements of the consultation that is closing today on proposed changes to the Rules contained in the Lobbyists’ Code of Conduct (the Code).

Political work

Our main substantive concern with the changes relates to proposed new Rule 6, “Political work” and specifically, how “cooling-off periods” will be required and determined.

At a time when civic engagement, including engagement in election campaigns, is declining in Canada, we are concerned that new Rule 6 will impose an additional chill against participation in our democratic process. We should be encouraging participation in our electoral process, and not creating rules that discourage participation.

Moreover, using the examples proposed in the consultation, where an employee of a non-profit or charitable group (like the ones we lead) 1. serves in a senior position in a leadership or political campaign, or 2. interacts frequently (by canvassing, performing political research, or carrying out campaign logistics) for the benefit of a candidate or official, and that ultimately successful candidate might conceivably owe a “sense of obligation”3 to our employee, your proposed rule would require a 2- year or 1-year “cooling-off period,” respectively, before the employee is allowed to lobby that official or their associates.

Many of our employees are engaged citizens who choose to spend some of their volunteer hours supporting local candidates who support the issues they care about. The idea that a person who, by your examples, even volunteers on a campaign will, quite simply, increase an already significant chill on political participation.

Moreover, the proposed process whereby the Commissioner of Lobbying “may reduce the cooling off period,” while seemingly based on sound principles, may have the effect of further increasing the chill because of the time and administrative burden it will impose (particularly on smaller organizations with limited staff and resources) to know with confidence when they might return to their duties post-election.

Hierarchy of rules

The consultation appears to have been conducted in relation to an area that is under your jurisdiction, namely the rules in the Code, but without any explicit reference to how the Lobbying Act and regulations that ostensibly govern the Code, let alone the guidance and interpretation you have issued, might be affected by the proposals.

Process, and why it matters

Conducting consultations properly and well is fraught at the best of times. Engagement of the public is increasingly being conducted on-line, at the expense of the clear benefits of in-person engagement where texture, context, and other factors can serve to increase mutual understanding and result in better law and policy. This pattern has intensified during the pandemic.

This “final” round of consultations on the rules in the Code has caught us by surprise, and we feel that better engagement is in order before any changes are made. We ask that a true consultation process be initiated, one that brings a spirit of conversation, ensuring that different views can be better understood, distinctions made, and where ideas can be built upon rather than siloed in online submissions.

Private interest vs public interest lobbying

Deeper engagement will allow better interrogation of the differences in types of organizations that lobby, and their purposes. Private interest, for-profit lobbying is very different than charitable purpose lobbying for public interest purposes other than mere profit. The rules should reflect that distinction better and as a result, better serve the “expectations” of the system that you have proposed for the regime, namely transparency, respect for government institutions, and integrity and honesty. Transparency under the regime, for example, could be strengthened: not only should “officials understand the purpose of the lobbying and on whose behalf it is carried out,”4 officials and the public should also know better what is being discussed at meetings. The current requirements do little to ensure that.

We would welcome follow up on either of these issues if you would like to discuss them further.

Hello,

I am calling on governments across Canada to end secret, unethical lobbying by implementing the following measures which are supported by the Government Ethics Coalition, made up of 32 citizen groups from across Canada representing over 3 million Canadians:

1. Pass a law requiring that all government institutions consult with the public before making any significant decision, including providing at least 60 days for the public to make a submission to the government, consulting with experts, and undertaking study circles or citizen assembly processes, with results of all consultations reported publicly, so that the influence of lobbyists is decreased;

Specific measures needed to prevent, as the federal Commissioner of Lobbying is proposing, changes to the federal Lobbyists’ Code of Conduct that will allow for even more unethical lobbying (if the Commissioner does not make these changes, the House of Commons Ethics Committee must make these changes when it reviews the Commissioner’s proposed Code and, to make secret, secretly bankrolled, unethical and dishonest lobbying finally illegal, the Committee must also recommend all the other changes listed below when it reviews the federal Lobbying Act this year (as it is required to do by the Act))”

1. Do not delete existing Rule 5 from the Code (which the Commissioner is proposing to do) because a rule is needed to prohibit lobbyists from using or disclosing documents that are leaked to them.
2. Add at the end of the Commissioner’s proposed new Rule 2 the words “or in any public communications or advertising related to a lobby effort or lobbying an official” to ensure that all lobbyists are prohibited from communicating misinformation in any way.
3. Add at end of the Commissioner’s new proposed Rule 3 (Gifts) and Rule 4 (Hospitality) a sentence that makes it clear that only one thing of low value is permitted to be given to any office holder and their staff during any 12-month period by all lobbyists at a lobbying firm combined, or by everyone involved in any lobbying effort combined.” Or, even better, simply ban all gifts and hospitality from lobbyists to any public office holder.
4. Add at the end of the definition of “lobby or lobbying” in the Appendix a note specifying that the definition includes “arranging a meeting between a public office holder and any other person, including a meeting by phone, email, Internet or any other communication method.”
5. To stop the Commissioner from gutting the existing Rule 6 that prohibits lobbying anyone when there is any type of appearance of a conflict of interest, change the Commissioner’s proposed new Rule 7 to read: “Never lobby an official when actions or decisions you have taken or propose to take create a real or apparent conflict of interest for the official.” Even better, reject proposed new Rule 7 and just keep existing Rule 6 in the Code.
6. Add to existing Rule 7 in the Code, and to the Commissioner’s proposed Rules 3, 4, 5 and 7, a second sentence that says: “The words “an official” in this rule mean the official and any associate, employee or person who reports to the official when the lobbying is about any decision or action for which the official has decision-making authority, unless the official has recused themselves and delegated their authority entirely to someone who is fully independent of them and not under their control in any way, directly or indirectly.
7. Reject the Commissioner’s proposal to shorten (in the definition of “Political Work” in the Appendix) the “cooling-off” periods during which a lobbyist is prohibited from lobbying someone they have fundraised for, volunteered for or done other any other favours for because the conflict of interest caused by those actions lasts in many cases for the rest of the politician’s or public official’s career, and at least lasts for 5 years (and 10 years for significant political activities — much longer that 1-2 years that the Commissioner proposes). And remove the proposal that would allow the Commissioner to reduce the cooling-off period.
8. In the Commissioner’s proposed definition of “political work” move “performing strictly administrative tasks…” and all five actions listed under “other political work” into the category “significant political work” because all six of these actions are significant favours that make a candidate or politician owe the person who is doing the favour for them at least for 5 years, if not longer.

Ensure lobbying activities are tracked and the undue influence of lobbyists is restricted by ensuring that the lobbying law:

1. Requires Ministers, their staff, and everyone working in a party caucus office or party office who passes on information or suggestions to politicians concerning their decisions, Cabinet appointees and other senior government officials, members of the legislature and senators and all their staff, and everyone working in a party caucus office or party office who passes on information or suggestions to politicians concerning their decisions, to disclose all their contacts in an online, searchable database with anyone who communicates with them in any way about their decisions;
2. After each election, require disclosure to the Commissioner of Lobbying by political parties and MPs of the list of people who worked or volunteered for them in their election campaign, and also require parties to disclose their staff, advisors, consultants and volunteers, and MPs to disclose who works or volunteers for their riding association, and Senators to disclose anyone who volunteers for them (with volunteering defined as helping out for a more than a few hours during the campaign or in between elections, given this amounts to a donation or favour to the politician or party that many voters cannot afford to make).
3. Require MPs and government officials to put into the lobbying registry monthly the total number of emails, phone calls, texts, faxes and letters they receive from voters concerning any policy-making decision, categorized by information that identifies the policy subject (the bill number, subject of the bill, tax, subsidy or government program) and how many voters were for or against the proposed decision.
4. If politicians and public officials are not required to disclose who communicates with them in any way about their decisions, then anyone who communicates with them must be required to register and disclose all their communications, not matter how much time the communications take, and whether or not they are paid or volunteer (the only exception should be that a voter sending a mass letter or email as part of an organization’s lobbying effort should not be required to register, instead the organization should be required to register);
5. Requires lobbyists to disclose how much they and their clients are spending on each campaign (as required in 33 U.S. states);
6. Requires lobbyists and lobby groups to disclose to the lobbying commissioner a list of who funds them, including funding from any government, and funding or donations from anyone or any organization of any kind from anywhere in the world that has given them more than $200 in funding in the past two years, and requires them to disclose in the lobbying registry the percentage of their total funding received from individuals, foundations, businesses, other organizations and government for each other country from which they receive funding, in order to reveal who is bankrolling any lobbying effort;
7. Requires lobbyists and lobby groups to disclose the identity of any individual or group they are working with in any way on each lobbying effort, especially leading up to elections, in order to reveal whether lobbying groups are colluding to avoid disclosing their lobbying or to exceed spending limits;
8. Requires lobbyists to disclose past work with political parties, election candidates and governments and government institutions;
9. Prohibits lobbyists from knowingly misrepresenting facts, omitting important details or presenting information that is misleading or false when they lobby officials, or in grassroots lobbying appeals to the public, or in any public communications or advertising related to a lobby effort or lobbying an official;
10. Prohibits lobbyists putting any politician or public official in even an appearance of a conflict of interest (as prohibited by the federal Lobbyists’ Code of Conduct), including by fundraising or doing any other favours;
11. Prohibits lobbyists from giving any gift to any politician or public official because independent psychological tests worldwide have shown that even small gifts have influence over decisions;
12. Prohibits everyone, especially lobbyists, from donating more than an average voter can afford (which, generally across Canada, is no more than $75 annually);
13. Requires anyone, whether or not they are lobbying, and whether or not they are paid, to register in the lobbying registry if they are representing in any way a foreign government or political organization, or any entity owned or controlled (directly or indirectly) by a foreign government or political organization, including through involvement in public relations or communications or political activities, and what the objectives of the government or entity are in Canada.
14. Prohibits lobbyists from doing work for government departments (such as providing advice on communications) and from having any business connections with anyone who does such work, and;
15. Eliminate the corporate tax deduction for lobbying expenses.

And ensure lobbying laws/codes/rules are effectively enforced by:

1. Ensuring a “whistleblower” protection law exists that gives anyone the right to reports a violation of any law, policy, code, guideline etc. to a fully independent integrity commissioner who has the power and resources to fully investigate complaints, and to protect all whistleblowers from retaliation and to compensate them fully if they suffer retaliation;
2. As Quebec has for appointing provincial court judges, create an independent commission to conduct open, merit-based searches for Cabinet appointments, and to require the Cabinet to choose from a short list of candidates the commission proposes, and require approval from opposition party leaders of the appointment of all commissioners that enforce lobbying laws;
3. Appoint all lobbying commissioners for fixed, multi-year, non-renewable terms with full independence and investigative powers;
4. Requiring all lobbying commissioners to conduct regular, unannounced audits of the activities of the people who are covered by the law they enforce, to ensure everyone is complying with the rules;
5. Requiring all lobbying commissioners to review complaints filed by the public, and rule publicly on every complaint;
6. Requiring all lobbying commissioners to issue a ruling every time they give advice to anyone on how the law/code rules apply to specific situations;
7. Allowing complainants to go to court if the lobbying commissioner delays an investigation an unreasonable length of time, or makes any legal or factual error in a ruling; and
8. Increase the maximum penalties for violations of any lobbying law or code to at least match the current penalties for violating the federal Lobbying Act (ie. $50,000 to $200,000 fines and jail terms of 6 months to 2 years), and preferably make them even stronger given how much lobbyists are paid, including loss of any severance payment, and a partial clawback of any pension payments, and require the enforcement agency/commissioner to impose a mandatory minimum fine of at least $10,000 for every violation, to ensure that any lobbyist who violates a rule is penalized.

Please let me know what you will do to ensure that these changes are made as soon as possible. I will be deciding which political party to vote for in the next election based on the responses I receive from representatives in each party. I look forward to hearing from you.

Sincerely,
[name]
[postal code]

Appui total au projet proposé de code de déontologie des lobbyistes.

I just want to lend my support for these proposed changes. They will bring a new level of clarity and transparency to the code.

Thank you for the opportunity to provide commentary on the draft update of the Lobbyist’s Code of Conduct.

The Canadian Hatching Egg Producers (CHEP) represent 240 producers from British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, and Quebec. CHEP farmers produce fertilized broiler hatching eggs to meet the needs of the chicken industry that contributes to a steady supply of safe, high quality and nutritious chicken to Canadian consumers and the food service industry.

CHEP representatives and farmers require the opportunity to meet with federal officials on various issues of concern. These representatives and farmers have always followed a transparent and ethical fashion of advocacy. To continue this practice, I would like to draw your attention to the following issues within the draft code.

Rule 5: This regulation poses an issue because consultant lobbyists in small communities often share similar work, interests, and activities with those who hold public office. Designated Public Office Holders and lobbyists could share files and portfolios, making it nearly impossible to avoid working together. Parliamentarians want to meet with their constituents. With a small base of farmers that our organization represents, in some cases it may prove impossible to find someone with no similar work, interest or activities as the individual in public office.

Rule 6: This regulation poses an issue because it would require a consultant lobbyist who has participated in “other political work” like elections, to have a cooling off period expire before being permitted to interact with a candidate that he or she might not have even met before. The current interpretation may be justified, but this proposed change is likely too restrictive and could limit the ability for individuals to engage in basic supporting efforts during general elections for activities that do not risk conflict of interests.

Thank you very much for the opportunity to submit these concerns. Please be sure to take them into account when making your final decisions with regards to establishing the updated version of the Lobbyist Code of Conduct.

We welcome this opportunity to comment on proposed changes to the Lobbyists’ Code of Conduct (the “Code”). As you know, we are the co-lead of the Blakes Public Sector Crisis & Compliance practice and often advise private sector clients on the legal complexities of communicating and interacting with governments, including in both compliance and investigation matters under the Lobbying Act.

The comments below are based on our preliminary review of the draft Code and are rooted in our considerable day-to-day practical experience in assisting clients who wish to communicate with the Government of Canada. We hope they are of assistance to you.

As is set out below, while we welcome a number of the proposed changes in approach in the draft Code, we have concerns about some of the proposed changes and would suggest that further study and revisions are required prior to implementation.

We make these submissions in our personal capacity and not on behalf of our firm or its clients.

Gifting

In respect of gifting, the changes to the Code helpfully increase certainty. The $30 threshold on gifts and hospitality provides helpful clarity and certainty for lobbyists. However, it could benefit from increased clarity on certain points, as noted below. It is also a fairly limiting cost level. Even a modest working dinner could easily exceed this per head price point, and particularly given current inflationary pressures, the Commissioner might consider a slightly more flexible $50 threshold (in 2022 dollars) to begin.

Background

The proposed new rule provides as follows:

3. Never offer, promise or provide – directly or indirectly – any gift to an official that you lobby or expect to lobby, other than a low-value token of appreciation or promotional item.
4. Never offer – directly or indirectly – hospitality to an official that you lobby or expect to lobby, other than low value food or beverage for consumption during an in-person meeting, event or reception

“Low value” is set at approximately $30 in 2022 dollars.

The federal gifting and hospitality regime can be contradictory and confusing, even for public officials:

• Members of Parliament are subject to the Conflict of Interest Code for Members of the House of Commons, which has a disclosure threshold for gifts over $200, a forfeiture threshold for gifts over $1,000, and a rule that a Member may not accept “any gift or other benefit… that might reasonably be seen to have been given to influence the member in the exercise of a duty or function of his or her office.” There is an exception for gifts or other benefits received as a normal expression of courtesy or protocol, or within the customary standards of hospitality that normally accompany the member’s position.
• For government officials, including political staff, Ministers, parliamentary secretaries and governor in council appointees, the Conflict of Interest Act has a $1,000 forfeiture threshold, and prohibits accepting any gift or other advantage, including from a trust, that might reasonably be seen to have been given to influence the public office holder in the exercise of an official power, duty or function. There is an exception for benefits permitted under the Canada Elections Act; given by a relative or friend; or received as a normal expression of courtesy or protocol.
• For other civil servants, the Values and Ethics Code for the Public Sector provides a fairly vague rule that a civil servant will never use their official roles to inappropriately obtain an advantage for themselves, and will take all possible steps to prevent and resolve any real, apparent or potential conflicts of interest between their official responsibilities and their private affairs in favour of the public interest.
• For those dealing with government, the current Code provides that a lobbyist shall not provide or promise a gift, favour, or other benefit to a public office holder, whom they are lobbying or will lobby, which the public office holder is not allowed to accept.

Suggestions

Given the following background, we offer the following comments:

1. Value: $30 for a working meal is a fairly limiting cost level. Even a modest working dinner could easily exceed this per head price point, and particularly given current inflationary pressures, the Commissioner might consider a slightly more flexible $50 threshold (in 2022 dollars) to begin.
2. Election Contributions: Only the Conflict of Interest Act contains an exception for contributions under the Canada Elections Act. It would be helpful for the Code to also clarify that contributions within the limits provided for under the Canada Elections Act do not contravene the Code. This point is clarified expressly in respect of proposed Section 6, but not in respect of proposed Section 3 regarding gifting and other benefits.
3. Receptions: The Code specifies that no hospitality may be provided other than approximately $30 in 2022 dollars of food or beverage for consumption during an in-person meeting, event or reception. What is unclear in this description is how this $30 value is to be calculated, particularly in the context of an event or reception. It would be helpful for the Code to specify how an amount is to be calculated. We suggest the correct formula is to divide the total cost of the food and beverage for the event, divided by the number of invitees. This calculation would exclude room booking, a/v costs and other non-food or beverage costs (of no benefit to the public office holders), and would also avoid the uncertainty of having to divide costs against the number of actual attendees.
4. Frequency: The Code has no specificity about the frequency of gifts or hospitality. We presume the intention of the Commissioner is to allow repeated gifts or hospitality, such that this is not a one-time restriction; so long as there is a bona fide purpose for the repeat meetings. Some clarity on this point would be helpful. Specifically, we would recommend guidance that repeat gifting or hospitality is permitted so long as the repeat meetings have a bona fide purpose.

Close contacts and political activities

We are somewhat concerned by the “close contacts” rules proposed by the Commissioner in respect of the Code. The goal of avoiding preferential access and dealing is laudable, but there are a number of other protections available under applicable law. The restrictions set out in the proposed Sections 5 through 7 of the Code limit communication with government, and do so without being prescribed by statute. Such restrictions are extremely serious and should only be implemented with great care and in a manner that minimally impairs the affected parties.

Background

The new proposed Section 5 and 6 of the Code provide as follows:

5. Never lobby an official with whom you share a close relationship.
6. Never lobby an official or their associates if you have done political work – paid or unpaid – for the benefit of the official unless the cooling-off period has expired.

A “close relationship” is defined as follows:

A close bond with an official that extends beyond simply being acquainted. This includes close family, personal, working, business or financial relationships:

• family relationships, include close family by blood, marriage, common-law or any other status, or any relative or other person permanently residing in the same household
• personal relationships (close friends), include sharing a bond of friendship, a feeling of affection, a special kinship that extends beyond simply being acquainted (excludes casual acquaintances or other persons known only through broad social circles or networks)
• working relationships, include having closely collaborated for a common goal or having formed a prominent or longstanding close professional relationship, such as being partners, colleagues, or allies in the same office, sitting together on a board of directors, delivering a program or service (typically does not include strictly professional working relationships between individuals not representing, employed by or connected to the same entity, employer or client)
• business relationships, include owning or collaborating in a business or in a consortium of businesses
• financial relationships, include sharing ownership in property, co-managing shared investments.

“Political work” is defined as follows:

“Political work” Includes paid and unpaid work done for the benefit of a person’s political interests or a political party’s interests, in the form of performing roles or tasks during or between election periods. For the purposes of the related ‘cooling-off period’ (see definition above), political work will usually be categorized as follows:

1. significant political work, which includes:
   • serving as a designated spokesperson
   • serving as a campaign manager
   • serving as a key agent, such as chief executive officer, financial agent, electoral district agent, auditor
   • providing direct strategic advice in relation to nominations, fundraising, events, and elections
   • working directly with a candidate to prepare their speeches or to prepare them for debate
   • organizing a political fundraiser for the benefit of a candidate or official
   • performing activities listed in ‘other political work’ below may be considered ‘significant political work’ based on qualitative factors, including, for example, if they are strategically important, their volume is high, their scale is significant or if they involve significant interaction with a candidate or official
2. other political work (with no significant involvement with a candidate or official), which includes:
   • drafting campaign materials
   • canvassing
   • seeking or gathering donations
   • distributing or disseminating campaign materials
   • coordinating campaign office logistics
   Political work does not include other forms of political participation, such as:
   • performing strictly administrative tasks, such as occasional work stuffing envelopes, taking phone messages
   • simply attending a fundraising or campaign event
   • personally, displaying election signs or posting digital campaign material during an election period
   • expressing personal political views strictly in an individual capacity
   • making a political donation in accordance with the law

There are a number of existing restrictions that already address the question of lobbying where personal relationships exist. In particular, the Lobbying Act contains a five year post-employment prohibition on most lobbying by former designated public office holders, and the Conflict of Interest Act prohibits a range of activities by former public office holders, including prohibitions on representations for one or two years on reporting public office holders. A number of other protections exist in applicable law to prevent undue influence of government officials, including under the Criminal Code.

Parliament has specifically turned its mind to what sorts of persons should be restricted from lobbying government. It is significant that Parliament made deliberate choices not to legislate against lobbying by the broad categories of close contacts set out in the draft Code nor to require additional disclosure of such relationships in the registry. There is a question as to whether the Commissioner should introduce such restrictions at all without some legislative guidance. The proposals in the draft Code on these issues might best be left as proposals for parliamentary study and possible future legislative amendment. However, we recognize that the 2015 Code contained some restrictions of this type and this is not an entirely new issue. In that regard, we caution that at the very least these rules should be drafted cautiously and as narrowly as possible.

The changes to the existing Code are mostly broadening the scope of the existing restrictions. The definition of “close relationship” is broadened to include a number of activities and interactions that were not clearly caught by the existing rules, which previously focused solely on family, friends and business partners. The proposed new Code now includes, for example, colleagues or “allies” in the same office, individuals who sit together on a board of directors, or who (presumably jointly) deliver a program or service. The proposals also introduce a definition of family member that is far broader than the definitions established by Parliament in the Conflict of Interest Act and the Conflict of Interest Code for Members of the House of Commons. Likewise, the scope of impacted political activity now includes low-level political activity such as canvassing and disseminating materials, even where the individual in question may never have met the political candidate. The new proposed rule does provide helpful specificity on the timing of the rule, of one to two years.

Suggestions

Given the following background, we offer the following comments:

1. Close Relationships: Canada is a relatively small country by population. The restrictions imposed in this broader classification of close relationships exacerbate an already significant problem in the existing Code. We have seen several instances in recent years where private actors have been unable to convey, or have had difficulty conveying, critical public interest information to a public office holder because of a possible “close” relationship between the lobbyist and the public office holder.
   The rule as drafted assumes that anytime a public office holder is confronted with someone with whom they have had a prior relationship of almost any sort, even one of relatively casual intensity, they will prefer the interests of the lobbyist to their public duty. This assumption is incorrect in our experience and ignores the many other existing legal and political factors that already address the concern that is presumably underlying the proposal. This restriction as drafted will ensure that most communications with government occur between strangers, which is not in fact in the public interest. Often, a prior relationship allows for candid discussion between a public office holder and the lobbyist and facilitates positive communication with government.
   At the very least, the current proposal as drafted captures relationships or activities that are not in fact typical indicators of closeness in and of themselves. As drafted, the restriction would prohibit communications based on certain historical associations rather than a truly close personal relationship. We suggest limiting the “close relationships” rule only to truly close personal relationships, such as immediate family members.
2. Political Activity: We would suggest that the political activity rule be removed altogether and be the subject of reference to Parliament for study. This is a complex policy question that involves important questions, including constitutional ones, about the ability of persons who talk to government to also participate fully in entirely legal and beneficial forms of civic engagement. An overly restrictive political activity prohibition will reduce civic participation and volunteerism by those who know government best. If the Commissioner feels some restriction is truly necessary here, we recommend limiting this restriction only to persons who have had direct, significant and sustained contact with the candidate, regardless of title or role.

General - Free and open access

As a general comment, we would observe that the legal regimes around communication with government are increasingly complex and restrictive. The Lobbying Act serves an essential purpose in creating a system for the registration of paid lobbyists so as to provide transparency about who is trying to influence government, and on what issues. However, as the preamble to the Lobbying Act acknowledges, this registry system must be balanced so as not to discourage or impede free and open access to government. We are concerned that this balance may be at risk.

Increasingly, we encounter private sector participants who are reluctant to communicate with government because of the regulatory burden of doing so. That regulatory burden includes the Lobbying Act, the Code, the Conflict of Interest Act, the Access to Information Act, the Canada Elections Act and the federal security clearance regime, to name only a few.

A diligent business wishing to reach out to government must assess, for example, the following nonexhaustive list of legal questions:

1. Is the communication made to a public office holder that addresses a subject matter enumerated under Section 7 the Lobbying Act, such that registration is required?
2. Is the communication made to a designated public office holder that meets the requirements of Section 9 of the Lobbyist Registration Regulations such that it needs to be included in a monthly communication report?
3. Does the communication raise any issues that might affect the private interests of the relevant public office holder, under the Conflict of Interest Act, the Conflict of Interest Code for Members of the House of Commons, or the Values & Ethics Code for the Public Sector or other applicable conflict of interest regime?
4. Is the communication made by a director of the business who is not an employee, such that the director must establish a separate personal registration under the Lobbying Act and comply with the more rigorous regime applicable to consultant lobbyists?
5. Where the communication is made by a consultant lobbyist, is that lobbyists’ compensation in any way contingent on the outcome of the communication contrary to Section 10.1 of the Lobbying Act?
6. Is the communication being made by a former public office holder, and if so, is it being made in compliance with post-employment restrictions applicable to such former public office holder under the Conflict of Interest Act, the Conflict of Interest Code for Members of the House of Commons, or the Values & Ethics Code for the Public Sector?
7. Do any materials being shared with public office holders contain commercially sensitive information or records that the business does not wish disclosed to the public under the Access to Information Act?
8. If the business is communicating with an elected official or their staff, could the communication be considered collusion with a registered political party or candidate, or a deemed contribution to a political party or candidate, under the Canada Elections Act?
9. Will the communication require an exchange of any information that is protected or classified, requiring the business to maintain appropriate clearances under Canada’s contract security program?
10. Does the information being provided by the lobbyist comply with the accuracy requirements of Section 2 of the Code? This is particularly relevant when sharing scientific or economic assessments of risk.
11. Has the meeting with the public official been obtained through any kind of preferential access, including through family, friends, or former business partners of the public officials?
12. Does the lobbyist share a relationship (family, friendship, business relationship, former political activity, or other relationship that would create a sense of obligation with the public office holder), that would result in a violation of the Code?
13. Will any tokens of protocol or courtesy associated with the communication comply with the gifting and hospitality requirements applicable to the public office holder and the lobbyist?
14. Will the communication in any way relate to the awarding of a contract or procurement matters, such that it must comply with the additional complex regimes that applies to procurement?

