Guiding principles and criteria for recommending compliance measures
The Commissioner of Lobbying has a mandate to ensure compliance with the Lobbying Act (the Act) and the Lobbyists' Code of Conduct (the Code). Compliance with the lobbyists registration regime assures the public that lobbying is done with the highest standards and contributes to public confidence and trust in the integrity, objectivity and impartiality of government decision-making. It is the role of the Office of the Commissioner of Lobbying (OCL) to support this mandate by conducting administrative reviews of suspected, alleged, or known contraventions of the Act and Code, recommending appropriate enforcement measures and, where the Commissioner deems necessary, conducting formal investigations under subsection 10.4 of the Act.
The OCL ensures that lobbyists conform to the Act and Code through a range of compliance and enforcement measures: monitoring and education, compliance verification, administrative review, investigation, and referral to a peace officer. It is the policy of the OCL to apply these measures in a reasonable and responsible fashion, and in a manner that reflects the gravity of the alleged transgression.
Degree of Fault and Sufficiency of Evidence
The OCL takes into account the following two elements in the analysis of an alleged transgression of the Act or Code: the nature of the act or omission, and the evidence of negligence or wilful misconduct of the individual. During the course of an administrative review, the Investigations Directorate will conduct an analysis of both elements and recommend appropriate compliance measures that reflect an assessment of the knowledge, fault and intent of the subject. Formal investigations will be recommended where a sufficiency of evidence exists that non-compliance was the outcome of negligence or intent.
"The Commissioner shall conduct an investigation if he or she has reason to believe, including on the basis of information received from a member of the Senate or the House of Commons, that an investigation is necessary to ensure compliance with the Code or this Act, as applicable."
Lobbying Act, subsection 10.4(1)
The Commissioner may also refuse to conduct, or cease an investigation if the matter could more appropriately be dealt with by another means or for the following reasons, set out in subsection 10.4(1.1) of the Act:
- the matter is one that could be more appropriately dealt with according to a procedure provided for under another Act of Parliament;
- the matter is not sufficiently important;
- dealing with the matter would serve no useful purpose because of the length of time that has elapsed since the matter arose; or
- there is any other valid reason for not dealing with the matter.
Factors to Consider
To ensure that compliance measures are applied in a manner that is fair and consistent, the OCL will consider the following factors when determining how to address suspected, alleged or known transgressions of the Act or Code.
- The nature and gravity of the alleged transgression.
- The degree of injury (transparency, public confidence and trust).
- The length of time that has elapsed since the act or omission was committed.
- Whether the matter is more appropriately dealt with under another Act of Parliament.
- The person's degree of knowledge of the Act and Code.
- The degree of negligence or intent.
- Whether the act or omission was voluntarily disclosed by the subject.
- The subject's compliance history.
- The impact of a Report to Parliament on:
- general deterrence (lobbyists);
- specific deterrence (the person); or
- the Commissioner's mandate to ensure transparency, and enhance public confidence and trust in the integrity, objectivity and impartiality of government decision-making.
- The availability and quality of evidence.
- Whether the matter is sufficiently important.
- Any other relevant factor or circumstance.
When a suspected, alleged or known transgression is brought to the attention of the OCL, one or more of the factors outlined in Part I will be considered when determining an appropriate means of ensuring compliance from among the following four options:
I — Level One Administrative Review;
II — Level Two Administrative Review;
III — Lobbying Act Investigation & Report to Parliament; or,
IV — Referral to a Peace Officer.
I — Level One Administrative Review
After conducting an assessment of the above-mentioned factors, the OCL may determine that the gravity of the alleged transgression is low.
The Investigations Directorate will commence an administrative review and conduct a brief assessment of the circumstances surrounding the transgression, documenting it in an administrative review file. At the conclusion, a memo is sent to the Commissioner containing a brief summary and analysis; and, if the allegation is deemed to be well-founded, a recommendation that a written warning be sent to the registrant from either the Director of Investigations or the Commissioner.
The written warning will advise the registrant that, after considering various factors, such as compliance history, and efforts to improve compliance, no further action will be taken. It will also contain a caution that, by failing to conform to certain requirements under the Act, they risk being the subject of a more formal review, the outcome of which could be a formal investigation under the Act, a Report to Parliament, or a referral to a peace officer. The correspondence is kept in the administrative review file. Monitoring of the registrants is conducted by the OCL to ensure continued compliance.
II — Level Two Administrative Review
After conducting an assessment of the above-mentioned factors, the OCL may determine that the gravity of the alleged transgression is medium to high.
The Investigations Directorate will plan and conduct an administrative review involving interviews with the person, their employer/client, public office holders and any other potential sources of information. A comprehensive Administrative Review Report is presented to the Commissioner containing a description of the background and context, analysis, and a recommended measure to ensure compliance. The analysis will include an assessment of the actus reus (whether or not a breach has been committed) and, based upon the above-mentioned factors, a recommendation of a suitable means of ensuring compliance.
III — Lobbying Act Investigation & Report to Parliament
An investigation under subsection 10.4(1) of the Act is initiated by the Commissioner if the Commissioner has reason to believe, including on the basis of information received in an Administrative Review Report, or from a member of the Senate or the House of Commons, that an investigation is necessary to ensure compliance with the Lobbyists' Code of Conduct, or the Lobbying Act, as applicable.
In most cases, the Investigations Directorate has assessed the above-mentioned factors in a report, and the Commissioner has concluded that the gravity of the transgression is such that the matter should be brought forward in a Report on Investigation to be tabled in both Houses of Parliament in accordance with subsection 10.5 of the Act. The Investigations Directorate will provide the Commissioner with an Investigation Report. The report will then be provided to the person to give them an opportunity to present their views to the Commissioner, as required under subsection 10.4(5) of the Act.
Once the person has provided their views, the Commissioner will prepare a Report on Investigation containing the Commissioner's findings and conclusions, and the reasons for the conclusions. The Report on Investigation will be submitted to the Speaker of the Senate and the Speaker of the House of Commons for tabling in Parliament.
IV — Referral to a Peace Officer
If, during an investigation under subsection 10.4(1) of the Act, the Commissioner believes on reasonable grounds that a person has committed an offence under this or any other Act of Parliament or of the legislature of a province, the Commissioner is required, under subsection 10.4(7) of the Act, to advise a peace officer having jurisdiction to investigate the alleged offence.
A letter from the Commissioner is sent to the peace officer having jurisdiction, with copies of either the Administrative Review Report or the Investigation Report, and any relevant evidence. The investigation is immediately suspended until the matter has been dealt with by the appropriate authorities, as required under subsection 10.4(8) and 10.4(9) of the Act.
When a file is returned from the peace officer having jurisdiction, depending on its conclusion, the subject-matter is once again assessed by the OCL from the perspective of the Lobbyists' Code of Conduct. After considering the views of the peace officer, a decision is made by the Commissioner whether there are sufficient grounds to continue with a Code of Conduct investigation.
December 31st, 2010