Lots of people will boast about their connections with government officials. Some people even get paid to lobby the government. But when does conduct cross the line into criminal influence peddling? In R. v. Carson, 2018 SCC 12 (“Carson”), the Supreme Court of Canada (“SCC”) interpreted the offence of influence peddling broadly—it prohibits not only agreeing to influence the government regarding current business matters, but also business matters that the government could be involved with in the future.
Carson is a significant decision and has generated much commentary. For a lengthier discussion of the practical consequences for lobbyists, please see the post by our colleagues Adam Goldenberg and Jessica Firestone here.
Bruce Carson (“Mr. Carson”) was a former Senior Advisor in the Office of the Prime Minister. He agreed to use his government contacts to help sell point-of-use water treatment systems marketed and sold by H2O Professionals (“H2O”) to First Nations. H2O, in turn, would pay Mr. Carson’s girlfriend a commission on each treatment system sold to First Nations. Mr. Carson organized a number of meetings and communications with federal government officials, including at Indian and Northern Affairs Canada (“INAC”), promoting H2O’s products.
Mr. Carson was charged with influence peddling contrary to s. 121(1)(d) of the Criminal Code. At trial, Mr. Carson admitted that he had influence with the government, and that he had demanded a benefit for another person as consideration for using his government contacts to help H2O. However, he denied that his influence was actually connected to a matter of business relating to the government.
The trial judge agreed and acquitted Mr. Carson (2015 ONSC 7127). The trial judge found that INAC had given point-of-use water treatment funding to First Nations with no strings attached. In other words, the First Nations Bands made purchasing decisions, not INAC. Because Mr. Carson’s lobbying was effectively pointless (he was under the mistaken impression that INAC made the purchasing decisions), the trial judge held that he did not commit influence peddling.
A majority of the Ontario Court of Appeal reversed the acquittal and entered a conviction (2017 ONCA 142). The majority took a very broad interpretation of influence peddling, holding that the offence was effectively made out when Mr. Carson promised to help H2O by making some calls to help sell its products.
The SCC held that Mr. Carson was guilty of influence peddling. Justice Karakatsanis, writing for the eight-member SCC majority, mapped out an interpretation of s. 121(1)(d) that was broader than the trial judge, but slightly narrower than the Court of Appeal.
First, the SCC majority listed the constituent elements of the offence in s. 121(1)(d) as:
- having or pretending to have influence with the government, a minister, or an official;
- directly or indirectly demanding, accepting, or offering or agreeing to accept a reward, advantage or benefit of any kind for oneself or another person;
- as consideration for the cooperation, assistance, exercise of influence, or an act or omission;
- in connection with a transaction of business with or any matter of business relating to the government. [para 23, emphasis added]
Second, the promised influence must actually be connected to a matter of business relating to the government (here, the majority and dissent were in agreement). In other words, the influence must in fact relate to the government.
Third, the phrase “any matter of business relating to the government” must be given a broad meaning. This is consistent with the fact that s. 121(1)(d) creates a “conduct offence”—i.e., it is a crime to sell influence even if the seller does not take any further steps. The majority wrote:
[A]ny matter of business relating to the government” is not limited to matters in which government plays a direct approval role. … A matter of business relates to the government if it depends on government action or could be facilitated by the government, given its mandate. [para 24, emphasis added]
In Mr. Carson’s case, although INAC had given spending discretion to the First Nations, it was possible that INAC could modify its funding conditions in the future and require First Nations to purchase H2O’s products. Moreover, INAC could have funded a pilot project involving H2O’s products. In short, INAC had broad spending powers and it was possible that INAC could spend money on H2O’s products, even if it was not considering that at the moment.
Fourth, the SCC majority noted that the law of attempt can capture a promise of influence that is not actually connected to government business. In other words, the act of offering or agreeing to sell influence can qualify as “attempted influence peddling” even if the promised influence does not in fact relate to business within the government’s powers.
Justice Côté was the lone dissenting voice. The dissent is only significant because it endorses a narrow interpretation of “any matter of business relating to the government” that was directly rejected by the SCC majority. The dissent stated:
Where the government has intentionally placed certain matters of business outside of its operational reach, they cannot be said to be matters of government business simply because the government could, at a future date, reclaim control over them. [para 76, emphasis in original]
Justice Côté felt that the majority’s interpretation was “speculative and overly broad” since INAC had given the First Nations complete autonomy over the relevant spending decisions. She would have acquitted Mr. Carson.
The SCC brought important clarity to the crime of influence peddling, but individuals with government-related business dealings will need to be careful not to run afoul of the SCC’s broad interpretation.
Significantly, the SCC majority relied upon INAC’s constitutional and statutory authority when determining whether INAC had the power to potentially purchase H2O’s products. But in the modern welfare state, the spending powers of municipal, provincial and federal governments—and their departments—are expansive and manifold. Key questions to ask under s. 121(1)(d) will thus be: What business could this government entity have the authority to conduct? And am I offering/agreeing to influence the exercise of this authority?
The SCC’s broad reading of “any matter of business relating to the government” will also expand the scope of the bribery offences in Criminal Code ss. 121(1)(a) and 121(1)(e), because those sections use the same language.
The Court of Appeal majority included a helpful discussion on the intersection of influence peddling prohibited by the Criminal Code, and lobbying activities regulated by the Lobbying Act. The Court of Appeal noted that the evils targeted by the Criminal Code may be mitigated by the transparency under the Lobbying Act’s registration and reporting regime. There is a line between communicating with government officials (permitted by the Lobbying Act) versus selling influence with government officials (prohibited by the Criminal Code). However, the Court of Appeal’s comments were obiter and written in the abstract, because Mr. Carson did not register his activities under the Lobbying Act at all.
The SCC’s majority’s obiter comments about attempted influence peddling are similarly important. If a person accused of attempted influence peddling subjectively believed that she or he was selling influence over government business, that is sufficient. It will be no defence to argue that the government entity in fact did not have the authority to conduct that business.
Carson is responsive to an era when citizens are losing faith in government and there is a pervasive perception that the system is rigged in favour of well–connected elites. At the same time, Carson continues a long line of cases holding the offences in Criminal Code s. 121 (“frauds on the government”) as concerned with preserving not only actual government integrity, but also the appearance of government integrity.
R. v. Carson, 2018 SCC 12
Date of Decision: March 23, 2018