For businesses whose primary focus is private sector interactions, communications with public office holders can be daunting in their complexity. The result is that, too often, public office holders do not get critical information that they need to make informed decisions about policy matters, because private sector actors are reluctant to engage.

As a result of the foregoing, we provide two related general comments. First, we would encourage the Commissioner to exercise restraint in the development and application of the Code (and more generally, in any review of the Lobbying Act). The complexity of the above regimes already, in our direct experience, impede free and open access to government. Changes that introduce a further complexity or that curtail interactions will aggravate that problem. Second, wherever possible we would encourage the use of bright-line tests wherever possible rather than a lack of certainty. When a rule is so broad as to prevent certainty of application, many businesses will err on the side of caution to avoid the risk of noncompliance. In the case of the Code, this will often mean that a business will err on the side of avoiding communication where it is unclear that a communication is permitted. In our view, this does not serve the purposes of the Act.

We hope the foregoing is of assistance and appreciate the opportunity to have contributed to this consultation.

I’m a new lobbyist, and a Proud Canadian. I come with a background in being a “Lobbyist” at the City of Toronto.

My comments:

1. The proposed Code seems very appropriate and reasonable, and generally consistent with that of the City of Toronto.
2. The one area that is not touched on is Service Level Expectations …. Would it be possible, and reasonable, to have a general “Service Metric/Expectation” that for any written/E-mail Communication to the Government of Canada from the Lobbyist - the Lobbyist should expect a “Receipt Response (Automated Response is acceptable)” within 1 month; and, a “Brief Response (Regardless of the Disposition)” within 3 months?

Hello my name is Hans Vargas (950607) I have read and fully understand the new code of conduct.

Recommendations

1. CSAE recommends that the current clause and guidance regarding food and refreshments at a reception remain “reasonable”.
2. CSAE recommends that there should be no cooling off period for “other political work” as it infringes on democratic participation by Canadians.
3. CSAE recommends that the current “political activities” clause remains unchanged and does not include associates.

Introduction

The Canadian Society of Association Executives (CSAE) recently surveyed its membership on current lobbying practices. The survey found that 50% of associations in Canada have at least one federally-registered lobbyist. For 70% of associations, lobbying and advocacy is a key element of the value they provide to their members. Many associations were formed with the sole purpose of creating a collective voice, and have expanded into different areas since then.

CSAE believes in a transparent, fair, clear and efficient Lobbying Act and Lobbyists’ Code of Conduct. We also appreciate the Office of the Commissioner of Lobbying of Canada and the continued work the office does on behalf of lobbyists. It is important that officials continue to be educated and aware of the role that lobbyists play in public policy creation and it is equally important that this continues to be done in a transparent way for both public office holders and lobbyists. However, the Lobbyists’ Code of Conduct must continue to be fair, especially for not-for-profit associations, many of whom operate on a shoestring budget. There are associations with one employee who continuously lobby, and there are other associations with dozens of employees who don’t lobby at all. The Code of Conduct must continue to remain fair to allow associations to fulfill their duties on behalf of their members.

Recommendation 1: Support the continuance of parliamentary receptions

In the draft update of the Lobbyists’ Code of Conduct, the Office of the Commissioner of Lobbying of Canada is recommending a more precise amount in regards to gifts to a public office holder. Low-value is described as “$30 in 2022 dollars, including taxes” for both gifts and hospitality. This is a significant change to the current guidance from August 2020 which provides details on exceptions and reasonable hospitality.

Parliamentary receptions and events remain an important function on Parliament Hill. They allow Members of Parliament and Senators from all political parties to network with Canadians of various backgrounds from across the country. For associations, receptions are a great way for their members to meet public office holders that they otherwise may not have the opportunity to meet while in Ottawa. Furthermore, like most receptions off Parliament Hill, it has become commonplace for food and beverages to be offered at no-cost.

While associations can easily work with a $30 gift limit, this threshold becomes difficult for parliamentary receptions. As stated, most receptions have unlimited food and beverage available to parliamentarians. Were the proposed threshold to be implemented, associations would need to monitor the consumption of public office holders at all events. For example, an association executive would need to watch a Member of Parliament for the duration of their time at a reception to ensure they didn’t consume a number of canapés or beers that would surpass the $30 proposed limit.

Simply put, it would not be possible for associations to hold parliamentary receptions with food and beverage anymore. While the threshold can easily be applied to physical gifts, it cannot easily be applied to food and beverage.

CSAE recommends that the current clause and guidance regarding food and refreshments at a reception remain “reasonable”. This allows public office holders to attend receptions without putting themselves or the reception host in a position to contravene the Lobbyists’ Code of Conduct. Receptions have been held on Parliament Hill for decades, if not since its inception, and have become an important function of networking between officials and Canadians.

Recommendation 2: Refine the definition of political activities

The current guidance to mitigate conflicts of interest resulting from political activities^{Footnote 1} from August 2020 clearly lays out the differences between high-risk and low-risk political activities. CSAE agrees that serving in an official role for a candidate, such as a campaign manager, can create a sense of obligation from that public office holder. CSAE also agrees that there should be a cooling off period for high-risk political activities.

• https://lobbycanada.gc.ca/media/znsfs3oz/lobbyistscodeofconduct2015_en.pdf

However, in the draft update of the Lobbyists’ Code of Conduct, a 12-month cooling off period is being suggested for low-risk political activities. This would include canvassing, door knocking and distributing campaign materials. Were this to be implemented, it would seriously infringe democratic participation by Canadians.

While many association executives are contractually bound not to publicly support specific political parties, many others do involve themselves in elections. Many will spend only a few hours during an entire election campaign canvassing or distributing campaign materials for their local candidate. Others, especially in urban areas, will volunteer for more than one candidate in their local area.

The proposed 12-month cooling off period would prevent association executives from being able to participate in the democratic process. Being able to volunteer for your local candidate because you believe in their ideas or support them personally is an important function in Canada’s democracy. The Canadian political system for the most part relies on individuals volunteering across the country. If this cooling off period is implemented, it would prevent hundreds of Canadians from being able to volunteer, or it would prevent association executives from lobbying public office holders that hold no sense of obligation towards them. For example, an individual who canvasses or distributes campaign material for a candidate, but never meets that candidate, would now be unable to lobby that individual for 12 months.

CSAE recommends that there should be no cooling off period for “other political work” as it infringes on democratic participation by Canadians. As stated above, we do believe that a cooling off period is appropriate for high-risk political activities where there is a considerable amount of interaction between the lobbyist and the candidate. However, for low-risk political activities such as canvassing, door knocking and distributing campaign materials, there should be no cooling off period.

Recommendation 3: Prevent infringements on the duties of association executives

Related to the cooling off period for political activities is the inclusion of “associates” in the draft update of the Lobbyists’ Code of Conduct. To reiterate, CSAE agrees that there should be a cooling off period for significant political activities, such as serving as a candidate’s campaign manager. However, CSAE disagrees that this cooling off period should apply to associates of the public officer holder as it could impact an association executive’s ability to carry out their responsibility to the interests of their membership.

For example, if an association executive serves as a campaign manager for a candidate that is a friend of theirs and who is then elected as a Member of Parliament, they would not be able to lobby that individual for 24-months. However, if the association executive works for an association that represents individuals in the field of health and the Member of Parliament becomes the Parliamentary Secretary to the Minister of Health, they would now not be allowed to lobby the Minister of Health or their staff. This would create a significant barrier for that association executive whose role it is to advocate on behalf of the association’s membership working in the field of health. The most relevant individuals for them to lobby would be the Minister of Health and their staff. However, because they had carried out significant political activities for a friend of theirs who happens subsequently to be appointed as the Parliamentary Secretary to the Minister of Health, they would be unable to fulfill the job they were hired to do.

CSAE agrees that a cooling off period should be implemented for candidates for whom an individual has performed significant political activities, even if the latter is promoted to a relevant role to that association executive. However, this cooling off period should not apply to associates, as in no instance has the association executive created a sense of obligation from those associates, such as a Minister or their staff.

CSAE recommends that the current “political activities” clause remains unchanged and does not include associates. This will ensure that association executives remain able to perform their duties and fully represent their association membership to relevant public office holders. A cooling off period should remain for significant political activities, but should not apply to the associates of that elected official.

About CSAE

Incorporated in 1962, the Canadian Society of Association Executives (CSAE) is Canada’s only member-based not-for-profit organization committed to delivering the knowledge, resources and environment to advance association excellence. CSAE, also known as an “association of associations,” offers robust networking and learning opportunities, both in person and online, including an education program leading to the Certified Association Executive (CAE®) designation. We also produce publications, conduct research and pursue other knowledge transfer opportunities to keep members informed about the latest trends, innovations and best practices in the sector and beyond. With a current membership of approximately 3,000, CSAE has central operations in Toronto and eight regional networks across Canada.

My professional background

I am a higher education lawyer representing large-cap, mid-cap, small-cap investor groups and large law firms, in my capacity as regulatory counsel in the acquisition of private post-secondary institutions. I continue to dispense regulatory advice to private career colleges, language schools, and non-registrant corporate training institutions, as well as inspected private high schools in Ontario, B.C., and other provinces.

I authored the first and second editions of Carswell’s Annotated Private Career Colleges Act, 2005, and Regulations. The late Right Hon. John N. Turner, former Prime Minister of Canada, wrote the foreword to the second edition of my legal text. I was a capital partner at a well-regarded downtown Toronto law firm for many years, where I also headed up the firm’s higher education practice. In 2018, I founded Harris Rosen Professional Corporation, through which my law practice has continued.

Issues of concern regarding lobbying activity

I will have limited time to review any draft legislation, and am hardly an expert on lobbyist registration or lobbyist activity. Therefore, my comments should be admittedly be viewed accordingly. However, and based on my own experience as counsel to clients with differing profiles, there are five fundamental problems that must be addressed. At the outset, forgive my skepticism about your ability to do so.

1. Too much deference to authority and therefore no inclination to impose meaningful sanctions against lobbyists and/or politicians who are engaged in insider dealing, runaway patronage, or wrongdoing. Whether as a result of tradition (deference to Her Majesty the Queen?) in this country, or otherwise, the writer’s perception is that little has changed to create and enforce meaningful sanctions. The net result is that businesses (and individuals who feel voiceless), will simply leave or do business elsewhere.
2. Inability to monitor or police lobbyists and/or Politically Exposed Persons (“PEP's”). This issue transcends the boundaries of lobbyist challenges, and relates also to the growing problem of money laundering.
3. Constituents have no meaningful access and no meaningful influence whatsoever in this country. Political fundraisers and lobbyists do! I find it absurd that constituents have to effectively pay “key money” to get access to politicians. The more they pay, the more they can play, i.e. accomplish political objectives with the reigning government.
4. Lobbyists appear to be information brokers of sorts, and if that’s true, the most tangible information is likely to go to the highest bidder. Insofar as I am aware, lobbyists do not have the same or remotely similar duties that lawyers (for example) do when it comes to solicitor-client privilege.
5. Lobbyists cannot burn metaphorical bridges with their political masters, which often means they are most likely to advocate only for the very few who retain them (again, “pay to play”).

Disincentive to make noise

Many far more well-heeled than I have shared with me their reluctance to make waves owing to "lobbyist interference". But this country will continue to lose good people based on a non-meritocratic and easily influenced political system. Let’s give a real voice to the small businesses and hard-working people who truly drive our economy.

In a contest between merit and patronage, who is defending merit? Versus blind deference to authority and patronage. Giving life to meaningful changes will hopefully be a step in the right direction. But again, I approach this with absolute skepticism.

Thank you for the opportunity to make submissions.

The Canadian Labour Congress (CLC) is Canada’s largest labour organization, bringing together 52 national and international unions, 12 provincial and territorial Federations of Labour, and 103 community Labour Councils. The CLC represents three million unionized workers in virtually all sectors of the economy and in all parts of Canada.

We welcome the opportunity to provide input on updates to the Lobbyists’ Code of Conduct. We reviewed the draft update of the Code and have serious concerns.

The CLC supports the overall Objective of the updated Code to foster transparent and ethical lobbying of federal officials. We also support the Expectations of the updated Code which are intended to ensure lobbyists conduct their actions in accordance with the highest standards of transparency, respect for government institutions, integrity and honesty.

However, we are strongly opposed to many of the changes in the draft update of the Code which go far beyond ensuring transparency and are a major overreach by the OCL. Specifically, we are concerned about the updates for Political Work (Rule 6); Hospitality (Rule 4); Close Relationships (Rule 5); and Misinformation (Rule 2).

The proposed updates in these four areas are unwarranted, unreasonable and unworkable, and will lead to unintended consequences. We urge the OCL to carefully consider our input and to not proceed with the updates that are proposed in these four sections of the Code.

Political Work

The CLC opposes the new definition of political work, and the proposed 12-month cooling-off period for “Other political work”, outlined for Rule 6 (Political Work) in the draft update.

The current Guidance to mitigate conflicts of interest resulting from political activities, which the OCL revised in 2019, provides clear guardrails for our members that participate in federal election campaigns. The current Guidance outlines three categories of political work and activities that are subject to a cooling-off period:

• Category 1: Higher-risk political activities which create a sense of obligation for elected officials. This category includes strategic activities which involve significant interaction with candidates, such as: serving as a campaign chair; serving in a named position on behalf of a registered party; serving as an electoral district association officer; organizing a political fundraising event; working in war room; preparing candidates for debates; acting as a designated spokesperson for a candidate, campaign, party or electoral district association. If a lobbyist engages in these higher-risk activities, they are currently subject to a cooling-off period equivalent to a full election cycle.
• Category 2: Political activities less likely to create a sense of obligation. These activities are not strategic in nature and do not involve significant interaction with candidates, such as: volunteering, canvassing or scrutineering for a registered party or electoral riding association; attending fundraising events; or expressing personal political views strictly in an individual capacity. If a lobbyist participates in these low-risk activities, they are currently not subject to a cooling-off period.
• Category 3: Political activities that are no-risk and do not create a sense of obligation. These activities include: displaying campaign signs or posters; or making personal donations within the limits established in the Canada Elections Act. If a lobbyist engages in these low-risk activities, they are currently not subject to a cooling-off period.

The CLC appreciates the clarity this Guidance provides in terms of which political activities are considered strategic in nature and/or involve significant interaction with candidates. However, we continue to be very concerned that this Guidance restricts the fundamental freedom of our members to meaningfully participate in the electoral process. Further, this concern has been exacerbated by the proposed changes in the new draft update of the Code which limit our members’ participation in elections even further.

The draft update of the Code renames the second category to “Other political work” and significantly expands the scope of this category to include the following activities: “drafting campaign materials; canvassing; distributing or disseminating campaign materials; seeking or gathering donations; and coordinating campaign office logistics.” In addition, this renamed category includes a 12-month cooling-off period for lobbyists that engage in any of these activities (although, the draft update also states that activities in the “Other political work” category can be elevated to “Significant political work” based on qualitative factors and could be subject to a 24-month cooling-off period”).

The CLC believes these changes are a major overreach and we oppose this update to the Code for two reasons.

First, these changes are overly restrictive and infringe on the Constitutional rights of our members and all Canadians by placing unreasonable limits on their right to participate in a meaningful way in election campaigns. In essence, lobbyists will not be able to volunteer for any role in election campaigns because they will face a minimum 12-month cooling-off period. Implementing this change will have negative unintended consequences on our democratic rights and democracy as a whole. Institutions should be facilitating the involvement of more people in elections, not further restricting the involvement of the few who currently participate. This update is clearly an unreasonable limit on our members’ Constitutional rights that cannot be justified under Section 1 of the Charter and must not proceed.

Second, the rationale and background for this key change to the Code is not clear to us. The activities included in the renamed category of “Other political work” (e.g. drafting campaign materials; canvassing; distributing or disseminating campaign material etc.) are not strategic in nature and do not involve significant interaction with candidates (indeed, these activities usually do not involve any interaction with a candidate) and thus have zero risk of creating a sense of obligation on the part of candidates. Therefore, expanding the scope of Political Work that is subject to a cooling-off period is unwarranted and should not happen. Can the OCL point to a case that involved a volunteer who canvassed, drafted materials or distributed literature that created a sense of obligation for an elected official?

Hospitality

The CLC opposes the definition of “low-value” with respect to Rule 4 (Hospitality) in the draft update of the Code.

Rule 4 (Hospitality) of the draft update says the following:

“Never offer – directly or indirectly – hospitality to an official that you lobby or expect to lobby, other than low value food or beverage for consumption during an in-person meeting, event or reception.”

The term “low-value” is defined in the draft update of the Code as follows:

“Low-value means the total market value of a gift or hospitality – without discount for anything that has been donated or subsidized – that can be given in accordance with a rule under this code. Low-value is set at approximately $30 in 2022 dollars, including taxes.”

We oppose the definition of “low-value” as $30 for three reasons.

First, it is illogical to suggest that normal hospitality, such as serving coffee, wine, sandwiches or hors d’oeuvres, at an in-person meeting, event or reception could influence the actions of a public office holder. Therefore, this update to the Code is unwarranted.

Second, this is an arbitrary threshold. What is the OCL’s rationale for proposing $30 as the threshold instead of another value?

Third, it is unreasonable and unworkable to expect organizations to monitor how much “value” a public office holder consumes at an in-person meeting, event or reception where hospitality is provided. For example, the CLC holds an annual lobby day on Parliament Hill and this includes an evening reception attended by our members and public office holders. How are we supposed to monitor the value of how much hospitality (food and drinks) each public official consumes at our reception and ensure they do not consume more than $30 worth? Likewise, if we host a meeting or conference with public office holders, and we provide basic lunch items such as coffee, juice, sandwiches, salad and soup, how are we supposed to monitor the value of hospitality consumed by each official and ensure it does not exceed $30? It is untenable for the OCL to expect organizations to be able to meet this arbitrary low value standard.

Close Relationships

The CLC opposes the inclusion and definition of “personal relationships” and “working relationships” in Rule 5 (Close Relationships) in the draft update of the Code.

Rule 5 (Close Relationships) in the draft Code says the following:

“Never lobby an official with whom you share a close relationship.”

The draft Code then defines “close relationships” according to “family relationships, personal relationships, working relationships, business relationships and financial relationships.” There is some common sense to the categories family relationships, business relationships and financial relationships because they often involve an obvious close relationship.

However, the inclusion of the categories “personal relationship” and “working relationships” in the draft update of the Code, and how they are defined, is a major concern for the CLC. It is also a great concern that these categories do not come with a cooling-off period and instead are subject to a lifetime ban.

“Personal relationships” are defined in the draft update as follows:

“(close friends), including sharing a bond of friendship, a feeling of affection, a special kinship that extends beyond simply being acquainted (excludes casual acquaintances or other persons known only through broad social circles or networks).”

“Working relationships” are defined in the draft update as follows:

“Working relationships include having closely collaborated for a common goal or having formed a prominent or longstanding close professional relationship, such as being partners, colleagues or allies in the same office, sitting together on a board of directors, delivering a program or service (typically does not include strictly professional working relationships between individuals not representing, employed by or connected to the same entity, employer or client).”

Once again, this is a major overreach by the OCL. Specifically, it is overly restrictive, unreasonable, and unworkable to include “sharing a bond of friendship” in the definition of personal relationships, and to include “collaborating for a common goal,” “sitting together on a board of directors,” and “colleagues or allies in the same office,” in the definition of working relationships.

There are hundreds of national and international unions, and tens of thousands of local unions, in Canada. Our leaders interact directly with tens of thousands of activists every year and “share a bond of friendship” with most of them. It is inevitable that some of these activists will become an elected official or public office holder at some point and it is completely unreasonable to prevent our leaders from ever lobbying them. In addition, when a Member of Parliament or other public office holder is in their position for a long time, it is inevitable they will meet often with lobbyists and may “share a bond of friendship” that goes beyond speaking strictly about policy issues, such as inquiring about how each other doing on a personal level, and expressing best wishes for their respective families.

In addition, all of our leaders have boards with elected officers who “sit together on the board of directors” and “collaborate for common goals” such as increasing union density, strengthening collective agreements and improving living standards for everyone. These unions also employ thousands of staff who regularly work “in the same office” and collaborate on common goals.

Further, these union leaders and staff also sit as directors on hundreds of other non-profit boards across the country – including United Way boards, Habitat for Humanity boards, apprenticeship and skills training boards, pension plan boards, health and safety boards, government advisory boards, local animal welfare boards, anti-poverty and literacy boards, and many others.

The new language in the draft update means that if one of their “colleagues or allies on a board of directors or in the same office” became an elected official then they could never lobby that official ever (there is no cooling-off period applied to this section).

The addition of “personal relationships” and “working relationships” to the Code is a major overreach that will lead to unreasonable, unworkable and unintended consequences. The OCL must not proceed with these updates.

It is unreasonable to prevent our members from ever lobbying someone they share a bond of friendship with, or sat on a board of directors with, or been a colleague or ally in the same office. In essence, this would unreasonably limit the rights of our members and leaders to only interact with public office holders who they have never met before.

It is unworkable to expect this standard when our leaders interact with tens of thousands of people as activists, on boards of directors, and as staff.

Furthermore, the addition of “working relationships” will have unintended adverse consequences. The work our members do on boards of directors and as staff makes an essential contribution to the labour movement, our workplaces and communities. This important work will be curtailed if they have to vet everyone they sit on a board with, or every staff member they work with, for the possibility other board members or colleagues or allies may run for political office and if elected they could never lobby that individual. These non-profit organizations already have a tough time recruiting people to sit on their board of directors and the proposed changes to the Code will make this situation far more difficult.

Misinformation

The CLC opposes the new expanded definition of Rule 2 (Misinformation). Specifically, we oppose the inclusion of “grassroots lobbying appeals to the public” in the definition.

The current Code says the following:

“A lobbyist shall avoid misleading public office holders by taking all reasonable measures to provide them with information that is accurate and factual.”

The draft update says:

“Never knowingly misrepresent facts, omit important details or present information that is misleading or false when you lobby officials or in grassroots lobbying appeals to the public.”

Clearly, the CLC supports the standard of providing accurate and factual information to public office holders and never knowingly misrepresenting facts. However, applying this standard to “grassroots lobbying appeals to the public” is once again a major overreach by the OCL that will lead to unreasonable, unworkable and unintended consequences.

First, it is a major overreach to expand the scope of the Code to regulate free speech beyond interactions with public office holders and to include “grassroots lobbying appeals to the public.” The Lobbing Act and the Lobbyists’ Code of Conduct are so named for a reason.

They are not intended to regulate civic and democratic life in all manifestations. They are intended to regulate one part of democratic participation – lobbying public office holders – and should be limited to this mandate. It is beyond the mandate of the OCL to regulate communications between lobbyists and the public.

Second, how is the term “public” defined? To be clear: it should not include grassroots appeals that involve a union and its members. At the core of a union’s mandate and function is the ability to communicate freely and effectively with our members. This is essential to representing and protecting their interests, not only at the bargaining table, but also through broader advocacy and political action through grassroots lobbying appeals. Communicating with our members about federal elections and issues, including grassroots lobbying appeals, is essential to representing and protecting their interests and should be exempt from any definition of “public.”

Third, does the term “grassroots lobbying appeals to the public” cover every single political and public policy issue? Is every issue mentioned by a federal public official or political platform or government agenda captured by this definition? It is untenable that the OCL can produce a comprehensive list of issues that will be covered by “grassroots lobbying appeals to the public.”

Fourth, what is the definition of “misleading?” Grassroots lobbying appeals involve hundreds of complex policy issues. On the one hand, a grassroots lobbying appeal to the public which states “the Earth is flat” is clearly false and misleading. On the other hand, a grassroots lobbying appeal that says “the government is not adequately funding health care” may be open to debate and the term “misleading” becomes very subjective and left to the interpretation of the OCL.

Fifth, the uncertainty about what issues are captured, and how “misleading” is defined, means the rules about “grassroots lobbying appeals to the public” cannot be applied consistently and the enforcement is arbitrary. The ultimate effect will be a chill on free speech, as organizations feel muzzled and/or self-censor when it comes to grassroots lobbying appeals to the public.

Sixth, this proposal is unworkable because there are thousands of national, international and local unions across the country that are constantly running “grassroots lobbying appeals to the public” on hundreds of issues. In addition, these grassroots lobbying appeals use a variety of communications tools including emails, texts, websites, social media, paid advertising etc. in their grassroots lobbying appeals. It will be impossible to monitor, track and report all the grassroots lobbying appeals which the OCL could potentially deem a violation of the Code.

Once again, this proposal is a major overreach and far beyond the mandate of the OCL.

Conclusion

The CLC believes that the Lobbyists’ Code of Conduct plays an important role in ensuring that the activities of lobbyists adhere to the highest standards of transparency, respect for government institutions, integrity and honesty. We support the OCL’s goal to ensure the Code is clear and detailed so lobbyists understand all of their obligations.

However, we believe many of the proposals in the draft update of the Code are a major overreach that are unwarranted, unreasonable and unworkable, and will lead to unintended consequences. We have outlined our concerns with respect to proposed changes in the sections that deal with Political Work (Rule 6); Hospitality (Rule 4); Close Relationships (Rule 5); and Misinformation (Rule 2).

We urge the OCL to carefully consider our input and to not proceed with the updates that are proposed in these four sections of the Code. We are available to meet to discuss our feedback at your convenience.

BC Federation of Labour

The BC Federation of Labour (BCFED) represents over half a million workers engaged in every part of the BC economy, through more than 50 affiliated unions with over 800 locals.

We reviewed the draft update of the Code and have serious concerns with a variety of sections as proposed. Our concerns have been well documented and explained in the submission by the Canadian Labour Congress, included here.

The BCFED supports the overall objective of the updated Code to foster transparent and ethical lobbying of federal officials. We also support the expectations of the updated Code which are intended to ensure lobbyists conduct their actions in accordance with the highest standards of transparency, respect for government institutions, integrity, and honesty. However, how these goals are put into action requires attention.

We urge the Office of the Commissioner of Lobbying (OCL) to carefully consider the input and concerns raised by the Canadian Labour Congress. We add our voice to these concerns and encourage the Commission to seriously review the proposed changes with this input in mind.

Fédération canadienne des syndicats d’infirmières et infirmiers

The Canadian Federation of Nurses Unions (CFNU) is Canada’s largest nurses’ organization, representing about 200,000 unionized nurses and student nurses across eight provinces. The CFNU advocates on key health priorities and works to advance federal engagement in public health care.

We welcome the opportunity to provide input on updates to the Lobbyists’ Code of Conduct. We have reviewed the draft update of the Code and we have serious concerns. We urge the Office of the Commissioner of Lobbying (OCL) to carefully consider our input and make appropriate adjustments before finalizing the update to the Code.

The CFNU supports the overall Objective portion of the updated Code to foster transparent and ethical lobbying of federal officials. We also support the Expectations portion of the updated Code, which is intended to ensure lobbyists conduct their actions in accordance with the highest standards of transparency, respect for government institutions, integrity and honesty.

