Commissioner’s guidance for lobbyists regarding the application of Rule 6 of the Lobbyists’ Code of Conduct – Conflict of Interest

Purpose of Commissioner’s Guidance

Federal public office holders are required to make decisions in the public interest. When public office holders are placed in a conflict of interest, public confidence in the integrity of their decision-making is diminished.

The purpose of this document is to provide general guidance1 for lobbyists to help them avoid placing public office holders in a real or apparent conflict of interest.

Rule 6 of the Lobbyists’ Code of Conduct states:

A lobbyist shall not propose or undertake any action that would place a public office holder in a real or apparent conflict of interest.

What is a conflict of interest?

A conflict of interest is a situation where an individual’s judgement is influenced, or might be influenced, from making decisions in an organization’s best interest due to a competing sense of obligation. A conflict of interest is created when there is a perception that a public office holder’s private interests may influence their performance when carrying out their official duties.

Rules 6 to 10 in the Lobbyists’ Code of Conduct are intended to prevent situations where a lobbyist places a public office holder in a conflict of interest.

Specific rules: Preferential access, political activities and gifts

A lobbyist may risk placing a public office holder in a conflict of interest by:

  • Lobbying those with whom they share a personal relationship, such as a close personal friend, immediate family member, or business partner (Rules 7 and 8);
  • Performing certain political activities (Rule 9); or
  • Providing a gift, favour, or other benefit (Rule 10).

To assist lobbyists in not taking actions that might place a public office holder in a conflict of interest, the Lobbyists’ Code of Conduct includes specific rules dealing with the areas of preferential access, political activities and gifts. The Commissioner has developed accompanying guidance for each of these rules to ensure that lobbyists understand the standards they are expected to meet.

Background

In a 2009 Federal Court of Appeal decision (2009 FCA 79: http://reports.fja.gc.ca/eng/2010/2009fca79.html), the Court directed the Commissioner of Lobbying to review her approach to the application of the rule on conflict of interest in the Lobbyists’ Code of Conduct 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 idea of conflict of interest is intimately bound to the problem of divided loyalties or conflicting obligations. While the specific facts giving rise to a conflict of interest will vary from one profession to another, that which leads to the conclusion that a person is subject to a conflict of interest is the presence of a tension between the person’s duty and some other interest or obligation … [Democracy Watch, paragraph 45]

…Where the lobbyist’s effectiveness depends upon the decision maker’s personal sense of obligation to the lobbyist, or on some other private interest created or facilitated by the lobbyist, the line between legitimate lobbying and illegitimate lobbying has been crossed. The conduct proscribed by [the rule dealing with conflict of interest] is the cultivation of such a sense of personal obligation, or the creation of such private interests. [Democracy Watch, paragraph 53]

Real and Apparent Conflict of Interest

A conflict of interest may exist because of a reasonable apprehension of an apparent conflict of interest, rather than an actual demonstration of interference with the public duties of the public office holder. It is important to note that a breach of Rule 6 occurs when a lobbyist proposes or undertakes any action that places a public office holder in a conflict of interest.

Consistent with the Canadian Charter of Rights and Freedoms

Section 2 of the Canadian Charter of Rights and Freedoms guarantees that Canadians have the right 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.”

The 2009 Federal Court of Appeal decision recognized that any conflict of interest impairs public confidence in government decision-making. The Court also recognized that it is appropriate to place limits on activities that would reasonably be seen to place a public office holder in a real or apparent conflict of interest.

The Standard

The Commissioner of Lobbying will apply the following standard, when determining whether a lobbyist has placed a public office holder in a real or apparent conflict of interest:

Would an informed person, viewing the matter realistically and practically and having thought the matter through, think that an action taken by a lobbyist has created a sense of obligation on the part of the public office holder, or a tension between the public office holder’s private interests and the duty of the public office holder to serve the public interest?2

Consult the Office of the Commissioner of Lobbying

It is the Commissioner’s intention to help lobbyists reduce the risk that their activities will create a tension, or even the appearance of one, between the private interest and the public duty of public office holders with whom they interact.

If you have further questions about how to avoid creating a conflict of interest for a public office holder, please contact:

Office of the Commissioner of Lobbying of Canada

255 Albert Street
10th Floor
Ottawa, Ontario K1A 0H2
Tel.: 613-957-2760
Fax: 613-957-3078
Email: QuestionsLobbying@ocl-cal.gc.ca

Karen E. Shepherd
Commissioner of Lobbying
December 2015


1 – This document replaces previous guidance on conflict of interest issued by the Commissioner. Return to text

2 – This standard is based on the standard expressed by the Honourable J. Oliphant, Commissioner, in his Report of the Commission of Inquiry into Certain Allegations respecting Business and Financial Dealings between Karlheinz Schreiber and the Right Honourable Brian Mulroney, (2010); p. 531. Return to text


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