There have been considerable recent regulatory and legislative changes with respect to lobbying and conflicts of interest regimes at the federal level and in each of British Columbia and Quebec.
Recent jurisprudence may have widened the category of registration under the federal Lobbying Act (Act). Former federal Lobbying Commissioner Karen Shepherd decided not to investigate the allegation that Prince Shah Karim Al Hussaini had breached the Lobbyists’ Code of Conduct (Lobbyists’ Code) by hosting Prime Minister Justin Trudeau because Hussaini was not paid and therefore not subject to the Act. A federal court challenged the decision and determined that payment could include benefits from a volunteer position.
In its reasons, the court held that the Act applies to anyone who is lobbying for payment and that the definition of “payment” in the Act is wider in scope than “remuneration” in return for a service and may include other benefits. This interpretation would create considerable uncertainty for unpaid advocates.
The case is currently on appeal and more information will be provided as a decision is made.
FEDERAL GUIDANCE ON MITIGATING CONFLICTS OF INTEREST
On April 2, 2019, the Office of the Commissioner of Lobbying of Canada (Office) updated the basis on which the Lobbyists’ Code will be interpreted and applied. The new guidance, which applies to registered federal lobbyists, focuses on mitigating conflicts of interest related to the rules on lobbyists’ relationship with public office holders (also called “preferential access”) (Rules 7 and 8), political activities (Rule 9) and gifts (Rule 10).
The new guidance expands on the types of relationships that risk creating a perception of preferential access and thus are prohibited under the Lobbyists’ Code. The prohibition of lobbying a family member has been expanded beyond immediate family members to include parents, siblings, children, children of a spouse or partner, grandparents, grandchildren, first cousins, aunts, uncles, nieces and nephews who may be public office holders. The prohibition on lobbying a business partner has also been clarified to mean a public office holder with whom the lobbyist shares an ownership, fiduciary, or monetary interest in a business.
The cooling-off period under Rule 9, which prohibits lobbyists from lobbying a public office holder for whom they have undertaken political activities, has been reduced from five years to a “full election cycle”, which is generally four years. In addition, some political activities that were previously classified as “at risk” are no longer listed in the guidance. For instance, serving on the board of directors of an electoral district association except as an officer and serving in a paid position on campaign staff, except holding a strategic position or working in a “war room”, are no longer considered “at risk” political activities.
Gifts provided as a normal expression of courtesy or within the customary standards that typically accompany the public office holder’s position do not create a sense of obligation and are thereby deemed appropriate under the new guidance. The new guidance also confirms that under Rule 10, it is appropriate to provide a working meal or refreshments of minimal value during a meeting with public office holders. This, however, does not extend to the wining and dining of public office holders. It also confirms that it is appropriate to provide other gifts of minimal value as a token of appreciation when the public office holder serves as a speaker, moderator or in a ceremonial role. Promotional gifts of minimal value are now permitted and receptions providing food and refreshments are now evaluated on a case-by-case basis, considering whether the value of the hospitality is “reasonable” and whether a public office holder would feel a sense of obligation to the host.
The City of Surrey voted on February 11, 2019 to adopt a motion directing staff to consider additional accountability measures in the form of an independent ethics commissioner and an enhanced lobbyist registry.
The city is looking to strengthen its Lobbyist Registry by adopting a by-law that makes registration – which is now completely voluntary – mandatory for some types of lobbying. It is also proposed that a Council Code of Conduct containing rules relating to, among other things, gifts, contact with lobbyists and disclosure of business relations, be established.
On February 13, 2019, the legislature introduced Bill 6, An Act to transfer responsibility for the registry of lobbyists to the Lobbyists Commissioner and to implement the Charbonneau Commission recommendation on the prescription period for bringing penal proceedings (Bill 6), which proposes amendments to the Lobbying Transparency and Ethics Act (LTE Act). Among other changes, Bill 6 transfers the responsibility of the registry of lobbyists to the Lobbyists Commissioner and increases the prescription period for bringing penal proceedings from one year to three years. An exemption to the new prescription period is also provided for offences under section 62 of the LTE Act, which penalizes persons who hinder the work of the Lobbyists Commissioner or an authorized person. Amendments to the prescription period are currently in effect.
Bill 6 comes into force on December 19, 2021, or on an earlier date that may be set by the government on the Commissioner’s recommendation, except sections 18, 24 to 26 and 28, which came into force on June 19, 2019.
Lobbyists registered in Quebec should ensure that, within 60 days after June 19, 2019, all information contained in the returns and notices filed that appear in the registry is accurate, complete and up to date. Any necessary amendments must be made within the same 60-day period.