However, we are firmly opposed to many of the changes in the draft update of the Code, which go far beyond ensuring transparency and represent a serious overreach by the OCL. Specifically, we are concerned about the updates for Political Work (Rule 6); Hospitality (Rule 4); Close Relationships (Rule 5); and Misinformation (Rule 2).

The proposed updates in these four areas are unwarranted, unreasonable and unworkable, and will lead to unintended consequences. We urge the OCL not proceed with the updates proposed in the above four sections of the Code.

(…)

The CFNU believes that the Lobbyists’ Code of Conduct plays an important role in ensuring that the activities of lobbyists adhere to the highest standards of transparency, respect for government institutions, integrity and honesty. We support the OCL’s goal to ensure that the Code is clear and detailed so lobbyists understand all of their obligations.

However, we believe many of the proposals in the draft update of the Code represent a significant overreach. They are unwarranted, unreasonable and unworkable, and will lead to unintended consequences. We have outlined our concerns with respect to proposed changes in the sections dealing with Political Work (Rule 6); Hospitality (Rule 4); Close Relationships (Rule 5); and Misinformation (Rule 2).

Once again, we urge the OCL not to proceed with the updates outlined in the four sections of the Code cited above.

The Canadian Federation of Nurses Unions would be pleased to meet with you to discuss our concerns further.

Syndicat canadien de la fonction publique

The Canadian Union of Public Employees is Canada’s largest union, with 700,000 members across the country. CUPE represents workers in health care, emergency services, education, early learning and childcare, municipalities, social services, libraries, utilities, transportation, airlines and more. We have 68 offices across the country, in every province.

We welcome the opportunity to provide input on updates to the Lobbyists’ Code of Conduct. We reviewed the draft update of the Code and have serious concerns. We urge the Office of the Commissioner of Lobbying (OCL) to carefully consider our input and make adjustments before finalizing the update to the Code.

CUPE supports the overall Objective of the updated Code to foster transparent and ethical lobbying of federal officials. We also support the Expectations of the updated Code which are intended to ensure lobbyists conduct their actions in accordance with the highest standards of transparency, respect for government institutions, integrity and honesty.

However, we are strongly opposed to many of the changes in the draft update of the Code which go far beyond ensuring transparency and are a major overreach by the OCL. Specifically, we are concerned about the updates for Political Work (Rule 6); Hospitality (Rule 4); Close Relationships (Rule 5); and Misinformation (Rule 2).

The proposed updates in these four areas are unwarranted, unreasonable and unworkable, and will lead to unintended consequences. We urge the OCL to carefully consider our input and to not proceed with the updates that are proposed in these four sections of the Code.

(…)

CUPE believes that the Lobbyists’ Code of Conduct plays an important role in ensuring that the activities of lobbyists adhere to the highest standards of transparency, respect for government institutions, integrity and honesty. We support the OCL’s goal to ensure the Code is clear and detailed so lobbyists understand all of their obligations.

However, we believe many of the proposals in the draft update of the Code are a major overreach that are unwarranted, unreasonable and unworkable, and will lead to unintended consequences. We have outlined our concerns with respect to proposed changes in the sections that deal with Political Work (Rule 6); Hospitality (Rule 4); Close Relationships (Rule 5); and Misinformation (Rule 2).

We urge the OCL to carefully consider our input and to not proceed with the updates that are proposed in these four sections of the Code. We are available to meet to discuss our feedback at your convenience and thank in advance for your time and attention in this matter.

International Association of Fire Fighters

The International Association of Fire Fighters (IAFF), AFL-CIO, CLC represents 326,000 professional fire fighters and emergency medical responders across North American, including 26,000 in Canada. Our members are on the frontlines daily in more than 180 cities and towns across Canada protecting the lives and property of the fellow citizens and protecting the nation’s critical infrastructure. Founds in 1918, the IAFF is a leading public safety advocate and the office voice of Canada’s most trusted profession.

We welcome the opportunity to provide input on updates to the Lobbyists’ Code of Conduct. We reviewed the draft update of the Code and have serious concerns. We urge the Office of the Commissioner of Lobbying (OCL) to consider our input and make adjustments before finalizing the update to the Code.

The IAFF supports the overall Objective of the updated Code to foster transparent and ethical lobbying of federal officials. We also support the Expectations of the updated Code which are intended to ensure lobbyists conduct their actions in accordance with the highest standards of transparency, respect for government institutions, integrity and honesty.

However, we are strongly opposed to many of the changes in the draft update of the Code which go far beyond ensuring transparency and are a major overreach by the OCL. Specifically, we are concerned about the updates for Political Work (Rule 6); Hospitality (Rule 4); Close Relationships (Rule 5); and Misinformation (Rule 2).

The proposed updates in these four areas are unwarranted, unreasonable and unworkable, and will lead to unintended consequences. We urge the OCL to carefully consider our input and to not proceed with the updates that are proposed in these four sections of the Code.

(…)

The IAFF believes that the Lobbyists’ Code of Conduct plays an important role in ensuring that the activities of lobbyists adhere to the highest standards of transparency, respect for government institutions, integrity and honesty. We support the OCL’s goal to ensure the Code is clear and detailed so lobbyists understand all of their obligations.

However, we believe many of the proposals in the draft update of the Code are a major overreach that are unwarranted, unreasonable and unworkable, and will lead to unintended consequences. We have outlined our concerns with respect to proposed changes in the sections that deal with Political Work (Rule 6); Hospitality (Rule 4); Close Relationships (Rule 5); and Misinformation (Rule 2).

We urge the OCL to carefully consider our input and to not proceed with the updates that are proposed in these four sections of the Code. We are available to meet to discuss our feedback at your convenience.

Fraternité internationale des ouvriers en électricité

The International Brotherhood of Electrical Workers (IBEW) has been a proud part of the Canadian labour movement for over 120 years. Founded in 1891, we have built our union on our commitment to organize and represent workers; our membership and longevity is proof of that commitment. The IBEW represents over 775,000 workers in North America and almost 70,000 of those members are in Canada.

IBEW Canada has 81 local unions located across the country serving our almost 70,000 members who can be found working in every province and territory in the following industries: Manufacturing, Telecommunications, Voice Data Video, Utilities, Construction, Maintenance, Motor Shops, Sign Shops, CATV, Radio and Television, Sound and Alarm systems, Railroads, Shipyards, Pulp and Paper Mills, Mining, Tree Trimming, Health Care and Government.

We welcome the opportunity to provide input on updates to the Lobbyists’ Code of Conduct. We reviewed the draft update of the Code and have serious concerns that we wish to address in this submission.

(…)

The IBEW believes that the Lobbyists’ Code of Conduct plays an important role in ensuring that the activities of lobbyists adhere to the highest standards of transparency, respect for government institutions, integrity and honesty. We support the OCL’s goal to ensure the Code is clear and detailed so lobbyists understand all of their obligations.

However, we believe many of the proposals in the draft update of the Code are a major overreach that are unwarranted, unreasonable and unworkable, and will lead to unintended consequences. We have outlined our concerns with respect to proposed changes in the sections that deal with Political Work (Rule 6); Hospitality (Rule 4); Close Relationships (Rule 5); and Misinformation (Rule 2).

We urge the OCL to carefully consider our input and to not proceed with the updates that are proposed in these four sections of the Code. We are available to meet to discuss our feedback at your convenience.

International Union of Operating Engineers

The International Union of Operating Engineers ("IUOE") is a progressive and diversified trade union representing Canadian workers in a wide variety of occupational categories. Made up of 17 Local Unions across Canada, our 55,000 members have helped build Canada’s infrastructure and have been involved in the production of Canada’s resources and delivery of its community services since 1896.

We welcome the opportunity to provide input on updates to the Lobbyists’ Code of Conduct. We reviewed the draft update of the Code and have serious concerns. We urge the Office of the Commissioner of Lobbying (“OCL”) to carefully consider our input and make adjustments before finalizing the update to the Code.

(…)

The IUOE believes that the Lobbyists’ Code of Conduct plays an important role in ensuring that the activities of lobbyists adhere to the highest standards of transparency, respect for government institutions, integrity, and honesty. We support the OCL’s goal to ensure the Code is clear and detailed, so lobbyists understand all of their obligations.

However, we believe many of the proposals in the draft update of the Code are a major overreach that are unwarranted, unreasonable, and unworkable, and will lead to unintended consequences. We have outlined our concerns with respect to proposed changes in the sections that deal with Political Work (Rule 6); Hospitality (Rule 4); Close Relationships (Rule 5); and Misinformation (Rule 2).

We urge the OCL to carefully consider our input and to not proceed with the updates that are proposed in these four sections of the Code. We are available to meet to discuss our feedback at your convenience.

Manitoba Federation of Labour

The Manitoba Federation of Labour (MFL) represents over 125,000 workers from a wide variety of sectors in Manitoba. We are a chartered body of the Canadian Labour Congress (CLC). We have recently learned about a number of changes to the rules for lobbying federal politicians being contemplated, that cause us great concern. The proposed changes put unreasonable limitations on people being engaged in politics and/ or advocating for legislative changes and should not be implemented.

We fully endorse the CLC’s submission and have attached it for your reference. Please accept their submission as ours as well.

Nova Scotia Federation of Labour

The Nova Scotia Federation of Labour (CLC) is Nova Scotia’s largest labour organization, bringing together 70,000 members from over 100 union locals from all parts of Nova Scotia.

We welcome the opportunity to provide input on updates to the Lobbyists’ Code of Conduct. We reviewed the draft update of the Code and have serious concerns. We urge the Office of the Commissioner of Lobbying (OCL) to carefully consider our input and make adjustments before finalizing the update to the Code.

The Nova Scotia Federation of Labour (NSFL) supports the overall objective of the updated Code to foster transparent and ethical lobbying of federal officials. We also support the expectations of the updated Code which are intended to ensure lobbyists conduct their actions in accordance with the highest standards of transparency, respect for government institutions, integrity and honesty.

However, we are strongly opposed to many of the changes in the draft update of the Code which go far beyond ensuring transparency and are a major overreach by the OCL. Specifically, we are concerned about the updates for Political Work (Rule 6); Hospitality (Rule 4); Close Relationships (Rule 5); and Misinformation (Rule 2).

The proposed updates in these four areas are unwarranted, unreasonable and unworkable, and will lead to unintended consequences. We urge the OCL to carefully consider our input and to not proceed with the updates that are proposed in these four sections of the Code.

Prince Edward Island Federation of Labour

The Prince Edward Island Federation of Labour (PEIFL) is Prince Edward Island’s body of labour, representing over 16,000 members. We also represent 14 different unions in Prince Edward Island.

We welcome the opportunity to provide input on updates to the Lobbyists’ Code of Conduct. We reviewed the draft update of the Code and have serious concerns.

The PEIFL supports the overall Objective of the updated Code to foster transparent and ethical lobbying of federal officials. We also support the Expectations of the updated Code which are intended to ensure lobbyists conduct their actions in accordance with the highest standards of transparency, respect for government institutions, integrity and honesty.

However, we are strongly opposed to many of the changes in the draft update of the Code which go far beyond ensuring transparency and are a major overreach by the OCL. Specifically, we are concerned about the updates for Political Work (Rule 6); Hospitality (Rule 4); Close Relationships (Rule 5); and Misinformation (Rule 2).

The proposed updates in these four areas are unwarranted, unreasonable and unworkable, and will lead to unintended consequences. We urge the OCL to carefully consider our input and to not proceed with the updates that are proposed in these four sections of the Code.

Institut professionnel de la fonction publique du Canada

The Professional Institute of the Public Service of Canada is a national union that represents some 60,000 public service professionals across the country, the majority of whom are employed by the federal government.

Our position is in line with that taken by the Canadian Labour Congress (CLC) in its February 11, 2022 submission to your Office. As that document is very detailed and exhaustive in its analysis of the proposed changes, we will not repeat the CLC’s arguments here. We will state, however, that we believe the proposed changes, for the most part, to be overly restrictive, unnecessary and not anchored to any rational or practical considerations.

Alliance de la Fonction publique du Canada

The Public Service Alliance of Canada represents 215,000 members in bargaining units in the federal public sector, the federally regulated private sector, the post-secondary education sector, and all three territorial governments, among other employers.

We have reviewed the draft update of the Lobbyists’ Code of Conduct and are bringing our concerns to your attention. We urge the Office of the Commissioner of Lobbying (OCL) to carefully consider our comments and make the necessary adjustments before finalizing the update to the Code.

PSAC supports the overall objective of the updated Code to foster transparent and ethical lobbying of federal officials. We also support the Expectations of the updated Code which are intended to ensure lobbyists conduct their actions in accordance with the highest standards of transparency, respect for government institutions, integrity and honesty.

However, we strongly oppose the proposed changes in the draft update which go far beyond ensuring transparency. Specifically, we are concerned about the updates for Political Work (Rule 6); Hospitality (Rule 4); Close Relationships (Rule 5); and Misinformation (Rule 2).

The proposed updates in these four areas are unwarranted, unreasonable and unworkable, and will lead to unintended consequences. We have not seen evidence of pervasive problems brought forward to support the proposed updates.

The potential overreach threatens to undermine our ability to engage in activities that are protected, and in some instances required by law in the federal sector. It may interfere with the constitutional rights of union members under ss.2(b) of the Canadian Charter of Rights and Freedoms.

We urge the OCL to carefully consider our input and not proceed with the updates that are proposed in these four sections of the Code.

(…)

PSAC believes the Lobbyists’ Code of Conduct plays an important role in ensuring that the activities of lobbyists adhere to the highest standards of transparency, respect for government institutions, integrity and honesty. We continue to support the OCL’s goal to ensure the Code is clear and detailed, so lobbyists understand all of their obligations.

However, we believe the proposed changes in the sections that deal with Political Work (Rule 6); Hospitality (Rule 4); Close Relationships (Rule 5); and Misinformation (Rule 2) are unwarranted, unreasonable and unworkable, and will lead to unintended consequences.

We urge the OCL to carefully consider our comments and concerns and to not proceed with the updates that are proposed in these four sections of the Code. We are available to meet to discuss our feedback at your convenience.

Travailleurs et travailleuses unis de l'alimentation et du commerce

The United Food and Commercial Workers Union (UFCW Canada) is Canada’s leading private sector union, representing more than 250,000 members in 600 communities across the country working in the food retail and processing, agriculture, health care, security, and hospitality industries, as well as other sectors of the economy. UFCW Canada members live and work in communities across the country. They are your neighbours. UFCW members work at your local grocery and drug stores, process your food, provide security services, maintain your hotels, nursing homes, and rental car agencies, and work in many other sectors of the economy. Quite literally, UFCW Canada members help feed Canada. Whether it is bakery products, meatpacking, processing vegetables, or helping you with your groceries this week, UFCW Canada members help feed Canadians and their families from coast to coast.

UFCW Canada welcomes the opportunity to provide input on updates to the Lobbyists’ Code of Conduct. UFCW Canada supports the overall Objective of the updated Code to foster transparent and ethical lobbying of federal officials, and we support the Expectations of the updated Code, which are intended to ensure lobbyists conduct their actions in accordance with the highest standards of transparency, respect for government institutions, integrity, and honesty.

Upon review of the draft update of the Code, UFCW Canada has some serious concerns about many of the changes. We are strongly opposed to changes in the draft update, which go far beyond ensuring transparency and are a major overreach by the OCL. Specifically, we are concerned about the updates for Political Work (Rule 6); Hospitality (Rule 4); Close Relationships (Rule 5); and Misinformation (Rule 2).

UFCW Canada shares the concerns that are outlined in the Canadian Labour Congress (CLC) submission, and we have attached a copy of the submission with this letter. UFCW Canada believes the proposed updates in the four areas mentioned above are unwarranted, unreasonable, and unworkable, and that they will lead to unintended consequences.

UFCW Canada supports the goal of ensuring the Code is clear and detailed, so lobbyists understand their obligations. However, UFCW Canada urges the OCL to carefully reflect on the input provided in the CLC submission, and to not proceed with the updates being proposed for Rules 2, 4, 5, and 6 of the Code.

The clarity is great. What is currently lacking on the website and possibly here, too, is hyperlinks. It would be very helpful if the rules directly linked to the relevant content to which they refer (e.g. the specific sections of the Lobbying Act when cited).

I thank you for this opportunity to provide feedback to the draft update of the "Lobbyists' Code of Conduct."

I have reviewed the draft Code along with its supporting document, the Lobbying Act, and have spoken to your office.
https://lobbycanada.gc.ca/en/rules/the-lobbyists-code-of-conduct/lobbyists-code-of-conduct/consultation-on-future-changes-to-the-lobbyists-code-of-conduct
https://laws-lois.justice.gc.ca/eng/acts/l-12.4/FullText.html#s-10.3

Unfortunately, I remain unclear on how the proposed Lobbyists' Code of Conduct (and Act) are meant to be applied to the various non-governmental individuals and organizations that meet with the Minister and Department of National Defence and Veterans Affairs Canada and all levels of the Canadian Armed Forces (DND/VAC/CAF) in relationship to diverse military member/veteran related health and wellbeing issues (i.e. totally unrelated to military equipment/procurement issues).

As one of the many non-governmental entities that are interested to influence a) the development or amendment of government policy and programs, b) help arrange meetings between public office holders and others and c) when required encourage bills, resolutions and/or legislation changes for purposes of improving military member/veteran health and wellbeing - I remain unclear on where stakeholder advocacy stops and registered lobbying begins.

Examples of questions that if answered would, to me, help provide more clarity include the following.

Who, within the context of DND/VAC/CAF, are "Designated Public Office Holders" (DPOHs)?

The main clarification point being related to the definition of "comparable rank". Does that term include, or not include, military members? If it does include military members, then does your office recognize the DM as "comparable rank" to CDS? Assoc DM (EX5) as "comparable rank" to VCDS? Assist DM (EX4) as "comparable rank" to LGen? If yes to all - then does that mean all LGens are DPOHs or only certain positions?

If not all LGens are DPOHs who decides who is and where would a nongovernmental actor find that list/information?

https://www.canada.ca/en/department-national-defence/corporate/reportspublications/transition-materials/defence-101/2020/03/defence-101/dndcaf-org-chart.html

Given that many of the military specialist officers/trades maximize their ranks as MGen (Surgeon General, JAG, Chaplain General) was there any government consideration that some military specialty officers also meet the spirit of DPOHs?

What about GIC appointees such as the CAF and VAC Ombuds - are they both DPOHs?

Who else, if anyone, has the GIC designated from DND/CAF/VAC under 12 (c) of the Act and where would a non-governmental actor find that list/information?

How broad is the "or anything of value" definition under what constitutes "Payment"? Who decides if something is/isnt "of value"?

Is influencing defence research topics, priorities and/or funding allocations something "of value" if you are also a researcher/academic? Is receiving preferential "stakeholder" status over other non-governmental individuals and/or organizations for preferential access to government led/created meetings, committees, advisory groups who's outputs then impact/determine research/policy/programs/awards etc "something of value" if also personally benefiting from those decisions?

Who within the context of DND/VAC/CAF are "Public Office Holders" (POH)?

The Lobby Act says in 2(1) that a POH is defined as "any officer or employee of Her Majesty in right of Canada and includes.... (d) a member of CAF". Can this be clarified?

Does this mean that non-governmental individuals and/or organizations meeting with any member of CAF, regardless of their rank or position, should be considered a POH meeting?

Who, if anyone, did the Office consult, as per 10.2 (2) of the Act, to ensure the unique aspects of military/defence lobbying were fully considered in this draft?

Could unpaid government advocacy work by newly retired military DPOHs on behalf of veteran organizations that are concurrently seeking federal funding supports/government policy changes, ever be considered as restricted activities under the Lobbying Act 10.11(1)?

For all the above reasons, and more, this proposed code (and Act) are problematic. They do not presently provide clear direction for nongovernmental agents to easily understand when or how to apply them for military member/veteran issues. This is of further interest when considering the rapidly growing number of veterans actively involved in federal politics including the completion of directly related election work and/or having previous close relationships including direct supervisory,often with the same people they are now meeting with officially to influence. The potentials for creating senses of obligation for the government member to support non-governmental actor clearly exist.

One recommendation for your office's consideration is to develop points of contact at DND/CAF/VAC familiar with military member/veteran issues (verses military equipment procurement) and together identify how to best understand when and where advocacy becomes lobbying and develop a knowledge translation strategy for both the government worker and military member/veteran supporters to best ensure all lobbying of federal officials is captured and completed in a transparent and ethical manner.

Thank you again for the opportunity to provide this feedback for your consideration.

C’est avec plaisir que je vous présente mon mémoire à titre de commissaire aux conflits d’intérêts et à l’éthique en vue de l’examen du Code de déontologie des lobbyistes. J’appuie fortement la tenue de cette consultation ouverte et suis d’avis que la simplification et la clarification du libellé des règles seront utiles pour prévenir les situations de conflits d’intérêts. Les suggestions présentées correspondent à mes propres réflexions en tant que commissaire aux conflits d’intérêts et à l’éthique, en poste depuis janvier 2018, et aux commentaires des membres du Commissariat.

Ma participation à cet examen s’inscrit dans les principes du ^{note de bas de page 1}protocole d’entente que la commissaire au lobbying du Canada et moi-même avons signé en mars 2018. Nos mandats sont distincts, mais ils se recoupent dans certains domaines. Les règles de déontologie pour les lobbyistes et les règles de déontologie pour les titulaires de charge publique représentent un côté de la même médaille. Les deux entités doivent travailler ensemble pour veiller à ce que l’intérêt public prime sur les intérêts personnels. Il est important de faire connaître les deux régimes afin de prévenir les situations de conflits d’intérêts.

• Retour à la référence de la note de bas de page 1 https://ciec-ccie.parl.gc.ca/fr/publications/Documents/RapportsInternes/MOU CCIE_CAL.pdf

Je tiens à dire tout d’abord que les règles énoncées dans le Code de déontologie des lobbyistes proposé ne soulèvent aucun problème quant à l’applicabilité du mandat de mon bureau. En fait, les règles suivent les recommandations que j’ai récemment formulées publiquement en ce qui concerne les cadeaux, les relations et la définition des amis et de la famille.

Par exemple, la classification des cadeaux, y compris ceux offerts pour des raisons promotionnelles ou en guise d’appréciation, apporte une clarté nécessaire aux donateurs et aux bénéficiaires. En particulier, l’exception faite pour les articles de « faible valeur » s’aligne sur ma position, qui a été exposée lors de ma comparution devant le Comité permanent de la procédure et des affaires de la Chambre des communes (PROC) le 3 février 2022. J’ai proposé d’examiner la nécessité d’établir un montant minimal de base pour les cadeaux et l’influence potentielle. À mon avis, un cadeau ou un autre avantage d’un montant modeste (30 $ ou moins, tout compris sur une période de 12 mois) offert par une ou un lobbyiste ou l’entité qu’il représente serait peu susceptible de présenter un conflit d’intérêts et pourrait être acceptable. Ainsi, une norme claire serait établie pour toutes les parties, car tout cadeau ou autre avantage offert par un lobbyiste qui dépasse le seuil annuel de 30 $ tout compris ne serait jamais acceptable.

Dans la définition complète et très claire des cadeaux figurant dans le Code de conduite des lobbyistes proposé, je note que les voyages ont été inclus à juste titre. Ce serait peut-être le moment d’ajouter une mention expresse aux voyages parrainés dans le contexte du Code sur les conflits d’intérêts des députés qui, comme vous le savez, sert souvent d’échappatoire aux dispositions relatives aux cadeaux dans les régimes du lobbying et des conflits d’intérêts. J’ai soulevé cette question à ma comparution devant le comité PROC. J’ai demandé qu’il soit soumis au critère d’acceptabilité, comme tout autre cadeau. Bien que les déplacements parrainés compensent les budgets de voyage limités des membres de la députation, ils créent dans de nombreux cas l’apparence d’un conflit d’intérêts. À mon avis, si les voyages parrainés doivent être considérés comme acceptables, ils devraient être soumis au même critère d’acceptabilité que les cadeaux ou autres avantages.

Le Code de déontologie des lobbyistes proposé interdit à juste titre aux lobbyistes de faire pression sur un fonctionnaire ou ses associés s’ils ont effectué un travail politique — rémunéré ou non — au profit du fonctionnaire, à moins que la période de restriction ne soit expirée. Il serait également inapproprié pour un lobbyiste d’offrir un cadeau à un associé d’un fonctionnaire, car cela pourrait entraîner un traitement préférentiel pour ce lobbyiste. Vous pouvez envisager de définir le terme « directement ou indirectement » pour saisir ces nuances dans le cadre des règles relatives aux cadeaux.

Enfin, je suis favorable à l’utilisation d’un langage simple et à la nouvelle présentation pour permettre ces changements. Les définitions sont claires et complètes. Les changements proposés au Code précisent la relation complexe entre les lobbyistes et les fonctionnaires. Je voudrais réitérer mon engagement à poursuivre les activités de sensibilisation conjointes afin d’aider à clarifier les nuances pour les lobbyistes et les titulaires de charge publique.

Je suis heureux de prendre part à cet important exercice qui aboutira certainement à une meilleure compréhension des règles qui servent à accroître la confiance du public dans les institutions canadiennes.

The Canadian Life and Health Insurance Association (CLHIA) is pleased to provide its comments to the Office of the Commissioner of Lobbying of Canada (OCL) on future changes to the Lobbyists’ Code of Conduct (the Code)^{Footnote 1}.

• https://lobbycanada.gc.ca/media/znsfs3oz/lobbyistscodeofconduct2015_en.pdf

Who we are

The CLHIA is a voluntary association whose member companies account for 99 per cent the life and health insurance business in Canada. Life and health insurers play a key role in providing financial security to Canadians.

Additionally, the industry makes a significant contribution to the economy, employing over 158,000 Canadians in high value, professional jobs (as employees or independent agents). The industry is also a major investor in domestic assets and contributes significant revenue through taxes to the federal and provincial governments.

The industry has been proud to work with all levels of government throughout the COVID-19 pandemic to protect and support Canadians through health benefit plans, travel insurance and other financial security products.

Comments on the proposed changes to the Code

Lobbying is a legitimate and normal part of our democratic process

The current Code includes a preamble with four key principles and the purpose of the Code. It is unclear in the draft update whether this preamble with remain. We recommend keeping this section and including a statement that lobbying is a legitimate and normal part of our democratic process. It is important for Canadians to understand that the exchange of ideas and information through lobbying efforts helps to strengthen government and public administration. Lobbying is a legitimate activity and having free and open access to government is an important and integral part of our democracy. We recommend that this be explicitly stated within the Code.

Maintain existing language on gifting

We believe that the simplest and clearest way to manage “gifting” under the Code is to maintain the existing language. The proposed language in this section is problematic. For instance, it defines a gift as “anything of value given for free or at a reduced rate, such as money, credit, a loan, a reward, a benefit, a good, a service, entertainment activity, property, use of property, etc.”. Having an open-ended list of what is considered a “gift” leaves room for misinterpretation.

