Archived — Commissioner’s Guidance for Lobbyists Regarding the Application of Rule 8 – Political Activities

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Archived Information

On December 1, 2015, the Commissioner issued guidance for lobbyists which explains her interpretation of the Lobbyists' Code of Conduct with respect to the intersection of political and lobbying activities. Information identified as archived on the Web serves as a reference or for research and recordkeeping purposes only. This information has not been altered or updated following the date of archiving. Website pages that are archived on the Web are not subject to the Government of Canada Web Standards..

This guidance does not reduce the responsibility of lobbyists to ask themselves the question, after carrying out political activities: “Would a reasonable person look at my political activities and consider that a sense of obligation on the part of any candidate was created?” If the answer is “yes”, any related lobbying activities risk creating a conflict of interest for that individual, should they become a public office holder, and therefore should not be undertaken.

Conflict of Interest

The purpose of this document is to provide guidance for lobbyists who have engaged in political activities, so that they may avoid placing a public office holder in a real or apparent conflict of interest. This document replaces guidance on political activities issued by the Commissioner in 2009 and 2010.

Any conflict of interest impairs public confidence in government decision-making. For this reason, the Lobbyists’ Code of Conduct, introduced in 1997, prohibits lobbyists from placing public office holders in a conflict of interest.

Rule 8 of the Lobbyists’ Code of Conduct states:

Lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder.

Political activities are one way that a lobbyist could create a sense of obligation on the part of a public office holder. The term “political activities” encompasses a wide range of actions in support of a candidate or a political party. Whether the activities are of limited duration or of an on-going nature, lobbyists should endeavour to avoid creating a sense of obligation that could generate a tension between the public office holder’s primary duty to the public interest, and the private interest of the public office holder to be elected.

Barry Campbell v. Democracy Watch et al.

The 2009 decision of the Federal Court of Appeal in the case of Democracy Watch v. Barry Campbell et al. (2009 FCA 79) set aside an earlier decision that Rule 8 of the Code only prohibited actual interference in a public office holder’s discharge of his or her public duty. It directed the Commissioner to review her approach to the application of the rule on conflict of interest, in accordance with the principles set out in the decision. In the Court’s view, a conflict of interest for a public office holder can result from a sense of obligation or private interest being created or facilitated by a lobbyist. Mr. Justice Pelletier stated specifically that:

The conduct proscribed by Rule 8 is the cultivation of such a sense of personal obligation, or the creation of such private interests.

Consistent with the Canadian Charter of Rights and Freedoms

Section 2 of the Canadian Charter of Rights and Freedoms guarantees that Canadians have rights to “freedom of thought, belief, opinion and expression.” Section 1 provides that any restriction to these rights should be “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” As any conflict of interest impairs public confidence in government decision-making, the 2009 Federal Court of Appeal decision recognized that placing limits on lobbying is appropriate when a lobbyist undertakes activities that would reasonably be seen to place a public office holder in a real or apparent conflict of interest.

Creating a sense of obligation

When a lobbyist carries out political activities, they must consider the risk of creating a sense of obligation on the part of a candidate. Should that candidate get elected, he or she would become a public office holder. If that lobbyist were to lobby them once elected, that sense of obligation to the lobbyist may result in a conflict of interest for the public office holder. The same holds true if the candidate is not elected, but becomes a public office holder in some other capacity.

The risk of creating a conflict of interest varies with the type of political activities

The Commissioner has determined that certain political activities may advance the private interest of a candidate in that they contribute to their election, but not to a degree that would reasonably be seen to create a sense of obligation.

Examples of political activities that carry no risk of creating a sense of obligation and would not place the public office holder in a conflict of interest include:

  • voting;
  • placing a candidate’s campaign sign on one’s lawn;
  • scrutineering for a candidate;
  • purchasing a ticket to and attending a fundraising event;
  • speaking on a political panel when the lobbyist is expressing his or her own views as an individual; or
  • donating money to an election campaign within the limits established in the Canada Elections Act.

Undertaking any combination of such activities and lobbying that candidate once elected is acceptable, as is lobbying his or her staff.

The Commissioner has determined that other types of political activities pose a greater risk of creating a sense of obligation that could reasonably be seen to place the public office holder in a conflict of interest. Examples of such activities include:

  • serving on the Executive or Board of Directors of a candidate’s electoral district association;
  • serving as a campaign chair or in another strategic role on a campaign team;
  • serving in a named position on behalf of a candidate or electoral district association as set out in the Canada Elections Act;
  • leading the preparation of a candidate for debates or providing strategic advice in the context of debate preparation; or
  • organizing a fundraising event.

Lobbyists who perform these political activities should recognize that undertaking such activities will mean that they cannot lobby that individual once elected, nor his or her staff. These activities pose a higher risk of creating a sense of obligation because of the direct interaction with the candidate that may occur, and the value added as a result of personal competencies or professional skills.

Political activities at the regional/national level

Lobbyists should consider that there is a risk of creating a sense of obligation on the part of public office holders when conducting political activities at the regional or national level.

Examples of activities that could reasonably be seen to pose a risk of creating a sense of obligation include:

  • serving in a named position on behalf of a registered party as set out in the Canada Elections Act;
  • serving in a paid campaign staff position or in another strategic role on a regional or national campaign team;
  • acting as a designated party spokesperson;
  • writing speeches for the party leader;
  • working in a strategic capacity in a party’s war room; or
  • leading debate preparation for the party leader or providing strategic advice in the context of debate preparation.

The Commissioner has determined that when these activities have been conducted, a sense of obligation can reasonably be seen to have been created on the part of the party leader and his or her staff. In such cases, a lobbyist should not lobby those individuals to avoid creating a conflict of interest.

In addition, the lobbyist should not lobby any other public office holders who may reasonably be seen to have a sense of obligation to the lobbyist as a result of the lobbyist’s political activities at the regional or national level.

The risk diminishes with time

The sense of obligation towards a lobbyist created as a result of a lobbyist’s political activities is likely to decrease over time. In cases where political activities have created a sense of obligation, the Commissioner is of the view that a maximum of five years is a sufficient period of time to wait before lobbying the public office holder.

Consult the Office of the Commissioner of Lobbying

Lobbyists who have conducted political activities may consult the Office of the Commissioner of Lobbying if they have questions concerning whether lobbying a particular public office holder risks placing that public office holder in a conflict of interest.

Office of the Commissioner of Lobbying of Canada

255 Albert Street
10th Floor
Ottawa, Ontario K1A 0R5
Tel.: 613-957-2760
Fax: 613-957-3078
Email: QuestionsLobbying@ocl-cal.gc.ca.

Karen E. Shepherd
Commissioner of Lobbying
June 2015