We recommend maintaining the current language in the Code as it relies on ethics rules of designated public office holders and states that a lobbyist shall not offer or promise a gift “which the public officer holder is not allowed to accept”.

Including co-workers in the definition of close relationships is problematic

Under the proposed language, a close relationship is defined as a close bond with an official that extends beyond simply being acquainted. This includes working relationships, whereby the individuals “[have] closely collaborated for a common goal or [have] formed a prominent or longstanding close professional relationship, such as being partners, colleagues or allies in the same office, sitting together on a board of directors, delivering a program or service”. We believe that this language is too broad and that having worked in the same office, having sat on the same board, or having delivered a common program does not constitute having a close relationship between two people.

Limiting registerable activities goes beyond the scope of a non-statutory instrument

We believe that it is not appropriate to include language limiting registerable activities as a result of political activity within a non-statutory document and instead it should be addressed within legislation.

Conclusion

We appreciate the opportunity to share our views with the OCL on future changes to the Lobbyists’ Code of Conduct.

Introduction

Universities Canada is the voice of Canadian universities, at home and abroad. We are a membership organization advocating for Canadian universities at the federal level and providing university presidents with a unified voice for higher education, research and innovation. Universities Canada also works with government relations offices at our member institutions across the country to advance the sector’s priorities.

As outlined in the current Lobbyists’ Code of Conduct, Universities Canada strongly believes that free and open access to government, including through lobbying, is in the public interest. The Code is one tool among many that exists to ensure lobbying is both ethical and transparent, and we are pleased to provide our comments on the updated draft provided by the Office of the Commissioner of Lobbying.

Comments

As members of the Government Relations Institute of Canada (GRIC), we acknowledge and appreciate their joint submission with the Public Affairs Association of Canada (PAAC). Universities Canada’s additional comments primarily aim to clarify the proposed updates and ensure that the proposed amendments do not unintentionally hinder the ethical and proper conduct of lobbyists, or their Charter rights to engage in the electoral process.

Close relationships

The new definition of close relationships expands upon the existing definition of relationships that is based on the creation of a sense of obligation.

We understand the sense of obligation that can be created through relationships with close family and friends and through financial relationships. The new definition of working relationships, however, casts too wide a net. In larger offices and Boards, it is entirely possible that employees and Board members may never have the opportunity to work directly together, and thus never form a sense of obligation that would compromise their ability lobby in an ethical manner.

Including all working relationships could also lead to a chill effect whereby employees or volunteers are forced to avoid working in specific offices, particularly those in government, or volunteering on Boards in order to preserve their ability to lobby. Implementing this policy would prove challenging, as lobbyists have not had to maintain records of all their working relationship to date. It would further restrict either employment opportunities or working capacity for those who had taken roles in government or as lobbyists in good faith prior to its introduction.

Including these relationships in the definition of close relationships would impose new limits on most lobbyists’ ability to lobby without solving a demonstrable problem with the existing Code. Instead, the focus should be on the obligation that may exist between a lobbyist and a public office holder as a result of working relationships. Universities Canada recommends that the Code focus on the sense of obligation – and potential for undue influence - created by a relationship.

Should the Commissioner of Lobbying keep the definition of working relationship in the Code, it is recommended that a cooling-off period be included for working relationships where a sense of obligation once existed, to recognize that a sense of obligation from working relationships is not indefinite. This would also ensure that lobbyists who undertook working relationships in good faith are not unduly restricted.

Cooling-off period for political work

Similar to the section on close relationships, the previous rules for political work focused on the sense of obligation created through political activities.

The clear list of political activities and their associated cooling-off periods in the draft Code are helpful to ensure fair and equal application of the Code. Some of the listed activities, however, do not create a clear sense of obligation. Specifically, “other political work” is prefaced as having no significant involvement with a candidate or official. The Office of the Commissioner of Lobbying’s current guidance recognizes that that occasional involvement in lower-risk political activities such as volunteering and canvassing, without significant candidate interaction, poses a lower risk or no risk of creating a sense of obligation. Without examples, it is unclear why this is being changed in the updated Code.

All Canadians have Charter rights to engage in the democratic process. Both current guidance and the updated Code recognize the importance of this right, and further do permit financial contributions to candidates and their campaigns. Engagement in the democratic process should not be limited to financial support. Low-risk activities, where there is no significant involvement with the candidate, where the candidate may not necessarily be aware of contributions made, or contributions of limited value (e.g. minimal time spent) do not create an obvious sense of obligation and should not be subject to any cooling-off period.

Overall, Universities Canada recommends that the focus should remain on the sense of obligation rather than the activity itself.

The shift from an obligations-based approach to a rules-based approach on political work could also cause a chilling effect, wherein people become deterred from many campaign volunteer activities due to the broad application of cooling-off periods. Volunteers are a critical part of Canada’s elections, and efforts should be made to ensure that the new rules do not discourage people from doing legitimate political work. If the cooling-off period for political activities is included in the final updated Code, Universities Canada recommends further clarification around the timeline of its application. Specifically, it should be clarified that lobbyists that volunteered in past elections in good faith are not retroactively subject to the new rules.

The National Union of Public and General Employees (NUPGE) appreciates the opportunity to provide input on the draft changes to the Lobbyists’ Code of Conduct. Unfortunately, while we strongly support the objective of increasing transparency and accountability, we have some serious concerns about several of the changes being proposed.

Our concerns are around the proposed changes to Rule 2 (Misinformation), Rule 4 (Hospitality), Rule 5 (Close Relationships), and Rule 6 (Political Work). The changes proposed would do relatively little to increase transparency and accountability, and they would be difficult to administer.

Rule 2 (Misinformation)

The National Union is opposed to expanding the definition in Rule 2 (Misinformation) to include “grassroots lobbying appeals to the public.”

We strongly believe in providing accurate information in our communications with elected officials, our members, and the public. It is also understandable that with the growing use of misinformation and distortion, and the increase in outright lying in the last 6 years, that there would be a desire to strengthen this rule.

Unfortunately, the proposal seeks to extend the reach of the code beyond regulating how lobbyists communicate with public office holders. Attempting to determine whether what organizations registered as lobbyists say in public is misleading will mean that the Commissioner of Lobbying will face pressure to take sides in public debates.

While there are instances where it is clear when something is false and misleading, in many cases, whether something is false and misleading depends on a person’s perspective. An example is the statement that corporate income taxes are too high.

Those who, like the National Union, are worried about how underfunding has damaged public services would argue that statement is misleading. However, we recognize that organizations representing profitable corporations likely have a different point of view. If rules required that the Commissioner of Lobbying judge whether statements like corporate income taxes are too high are misleading, it would be requiring the Commissioner to take sides in a political debate.

There is also concern about how public and lobbying appeals are defined. For unions, the ability to communicate freely with our members is essential to our ability to represent and protect their interests. That includes communicating with our members about federal elections and issues. With the concerns identified above about how what is misleading can be highly political, communications between relatively little to increase transparency and accountability, and they would be difficult to administer.

Rule 4 (Hospitality)

The National Union opposes the definition of “low value” with respect to Rule 4 (Hospitality) in the draft update of the code for several reasons.

According to the proposal, the only hospitality permitted would be “low-value food or beverage,” with low value defined as $30 in 2022 dollars, including taxes. The suggestion that a public office holder is going to be influenced by a couple of sandwiches and a drink seems to be a stretch.

The threshold of $30 also seems arbitrary. It is not clear why this was chosen, particularly given that it’s common for venues to provide meeting rooms for little or no cost and make their money by charging more for food. Another question that has come up is, if food and beverages are provided buffet style, would organizations have to keep track of how much public office holders eat or drink?

It is also worth noting that the Conflict of Interest Code for Members of The House of Commons^{Footnote 1}already addresses the issues of gifts and other benefits and sets a limit of $200. Those benefits Members of Parliament can accept have disclosure requirements.

• Return to footnote 1 referrer https://www.ourcommons.ca/about/standingorders/appa1-e.htm

Rule 5 (Close Relationships)

The National Union opposes the proposal to include “personal relationships” and “working relationships” in Rule 5 (Close Relationships).

Rule 5 (Close Relationships) in the draft code says the following: “Never lobby an official with whom you share a close relationship.” This includes “family relationships, personal relationships, working relationships, business relationships and financial relationships.” Including family relationships, business relationships and financial relationships makes sense because these are obviously close relationships.

However, the categories “personal relationships” and “working relationships” in the draft update of the code are not as clearcut. In the case of public officials who have been involved in organizations that rely on membership involvement, including unions, the way these two categories are defined means that they may include so many people that the provision is unrealistic and unreasonable. What makes these categories particularly broad is the inclusion of “sharing a bond of friendship,” in the definition of personal relationships, and “collaborating for a common goal,” “sitting together on a board of directors,” and being “colleagues or allies in the same office,” in the definition of working relationships.

The work of labour leaders, activists, and staff people means that in a given year there will interaction with thousands of different other union members. They will be “collaborating for a common goal” and often “share a bond of friendship.”

Each union, union local, provincial and territorial labour federation, and local labour council has its own board—and with the boards of umbrella organizations, they bring people from multiple unions together. Someone who has been involved in the labour movement for some time will likely have sat on boards with hundreds of different people. And this doesn’t include boards of other organizations and bodies that labour activists may belong to as a result of their work, such as community organizations, pensions plans, and health and safety bodies.

This means that, if a labour activist—or someone active in another organization that relies on membership involvement—does become an elected official or public office holder at some point, the number of people who will be banned from lobbying them under the proposed definition could easily be in the thousands. This is both unreasonable and unworkable.

Rule 6 (Political Work)

In Rule 6 (Political Work), the National Union opposes expanding the definition of political work and the proposed 12-month cooling-off period for people performing “other political work.”

Given how important the ability to participate in the political process is in a democracy, any measure that in any way discourages people from participating in the political process should not be taken lightly. The need to ensure transparency and accountability needs to be balanced with the need to not create unnecessary barriers to participating in the political process. If the code restricts the ability of people involved in the political process to lobby candidates they have supported, it needs to be recognized that the restriction does interfere with their ability to participate in the political process.

Of particular concern is the proposal to restrict the ability of people performing “other political work” in campaigns to lobby public office holders. The tasks described under other political work are seen as relatively low level and are performed by thousands of Canadians in different political campaigns at every election. People doing these tasks have little or no interaction with candidates. Given that these tasks are not strategic, suggesting that knocking on doors or distributing flyers creates a sense of obligation in those being lobbied seems a stretch.

Conclusion

The National Union supports the goal of ensuring that the Lobbyists’ Code of Conduct is clear and detailed, so it is easier to ensure that the activities of lobbyists adhere to the highest standards of transparency, integrity, and honesty. Unfortunately, many of the proposals in the draft update of the code are so broad in their reach, and so unreasonable, that far from improving transparency and accountability, they could undermine all efforts to regulate the lobbying of public officials.

We strongly urge the Office of the Commissioner of Lobbying of Canada to reconsider the proposed changes. If you wish to discuss this issue further, we would be very happy to do so.

Gifts

3

Never offer, promise or provide – directly or indirectly – any gift to an official that you lobby or expect to lobby, other than a low-value token of appreciation or promotional item.

• The value of a low-value token or promotional item must be permanently monetized and stated on the item. Providing more robust, tangible examples and their suggested value, or getting clearance from an OCL advisor would be helpful tools. Stating that something is low-value or promotional is ambiguous both for the giver and receiver. A clear definition of an acceptably valued item will keep both lobbyists and DPOHs accountable and on the same page. In the past, we have seen instances of DPOHs returning a promotional item because they deemed they couldn’t accept such a gift, whereas the lobbyist considered it low-value, promotional, and within the rules. Other DPOHs accepted the same token during the same period, so it is unclear on which parties were properly following the guidance.

Close relationships

5

Never lobby an official with whom you share a close relationship.

• The definition of a close relationship herein is difficult to categorize in a city like Ottawa where friendships, romantic relationships, and working relationships for lobbyists are very often based in and around Parliament Hill. In other instances, these kinships can have stemmed from other periods of life or perhaps post-secondary education or community groups, where lobbyists share similar interests and activities with those who go on to hold public office. DPOHs and lobbyists may go on to share the same files and portfolios, making it near impossible to avoid working together. It can also put the employer of a lobbyist – particularly in smaller organizations – in a difficult situation if their go-to lobbyist is suddenly restricted from doing their work due to changes in Parliament.

Political work

6

Never lobby an official or their associates if you have done political work – paid or unpaid – for the benefit of the official, unless the cooling-off period has expired.

• Having a cooling off period and detailed restrictions on trivial political work can be seen as impeding a lobbyist’s personal life. There could be some level of understanding for this policy when it comes to consultant lobbyists, particularly those who are self-employed and therefore rely more on their networking and relationship building for business, but this is completely unacceptable for in-house lobbyists. By subjecting an in-house lobbyist to a cooling-off period for volunteer jobs as basic as canvassing or handing out literature is effectively saying what they do in their private lives as a private citizen, is subject to the law or a code of conduct in their professional lives. It indicates that what is done outside of work in their private time, is still an extension of their employer when it is in no shape or form a reflection of their employer. This is simply unfair.
  In addition, for organizations who have registered consultant lobbyists who don’t lobby often (i.e. Board members of industry associations) this is both discriminating and restrictive. Perhaps these consultant lobbyists live in smaller communities where everyone pitches in to help local candidates or everyone knows everyone. It would be difficult to monitor, enforce, and penalize in this instance and could hinder recruitment of board members.

Sense of obligation

7

Never lobby an official where that official could reasonably be seen to have a sense of obligation towards you because of actions you have taken.

• Similar to the concerns raised above with consultant lobbyists in small communities, we have to remember that Canada is wide and vast, but many lobbyists and those they represent, come from towns and villages and not big urban centres where the lobbying takes place. One person’s definition of a ‘sense of obligation’ could differ greatly from another’s. By limiting actions of lobbyists while not provided a clear definition on what an obligation means, creates a grey area and further ambiguity of the rules.
  We also have to take relationships into consideration when defining a sense of obligation. As previously mentioned, those with prior relationships would have different perceptions of ‘obligation’ when it comes to actions taken.

We appreciate the opportunity to provide comments on the proposed Code of Conduct changes, and we welcome continued collaboration toward an equitable and efficient process. Suncor is, and has always been, committed to transparent lobbying.

We agree that ‘Significant Political Work’ should require a cooling-off period, as described in the draft code. There are instances where the type of campaign work listed would require direct and sustained contact with the candidate or official. We would, however, ask you to reconsider whether the types of activities listed under ‘Other Political Work’ have substantial involvement with a candidate or official. It is our view that this type of political work should be excluded from the cooling-off period, if only to allow people to be involved in the democratic process of an election.

Thank you for the opportunity to respond to your request.

Suggestions on the draft update of the Code

Do not engage in any conduct online, on social media, that would not be acceptable or that is unlawful. For example, do not make derogatory remarks, bully, intimidate, harass other users, use insults, or post content that is hateful, slanderous, threatening, discriminating, or pornographic.

The Canadian Chamber appreciates the chance to provide comments on the Lobbyists’ Code of Conduct. As members of the Government Relations Institute of Canada, the Canadian Chamber wishes to express our general support for the comments provided in the GRIC submission.

I want to particularly draw your attention to the proposed amendments in the draft Code that expand the definition of close relationships to include working relationships, such as being partners, colleagues or allies in the same office, sitting together on a board of directors and delivering a program or service together. This expanded definition would be problematic in its practical implementation. I would like to provide two specific examples from the Canadian Chamber’s perspective as a multi-sector industry association.

• Example 1 – The Canadian Chamber’s Board of Directors has 53 members. Individuals are put forward by their company to represent them on the Board. Given the size of our Board, not all Directors will sit on the same Board committee or have significant interactions.
• Example 2 – The Canadian Chamber operates numerous policy committees as a forum for staff to engage members on policy issues. Certain member committees will have dozens of members given the size of our association. Members will not even be aware of everyone who is on a particular committee nor necessarily ever have interactions.

In both cases, the proposed Code would capture many individuals that would not have developed a close relationship. Additionally, in practical terms it is likely that individuals would not be able to accurately account for everyone they have crossed paths in the context of an industry association’s activities.

Lastly, the commonality in both cases is that members have no choice who they interact with in the activities of industry associations, whether through policy committees or a Board of Directors. This is in contrast to the current Code, which places the emphasis on relationships that are voluntary in nature. We would urge your office to revise its proposals for this portion of the code.

We would be pleased to provide further perspectives to aid your office in its work.

Thank you for your continued engagement with stakeholders on this important file.

Section 10.2(1) of the Lobbying Act specifically notes that the Commissioner shall develop a Lobbyists Code of Conduct respective the activities described in subsections 5(1) and 7(1) of the Act. While the Commissioner does have the authority under Section 10.4 to investigate violations of the Code, neither that authority nor the one found in section 10.2(1) extends to broadening the Code beyond the scope of the registration requirements in section 5(1) or 7(1).

Neither section 5(1) nor 7(1) refer to the political activities of lobbyists. The plain language of the statute limits the authority to the act of registration and the communications that give rise to those registrations, not any activity that occurs before those communications are even contemplated.

Notwithstanding the review of a previous iteration of the Code of Conduct by the Federal Court of Appeal in Democracy Watch v. Campbell, I would posit that much the subject matter of the Code of Conduct consultation is outside of the Commissioner’s legislative authority granted to her by section 10.2 of the Act. Section 10.2 most certainly does not allow a Code of Conduct that impinges on the values protected by the Charter of Rights and Freedoms.

In 2010, the Canadian Bar Association expressed serious concerns with regard to the constitutionality of the previous iteration of the Code of Conduct provisions. The guidance to what was then known as Rule 8 was not sufficiently tailored so as to limit a Lobbyist’s freedom of expression. It was, in their view, due to its vagueness a deterrent to all political activities. Today, we see significant precision afforded to the new code, but effectively the same result – a deterrent to almost all political activities. In Democracy

In Democracy Watch v. Campbell, the Federal Court of Appeal made two very important points which are germane to the consultation at hand. First, at [53] the Court noted that if a ‘lobbyist’s effectiveness depends upon the decision-maker’s personal sense of obligation to the lobbyists, or on some other private interest created or facilitated by the lobbyist, the line between legitimate lobbying and illegitimate lobbying has been crossed.’ Second, at [52] the Court noted that ‘one can only place a public office holder in a conflict of interest by creating a competing private interest.’

Can a reasonable person, with or without knowledge of regulatory process, honestly believe that the act of canvassing on behalf of a political candidate be so significant as to create a tension between a public office holder’s obligation to a volunteer and their duties to their office? The Court refers to a ‘competing’ private interest, which implies a true sense of divided loyalties, which can be measured in contrast to their public duty. It is not, small or seemingly paltry activities that could create this competing interest.

The only judicial instruction about unacceptable political activities is the organization of a fundraiser by a registrant for a person who is the target of their lobbying. A bright line test where tens of thousands of dollars may be at issue, and the successful re-election of a Candidate could turn on raising that capital.

There is no evidence to suggest that routine political activities rise to that level of value, or anything proximate to it. In fact, the Code proposals would allow for an individual to participate at a fundraiser provided it is within the prescribed limits of the Canada Elections Act. The relative value of that activity far outweighs the comparable monetary value of the enumerated political activities. The selection of these activities seems to be undermined by the relative value of a protected contribution.

The monetary value (or equivalent) of those activities to a campaign aside, they do nevertheless represent constitutionally protected speech or assembly. They are also a manifestation of an elector’s ability to participate in the electoral process, as explained in Figueroa v. Canada [2003] 1 SCR 912. The purpose of Section 3 of the Charter is ensuring effective representation, and there is no better tool to ensure that purpose is met than participating directly in the electoral process. As the Court noted, Section 3 should be understood to ensure the right of each citizen to play a meaningful role in the electoral process, and that the right is participatory. Sovereign power resides in the citizens as a whole and each citizen must have a genuine opportunity to take part in that process. That participation has an intrinsic value independent of the outcome of the election.

Regrettably, the outcome (a potentially successful campaign) is what may limit the democratic participation at issue in the Code of Conduct.

I would agree that there are limits to what activities could constitute a conflict of interest. The Federal Court of Appeal has set a reasonable standard for what could create a conflict of interest, or the appearance thereof. Until that test is expanded by a competent judicial authority, it should not be expanded in an unbounded way through the code of conduct.

As the Commissioner herself noted, there are over 7,000 individuals who are subject to the Code of Conduct. The overwhelming majority of registrants are Canadian citizens who enjoy rights under the Canada Elections Act and Charter of Rights and Freedoms.

They have political rights. The franchise of those registrants is no less important than any non-registrant. Their interest in participating in the process is inspired by their shared values with a political party or their confidence in a candidate.

While delineating between the relative value of the political activities is a potential control, there is no evidence that suggests any registrant has ever created a conflict between the duties of a public office holder and their private loyalties by doing any of the enumerated activities. Given the profound impact, it would be appropriate to offer some evidence of the alleged tension between loyalties removing a registrant’s rights.

The corollary is also applicable. There is no evidence that the existing interpretation of political activities under the current code of conduct is insufficient or otherwise lacking to prevent a potential conflict of interests. The modest confusion that may currently exist is miniscule when compared to the direct affront to constitutionally protected rights. Creating clear rules that infringe democratic rights to remedy a potential question of interpretation is an inappropriate over-reach.

Finally, the analysis of political activities under the proposed code ignores the important role that volunteers play in the political process. Volunteers, as candidate representatives, are essential to ensuring free and fair elections in Canada. They are also essential to ensuring confidence in the electoral system. Volunteers attest and protect the rights of those who may not be able to speak for themselves. Volunteers provide access to the polls for people in their community. Volunteers remind electors where and when to exercise their franchise. Volunteers distribute information to electors to ensure that they have information to inform their vote. These elements of the franchise are the hallmark of participatory democracy.

The proposed Code of Conduct is a direct assault on all of those essential activities. No citizen should be given pause to assert their rights, protect the rights of others, or to mobilize electors in the democratic process.

It may be argued that there is nothing that is stopping electors from enfranchising themselves, it is only a subsequent limitation on their professional lives that is being advanced in the Code. This is an inappropriate application to how jeopardy is measured. Any official action that gives pause to an elector who wants to be engaged in the democratic process is something that should be looked at very critically. If limits are placed on these rights, it should only be done by Parliament, with a full and robust debate of its implications.

The Centre for Israel and Jewish Affairs (CIJA) is the advocacy agent of the Jewish Federations of Canada. CIJA is a national, non-partisan, non-profit organization dedicated to protecting and enhancing Jewish life in Canada through advocacy. CIJA represents approximately 200,000 Jewish Canadians affiliated with Jewish Federations across Canada.

Advocacy is an essential part of a healthy democracy and the public policy process. Organized advocacy, often referred to as lobbying, is an important part of citizen engagement, facilitating the public policy process and ensuring the voices of groups such as Jewish Canadians are considered in our nation’s laws.

The mosaic of diverse groups – religious, cultural, ethnic – and other special interests enriches Canadian society. The Jewish community – like many other ethno-religious communities in Canada – plays an important role in contributing to the public policy debate on important issues that affect our community directly and Canadian society more generally.

We have reviewed the proposed changes to the Lobbyists’ Code of Conduct and submit our feedback as part of the Government of Canada’s consultation. Our comments on specific sections refer to the draft Code as shared on the Office of the Commissioner of Lobbying’s website.

Sections 1 and 2- Transparency and misinformation

The commitments to honesty and transparency are articulated in proposed Sections 1 and 2, which, in part, read:

Never knowingly misrepresent facts, omit important details or present information that is misleading or false when you lobby officials or in grassroots lobbying appeals to the public.

Given the well-documented expressions of distrust and lack of confidence in our institutions, including media and governmental, the rise of fake news and disinformation represents a clear and direct challenge to Canada’s democracy. We support the OCL’s commitment to transparency, as we believe it will help bolster trust and confidence in our institutions, ensuring that government remains open, honest, and transparent.

Section 4 - Hospitality

We support the proposed Section 4 with the updated wording that includes receptions in the same scope as events and in-person meetings. However, we feel the base definition for “low-value” as defined in the Appendix ($30 in 2022 currency) is too low, especially if providing a meal in an urban centre such as Toronto, Montreal, or Vancouver, where much of the Jewish community lives.

As many of our lobbyists and stakeholders observe Jewish dietary laws (kashrut), CIJA must often provide kosher food at our meetings and events. Kosher meals are typically much more expensive than non-kosher alternatives, and this does not fall under the scope of the Commissioner's ability to adjust to local market prices set out in the Appendix. We propose the “low-value” amount be raised to $50 and special consideration be given for dietary requirements and restrictions – which affect many communities.

Section 5 - Close relationships

The proposed Section 5 reads “Never lobby an official with whom you share a close relationship.” CIJA has concerns that “close relationship” constitutes vague terminology and would result in precluding participation of professional lobbyists, especially those who have worked in the field for decades, having built successful networks of relationships. As currently written, the proposed definition does not test whether the relationship would create a sense of obligation, which is what these rules are intended to avoid. Instead of “close relationship,” we recommend maintaining the current test for obligation.

Section 6 - Political work

The proposed Appendix definition for “political work” as referred to in Section 6 divides the work into “significant political work” and “other political work,” with different cooling-off periods. We find the definition of “other political work” overly broad, encompassing activities that are so minor they risk discouraging basic political participation from thousands of Canadians who work in government relations.

The current Code’s test for political work is where it can “reasonably be seen to create a sense of obligation,” something that activities on an election campaign, such as door-knocking or handing out campaign literature do not create, insofar as they do not place the lobbyist in any position of influence, decision-making, or authority over the candidate or their campaign. We recommend removing the category of “other political work” and its cooling-off period from the proposed Code.

Additional comments

We note that the following are not included in your current proposal but are important changes we hope you will consider.

Sponsored travel

As an organization that facilitates sponsored travel for parliamentarians, it has been our long-held view that sponsored travel provides an important benefit for Public Office Holders (POH) in the fulfillment of their duties. In general, sponsored travel affords POH a firsthand opportunity to visit and learn about regions of the world and about substantive issues regarding which they are expected to weigh in as part of their parliamentary work.

On our specific subject matter, the Middle East and the geo-strategic challenges Israel faces, the POH have an opportunity to explore and learn about the complexities of the region. Our missions to Israel (and the Palestinian Authority) are rigorous and, in short, designed to ensure that the POH experiences the highest possible quality and range of insights and background knowledge of the region. Therefore, we submit that sponsored travel should remain available to POH.

Internships

As you are no doubt aware, Conflict of Interest and Ethics Commissioner Mario Dion issued an opinion regarding the various Parliamentary Internship programs.

CIJA, which has administered such a program since 2002, was both surprised and disappointed with the interpretation advanced by the Ethnics Commissioner. We take our responsibilities seriously and have always endeavoured to comply fully with all regulatory obligations – whether related to Lobbying, Ethics, or CRA requirements. Indeed, as a matter of course, we routinely review our programs with external legal counsel to ensure they satisfy fully all relevant legislation and regulatory guidelines.

CIJA has taken the position that the Ethics Commissioner’s finding reflects a misunderstanding of the purpose of the program and of the net impact of an intern serving in the office of a Member of Parliament.

CIJA – and the Jewish community it represents – believes that its responsibilities extend beyond advancing the parochial interests of the Jewish community. We believe that we have a responsibility to contribute to the wellbeing of all Canadians. And that imperative serves as the guiding principle behind our Parliamentary Internship program. Too many Canadians cynically dismiss the political sector, failing to identify it as a noble career and important part of Canadian life. Our sole objective in establishing the program was to provide young Canadians with exposure to the exciting, fulfilling, and meaningful experience of working in public service. It was our hope that the interns’ time on the Hill would inspire many of them to pursue a career in political life. And, indeed, we have been gratified by how many have chosen to follow this career path. Therefore, we continue to request that an exemption be made for sponsoring internships – regardless of whether the sponsor is also registered with the OCL.

20% "significant part of the duties"

In the Commissioner’s March 9, 2020, testimony before the Standing Committee on Access to Information, Privacy and Ethics, she raised concerns about the “significant part of the duties” threshold. We share the concern. The current set of rules are the antithesis of transparency, clarity, and fairness. As the Commissioner notes, “it’s very difficult to apply, and it’s difficult for organizations and corporations to know when they’ve met the 20% threshold.” Therefore, we support the Commissioner’s recommendation that any entity that lobbies the government, whether they are seeking funds or trying to influence Canadian government policy, be compelled to register by default. For the system to be truly fair and transparent, it is our view that there should be no exemptions to registering. As a result, Canadians will have a clearer picture with respect to which groups and individuals have undertaken advocating or lobbying activity within the political sector – and, equally important – the subject matter of those interventions.

We thank you for the opportunity to contribute to this process and stand ready to provide any elaboration that would be helpful.

Executive Summary

These comments are jointly submitted by the Government Relations Institute of Canada (GRIC) and the Public Affairs Association of Canada (PAAC). Our comments have been informed after thorough consultation with our memberships since December when the draft was released.

Overall, we believe the draft code encompasses the key principles and values that form the backbone of Canada’s lobbying rules and regulations and does so in direct and plain language.

The overwhelming majority of lobbyists and government relations professionals in Canada conduct their business with the highest ethical standards. A clear Lobbyists’ Code of Conduct based on logical and reasonable standards, coupled with the transparency provided by the Registry of Lobbyists, will continue to ensure that Canada has one of the most effective and ethical lobbying regimes in the world. As evidence will show, the existing Code works well and is followed and adhered to every day by lobbyists working in Canada. It is important that in crafting a new Code we address any real concerns or shortcomings with our existing regime and create common sense, logical rules that can be easily understood and enforced.

While we support the general principles behind all seven of the enumerated rules in the draft Code, we firmly believe that some amendments and changes, particularly to the definitions section, are required to ensure the code can function in an effective manner that will be broadly embraced by our membership.

Specifically, GRIC and PAAC respectfully recommend the following which will be detailed in the remainder of our submission.

• The Code should clearly state that lobbying is a legitimate activity and normal part of our democratic process, and the exchange of ideas and information strengthens government and public administration. It is critical that the Code explicitly state that free and open access to government is an important and integral part of participating in our democracy.
• Gifts: The simplest and clearest way to handle gifts is to keep the current wording in the existing Code which relies on ethics rules of the designated public office holders and states that a lobbyist shall not offer or promise a gift, “which the public office holder is not allowed to accept.”
• Close relationships: Simply having worked in the same office, sat on the same board, or delivered a common program should not necessarily constitute a close relationship between two people.
• Political activities: A limitation on registrable activities as a result of political activity is a prima facie violation of Section 2 and Section 3 of the Charter of Rights and Freedoms. The appropriate venue for limiting Charter rights is not a consultation on a non-statutory instrument.

Additionally, GRIC and PAAC note that the OCL has positioned these proposed changes to the Code as responding to, “preliminary consultation with stakeholders and recent investigations.” However, the consultation document makes no attempt to connect the specific proposed changes to any actual evidence of ongoing gaps or problems with the current framework. GRIC and PAAC respectfully submit that before any changes to the Code are adopted, as proposed in the consultation document or otherwise, it is incumbent on the OCL to explain precisely which ongoing, real-world problems the changes will address. In the absence of any explanation from OCL as to which specific cases the proposed changes would address or apply, there is a clear undercurrent of “solutions in search of problems” in this consultation paper.

As some of these changes would further limit Canadians’ ability to participate in the electoral process, and/or introduce new material consequences and Charter-limitations to Canadians who choose to participate in the electoral process, it is clearly incumbent on OCL to provide specific real-world examples of situations where the current Code was insufficient to protect the public interest in this regard. Absent specific examples of problems that these proposed changes would address, GRIC and PAAC can only conclude, respectfully, that OCL is proposing these changes because it can, not because there is a need.

Introduction

We appreciate the opportunity to comment on the draft code. These comments are jointly submitted by the Government Relations Institute of Canada (GRIC) and the Public Affairs Association of Canada (PAAC) after thorough consultation with our memberships.

GRIC is a national, not-for-profit organization, founded in 1994 by government relations professionals in response to the growth and maturing of the industry over the previous several decades. GRIC fosters high standards of practice through professional development and adherence to a code of professional conduct. GRIC also speaks on behalf of Canada’s government relations community on matters pertaining to the relationship between the lobbying industry and government. GRIC’s membership includes consultant and in-house lobbyists from non-governmental organizations, national trade associations, charities, universities, and private companies (both domestic and multi-national), extending across the breadth and depth of the Canadian economy.

PAAC is a national, not-for-profit organization founded in 1984. Its principal objective is to help public affairs professionals succeed in their work by providing them with forums for professional development, the exchange of new ideas and networking. PAAC’s membership represents a cross-section of the many disciplines involved in public affairs including policy development, government relations, lobbying, communications, opinion research and public relations. PAAC’s members come from both the private and public sectors, in areas such as industrial and financial companies, crown corporations, consulting firms, small business, ministries and municipalities, PR organizations, trade associations, educational institutions, law and accounting firms.

The wide-ranging activities of GRIC and PAAC’s members reflect the fact that governments are a central part of today’s economy. The current pandemic has only emphasized this fact more. Whether as legislators, regulators or customers, governments interact constantly with every sector of the economy. 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.

Governments’ legislative, regulatory and spending decisions impact every Canadian, every day. Government relations professionals are a fundamental part of the democratic process by which government and business, charities, NGOs, academia and civil society interact. Government relations and public relations professionals provide advice and analysis to assist government and their clients in their interactions with each other. They are translators, explaining government’s needs to their clients, and their clients’ needs to government.

In recognition of this relationship, GRIC and PAAC work together on numerous events and issues of interest to our members. In 2013, we signed a memorandum of understanding, committing the organizations to collaborate on a range of activities, including where possible, developing joint submissions in response to government consultations. As such, we are pleased to jointly submit the following comments to the Office of the Commissioner of Lobbying (OCL) in response to this consultation.

Preamble

The draft code removes the existing preamble in the current version of the Code and replaces it with Objective, Application and Expectations sections. The information contained in these sections, is valuable, particularly explicitly stating that Canada’s lobbying regime is based on the principles of transparency, respect for government institutions and integrity and honesty. While we do not object to a change in format, we note that some important principles have been lost in deleting the existing preamble.

While we believe the preamble in the existing Code should be retained in its entirety, we would like to highlight two lines we think are particularly valuable to be maintained:

• Free and open access to government is an important matter of public interest.
• Lobbying public office holders is a legitimate activity.

At the heart of the Lobbying Act is a recognition that petitioning government is not a privilege, it is a right. That right extends back through the history of constitutional democracy, protecting the right of individuals, groups and corporations to petition government.

It is important for Canadians to understand that advocacy is an integral and important part of our democracy that leads to better public policy by allowing legislators and other decision makers to interact directly with those stakeholders who will be most impacted by the choices being made. In public policy matters, the best decisions are not made in a vacuum and our Code should clearly state that lobbying is a legitimate and normal part of our democratic process, and the exchange of ideas and information strengthens government and public policy.

The vast majority of government relations professionals conduct their affairs in accordance with the highest standards of integrity, honesty, openness, and professionalism. The Code should be written in a way that fosters transparency and ethical lobbying.

The Code should clearly state that lobbying is a legitimate activity and normal part of our democratic process, and the exchange of ideas and information strengthens government and public administration. It is critical that the Code explicitly state that free and open access to government is an important and integral part of participating in our democracy.

Rule 1 – Transparency

GRIC and PAAC support the Rules 1.1, 1.3, 1.4 and 1.5 enumerated under this section of the draft Code as they relate to our interactions with public office holders.

With respect to grassroot lobbying appeals to the public, as referred to in the new Rule 1.2 of the draft Code, we believe, as noted earlier in our submission, that the Code of Conduct should not place limits on communications with the general public. It is outside of the authority granted to the Commissioner to create requirements associated with free speech. While the Act can require specific information on communication techniques, it cannot be used to place requirements on that speech, either the medium or its content.

Rule 2 – Misinformation

GRIC and PAAC support this rule, such that knowingly misrepresenting facts, omitting important details and presenting misleading or false information in any form of lobbying is unethical. However, given there was a need for guidance on the definition of grassroots lobbying, we recommend more specific language to improve clarity regarding the reach of this rule as it pertains to grassroots lobbying.

Our suggested language is as follows:

• “Never knowingly misrepresent facts, omit important details or present information that is misleading or false when you lobby officials directly or through grassroots lobbying appeals to the public that seek to persuade those members of the public to communicate directly with a public office holder in an attempt to influence a particular opinion.”

Rule 3 – Gifts:

GRIC and PACC support the wording of the draft Code that prohibits promising or providing a gift to an official other than low-value tokens of appreciation or promotional items. However, we note that the appendix of the draft Code defines low-value as $30 in 2022 dollars. It is easy to imagine a reasonable token of appreciation, such as book given to a conference speaker, exceeding $30 or conversely a low-cost item less than $30 having great personal or sentimental value to a public office holder. We submit that it would be more practical not to assign a specific price to “low value” in the Code but instead state that tokens of appreciation or promotional items must not be reasonably seen to create a sense of obligation between the lobbyist and the designated public office holder.

The current approach in the Code of Conduct is appropriate and not confusing and lobbyists have adopted the approach on gifts and have been working under the rules without any major concerns from your office that we are aware of. We also have significant concerns about how a specific dollar threshold will be enforced. This puts the onus on those hosting a reception, for example, to track whether a public office holder in attendance has had a second glass of $16 Cabernet Sauvignon or has eaten just enough hors d-oeuvres to stay under $30, including tax? Are we really to believe these scenarios would waiver the high standard of ethics of our public office holders, somehow establishing a sense of obligation?

The simplest and clearest way to handle gifts is to keep the current wording in the existing Code which relies on ethics rules of the designated public office holders and states that a lobbyist shall not offer or promise a gift “which the public office holder is not allowed to accept.”

This will have the added benefit of preventing a perverse situation, as had happened before, where a lobbyist breaches the Code of Conduct by offering a gift that a public office holder is allowed to accept. GRIC and PAAC’s long-standing position has been that the rules on what types of gifts a lobbyist can offer should be synched to the rules on what types of gifts a public office holder can accept.

Rule – Hospitality

Similarly, GRIC and PAAC support the new wording for the section on hospitality but as previously mentioned, question the utility and practicality of including a definition in the Code of “low-value.” Instead, we would recommend that the Code state that no hospitality should be offered, directly or indirectly, which would reasonably be seen to create a sense of obligation between the lobbyist and the designated public office holder. Again, the rules on what types of hospitality a lobbyist can provide should be synched to the rules on what types of hospitality a public office holder can accept.

While we recognize that some regional flexibility has been contemplated in the draft Code with respect to the $30 threshold, food or beverage at an event or reception could be very different in downtown Toronto or Vancouver (or in a remote Northern community) than it is elsewhere in Canada. While the goal of the Code should be to continue the current practice of permitting reasonable hospitality at a meeting or reception, the Code should refrain from setting a specific arbitrary dollar amount and maintain the current common-sense test that relies on not providing a gift or hospitality that could be reasonably seen to create a sense of obligation between the lobbyist and the designated public office holder.

Rule – Close relationships

GRIC and PAAC support the clearly stated prohibition against lobbying an official with which one holds a close relationship, but again, we see serious problems with how that term is defined in the appendix of the Code. We understand that close relationships would include family members, those living in the same house, close personal friends, business partners and those with whom you share an economic interest, but the draft definition goes beyond that to include those with a past working relationship “(colleagues or allies in the same office, sitting together on a board of directors, delivering a program or service).”

We submit that the business and financial relationships application sufficiently captures close relationships of an economic nature and that working relationships not be included in the definition in the Code, except for those work relationships that develop into personal relationships or close friendships. Business partnerships or financial relationships involve choice on the part of the individual and there is clear evidence of a close connection. Simply working in the same office, sitting on the same board, or delivering a common program would not necessarily constitute a close relationship between two people. Some offices and boards are quite large, and colleagues may not have an opportunity to work closely together or, for that matter, remember who they worked with or if they were on a board together, especially if it happened many years ago.

We generally do not choose our work colleagues the way we do our business partners or close friends. Simply working in the same office, sitting on the same board, or delivering a common program should not necessarily constitute a close relationship between two people.

Rule 6– Political work:

Section 10.2(1) of the Lobbying Act specifically notes that the Commissioner shall develop a Lobbyists’ Code of Conduct in respect to the activities described in subsections 5(1) and 7(1) of the Act. While the Commissioner does have the authority under Section 10.4 to investigate violations of the Code, neither that authority nor the one found in section 10.2(1) extends to broadening the code beyond the scope of the registration requirements in section 5(1) or 7(1). Neither section 5(1) nor 7(1) refer to the political activities of lobbyists. The plain language of the statute limits the authority to the act of registration and the communications that give rise to those registrations, not any activity that occurs before those communications are even contemplated. If Parliament had intended for the Commissioner to enjoy this specific authority, it would have been overt in its instruction.

A limitation on registrable activities as a result of political activity is a prima facie violation of Section 2 and Section 3 of the Charter of Rights and Freedoms. The appropriate venue for limiting Charter rights is not a consultation on a non-statutory instrument. Knowing that the rights of Canadian citizens are being potentially compromised, it is for Parliament to be deliberate in its considerations of this serious matter. We urge the Commissioner to ask Parliament to be precise in its instructions to the Commissioner and successors on what should be part of a Code of Conduct.

Supporting this view, in June 2010, the Canadian Bar Association (CBA) issued its Opinion Respecting the Constitutionality of Rule 8 of the Lobbyists’ Code of Conduct^{Footnote 1}. In its opinion, CBA expresses its, “… fundamental concern with the Guidance, and in particular, questions whether the Guidance on Rule 8 (political activities) is consistent with the Charter of Rights and Freedoms.” Ultimately CBA finds that OCL’s treatment of political activities under Rule 8 to be a violation of “lobbyists’ freedom of expression under s2(b) of the Charter and . . . not reasonably justified in a free and democratic society under s. 1 (of the Charter).”

• Return to footnote 1 referrer https://www.cba.org/CMSPages/GetFile.aspx?guid=3e929d62-045b-47bc-a5ea-3826d9118420

With respect to the cooling-off periods in the draft, GRIC and PAAC share significant concern about how these relational cooling-off periods would be managed, tracked and enforced. Will it be complaint driven? How will evidence be collected and considered given that the roles individuals take in volunteering in campaigns are not public and there may in fact be no official documentation available?

Notwithstanding our recommendation, should OCL proceed with new Rule 6, GRIC and PAAC strongly urge OCL to revert back to the current guidance wording that focuses on political activities that are strategic in nature or involve significant interaction with candidates. We agree with the rationale that individuals serving in key strategic roles who perform significant political work (e.g.: campaign manager, official agent, strategic advisor or fundraising organizer) could create a perception of a sense of obligation. In these cases, a cooling-off period may be reasonable.

However, for those undertaking political activities that are not strategic in nature and do not involve significant interaction with candidates, there should be no cooling-off period as it impedes on the democratic Charter rights which every Canadian enjoys and which the courts have defined to include the right to meaningfully participate in our electoral process. We strongly oppose applying a cooling-off period to individuals who do this type of non-strategic political work with no significant involvement with a candidate (such as canvassing and distributing campaign materials). Given that it is an unreasonable imposition on someone’s democratic rights, it should be deleted entirely. As the draft definitions state, certain activities (e.g.: expressing a personal political opinion, attending a fundraising or campaign event, displaying an election sign, making a digital post, making a political donation within the prescribed limits) do not constitute political work as defined by the Code. These are all constitutionally protected rights to meaningfully participate in the electoral process, but so too are a number of the activities listed under “other political work” of the draft Code. It is unreasonable to apply a one-year cooling-off period to a volunteer knocking on doors but at the same time that person can legally donate the Elections Canada maximum candidate contribution of $1,650 without creating a sense of obligation.

Government relations professionals participate in our democratic and electoral process for the same reason all Canadians do, because they have a democratic right to express the ideas and values that they hold and to promote these with other Canadians. Just as it is unreasonable to believe that a public office holder would develop a sense of obligation because a lobbyist gives them the relatively modest amount permitted by Elections Canada, it is even more unreasonable to suggest that a sense of obligation has been created by someone who canvassed or dropped off flyers for a candidate’s campaign. It would be an unreasonable restriction to subject individuals who exercise their right to participate in minor, non-strategic roles in a campaign to a one-year cooling-off period. There should be no cooling-off period for what the current guidance calls low-risk political activities with no significant interaction with the candidate.

It is also worth noting that while electoral district associations (EDAs) take on many of the tasks assigned as 'political work' in the Code, they are not property of the candidate. They are creatures of statute, defined by the Elections Canada Act with a stated legal purpose. Volunteering for an EDA should not be viewed as akin to offering a personal loan or gift to the candidate.

It is also important to ensure that the Code minimally impairs the democratic rights of all Canadians, because it is essential that the Office of the Commissioner of Lobbying and the rules and regulations it enforces remain politically neutral. The draft Code as it is written would potentially place greater restrictions on supporters of parties or candidates who have the potential of forming government (Liberals, Conservative and NDP) while minimally impairing the political activity of supporters of parties who do not run a full slate or candidates or have any chance of forming government (Bloc Quebecois, Greens, People’s Party, independents). Since we know a Bloc Quebecois candidate, for example, will never be a Prime Minister, Minister or Parliamentary Secretary, a lobbyist would be free to be a strategic advisor in the leader’s central campaign headquarters, lead their fundraising efforts or prepare the leader for national debates. This is not the case for supporters of other major parties. We should obviously be very careful about establishing codes of conduct that treat Canadians differently based on their political beliefs.

Another concern we have with the political work section of the draft Code is the decision to deem Parliamentary Secretaries as associates of their Ministers and their staff and subject a lobbyist to a cooling-off period to the whole group if, for example, that person dropped off flyers one time for someone who ultimately became a Minister or Parliamentary Secretary. Since the Code should minimally impair the fundamental democratic rights of anyone, we submit that a cooling-off period should only apply to candidates who someone actually does political work for and their direct staff. To maintain the principle that better public policy is made if public office holders receive free access to information required to make good decisions which impacts stakeholders, our goal should not be to block a lobbyist from interacting completely with a particular ministry. The benefit of having Parliamentary Secretaries in our system is that if an individual is to refrain from lobbying a particular Minister (due to say a close relationship or strategic political work) they could still share their client or industry’s information or advocacy via the Parliamentary Secretary or their staff.

Rule 7 – Sense of obligation

A key principle that is mentioned several times in the existing Code is that a lobbyist not do anything that would create a sense of obligation for a public office holder. In the view of GRIC and PAAC, this is the fundamental backbone of the Lobbyists’ Code of Conduct and a key concept that we would like to see better reflected in a revised Code. As government relations professionals, we know that our overriding value to our clients or employers is understanding how public policy decisions are made and our ability to assist them in crafting the best case for their advocacy based on the merits of the matter at hand. Any serious review will confirm that, in our system, government decisions are not being made because lobbyists have created a sense of obligation with public office holders and the provisions of the Code should help reassure Canadians of any perceptions to the contrary. GRIC and PACC support the wording of this provision and as previously stated, believe the concept of avoiding a sense of obligation should be extended to other sections of the code.

Appendix: definitions

General terms - definition of registrant:

The language of the existing Code states that the responsible officer (which is defined as the most senior paid employee of an organization or corporation) “shall ensure that” employees who lobby are informed of their obligations under the Lobbying Act and the Lobbyists’ Code of Conduct. Since the most senior paid employee of a corporation or association is normally the CEO, Board Chair or President, the wording of the current Code allows this function to be delegated to someone to ensure that all employees are informed and comply with their obligations, without expecting that the CEO of a major corporation will do this task personally. The new Code drops the “shall ensure that” language and instead defines the employee holding the most senior paid office of a corporation or organization as the registrant “who is responsible for registering the lobbying carried out by employees for the employer”. We would recommend that for clarity’s sake, this be amended to “who is responsible for ensuring the registration of lobbying carried out by employees for the employer.” This will ensure that CEOs or heads of associations remain ultimately responsible for ensuring all employees register their applicable lobbying activities, but that they can delegate this function and do not have to do it personally, which would be a practical impossibility for those leading large corporations or associations in which hundreds or even thousands of employees may have obligations under the Act and Code.

Conclusion

GRIC and PAAC believe that the Lobbyists’ Code of Conduct plays an important role in ensuring that our members work in an industry that adheres to the highest standards of integrity, honesty, openness, professionalism and transparency.

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, and the Code must be detailed in a manner that permits lobbyists to clearly understand their obligations. Virtually all lobbyists, since the Code has been established, have followed it and the pursuit of greater Code clarity can only ensure that continues.

Specifically, GRIC and PAAC respectfully recommend the following:

• The Code should clearly state that lobbying is a legitimate activity and normal part of our democratic process, and the exchange of ideas and information strengthens government and public administration. It is critical that the Code explicitly state that free and open access to government is an important and integral part of participating in our democracy.
• Gifts: The simplest and clearest way to handle gifts is to keep the current wording in the existing Code which relies on ethics rules of the designated public office holders and state that a lobbyist shall not offer or promise a gift “which the public office holder is not allowed to accept.”
• Close relationships: Simply working in the same office, sitting on the same board, or delivering a common program should not necessarily constitute a close relationship between two people.
• Political activities: A limitation on registrable activities as a result of political activity is a prima facie violation of Section 2 and Section 3 of the Charter of Rights and Freedoms. The appropriate venue for limiting Charter rights is not a consultation on a non-statutory instrument.

The Code in its current form is not broken by any means. Lobbyists have adapted to it notwithstanding the gray areas that require guidance. The revised guidances on Gifts, Political Activities and Preferential Access which were updated in 2019 added much needed clarity and we believe struck a reasonable balance. Unfortunately, the current draft version of the Code contains elements that are unworkable, unenforceable and present an overreach specifically as described above with the definitions of close relationships, low-value gifts and political activities.

We appreciate the Commissioner holding this consultation to be open and collaborative in determining how to make the Code more effective. We are available to meet to discuss these recommendations or other practical suggestions for ensuing Canada continues to have lobbying rules and a regime of which we can all be proud.

The Code in its current form is not broken by any means. Lobbyists have adapted to it notwithstanding the gray areas that require guidance. The guidance issued in 2019 on Gifts, Political Activities and Preferential Access added much needed clarity and struck a reasonable balance. Unfortunately, the current draft version of the Code contains elements that are unworkable, unenforceable and present an overreach specifically with the definitions of close relationships, low-value gifts and political activities.

I fully support the GRIC and PACC submission on behalf of our industry and specifically want to draw attention to the following:

1. The draft Code has eliminated the current preamble which explicitly states several important principles that underscore the legitimacy of lobbying and the importance of free and open access to government.

   Recommendation: The Code should clearly state that lobbying is a legitimate and normal part of our democratic process, and the exchange of ideas and information strengthens government and public administration. It is critical that the Code explicitly state that free and open access to government is an important and integral part of participating in our democracy and that lobbying is a legitimate activity.

2. Gifts: The draft Code sets a $30 maximum (including taxes) for any gift. With respect to hospitality, for example at receptions, the same limit applies.

   Recommendation: The simplest and clearest way to handle gifts is to keep the current wording in the existing Code, which relies on ethics rules of designated public office holders and states that a lobbyist shall not offer or promise a gift “which the public office holder is not allowed to accept.”

3. Close relationships: The draft Code sets out a definition for close relationships that includes working relationships, such as being partners, colleagues or allies in the same office, sitting together on a board of directors and delivering a program or service together.

   Recommendation: Simply having worked in the same office, sat on the same board, or delivered a common program should not necessarily constitute a close relationship between two people.

4. Political activities: The draft Code proposes to apply a one-year cooling-off period to anyone undertaking limited, non-strategic, political activities, including simply canvassing. The draft also proposes to include parliamentary secretaries under this ban, meaning that if a candidate you canvassed for is appointed minister or PS, that entire minister’s office, including all staff, is off limits for a year.

   Recommendation: A limitation on registrable activities as a result of political activity is a prima facie violation of Section 2 and Section 3 of the Charter of Rights and Freedoms. The appropriate venue for limiting Charter Rights is not through a consultation on a non-statutory instrument.

Thank you for the opportunity to submit our views regarding the proposed changes to the Lobbyist’s Code of Conduct (the Code).

Counsel Public Affairs is a government relations firm with an 18-year track record of engaging governments at the federal, provincial and municipal levels. We have always taken our obligations under the lobbying regimes at all levels extremely seriously and have appreciated our regular engagement with your office on compliance matters.

As members of both the Government Relations Institute of Canada (GRIC) and the Public Affairs Association of Canada (PAAC), we fully support their submission to your office regarding the Code.

We are writing today to join GRIC, PAAC and other organizations in expressing concern about some of the proposed changes to the Code.

The Code of Conduct is your prerogative as Commissioner. Unlike the Lobbying Act, changes to the Code do not require parliamentary approval. Despite this fact, the Code does have the power of law, exposing individuals and organizations to significant penalties, and can have far-reaching consequences and limit the ability of those impacted by public policy decisions to access government decision makers. Given the important powers delegated to you by Parliament, we trust you will carefully consider the impact on the public policy process that could result from the proposed changes to the Code

As we are sure you will agree, lobbying is an important part of the public policy process. We believe that communicating relevant facts with government decision makers on behalf of those with firsthand experience leads to better public policy outcomes. It follows that unduly restricting lobbying – where there is no compelling public reason to do so – could harm the quality of the public policy process.

A core principle of the Code is to ensure that government decisions are not being made for any corrupt purpose including out of a sense of obligation to a lobbyist. This is a sound principle – but several new measures in the Code stray from it, by regulating activities where we strongly believe that no such obligation exists.

We agree that restrictions for major conflicts of interest must be maintained, including those pertaining to close personal, family and business relationships. However, our experience is that public office holders hold themselves to a much higher standard than to be swayed by minor instances of past contact and instead make decisions based on overriding public policy objectives.

Several new inclusions in the proposed Code appear to assume that public office holders make policy decisions based on minor instances of past contact with a lobbyist, which we believe takes a dim view of the motivations of public office holders.

In particular, we wish to point out two areas in the proposed Code that we believe are problematic:

Office relationships

The Code would prevent lobbyists from engaging anyone with whom they have a past working relationship. We agree with a continued restriction on lobbying where a close personal or family relationship exists, including instances of shared business and financial interests. But we believe this restriction is expanded too far by including the simple act of working in the same office, with no time limit placed on how far back this restriction can be applied.

In addition to concerns about these measures undermining trust in the integrity of decision makers, we believe they could have another severe unintended consequence: turning short-term public service into a potential career killer.

The public service benefits from subject matter experts being brought in from time-to-time because it is in the public interest to do so. If that service results in a life-time restriction on interacting with government as either an in-house or consultant lobbyist, they will choose not to do so.

These concerns hold, not just for experts but also those in the early stages of their career. Prior to ever considering a career in government relations, many future lobbyists gain experience in the creation of public policy by working in opposition, the civil service, voluntary boards or policy think tanks where they are not considered to be designated public office holders.

Based on the Commissioner's rulings over the past decade, and absent direction from Parliament, there exists no evidence to suggest these unprecedented moves are necessary or that there is a problem to solve. It would be punitive to cut off their future career options by restricting their work in government relations should their past co-workers enter government even if they only have a cursory past relationship with each other.

Campaigning

The Code currently restricts lobbyists from playing a strategic role in an election campaign by applying a time-limited ban on lobbying the MP they volunteer for, should they be elected. We believe this is a reasonable restriction as it would entail significant engagement with the candidate and the MP may reasonably feel a sense of obligation towards that volunteer.

We do not however believe that it is reasonable to expand the limitation on political involvement to non-strategic activities, including canvassing and literature drops. Not only does this represent an unfair restriction on participation in our democratic process, but it strains credulity to think that an MP would credit their election to a single volunteer who knocked on doors or dropped campaign literature in mailboxes.

Furthermore, the proposed Code would bar lobbyists from engaging not only the MP, but their staff and parliamentary secretaries should they be appointed minister – extending a lobby ban to designated public office holders who would likely have no knowledge of the past involvement of the lobbyist in minor election campaign activities. For many lobbyists, who have track record of routinely volunteering in local election campaigns, they would be required to sit out the democratic process with the exception of donating to political campaigns – which could arguably create a far greater sense of obligation than canvassing or scrutineering.

In conclusion, we wish to make a final point regarding a general sense of mission creep in the regulation of lobbying across Canada. We support rigorous and transparent lobbying regimes, as they enhance credibility and trust in the government relations industry.

At the federal level, lobbying is being conducted transparently with few glaring examples of abuse in the system – a state of affairs that is a testament to the effectiveness of the current regime. At the provincial level across Canada, we observe the establishment of new measures that are becoming increasingly restrictive, with no evident public policy rationale motivating the breadth of the changes, and in the absence of any crisis of public confidence in lobbying. The prime example of this trend is the escalating financial reporting requirements in many jurisdictions that are straining the ability of smaller organizations to engage in lobbying activity, harming their ability to participate in the policy process.

We have experienced this firsthand and raise this in the context of the federal Code, because we see it as symptomatic of an in-built tendency in any regulator to always seek the next frontier of activity to address – even without a compelling public policy rationale to do so. The challenge is, as new requirements are established, it becomes next to impossible to ever dial them back, as doing so would appear to weaken lobbying restrictions. This is an important point in the context of the proposed changes to the Code.

Thank you once again for the opportunity to provide our feedback on the proposed Code. We hope you accept our submission in the constructive spirit in which it was provided.

I am writing to contribute to the current consultation. As an individual who is registered as a lobbyist, I applaud your efforts to improve standards for transparent and ethical lobbying.

One challenge that I would like to flag that my colleagues and have consistently experienced, in upholding our reporting of lobbyist activities, is a lack of comprehensive guidance on who constitutes a Designated Public Office Holder. The definition that is included in the Act leaves open some flexibility for interpretation. For those who are not part of government hierarchy, interpretation of what constitutes “comparable rank” to ADM, or knowledge of who was deemed by the Governor in Council as required to hold this title, is less clear than you might think. For instance, how equivalency applies to the diplomatic corps, or to appointments such as Special Envoys or thematic Ambassadors, is unclear in this wording. While we have asked individuals in the past if they are a DPOH, you can appreciate that this is an awkward dynamic (and in the past, individuals did not always know the answer). Our past inquiries of whether there was a centralized list of DPOHs that was available for public consultation, so as to help us with monthly reporting, were met with “no.”

While I appreciate that this feedback may seem adjacent to the subject of your consultation, I hope it is understood that it is easier to discharge one’s responsibility under a Code of Conduct when there is full clarity of interpretation. We would thus welcome any additional guidance documents that could be provided on this matter.

Thank you for the opportunity to comment on the draft revisions to the Lobbyist Code of Conduct. Canada’s nonprofit and charitable sector boasts over 170,000 organizations in every community across the country, with services and professions ranging from the performing arts, education and research, community health, animal welfare, prevention of violence and victims services, child care, religious institutions, food banks, seniors care, international development, conservation and immigration settlement - to name a few. These organizations have staff and volunteers with critical first-hand knowledge that policymakers require for informed decision-making.

Since it commonly counts as a core expense as opposed to a fundable program, government relations capacity for our organizations is already quite limited for a sector as vast and critical as ours. In considering our recommendations, we ask you to bear in mind that the charitable and nonprofit organizations that are resourced sufficiently to have government relations capacity often only have one dedicated staff who performs the public policy or government relations duties. In most other cases, these functions are performed by staff who have different roles at the organization but may for example live in Ottawa, are bilingual or otherwise have the skill set that can also be applied to policy & government relations. Finally, the pool of government relations candidates available to the vast majority of nonprofit sector organizations unable to compete with private industry salaries is already small. But in addition to this ongoing reality, as Statistics Canada’s most recent Business Conditions Survey illustrates, our sector is currently experiencing labour challenges related to retention, recruitment and prolonged vacancies.

We have focused our recommendations to those aspects of the Code that we expect would carry the most impact for our sector’s ability to support and inform government's ability to care for the country’s land and its inhabitants.

Political work

“Includes paid and unpaid work done for the benefit of a person’s political interests or a political party’s interests, in the form of performing roles or tasks during or between election periods. For the purposes of the related ‘cooling-off period’… political work will usually be categorized as follows: other political work (with no significant involvement with a candidate or official), which includes: drafting campaign materials, canvassing, seeking or gathering donations, distributing or disseminating campaign materials, coordinating campaign office logistics.”

Government relations candidates able to work for charitable and nonprofit organizations have often volunteered on their personal time for candidates for office. There is concern that this broad definition of political work would both suppress volunteering in democratic processes and limit the availability of skilled and experienced talent for our sector.

Recommendation

Restrict the definition of political work to the draft’s wording for “significant political work”.

Gifts

The draft Code sets a $30 maximum (including taxes) for any gift. The inability to anticipate the presence of Parliamentarians at receptions, breakfasts, coffees or luncheons, for example, is of concern to Imagine Canada and our members. These events present an opportunity for nonprofit sector workers to develop working relationships with their representatives, and to have Members of Parliament and Senators better understand the operating realities of our sector.

Recommendation

The simplest and clearest way to handle gifts is to keep the current wording in the existing Code, which relies on ethics rules of designated public office holders and states that a lobbyist shall not offer or promise a gift “which the public office holder is not allowed to accept.

Close relationships

The draft Code sets out a definition for close relationships that includes working relationships, such as being partners, colleagues or allies in the same office, sitting together on a board of directors and delivering a program or service together.

Recommendation

Having sat on the same board or delivered a common program should not necessarily constitute a close relationship between two people, particularly in this digital age where it is feasible the individuals in question may not have ever met or talked directly to each other.

Token of appreciation

“Item given as an expression of gratitude to an official for serving as a speaker, presenter, panelist, moderator or for performing a ceremonial role at an event or function, such as a book, a gift certificate, a box of chocolates, etc.”

Recommendation

Public office holders who serve as a speaker, presenter, panelist for an event or conference should be treated the same as other conference attendees performing the same duties, within reasonable limits and particularly with respect to compensation for attendance fees.

Thank you for your consideration and for the opportunity to participate in this review. As our sector’s national umbrella organization, we are hopeful the next iteration of the Code will not stifle the nonprofit and charitable sector’s important voice in our public affairs nor inhibit its participation in the development and implementation of policies that impact the communities we serve.

Thank you for the opportunity to comment on the draft update and for the work that has gone into making it a much clearer document. The addition of the definitions in the appendix, in particular gift, hospitality, low-value and close relationship are very helpful and for the most part, very clear.

The draft seems to indicate that low-value tokens of appreciation or promotional items are the only acceptable gifts to be given. In reviewing the definition of gifts this includes (for example) product samples and gift certificates, creating the impression that if the only allowable gifts are low-value tokens or appreciation or promotional items, all other things defined under gifts are not allowed. The definitions of promotional items (includes product samples) and token of appreciation (includes gift certificate) does not seem to intend this but I wonder if perhaps there is some way to clarify that some items listed as gifts can also be promotional items or tokens of appreciation as well as gifts.

In terms of low-value, I would suggest that $30 including taxes is low, particularly for hospitality. If you consider the price of serving refreshments (simple appetizes and beverages) at a reception booked on the Hill using the caterer, you will find it is difficult to cover costs at $30 per person. Considering a slightly higher value, at least for hospitality might be helpful – even an increase to $40 might be helpful.

Thank you once again for the open and transparent consultation and for a much clearer and more helpful document.

Thank you for the opportunity to comment on the draft Code.

We, in part, support the GRIC and PACC submission on behalf of our industry and specifically want to draw attention to the following:

1. The draft Code has eliminated the current preamble which explicitly states several important principles that underscore the legitimacy of lobbying and the importance of free and open access to government.
   • Recommendation: The Code should clearly state that lobbying is a legitimate and normal part of our democratic process, and the exchange of ideas and information strengthens government and public administration. It is critical that the Code explicitly state that free and open access to government is an important and integral part of participating in our democracy and that lobbying is a legitimate activity.
2. Close relationships: The draft Code sets out a definition for close relationships that includes working relationships, such as being partners, colleagues or allies in the same office, sitting together on a board of directors and delivering a program or service together.
   • Recommendation: Simply having worked in the same office, sat on the same board, or delivered a common program should not necessarily constitute a close relationship between two people.
   Thank you again for the opportunity to contribute.

Second Submission to the Commissioner of Lobbying’s Consultation on Changes to the Lobbyists’ Code of Conduct (February 2022)

A. Summary – Loopholes and Commissioner’s Weak Enforcement Causing Most Problems with Lobbyists’ Code

1. Loopholes mean Code only applies to some lobbying, and unethical lobbying by every lobbyist is allowed

A few key problems have been revealed in the version of the Lobbyists’ Code of Conduct (the “Code”)^{Footnote 1} 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^{Footnote 2} that allow for secret, unregistered lobbying and, as a result, also unethical lobbying as the Code does not apply to unregistered lobbying.

• Return to footnote 1 referrer See the Lobbyists’ Code of Conduct at: https://lobbycanada.gc.ca/en/rules/the-lobbyists-code-of-conduct/lobbyists-code-of-conduct/.
• Return to footnote 2 referrer Lobbying Act (R.S.C., 1985, c. 44 (4th Supp.)). See it at: https://laws-lois.justice.gc.ca/eng/acts/l-12.4/.

The biggest loopholes in the Act are that:

1. unpaid lobbying;
2. lobbying concerning the enforcement of a rule;
3. lobbying as an employee of a business less than 20 percent of one’s work time, and;
4. arranging meetings for other people with public office holders while working as an employee of a business or other organization are all not required to be registered as lobbying, and also that;
5. registered lobbyists are only required to disclose communications that are oral and pre-arranged and (with one exception for communications concerning financial benefits) initiated by the lobbyist.

and these loopholes should all be closed so that the only non-registrable lobbying activity would be a person signing a mass email letter that an individual or organization sets up (as the individual or organization would be required to register the letter-writing effort).

Because of these loopholes, the Code really should be called the “Some Lobbyists’ Code of Conduct” as the Code does not apply to many people who are lobbying the federal government.

As well, 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^{Footnote 3} because the MP and senator codes explicitly allow them to receive the gift of sponsored travel, no matter how unethical the gift is. See below in subsection B.3(f) for details re: Rule 10.

• Return to footnote 3 referrer See details in the Commissioner’s April 2019 report Sponsored travel provided by lobbyists, at: https://lobbycanada.gc.ca/en/investigations/reports-on-investigation/sponsored-travel-provided-by-lobbyists/.

2. Commissioner’s weak, secretive enforcement ignores clear violations

The other problems with the Code have, very unfortunately, been created by negligent and legally incorrect enforcement by new Commissioner of Lobbying Nancy Bélanger.

This continues a long pattern – the former Ethics Counsellor, who enforced the Code from 1997 to 2004, and the Registrar of Lobbyists who enforced the Code from 2004 to 2008, both enforced the Code in a “deeply flawed” manner, according to a unanimous 2009 ruling by the Federal Court of Appeal^{Footnote 4}, and their enforcement of the Act was also very weak and secretive.

• Return to footnote 4 referrer Democracy Watch v. Campbell, 2009 FCA 79 (CanLII), [2010] 2 FCR 139, http://canlii.ca/t/22vcj, at para. 48.

The first Commissioner of Lobbying, Karen Shepherd, continued this negligent enforcement. Overall, from April 1, 2005 to March 31, 2017, the Registrar and Commissioner:

1. reviewed only 210 situations (only approximately 17 situations per year);
2. found only 90 lobbyists in violation of the Lobbying Act and/or Lobbyists’ Code;
3. did not issue a public ruling identifying 80 of those 90 lobbyists (89%) even though they violated the Act or the Code, and the RCMP prosecuted only 4 lobbyists (from 1988 up to March 31, 2017);
4. took on average 3 years or more to issue a ruling on 59 (28%) of the 210 situations;
5. stopped reviewing 8 situations due to delays in completing the review.

New Commissioner of Lobbying Bélanger has continued this negligent enforcement since she took office on December 30, 2017, although she is trying to hide just how negligent her enforcement record is. Commissioner Bélanger’s office deleted from the Commissioner’s website the Compliance Statistics webpage first published by former Commissioner of Lobbying Karen Shepherd in 2012 after the House of Commons Standing Committee on Access to Information, Privacy and Ethics requested that she disclose the statistics.

As a result, while the Compliance Statistics webpage is thankfully still available from the Internet archive website https://web.archive.org at: https://web.archive.org/web/20191213112605/https://lobbycanada.gc.ca/eic/site/012.nsf/eng/h_00831.html it has not been updated since the end of the 2016-2017 fiscal year in March 2017.

In her four Annual Reports since taking office, for fiscal year 2017-2018 at: https://lobbycanada.gc.ca/en/reports-and-publications/annual-report-2017-18/ and for fiscal year 2018-2019 at: https://lobbycanada.gc.ca/en/reports-and-publications/annual-report-2018-19/ and fiscal year 2019-2020 at: https://lobbycanada.gc.ca/en/reports-and-publications/annual-report-2019-20/ and fiscal year 2020-2021 at: https://lobbycanada.gc.ca/en/reports-and-publications/annual-report-2020-21/ Commissioner Bélanger has failed to disclose several key details on completed investigations that were provided on the Compliance Statistics webpage by former Commissioner Shepherd up to March 31, 2017.

In the Compliance and Enforcement section for fiscal year 2017-2018^{Footnote 5} and the Investigations section for fiscal year 2018-2019^{Footnote 6} and the Ensuring compliance section for fiscal year 2019-2020^{Footnote 7} and the Ensuring compliance section for fiscal year 2020-2021^{Footnote 8}, Commissioner Bélanger’s four Annual Reports do not disclose the following key information that was disclosed by former Commissioner Shepherd:

1. what the alleged violation was in each case reviewed or investigated;
2. when each investigation began;
3. when each investigation concluded;
4. the reason why specifically any investigation that was ceased was stopped, and;
5. the sanction applied to each lobbyist who violated the Act or Code for which a public ruling was not issued under subsection 10.5 of the Lobbying Act^{Footnote 9}.

• Return to footnote 5 referrer https://lobbycanada.gc.ca/en/reports-and-publications/annual-report-2017-18/#toc-4
• Return to footnote 6 referrer https://lobbycanada.gc.ca/en/reports-and-publications/annual-report-2018-19/#toc-3-3
• Return to footnote 7 referrer https://lobbycanada.gc.ca/en/reports-and-publications/annual-report-2019-20/#toc-3
• Return to footnote 8 referrer https://lobbycanada.gc.ca/en/reports-and-publications/annual-report-2020-21/#compliance
• Return to footnote 9 referrer https://laws-lois.justice.gc.ca/eng/acts/l-12.4/page-5.html#h-339367

As a result of Commissioner Bélanger hiding this information from the public, and from MPs and Senators, it is much more difficult than in the past to determine if the Commissioner is enforcing the Lobbying Act and Lobbyists’ Code of Conduct properly, effectively, and in a timely manner.

All the indications are that Commissioner Bélanger is continuing the weak enforcement record of the former Ethics Counsellor and Registrar by ignoring clear violations and interpreting the Act and Code in ways that ignore their purpose of ensuring transparent, ethical lobbying so as to let most lobbyists off, usually in secret, instead of holding them accountable for their wrongdoing.

Commissioner Bélanger let the responsible officer and lobbyists at Apotex Inc. off^{Footnote 10} the hook when Apotex’s Chairman Barry Sherman passed away even though they had participated in the fundraising event Sherman held for the Liberal Party that Justin Trudeau attended, and also let Clearwater Seafoods Inc. off the hook^{Footnote 11} without even investigating the fundraising event its board member Mickey MacDonald held for the Liberal Party that Justin Trudeau also attended. Both events clearly violated the Code, as did both companies lobbying the Prime Minister’s Office after the events.

• Return to footnote 10 referrer https://democracywatch.ca/democracy-watchs-lawsuit-challenges-lobbying-commissioners-ruling-that-investigation-should-not-continue-into-former-apotex-chairman-barry-shermans-fundraising-for-trudeau-l/
• Return to footnote 11 referrer https://democracywatch.ca/democracy-watchs-lawsuit-challenges-lobbying-commissioners-ruling-letting-clearwater-seafoods-board-member-off-the-hook-for-fundraising-event-trudeau-attended/

Also very concerning is that Commissioner Bélanger, in three public rulings on investigations she has issued since becoming Commissioner in January 2018, has ignored the four Principles of the Code even though they are clearly enforceable. See below in subsection B.2 for details.

This clearly means Commissioner Bélanger is also ignoring the Principles when she makes secret rulings letting people off for violating the Code.

Also concerning is what has developed with regard to the old, broad conflict of interest rule in the Code, Rule 8^{Footnote 12}, which Democracy Watch spent 11 years, from 2000 to 2011, through several court cases and public appeals, attempting to have the then-Registrar of Lobbyists enforce properly. Rule 8 was replaced in the December 1, 2015 new version of the Code by Rule 6, with other related Rules 7 to 10.

• Return to footnote 12 referrer See the archived previous version of the Code at: https://lobbycanada.gc.ca/en/rules/the-lobbyists-code-of-conduct/lobbyists-code-of-conduct/archived-archived-information-lobbyists-code-of-conduct-1997/.

New Rule 6 has the same broad wording as old Rule 8, encompassing all forms of conflict of interest and prohibiting lobbyists from lobbying any public office holder directly or indirectly if the office holder has any form of a sense of obligation to the lobbyist, as the Federal Court of Appeal unanimously ruled in 2009 on an application filed by Democracy Watch^{Footnote 13}.

• Return to footnote 13 referrer Also see Democracy Watch v. Campbell, 2009 FCA 79 (CanLII), [2010] 2 FCR 139, http://canlii.ca/t/22vcj.

However, and while Rules 7-10 are explicitly subsets of Rule 6, Commissioner Bélanger has enforced Rule 6 narrowly in the public rulings she has issued, and enforced Rules 7-10 without reference to Rule 6, or to the Principles of the Code or the purpose set out in the Introduction of the Code. See below in subsection B.3(c) for details.

However, now Commissioner Bélanger is gutting that broad, comprehensive standard by parsing new rules 6-10:

1. As if Rule 6 is not equally broad and comprehensive as old Rule 8;
2. As if the Code’s purpose is not what is stated in the Code (to ensure all lobbying complies with the highest ethical standards so that it enhances the public’s trust and confidence in the integrity of government decision-making), and;
3. As if the Principles of the Code did not exist (when, in fact, the Code states that the Principles are requirements lobbyists must comply with, and that they are enforceable by the Commissioner).

Again, this clearly means Commissioner Bélanger is also ignoring the broad meaning and intent of Rule 6, and the Principles and purpose of the Code, when she makes secret rulings letting people off for violating Rules 6-9. See below in subsection B.3(c) for details re: Rule 6 and on through Rules 7-9.

Overall, Commissioner Bélanger is also ignoring the ethics enforcement approach required by the seminal ruling of the Supreme Court of Canada in R. v. Hinchey, [1996] 3 S.C.R. 1128, in which L’Heureux-Dubé, J. writing for the majority, stated: "The need to preserve the appearance of integrity..." requires that statutory provisions be interpreted so as to prohibit actions "...which can potentially compromise that appearance of integrity" (para. 16).

This is all the more concerning given how many secret rulings Commissioner Bélanger is making. As detailed above, Commissioner Bélanger has stopped disclosing key information about those rulings.

3. Require lobbyists to confirm they are complying with rules

Finally, set out below concerning Rules 3 and 4 is the suggestion that a requirement be added to confirm by clicking a box in the Registry of Lobbyists that the lobbyist/responsible officer has complied with the requirement in Rule 4. In addition, another “box” should be added to the Registry that each lobbyist/responsible officer should be required to click confirming that they will comply with every Principle and Rule in the Code. As set out below under Rules 3 and 4, this requirement should be added to the Registry to nudge lobbyists/ responsible officers to comply with the Code.^{Footnote 14}

• Return to footnote 14 referrer See article on this type of nudging to increase compliance at: https://academic.oup.com/jcr/article/39/5/1070/1794934.

B. Needed Changes to the Lobbyists’ Code

1. Introduction and Preamble of the Code

No changes are needed to the Introduction or to the Preamble of the Code. However, the Commissioner of Lobbying needs to stop ignoring the purpose of the Code set out in the Introduction when ruling on alleged violations of the Code. The purpose set out in the Introduction is:

“The purpose of the Code is 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.”

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.”^{Footnote 15} 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 Commissioner is not doing this. For example, in the March 2020 rulings on the lobbying activities of Benjamin Bergen^{Footnote 16} and Dana O’Born^{Footnote 17}, the Commissioner did not even mention the purpose of the Code in interpreting how various rules in the Code applied to their activities.

• Return to footnote 15 referrer Interpretation Act (R.S.C., 1985, c. I-21), section 12; Vavilov v Canada (Citizenship and Immigration), 2017 FCA 132 at paras 41-42.
• Return to footnote 16 referrer See ruling at: https://lobbycanada.gc.ca/en/investigations/reports-on-investigation/benjamin-bergen-council-of-canadian-innovators/.
• Return to footnote 17 referrer See ruling at: https://lobbycanada.gc.ca/en/investigations/reports-on-investigation/dana-o-born-council-of-canadian-innovators/.

2. The Four Principles of the Code

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 Commissioner of Lobbying, and the Commissioner’s Investigations Directorate, also needs to stop ignoring the four Principles of the Code when investigating and ruling on alleged violations of the Code.

The Introduction to the Code states:

“Lobbyists, when engaging in lobbying activities, shall meet the standards set out in the principles and rules of the Code. … The Commissioner of Lobbying has the authority to enforce the Lobbyists’ Code of Conduct if there is an alleged breach of either a principle or a rule of the Code.”

The Preamble to the Code states:

“For their part, lobbyists communicating with public office holders must also abide by standards of conduct, which are set out below.”

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^{Footnote 18} and by the Federal Court of Appeal^{Footnote 19}.

• Return to footnote 18 referrer A Principle in the Code was enforced in all four February 2007 rulings by the former Registrar on the activities of Neelam J. Makhija at: https://lobbycanada.gc.ca/en/investigations/reports-on-investigation/. Also see on that page the following rulings in which one or more Principles of the Code were enforced: The lobbying activities of Bruce Rawson; The lobbying activities of Paul Ballard; The lobbying activities of Graham Bruce; The lobbying activities of Mark Jiles; The lobbying activities of GPG-Green Power Generation Corp. and Patrick Glémaud and Rahim Jaffer; The lobbying activities of Keith Beardsley; The lobbying activities of Julie Couillard; The lobbying activities of Trina Morissette. See also Makhija v. Canada (Attorney General), 2010 FC 141 (CanLII), http://canlii.ca/t/28112, at para. 45. Also see Democracy Watch v. Campbell, 2009 FCA 79 (CanLII), [2010] 2 FCR 139, http://canlii.ca/t/22vcj, at para. 9.]
• Return to footnote 19 referrer Makhija v. Canada (Attorney General), 2010 FCA 342 (CanLII), http://canlii.ca/t/2f3ql.

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.

Further, the “Professionalism” Principle states that:

“…lobbyists should conform fully with the letter and the spirit of the Lobbyists' Code of Conduct as well as with all relevant laws, including the Lobbying Act and its regulations.”

As a result, 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 Commissioner is neither evaluating alleged violations of the Code by lobbyists as including the Principles of the Code, nor is the Commissioner applying a standard that requires lobbyists to comply with not only the “letter” but also with the spirit of the Code and the Act.

For example, in the March 2020 rulings on the lobbying activities of Benjamin Bergen^{Footnote 20} and Dana O’Born^{Footnote 21}, the Commissioner did not even mention the Principles of the Code.

• Return to footnote 20 referrer See ruling at: https://lobbycanada.gc.ca/en/investigations/reports-on-investigation/benjamin-bergen-council-of-canadian-innovators/.
• Return to footnote 21 referrer See ruling at: https://lobbycanada.gc.ca/en/investigations/reports-on-investigation/dana-o-born-council-of-canadian-innovators/.

Furthermore, the webpage on the Commissioner’s website concerning this consultation makes the inaccurate statement that the Code:

“establishes four principles setting out the broader goals and objectives of the Code.”^{Footnote 22}

• Return to footnote 22 referrer See the consultation page at: https://lobbycanada.gc.ca/en/rules/the-lobbyists-code-of-conduct/lobbyists-code-of-conduct/consultation-on-future-changes-to-the-lobbyists-code-of-conduct/.

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.

Current Commissioner Nancy Bélanger’s failure to enforce the Principles is simply negligent. It is particularly negligent given the Registrar of Lobbyists enforced the Principles in the past, and given that in the April 2019 ruling on Sponsored travel provided by lobbyists, Commissioner Bélanger stated in the Preface that:

“The Lobbyists' Code of Conduct establishes the principles and rules of ethical behaviour expected from lobbyists required to register their activities under the Lobbying Act.”^{Footnote 23}

• Return to footnote 23 referrer See the ruling at: https://lobbycanada.gc.ca/en/investigations/reports-on-investigation/sponsored-travel-provided-by-lobbyists/.

In stating this, the Commissioner made it clear that the Principles of the Code are enforceable standards (although it should be noted that the Commissioner failed to mention any of the four Principles again in that ruling).

Why Commissioner Bélanger decided in the Bergen and O’Born rulings not to mention the Principles of the Code is an open question for the Commissioner to answer. If Commissioner Bélanger, and the Investigations Directorate have been ignoring the Principles of the Code since Commissioner Bélanger began her term in office in January 2018, they have been enforcing the Code in a clearly legally incorrect and negligent manner throughout her term.

3. Rules of the Code

a) Transparency and honesty section of the Code

(i) Rule 1: Require disclosure of relationships with officials

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.

As well, of course, for the Code to effectively address transparency in lobbying, the Act must be amended to close the many huge loopholes it contains that allow for secret lobbying (the loopholes are that unpaid lobbying, lobbying concerning the enforcement of a rule, and lobbying as an employee less than 20 percent of one’s work time are all not required to be registered as lobbying, and registered lobbyists are only required to disclose communications that are oral, pre-arranged and (with one exception for communications concerning financial benefits) initiated by the lobbyist).

(ii) Rule 2: Require accurate information always

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. See below in subsection C.2 for more details.

(iii) Rule 3: Add requirement to confirm all have been informed

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^{Footnote 24} .

• Return to footnote 24 referrer See article on this type of nudging to increase compliance at: https://academic.oup.com/jcr/article/39/5/1070/1794934.

(iv) Rule 4: Add a requirement to confirm that all have been informed

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^{Footnote 25}.

• Return to footnote 25 referrer See article on this type of nudging to increase compliance at: https://academic.oup.com/jcr/article/39/5/1070/1794934.

b) Use of information section of the Code

(i) Rule 5: Ensure all records are covered, and returned

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. See below in subsection C.1 for more details re: Rule 5.

c) Conflict of interest section of the Code

(i) Rule 6: Interpret properly to cover all apparent conflicts

Rule 6 of the Code could be made stronger, but just as important is that it be properly applied even if the wording remains as it is now. While, as the statement drawn from the rulings on the activities of lobbyists Bergen and O’Born and set out on the webpage concerning this consultation on the Commissioner’s website claims, there may not be:

“a need to consider amending the conflict of interest rules to focus exclusively on the specific behaviours of lobbyists without importing the conflict of interest regimes covering public office holders.”

it could be helpful to re-word Rule 6 and Rule 10 to make them clearly stronger (see explanation with regard to Rule 10 further below).

Rule 6 could be changed to something like:

“A lobbyist shall not lobby a public office holder or anyone who reports to the office holder if the lobbyist has proposed or undertaken any action that could be seen to create a sense of obligation on the part of the office holder.”

However, essentially Rule 6 already means the same thing as those words, and there is no distinction between the conflict of interest standard that Rule 6 currently establishes and the standards that apply to the most powerful public office holders in the federal government and to all Government of Canada employees. As well, statutory interpretation rules would still require, in applying such a differently worded Rule 6, taking into account the context established by the ethics rules that apply to any office holder concerning what “a sense of obligation” means for the office holder. In other words, there is likely no escaping at least somewhat “importing” the regime that applies to office holders.

As the Preamble to the Code states:

“Public office holders, when they deal with the public and with lobbyists, are required to adhere to the standards set out for them in their own codes of conduct. For their part, lobbyists communicating with public office holders must also abide by standards of conduct, which are set out below. These codes complement one another and together contribute to public confidence in the integrity of government decision-making.”

Every Government of Canada employee is required by the Government’s Directive on Conflict of Interest^{Footnote 26} and Values and Ethics Code for the Public Sector^{Footnote 27} to avoid an appearance of a conflict of interest.

• Return to footnote 26 referrer See the Directive at: https://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=32627.
• Return to footnote 27 referrer See the Public Sector Code at: https://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=25049.

Every federal Cabinet minister, ministerial staff, ministerial adviser, senior government official and almost all Cabinet appointees are prohibited from taking part in decisions, discussions and votes if they are “in a conflict of interest” by section 6 of the Conflict of Interest Act (“CofI Act”)^{Footnote 28}.

• Return to footnote 28 referrer Conflict of Interest Act (S.C. 2006, c. 9, s. 2).

The Federal Court of Appeal has ruled unanimously that the phrase "a conflict of interest" means a situation in which a public office holder has "competing loyalties" or "a real or seeming incompatibility between one's private interests and one’s public or fiduciary duties" that "might reasonably be apprehended to give rise to a danger of actually influencing the exercise of a professional duty."^{Footnote 29} As a result, the words “in a conflict of interest” in section 6 of the CofI Act encompass an apprehended or apparent conflict of interest.

• Return to footnote 29 referrer Democracy Watch v. Campbell, [2010] 2 F.C.R. 139, 2009 FCA 79, para. 49, quoting from Cox v. College of Optometrists of Ontario (1988), 65 O.R. (2d) 461 (Div. Ct.).

The regime set out in the CofI Act and the broad, comprehensive language used in the operative provisions make clear that it was intended to apply not only to real but also to apparent conflicts of interest. Section 3 of the CofI Act articulates among its purposes prevention and avoidance of "conflicts of interest" generally, without any limiting language that would confine it to "real" conflicts of interest.

More expressly, subsection 6(1) of the CofI Act applies to decision-making where the “public office holder knows or reasonably should know that, in the making of the decision, he or she would be in a conflict of interest.” [emphasis added]. Similarly, section 5 is directed at prevention of all conflicts of interest without any specification of types of conflict. In addition, subsection 11(1) bans the acceptance of gifts and other advantages “that might reasonably be seen to have been given to influence the public office holder in the exercise of an official power, duty or function.” [emphasis added]

There was a conflict between the old conflict of interest Rule 8 in the Code and the provisions in the CofI Act because former Conflict of Interest and Ethics Commissioner Mary Dawson took the legally incorrect position that “conflict of interest” only applied to personal financial interests and did not encompass any political or other interests of the office holder^{Footnote 30}. This position was legally incorrect because there is nothing in the CofI Act that indicates it only applies to financial interests. New Ethics Commissioner Mario Dion corrected this erroneous interpretation of the CofI Act in an August 2019 ruling stating that private interests include “financial, social or political” interests^{Footnote 31}.

• Return to footnote 30 referrer The Cheques Report, pages 14-17. See it at: https://ciec-ccie.parl.gc.ca/en/publications/Documents/InvestigationReports/The%20Cheques%20Report%20-%20Act.pdf.
• Return to footnote 31 referrer Trudeau II Report, paras. 288-292, pp. 45-46. See it at: https://ciec-ccie.parl.gc.ca/en/publications/Documents/InvestigationReports/Trudeau%20II%20Report.pdf.

While the CofI Act contains a huge loophole that means an office holder cannot be in a conflict of interest when dealing with a matter that applies generally to a broad class of persons or organizations, in an important way this loophole does not (or, at least, should not) affect the interpretation and application of Rule 6.

The reason this loophole does not affect the application of Rule 6 to any lobbying situation is because being “in a conflict of interest” does not require any action on the part of a public office holder. If a person, whether or not the person is a registered lobbyist, is communicating with a public office holder in respect of the office holder’s current or potential future decisions when the person (or an entity they represent) has a relationship with the office holder that creates a sense of obligation on the part of the office holder, or after they (or an entity they represent) have done something or proposed to do something for the office holder that creates a sense of obligation, then the office holder is in a real or apparent conflict of interest (depending on the extent of the obligation).

As well, to be clear, “communicating with a public office holder” includes communicating with anyone who reports to that office holder. To interpret Rule 6 in a manner that takes into account the purpose of the Code of ensuring lobbying complies with the highest ethical standards to enhance public confidence and trust in government integrity, the assumption must be that, when an office holder has an obligation to a person or entity, the person puts the office holder in at least an apparent conflict of interest when the lobbyist communicates with anyone who reports to the office holder in respect of decisions for which the office holder has responsibility.

For example, in the case of a Deputy Minister, if a person is communicating with people the Deputy Minister oversees or who report to the Deputy Minister when the Deputy Minister has a sense of obligation to the person doing the communicating (or to an entity the person represents), then the Deputy Minister has a real or apparent conflict of interest.

In the case of a Cabinet minister, if a person is communicating with the Minister’s staff, Parliamentary Secretary or senior government officials and appointees who report to the minister when the Minister has a sense of obligation to the person doing the communicating (or to an entity the person represents), then the Minister has a real or apparent conflict of interest.

This interpretation is required, again if the purpose of the Code is taken into account, because the assumption must be that the lobbying communication will be reported to the senior official (Deputy Minister or Minister) if the senior official ever becomes involved in making a decision affecting the person or entity lobbying the junior official.

Again, an office holder does not have to undertake any decision or action in order to be in a real or apparent conflict of interest. The office holder is in the conflict of interest as soon as a person (or entity) they have a sense of obligation to begins to communicate with the office holder directly or with other office holders that the office holder oversees. If the office holder then goes on to participate in a decision that is affected by that conflict of interest, they then move from being in a conflict of interest to violating the rule that prohibits them from participating in a decision when they have a conflict of interest.

Commissioner Bélanger did not rule on Rule 6 in this way in the Bergen and O’Born rulings, which is part of the reason Democracy Watch is challenging those rulings in Federal Court.^{Footnote 32} Instead, Commissioner Bélanger claimed that neither Bergen nor O’Born violated Rule 6 because Minister Chrystia Freeland, who had a sense of obligation to both of them, did not exercise an official power, duty or function that affected the entities they were lobbying on behalf of, and because the Commissioner believed that Minister Freeland was not informed about their lobbying of several people who report to Minister Freeland. It should be noted though that Commissioner Bélanger’s belief is suspect given the investigation did not include examining all communications between Minister Freeland and everyone who Bergen and O’Born lobbied. Instead, Commissioner Bélanger relied on the word and memory of Bergen and O’Born, of the people who were lobbied, and of Minister Freeland^{Footnote 33}.

• Return to footnote 32 referrer The case is proceeding despite the Government of Canada’s attempt to have the case thrown out. See the Federal Court ruling rejecting the Government’s motion to strike at: Democracy Watch v. Canada (Attorney General), 2021 FC 613 (CanLII), https://canlii.ca/t/jggb8. And see the ruling on the Commissioner’s motion re: disclosure of the Certified Tribunal Record at: Democracy Watch v. Canada (Attorney General), 2021 FC 1417 (CanLII), https://canlii.ca/t/jlmrm.
• Return to footnote 33 referrer Investigation Report: Benjamin Bergen, Council of Canadian Innovators, https://lobbycanada.gc.ca/media/dfrhap4m/investigation-report-benjamin-bergen-en.pdf, at pages 6-7. Investigation Report: Dana O’Born, Council of Canadian Innovators, https://lobbycanada.gc.ca/media/cfnhpeio/investigation-report-dana-oborn-en.pdf, at pages 6-7.

In any case, Commissioner Bélanger makes it clear that even if Minister Freeland had been informed about Bergen and O’Born’s lobbying of people who reported to her, or even if Minister Freeland had been lobbied directly by them, she would also have had to exercise an official power, duty or function that affected the entities Bergen and O’Born were lobbying on behalf of in order for the Commissioner to find Bergen and O’Born guilty of violating Rule 6^{Footnote 34}.

• Return to footnote 34 referrer Bergen Report, at pages 28-31. O’Born Report, at pages 29-31.

For all of the above reasons, this is a legally incorrect application of Rule 6 – Minister Freeland was in at least an apparent conflict of interest as soon as Bergen and O’Born began communicating with office holders who reported to Minister Freeland. Therefore, Bergen and O’Born violated Rule 6 as soon as they began communicating with those office holders.

It should be noted that the Conflict of Interest Code for Members of the House of Commons^{Footnote 35} defines “private interest” as only including the personal financial interests of the member and his or her family. As a result, a re-worded Rule 6 in the Lobbyists’ Code could assist in ensuring that lobbyists are prohibited from lobbying MPs when they have a sense of obligation in any way to the lobbyist.

The Ethics and Conflict of Interest Code for Senators^{Footnote 36} also defines “private interest” as only including the personal financial interest of the senator and his or her family. However, the Senate Code also contains broader rules 7.1 and 7.2 that require senators to upholding the highest standards of integrity in all of their actions. Having any type of conflict of interest with a person communicating with a senator or anyone who reports to the senator would, therefore, violate rule 7.1 and/or 7.2 of the Senate Code.

• Return to footnote 35 referrer See the MP Code at: https://www.ourcommons.ca/about/standingorders/appa1-e.htm.
• Return to footnote 36 referrer See the Senate Code at: http://www.sen.parl.gc.ca/seo-cse/PDF/CodeJune2014.pdf.

So, overall, Rule 6 could be made stronger with a broader wording. However, this would very likely delay proper enforcement of Rule 6, as the upcoming binding Federal Court rulings in the Bergen and O’Born cases would not have as binding an effect if the wording of Rule 6 is changed, and the Commissioner would thereby be allowed to continue to fail to enforce Rule 6 properly until the courts took an opportunity to issue directions concerning the proper interpretation and application of a newly worded Rule 6. For this reason alone, the words “sense of obligation” could be added to Rule 6, but the reference to “real or apparent conflict of interest” should not be removed from Rule 6. In any case, it is obviously key that Rule 6 be consistently enforced by the Commissioner properly and strictly and strongly. See below in subsection C.5 for more details on Rule 6.

d) Preferential access subsection of the Code

(i) Rule 7: Interpret rule to cover arranging meeting with official and anyone who reports to official

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 (to which Rule 7 is related), 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.

In addition, the words in Rule 7 “arrange a meeting” must be defined in the Commissioner’s Guidance on Rule 7 as including:

“arranging a meeting between a public office holder and any other person, including a meeting by phone, email, Internet or any other communication method."

This is needed to make it clear to all lobbyists, consultant and in-house, that if a lobbyist is prohibited under the rules from lobbying, they are also prohibited from arranging meetings and/or communications of any kind with public office holders for anyone else. See below in subsection C.4 for more details.

As well, to fully prohibit lobbyists arranging a meeting for another person with a public office holder when the office holder has a sense of obligation to the lobbyist, as noted above in subsection A.1, the Lobbying Act definition of lobbying in subsection 7(1) must be changed to include “arranging meetings” as a lobbying activity that is covered by the Act and the Code for employees and officers of businesses and other organizations (i.e. for all in-house lobbyists).

(ii) Rule 8: Interpret rule to cover meeting with official and anyone who reports to official

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 (to which Rule 8 is related), 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. See below in subsection C.4 for more details.

e) Political activities subsection of the Code

(i) Rule 9: Extend rule and cooling-off period

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 (to which Rule 9 is related), 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 the first phase of this consultation in November-December 2020 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, overarching 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 was proposed on the consultation webpage in the first phase of this consultation, 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.”

See below in subsection C.4 for more details concerning how this provision could be worded.

Also, see below in subsections C.7, C.8 and C.9 for details concerning the cooling-off period that must be clearly established in the Commissioner’s Guidance on Rule 9 at: https://lobbycanada.gc.ca/en/rules/the-lobbyists-code-of-conduct/guidance-lobbyists-code-of-conduct/guidance-to-mitigate-conflicts-of-interest-resulting-from-political-activities/ during which a lobbyist may not lobby an official after political activities that assisted the official.

f) Gifts subsection of the Code

(i) Rule 10 – Banning sponsored travel is only effective solution, and banning all gifts is the best solution

Finally, as mentioned above in the Summary section, and at the beginning of the subsection re: Rule 6, 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^{Footnote 37}.

• Return to footnote 37 referrer See details in the Commissioner’s April 2019 report Sponsored travel provided by lobbyists, at: https://lobbycanada.gc.ca/en/investigations/reports-on-investigation/sponsored-travel-provided-by-lobbyists/. See section 15 of the MP Code at: https://www.ourcommons.ca/about/standingorders/appa1-e.htm. And see section 18 of the Senate Code at: http://www.sen.parl.gc.ca/seo-cse/PDF/CodeJune2014.pdf.

At $1,650 (increasing each year by $25), the federal annual donation limit is also too high, and it allows wealthy individuals to continue to use money as a means of unethical influence. However, that is a problem that must be solved by amending the Canada Elections Act as an amendment to the Code could not override the statutory right to make a donation to a party or a riding association.

MPs and Senators could amend the Code to prohibit lobbyists from giving the gift of sponsored travel. However, if they are willing to do this, they should be willing to amend their ethics codes to prohibit them from receiving sponsored travel.

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 [See the 2019 report at: https://ciec-ccie.parl.gc.ca/en/publications/Pages/Travel2019-Deplacements2019.aspx.] 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.

Other gifts and benefits would not be a problem given that 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. However, the Ethics Commissioner and Commissioner of Lobbying have both issued changing and confusing guidelines and rulings since 2007 concerning gifts and benefits, and that has effectively sent a signal to MPs and Senators that they can accept significant gifts from lobbyists, and that lobbyists can give them. As well, the MP Code’s disclosure threshold of $200 in gifts annually from any person or entity, and the Senate code’s disclosure threshold of $500, are too high to prevent gifts being used as a secret, unethical means of influence.

The simplest solution, given that testing of thousands of people around the world by psychologists^{Footnote 38} has shown that even small gifts and favours influence decisions^{Footnote 39}, is to ban all gifts from lobbyists to public office holders. The other option is to set a very low limit for a gift that can be given by all the lobbyists involved in a lobbying effort to all the office holders involved in the decision that is targeted by the lobbying effort. See below in subsection C.3 for details concerning these options.

• Return to footnote 38 referrer https://www.npr.org/sections/health-shots/2012/11/26/165570502/give-and-take-how-the-rule-of-reciprocation-binds-us
• Return to footnote 39 referrer Link is to Alix Spiegel, “Give And Take: How The Rule Of Reciprocation Binds Us,” NPR.org, November 26, 2012, online: https://www.npr.org/sections/health-shots/2012/11/26/165570502/give-and-take-how-the-rule-of-reciprocation-binds-us. See also Robert Cialdini and Noah Goldstein, “The Science and Practice of Persuasion,” (2002) 43(2) Cornell Hotel and Restaurant Administration Quarterly 40 at 44; Robert Cialdini and Steve Martin, Science of Persuasion, online video: https://www.youtube.com/watch?v=cFdCzN7RYbw/; Robert Cialdini and Steve Martin, “The Power of Persuasion,” (2006) Dec. Training Journal 40 at 41.

Of course, as in every area covered by the Lobbyists’ Code, all the loopholes in the Lobbying Act that allow for unregistered lobbying must be closed, otherwise those lobbyists who are allowed to lobby in secret without registering will also effectively be allowed to violate the Code rule, in this area by giving gifts in secret to officials they are lobbying.

C. Response to the Commissioner’s Proposed new Lobbyists’ Code

The current Lobbyists’ Code of Conduct can be viewed at: https://lobbycanada.gc.ca/en/rules/the-lobbyists-code-of-conduct/lobbyists-code-of-conduct/ and the Commissioner of Lobbying’s proposed new Lobbyists’ Code that was posted on her website on December 15, 2021 can be viewed at: https://lobbycanada.gc.ca/en/rules/the-lobbyists-code-of-conduct/lobbyists-code-of-conduct/consultation-on-future-changes-to-the-lobbyists-code-of-conduct (at least until February 18, 2022, although hopefully the Commissioner will not remove that page from her website – unfortunately, the webpage containing submissions during the first round of the Commissioner’s consultation on the Code has been removed from the site).

The following is the list of changes needed to the Commissioner’s proposed new Code because the new Code in its current form will delete much-needed rules from the current Code or narrow existing rules, and will also create loopholes that will allow for even more unethical lobbying than is currently allowed:

1. Do not delete existing Rule 5

Do not delete existing Rule 5 from the current Code (which the Commissioner is proposing to do) because a rule is needed to prohibit lobbyists from using or disclosing documents that are leaked to them. As set out above in subsection B.3(b), the word “document” in Rule 5 should be changed to 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. See above in subsection B.3(b) for more on Rule 5.

2. Ensure the proposed Misinformation prohibition applies to all lobbyists’ communications

Add at the end of the Commissioner’s proposed new Misinformation Rule 2 the words “or in any public communications or advertising related to a lobby effort or lobbying an official” to ensure that all lobbyists are prohibited from communicating misinformation in any way. The way the current rule is drafted, organizations that do grassroots appeals would be prohibited from making false claims, but corporations that do advertising campaigns to communicate their policy agenda to officials would be allowed to lie in their ads. This would tilt the federal lobbying rules even more in favour of big business lobbying than they already are. See above in subsection B.3(a)(ii) for more details.

3. Only allow one low value gift to an official during a lobbying effort or, even better, ban all gifts

At end of the Commissioner's new proposed Rule 3 (Gifts) and Rule 4 (Hospitality), add a sentence that reads:

"In total, only one thing of low value is permitted to be given to any office holder and their staff during any 12-month period by all lobbyists at a lobbying firm, or by anyone involved in any lobbying effort, and the registered for a lobbying effort must disclose in the Registry of Lobbyists if a combined total of more than $100 in gifts are given during any 12-month period to all of the office holders involved in a decision targeted by the lobbying effort."

This is needed to prevent firms and organizations that employ dozens of lobbyists from each giving dozens of gifts to a public office holder and their staff, and wining and dining them dozens of times, each year. Even better, given that testing of thousands of people around the world by psychologists^{Footnote 40} has shown that even small gifts and favours influence decisions^{Footnote 41}, simply ban all gifts and hospitality from lobbyists to any public office holder. See above in subsection B.3(f) for more on the gifts rule.

• Return to footnote 40 referrer https://www.npr.org/sections/health-shots/2012/11/26/165570502/give-and-take-how-the-rule-of-reciprocation-binds-us
• Return to footnote 41 referrer Link is to Alix Spiegel, “Give And Take: How The Rule Of Reciprocation Binds Us,” NPR.org, November 26, 2012, online: https://www.npr.org/sections/health-shots/2012/11/26/165570502/give-and-take-how-the-rule-of-reciprocation-binds-us. See also Robert Cialdini and Noah Goldstein, “The Science and Practice of Persuasion,” (2002) 43(2) Cornell Hotel and Restaurant Administration Quarterly 40 at 44; Robert Cialdini and Steve Martin, Science of Persuasion, online video: https://www.youtube.com/watch?v=cFdCzN7RYbw/; Robert Cialdini and Steve Martin, “The Power of Persuasion,” (2006) Dec. Training Journal 40 at 41.

4. Ensure that arranging a meeting covers arranging all communications

Add at the end of the definition of "lobby or lobbying" in the Appendix a note specifying that the definition includes:

"arranging a meeting between a public office holder and any other person, including a meeting by phone, email, Internet or any other communication method."

This is needed to make it clear to all lobbyists, consultant and in-house, that if a lobbyist is prohibited under the rules from lobbying, they are also prohibited from arranging meetings and/or communications of any kind with public office holders for anyone else. See above in subsection B.3(d)(i) for more details on current Rule 7 which covers similar actions, including how the Lobbying Act must be changed to cover “arranging meetings” as lobbying activity when it is done by employees and officers of businesses and organizations (i.e. all in-house lobbyists).

5. Ensure that creating even an apparent conflict of interest continues to be prohibited

To stop the Commissioner from gutting the existing Rule 6 that prohibits lobbying anyone when there is any type of appearance of a conflict of interest, change the Commissioner's proposed new Rule 7 to read:

"Never lobby an official when actions or decisions you have taken or propose to take create a real or apparent conflict of interest or sense of obligation for the official."

Even better, reject proposed new Rule 7 and just keep existing Rule 6 from the current Code in the new Code. The Commissioner’s proposed new Rule 7 is an attempt to narrow the scope of the Code’s current conflict of interest rule (Rule 6), and escape from the binding unanimous 2009 ruling of the Federal Court of Appeal in the case Democracy Watch v. Campbell^{Footnote 42}, which defined the scope of former Rule 8 (now Rule 6). Proposed Rule 7 is also an attempt by the Commissioner to escape the binding rulings on Rule 6 (and Rule 9) that will very likely be issued by the Federal Court in the ongoing consolidated judicial review applications Democracy Watch v. Canada (Attorney General)^{Footnote 43} concerning two rulings of the Commissioner issued in spring 2020 that interpreted and applied Rules 6 and 9.

• Return to footnote 42 referrer Democracy Watch v. Campbell, 2009 FCA 79 (CanLII), [2010] 2 FCR 139, https://canlii.ca/t/22vcj.
• Return to footnote 43 referrer The case is proceeding despite the Government of Canada’s attempt to have the case thrown out. See the Federal Court ruling rejecting the Government’s motion to strike at: Democracy Watch v. Canada (Attorney General), 2021 FC 613 (CanLII), https://canlii.ca/t/jggb8. And see the ruling on the Commissioner’s motion re: disclosure of the Certified Tribunal Record at: Democracy Watch v. Canada (Attorney General), 2021 FC 1417 (CanLII), https://canlii.ca/t/jlmrm.

If Rule 7 is approved in the form proposed by the Commissioner, these court rulings would not apply to it, and the Commissioner would be free once again to ignore or misapply the rule in future situations that are investigated, until the courts rule (likely years from now) on the Commissioner’s new interpretation of new Rule 7. This would set back effective enforcement of the conflict of interest rule for years (not that it has ever been effectively enforced in the past, as every official who has enforced the rule since the Code was enacted in 1997 has tried to ignore the rule). See above in subsection B.3(c) for more details.

6. Ensure that lobbyists are prohibited from lobbying everyone who serves under any official with whom they have an apparent conflict of interest

Add to existing Rule 7 in the current Code, or if the Commissioner's new Code is enacted, add to proposed new Rules 3, 4, 5 and 7, a second sentence that says:

"The words "an official" in this rule mean the official and any "associate" of the official as defined in the Appendix.”

And move the definition of "associate" into the list of general definitions and change it to include:

“for a Minister, anyone in any government institution or department when the lobbying is about any decision or action for which the Minister has decision-making authority, unless the Minister has recused themselves publicly and publicly delegated their decision-making authority entirely to someone who is fully independent of the Minister and not under their control in any way, directly or indirectly.”

Also add to the definition of "associate" the following:

“for any government appointee or employee, anyone who works for them when the lobbying is about any decision or action for which the official has decision-making authority, unless they have recused themselves publicly and publicly delegated their decision-making authority entirely to someone who is independent of them and not under their control in any way, directly or indirectly.”

Also add to the definition of "associate" the following:

"In relation to members of the Senate of Canada, their staff but not their fellow Senators."

All of these changes are needed to prevent Rules 3, 4, 5 and 7 from being a charade that allows for unethical lobbying. First, the current definition of associate means these rules don’t even apply to Senate staff, which is a negligent omission by the Commissioner. Secondly, as currently drafted, these rules would allow lobbyists to lobby department officials of every Cabinet minister, right up to the Deputy Minister and Assistant Deputy Minister, even when they have a relationship with the minister that causes a conflict of interest.

Given that department officials regularly communicate the concerns and proposals of lobbyists to their minister’s office, every lobbyist would be legally allowed to lobby those officials even though they would, in effect, be lobbying the minister. This would essentially void the prohibition on lobbying a minister when the minister has a sense of obligation to you. In other words, it would gut Rules 3, 4, 5 and 7 of the proposed Code. See above in subsection B.3.(d) for more details.

7. Reject the Commissioner’s proposal to shorten, even more than she has already, the “cooling-off” period for lobbyists to whom an official has a sense of obligation

Reject the Commissioner’s proposal to shorten (in the definition of "Political Work" in the Appendix) the "cooling-off" periods during which a lobbyist is prohibited from lobbying someone they for which they have fundraised, volunteered or done other any other favours. The Commissioner’s proposal should be rejected because the conflict of interest caused by those actions lasts in many cases for the rest of the politician's or public official's career, and at least lasts for five years (much longer that one to two years that the Commissioner proposes).

Also remove the proposal that would allow the Commissioner to reduce the cooling-off period. The Commissioner should not have this discretion as it opens the door to allowing even more unethical lobbying than the Commissioner’s proposed new periods would allow.

Commissioner Bélanger has clearly been attempting to decrease the cooling-off period during her term in office. Although the Commissioner has attempted to remove any evidence of it from her website, the Guidance document on current Code Rule 9 (re: Political Activities) that was issued by former Commissioner Karen Shepherd in summer 2016 (after the current Code came into force in December 2015)^{Footnote 44} is still available through the Internet Archive site at: https://web.archive.org/web/20160815213919/https://lobbycanada.gc.ca/eic/site/012.nsf/eng/01182.html/^{Footnote 45} and it states clearly that Commissioner Shepherd required a cooling-off period of five years after political activities. As Commissioner Shepherd’s Guidance document says under the heading “The risk diminishes over time”:

When a lobbyist has carried out political activities that pose a risk of creating a sense of obligation, the Commissioner is of the view that five years is a sufficient period of time to wait before lobbying the public office holder and/or his or her staff, in order to avoid creating a conflict of interest for that public office holder. [emphasis added]

• Return to footnote 44 referrer As noted in the “Guidance on the Lobbyists’ Code of Conduct” section of Commissioner Shepherd’s 2015-2016 Annual Report, online https://lobbycanada.gc.ca/en/reports-and-publications/annual-report-2015-2016/#toc3-2-2.
• Return to footnote 45 referrer If this link does not work, insert the old URL for the former Commissioner’s Guidance on Rule 9 https://lobbycanada.gc.ca/eic/site/012.nsf/eng/01182.html/ into the Internet Archive website’s WayBackMachine and check the Commissioner’s site update from August 15, 2016.

In 2019, for no reason, Commissioner Bélanger issued a new Guidance document for Rule 9, which can be seen at: https://lobbycanada.gc.ca/en/rules/the-lobbyists-code-of-conduct/guidance-lobbyists-code-of-conduct/guidance-to-mitigate-conflicts-of-interest-resulting-from-political-activities/ in which she reduced the “cooling-off” period to the vague time period of “a period equivalent to a full election cycle.” A “full election cycle” could mean either the maximum election cycle of four years, or the time between elections (which was only two years between the 2019 and 2021 elections). The vagueness in the Commissioner’s current Guidance means that, currently, anyone who worked in any party’s headquarters during the 2019 election could, arguably, now lobby the politicians (even the Prime Minister and Cabinet ministers) that they worked with during that campaign (given a full election cycle has passed). This would be clearly unethical by any meaningful standard for ensuring ethical politics. This shows clearly that the Commissioner deliberately reduced the cooling-off period by issuing the new Guidance document.

Now, Commissioner Bélanger is proposing in the new Code to reduce the cooling-off period for significant political work to only two years, and the period for other political work to only one year. No evidence and no reason is given for these reductions – the Commissioner simply jumps to the unsupported conclusion that these 1-2 year periods “would typically be a sufficient period to reduce a sense of obligation.” Somehow, between 2016 when Commissioner Shepherd established her five-year cooling-off period and 2022, the definition of “sufficient period of time” for a sense of obligation to disappear has magically decreased down to two years.

This is not to say that Commissioner Shepherd made a strong case for a five-year cooling-off period. Likely it was simply based on the five-year period set out in the Lobbying Act during which, after they leave office, a former public office holder is prohibited from being a registered lobbyist. The premise of the time period should be based on an actual assessment of the depth of the sense of obligation someone would feel to someone who helps them obtain a very well-paying job (as the salaries of MPs are in the top five percent salaries of all jobs in Canada, and a Cabinet minister’s salary is in the top one percent), as that is what people who help federal candidates win elections are doing. And when someone helps a party leader and the party win the election, they are also helping that person obtain an enormous amount of power.

Again, as with the gifts rule discussed in #3 above, this assessment must take into account the fact that testing of thousands of people around the world by psychologists^{Footnote 46} has shown that even small gifts and favours influence decisions^{Footnote 47}. Helping someone win a very well-paying job is a huge favour that results in a lot of influence. Why would a politician’s sense of obligation to someone who helps them win election ever disappear while they remain a politician? They arguably owe that person for their entire career, especially if they happen to be in a “safe” electoral district in which the party they represent has always won elections. In that situation, anyone who helped them win their first election helped them obtain a very well-paying job for the rest of their life.

• Return to footnote 46 referrer https://www.npr.org/sections/health-shots/2012/11/26/165570502/give-and-take-how-the-rule-of-reciprocation-binds-us
• Return to footnote 47 referrer Link is to Alix Spiegel, “Give And Take: How The Rule Of Reciprocation Binds Us,” NPR.org, November 26, 2012, online: <https://www.npr.org/sections/health-shots/2012/11/26/165570502/give-and-take-how-the-rule-of-reciprocation-binds-us>. See also Robert Cialdini and Noah Goldstein, “The Science and Practice of Persuasion,” (2002) 43(2) Cornell Hotel and Restaurant Administration Quarterly 40 at 44; Robert Cialdini and Steve Martin, Science of Persuasion, online video: https://www.youtube.com/watch?v=cFdCzN7RYbw/; Robert Cialdini and Steve Martin, “The Power of Persuasion,” (2006) Dec. Training Journal 40 at 41.

Based on these factors, and others, former Commissioner Shepherd was correct to establish a minimum five-year cooling-off period for all political activities, and Commissioner Bélanger’s proposal to reduce that period should be rejected. Instead, an even longer cooling-off period should be established for the top campaigners, fundraisers and others who do significant favours of any kind for a candidate, party leader or other official, arguably lasting for the entire time period they are in office.

As well, a cooling-off period should be established for people who work in party election campaign headquarters that prohibits lobbying all of the MPs elected by that party, given that research clearly shows that the central campaign is a major assistance to every candidate, and that few voters vote based on who the local candidate is^{Footnote 48}.

• Return to footnote 48 referrer Allen Stevens, B., Islam, M., De Geus, R., Goldberg, J., McAndrews, J., Mierke-Zatwarnicki, A., . . . Rubenson, D., “Local Candidate Effects in Canadian Elections,” (2019) 52(1) Canadian Journal of Political Science 83.

Finally, the cooling-off period should clearly apply to lobbyists who were not registered lobbyists under the Lobbying Act when they undertook the political activities. This clarification is needed because the Commissioner ruled in the Bergen and O’Born rulings that some of their political activities were not covered by current Rule 9 because they did those activities before they registered as lobbyists. Even though all of their activities were still taken into account under current Rule 6, it makes no sense to have a gap between the application of Rule 6 and the application of Rule 9 to a lobbyist’s activities. See above in subsection B.3(e) more concerning this issue with Rule 9.

8. Reject the Commissioner’s attempt to allow significant favours by lobbyists for parties and candidates to only result a one-year cooling-off period

In the Commissioner's proposed new definition of "political work" move “performing strictly administrative tasks..." and all five actions listed under "other political work" into the category "significant political work" because all six of these actions are significant favours that make a candidate or politician owe the person who does any of these six things for them.

The current Guidance document for current Rule 9 in the current Code on the Commissioner’s website at: https://lobbycanada.gc.ca/en/rules/the-lobbyists-code-of-conduct/guidance-lobbyists-code-of-conduct/guidance-to-mitigate-conflicts-of-interest-resulting-from-political-activities/ includes “Gathering or soliciting donations that you then provide to a registered party or electoral district association” and serving in any “strategic role on a campaign team” as higher-risk political activities that would result in a prohibition for a lobbyist from lobbying a politician or party at least until after the next election.

The Commissioner’s proposed new definition of “Political Work” shifts “seeking or gathering donations” and “coordinating campaign office logistics” to the category of “other political work” that only prohibits a lobbyist from lobbying the politician for one year after doing that work.

The current Guidance document for current Rule 9 only includes the following as examples of lower-risk political activities that can be undertaken only occasionally without creating an appearance of a conflict of interest:

• Volunteering, canvassing, or scrutineering for a registered party or electoral riding association without significantly interacting with candidates;
• Attending fundraising events; or
• Expressing personal political views strictly in an individual capacity.

The Commissioner’s proposed new definition of “Political Work” adds the significant favours of “drafting campaign materials” and “distributing or disseminating campaign materials” to the category of “other political work” that will only result in a lobbyist being prohibited from lobbying the politician for one year after doing that work. These significant favours should result in a much longer cooling-off period.

The current Guidance document for current Rule 9 only includes the following as examples of no-risk political activities that can be undertaken without creating an appearance of a conflict of interest:

• Displaying campaign signs or posters; or
• Making personal donations within the limits established in the Canada Elections Act.

The Commissioner’s proposed new definition of “Political Work” adds “performing strictly administrative tasks, such as occasional work stuffing envelopes, taking phone messages” to the list of political work that can be done as much as the lobbyist wants without the lobbyist having to sit out from lobbying the politician or official for some period of time after doing the work.

Performing administrative tasks are still favours that assist a candidate or party. As a result, these activities must still be considered lower-risk activities that require sitting out from lobbying the politician, their staff or party officials for a period of time.

9. Reject the Commissioner’s attempt to allow lobbyists to support a candidate or party by going to multiple events and then lobby them right afterwards

Finally, change in the Commissioner’s proposed new list of exempt political work "simply attending a fundraising or campaign event" to "simply attending a fundraising or campaign event once or twice during any 12-month period" because frequently attending those events amounts to a favour for any politician or candidate, and offers an opportunity to lobby the candidate or politician and/or their assistants. As a result, attending multiple events require sitting out from lobbying the politician, their staff or party officials for a period of time.

D. Conclusion

As set out above in section B, 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.

It is an option for the House of Commons Standing Committee on Access to Information, Privacy and Ethics to instead adopt the Commissioner’s proposed new Code. However, if the new Code is adopted without the changes set out above in section C, key rules of the existing Code will be removed, and new loopholes will be created, and that will result in even more unethical lobbying being allowed than is currently allowed.

In any case, to make these wording changes to the existing Code, or the Commissioner’s proposed new Code, actually effective, as set out above in section A, loopholes must be closed in the Lobbying Act so that the Code applies to all lobbying activities. The only exception to registering lobbying communications in the Registry should be when someone signs a mass email letter appeal that an individual or organization has set up (as the individual or organization will be required to register that lobbying effort). Loopholes must also be closed and in MP and Senator ethics codes to prohibit unethical lobbying tactics, most specifically gifts like sponsored travel. A summary of the key changes needed to the MP Code as proposed by Democracy Watch and the Government Ethics Coalition can be seen by clicking here [https://democracywatch.ca/coalition-calls-for-key-changes-to-make-mp-ethics-rules-effective/].

As well, Commissioner of Lobbying Nancy Bélanger must stop enforcing the Lobbyists Code in the usual negligent and secretive weak way it has been enforced since it was enacted in 1997. The Commissioner must take into account the Code’s purpose of ensuring ethical lobbying so public confidence in the integrity of government is enhanced, and must also take into account the Code’s strong Principles. If Commissioner Bélanger does not strengthen her enforcement approach, illegal, secret, unethical and dishonest lobbying of Cabinet ministers, their staff and appointees, MPs and senators and their staff, and federal government employees will continue to be allowed, and will continue to undermine and corrupt many federal policy-making processes.

La présente lettre fait suite à votre courriel du 16 décembre dernier, dans lequel vous m’informiez, dans une annonce adressée à vos divers homologues canadiens, d’une consultation sur une mise à jour préliminaire du Code de déontologie des lobbyistes fédéral et suggérant la présentation de commentaires.

Vous trouverez en annexe de la présente certains commentaires que nous souhaitons porter à votre attention en lien avec votre demande.

Nous espérons que ces quelques commentaires seront utiles dans la poursuite de vos travaux. Mon équipe et moi-même demeurons disponibles afin de discuter plus amplement de ceux-ci. Veuillez agréer, madame la Commissaire, l’expression de nos meilleurs sentiments.

Sections/Articles: Objectif

Ce code de déontologie a été élaboré pour favoriser un lobbying transparent et éthique des fonctionnaires fédéraux.

En respectant les règles en vigueur, les lobbyistes renforcent la culture éthique du lobbying et contribuent à la confiance du public dans l’intégrité des institutions gouvernementales et du processus décisionnel fédéral.

Commentaires

La formulation du premier alinéa nous apparait ambigu. Une personne moins familière avec les obligations découlant de la Loi sur le Lobbying pourrait aisément considérer qu’on parle ici des activités de lobbying faites par un fonctionnaire fédéral.

Une solution serait de préciser qu’il s’agit du lobbying fait « auprès des fonctionnaires fédéraux ».

Sections/Articles: Application

Une personne doit respecter ce code si la Loi sur le lobbying l’y oblige. Dans ce code, ces personnes sont appelées lobbyistes.

Ce code de conduite a été publié dans la Gazette du Canada et est entré en vigueur le [mois J, AAAA].

Commentaires

La formulation du premier alinéa laisse sous-entendre que le code ne s’applique pas dans toutes les circonstances, alors que l’article 10.3(1)a) précise que les lobbyistes-conseils et les lobbyistes salariés doivent se conformer au code.

Sections/Articles: 1.5

1.5 Si vous êtes le déclarant pour un employeur, informez le personnel qui font du lobbying de leurs obligations en vertu de ce code.

Commentaires

Que ce soit sous sa forme actuelle (article 4 du code de déontologie) ou sous sa nouvelle forme (article 1.5 de la version préliminaire), cette obligation imposée au déclarant d’un employeur d’informer un membre de son personnel qui fait du lobbying de ses obligations en vertu du code s’inscrit dans les meilleures pratiques d’encadrement du lobbyisme qui ont été identifiées par le CLQ dans son ’Énoncé de principes de 2019. Il s’agit d’un bel exemple d’application du principe 11 qui suggère d’établir « un cadre éthique et déontologique applicable aux entités et aux représentants d’intérêts relativement à la divulgation, à l’accomplissement et au suivi des activités de lobbyisme, de façon à maintenir les plus hauts standards d’intégrité et de professionnalisme et à favoriser la confiance des citoyens dans les institutions publiques ».

Sections/Articles: L'article 6

L’article 6 du code actuel n’est pas reconduit dans la version préliminaire présentée.

Commentaires

L’article 6 actuel est un article général visant à prévenir les situations de conflit d’intérêt ou d’apparence de conflit d’intérêts.

6. Un lobbyiste ne doit proposer ni entreprendre aucune action qui placerait un titulaire d’une charge publique en situation de conflit d’intérêts réel ou apparent. Plus particulièrement : (…)

Une telle disposition nous apparait pertinente dans un code de déontologie des lobbyistes. Par conséquent, le fait que cet article 6 ne soit par reconduit dans la version préliminaire du code semble être une perte.

Sections/Articles: Cadeaux et Marques d'hospitalité

Cadeaux

3 N’offrez, ne promettez ou ne fournissez jamais – directement ou indirectement – un cadeau à un fonctionnaire auprès de qui vous faites ou prévoyez faire du lobbying, autre qu’une marque d’appréciation ou un article promotionnel de faible valeur.

Marques d'hospitalité

4 N’offrez jamais – directement ou indirectement – de marque d’hospitalité à un fonctionnaire auprès de qui vous faites ou prévoyez faire du lobbying, à l’exception d’aliments ou de boissons de faible valeur à consommer lors d’une réunion, d’un événement ou d’une réception en personne.

Commentaires

Contrairement à l’article 10 actuel qui interdit au lobbyiste de donner à un TCP des cadeaux et autres avantages qu’il n’est pas autorisé à accepter, les articles 3 et 4 de la version préliminaire sont plus directs et interdisent les cadeaux et marques d’hospitalité, sauf exception précise. Cela crée une uniformité.

Toutefois nous nous questionnons à savoir si certains TCP fédéraux sont interdits de recevoir des cadeaux ou des marques d’hospitalité dans le cadre de leurs fonctions, suivant les règles déontologiques ou éthiques applicables à leur situation. Dans l’affirmative, un lobbyiste pourrait, sans contrevenir à son code de déontologie, pousser un TCP à contrevenir à ses propres règles.

En ce sens, nous croyons que l’article 9 du Code de déontologie des lobbyistes du Québec permet d’éviter de telles situations. Il est aussi plus large, puisqu’il ne couvre pas uniquement les cadeaux, mais aussi une série d’autres cas qu’il n’est pas possible d’inventorier de façon efficace autrement dans un Code de déontologie.

9. Le lobbyiste ne doit pas inciter un titulaire d’une charge publique à contrevenir aux normes de conduite qui lui sont applicables.

Exemples de lignes d'objet des courriels :

• Please stop secret, unethical lobbying
• Please end secret, unethical lobbying and unethical decision-making in politics
• Please stop secret, unethical lobbying. You were elected to look out for the BEST interests of every single Canadian. Use your power for what was given and be honest and transparent. We all deserve that at least.
• Ethical quandaries increasingly obvious, please repair democracy
• Please stop secret, unethical lobbying, Canadians have the right and responsibility to know who and when their politicians and public service is influenced by money outside taxpayer view.
• Lobbying is ruining democracy. We need equitable representation not actions bought with money.

Échantillon représentatif des 181 courriels :

Hello,

I am calling on governments across Canada to end secret, unethical lobbying by implementing the following measures which are supported by the Government Ethics Coalition, made up of 32 citizen groups from across Canada representing over 3 million Canadians:

1. Pass a law requiring that all government institutions consult with the public before making any significant decision, including providing at least 60 days for the public to make a submission to the government, consulting with experts, and undertaking study circles or citizen assembly processes, with results of all consultations reported publicly, so that the influence of lobbyists is decreased;

Specific measures needed to prevent, as the federal Commissioner of Lobbying is proposing, changes to the federal Lobbyists’ Code of Conduct that will allow for even more unethical lobbying (if the Commissioner does not make these changes, the House of Commons Ethics Committee must make these changes when it reviews the Commissioner’s proposed Code and, to make secret, secretly bankrolled, unethical and dishonest lobbying finally illegal, the Committee must also recommend all the other changes listed below when it reviews the federal Lobbying Act this year (as it is required to do by the Act))”

1. Do not delete existing Rule 5 from the Code (which the Commissioner is proposing to do) because a rule is needed to prohibit lobbyists from using or disclosing documents that are leaked to them.
2. Add at the end of the Commissioner’s proposed new Rule 2 the words “or in any public communications or advertising related to a lobby effort or lobbying an official” to ensure that all lobbyists are prohibited from communicating misinformation in any way.
3. Add at end of the Commissioner’s new proposed Rule 3 (Gifts) and Rule 4 (Hospitality) a sentence that makes it clear that only one thing of low value is permitted to be given to any office holder and their staff during any 12-month period by all lobbyists at a lobbying firm combined, or by everyone involved in any lobbying effort combined.” Or, even better, simply ban all gifts and hospitality from lobbyists to any public office holder.
4. Add at the end of the definition of “lobby or lobbying” in the Appendix a note specifying that the definition includes “arranging a meeting between a public office holder and any other person, including a meeting by phone, email, Internet or any other communication method.”
5. To stop the Commissioner from gutting the existing Rule 6 that prohibits lobbying anyone when there is any type of appearance of a conflict of interest, change the Commissioner’s proposed new Rule 7 to read: “Never lobby an official when actions or decisions you have taken or propose to take create a real or apparent conflict of interest for the official.” Even better, reject proposed new Rule 7 and just keep existing Rule 6 in the Code.
6. Add to existing Rule 7 in the Code, and to the Commissioner’s proposed Rules 3, 4, 5 and 7, a second sentence that says: “The words “an official” in this rule mean the official and any associate, employee or person who reports to the official when the lobbying is about any decision or action for which the official has decision-making authority, unless the official has recused themselves and delegated their authority entirely to someone who is fully independent of them and not under their control in any way, directly or indirectly.
7. Reject the Commissioner’s proposal to shorten (in the definition of “Political Work” in the Appendix) the “cooling-off” periods during which a lobbyist is prohibited from lobbying someone they have fundraised for, volunteered for or done other any other favours for because the conflict of interest caused by those actions lasts in many cases for the rest of the politician’s or public official’s career, and at least lasts for 5 years (much longer that 1-2 years that the Commissioner proposes). And remove the proposal that would allow the Commissioner to reduce the cooling-off period.
8. In the Commissioner’s proposed definition of “political work” move “performing strictly administrative tasks…” and all five actions listed under “other political work” into the category “significant political work” because all six of these actions are significant favours that make a candidate or politician owe the person who is doing the favour for them.

Ensure lobbying activities are tracked and the undue influence of lobbyists is restricted by ensuring that the lobbying law:

1. Requires Ministers, their staff, and everyone working in a party caucus office or party office who passes on information or suggestions to politicians concerning their decisions, Cabinet appointees and other senior government officials, members of the legislature and senators and all their staff, and everyone working in a party caucus office or party office who passes on information or suggestions to politicians concerning their decisions, to disclose all their contacts in an online, searchable database with anyone who communicates with them in any way about their decisions;
2. After each election, require disclosure to the Commissioner of Lobbying by political parties and MPs of the list of people who worked or volunteered for them in their election campaign, and also require parties to disclose their staff, advisors, consultants and volunteers, and MPs to disclose who works or volunteers for their riding association, and Senators to disclose anyone who volunteers for them (with volunteering defined as helping out for a more than a few hours during the campaign or in between elections, given this amounts to a donation or favour to the politician or party that many voters cannot afford to make).
3. Require MPs and government officials to put into the lobbying registry monthly the total number of emails, phone calls, texts, faxes and letters they receive from voters concerning any policy-making decision, categorized by information that identifies the policy subject (the bill number, subject of the bill, tax, subsidy or government program) and how many voters were for or against the proposed decision.
4. If politicians and public officials are not required to disclose who communicates with them in any way about their decisions, then anyone who communicates with them must be required to register and disclose all their communications, not matter how much time the communications take, and whether or not they are paid or volunteer (the only exception should be that a voter sending a mass letter or email as part of an organization’s lobbying effort should not be required to register, instead the organization should be required to register);
5. Requires lobbyists to disclose how much they and their clients are spending on each campaign (as required in 33 U.S. states);
6. Requires lobbyists and lobby groups to disclose to the lobbying commissioner a list of who funds them, including funding from any government, and funding or donations from anyone or any organization of any kind from anywhere in the world that has given them more than $200 in funding in the past two years, and requires them to disclose in the lobbying registry the percentage of their total funding received from individuals, foundations, businesses, other organizations and government for each other country from which they receive funding, in order to reveal who is bankrolling any lobbying effort;
7. Requires lobbyists and lobby groups to disclose the identity of any individual or group they are working with in any way on each lobbying effort, especially leading up to elections, in order to reveal whether lobbying groups are colluding to avoid disclosing their lobbying or to exceed spending limits;
8. Requires lobbyists to disclose past work with political parties, election candidates and governments and government institutions;
9. Prohibits lobbyists from knowingly misrepresenting facts, omitting important details or presenting information that is misleading or false when they lobby officials, or in grassroots lobbying appeals to the public, or in any public communications or advertising related to a lobby effort or lobbying an official;
10. Prohibits lobbyists putting any politician or public official in even an appearance of a conflict of interest (as prohibited by the federal Lobbyists’ Code of Conduct), including by fundraising or doing any other favours;
11. Prohibits lobbyists from giving any gift to any politician or public official because independent psychological tests worldwide have shown that even small gifts have influence over decisions;
12. Prohibits everyone, especially lobbyists, from donating more than an average voter can afford (which, generally across Canada, is no more than $75 annually);
13. Requires anyone, whether or not they are lobbying, and whether or not they are paid, to register in the lobbying registry if they are representing in any way a foreign government or political organization, or any entity owned or controlled (directly or indirectly) by a foreign government or political organization, including through involvement in public relations or communications or political activities, and what the objectives of the government or entity are in Canada.
14. Prohibits lobbyists from doing work for government departments (such as providing advice on communications) and from having any business connections with anyone who does such work, and;
15. Eliminate the corporate tax deduction for lobbying expenses.

And ensure lobbying laws/codes/rules are effectively enforced by:

1. Ensuring a “whistleblower” protection law exists that gives anyone the right to reports a violation of any law, policy, code, guideline etc. to a fully independent integrity commissioner who has the power and resources to fully investigate complaints, and to protect all whistleblowers from retaliation and to compensate them fully if they suffer retaliation;
2. As Quebec has for appointing provincial court judges, create an independent commission to conduct open, merit-based searches for Cabinet appointments, and to require the Cabinet to choose from a short list of candidates the commission proposes, and require approval from opposition party leaders of the appointment of all commissioners that enforce lobbying laws;
3. Appoint all lobbying commissioners for fixed, multi-year, non-renewable terms with full independence and investigative powers;
4. Requiring all lobbying commissioners to conduct regular, unannounced audits of the activities of the people who are covered by the law they enforce, to ensure everyone is complying with the rules;
5. Requiring all lobbying commissioners to review complaints filed by the public, and rule publicly on every complaint;
6. Requiring all lobbying commissioners to issue a ruling every time they give advice to anyone on how the law/code rules apply to specific situations;
7. Allowing complainants to go to court if the lobbying commissioner delays an investigation an unreasonable length of time, or makes any legal or factual error in a ruling; and
8. Increase the maximum penalties for violations of any lobbying law or code to at least match the current penalties for violating the federal Lobbying Act (ie. $50,000 to $200,000 fines and jail terms of 6 months to 2 years), and preferably make them even stronger given how much lobbyists are paid, including loss of any severance payment, and a partial clawback of any pension payments, and require the enforcement agency/commissioner to impose a mandatory minimum fine of at least $10,000 for every violation, to ensure that any lobbyist who violates a rule is penalized.

Please let me know what you will do to ensure that these changes are made as soon as possible. I will be deciding which political party to vote for in the next election based on the responses I receive from representatives in each party. I look forward to hearing from you.

Sincerely,
[name]
[postal code]