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DWatch responds to misleading Commissioner of Lobbying letter to House Ethics Committee for secret meetings on her proposed gutting of key ethical lobbying rules

Commissioner’s proposed new Lobbyists’ Code would allow lobbyists to lobby politicians while secretly fundraising or campaigning for them

26 groups with 1.5 million+ supporters, and 32 lawyers and professors, oppose the proposed gutting of the rules, as do 20,000+ petition signers

FOR IMMEDIATE RELEASE:
Tuesday, March 21, 2023

OTTAWA – Today, Democracy Watch released the letter it sent to the House of Commons Ethics Committee responding to the letter that Commissioner of Lobbying Nancy Bélanger sent for the Committee’s ongoing secret meetings on Commissioner’s proposed changes to the Lobbyists’ Code of Conduct that will gut key ethical lobbying rules in ways that will allow lobbyists to do significant campaigning for, and fundraise unlimited amounts of money for, politicians and their parties and lobby them at the same time or soon afterwards. (Click here to see the Commissioner’s letter in English; Cliquez ici pour voir la lettre en français).

Democracy Watch’s letter is about very questionable claims made in the Commissioner’s letter, key dangerous effects of the Commissioner’s proposed changes to the Code that the Committee has not really considered so far, and false claims made by big business and big union lobbyists when they testified before the Committee about the proposed changes (Click here to see Democracy Watch’s letter in English; Cliquez ici pour voir la lettre en français).

The Ethics Committee is holding its third meeting in secret this afternoon to decide what position it is going to take on the Commissioner’s proposed changes. Last week, the Globe and Mail called for the Commissioner’s proposals to be rejected.

“More than 30 lawyers and professors from across Canada, and 26 citizen groups supported by more than one-and-a-half million Canadians, oppose the Commissioner of Lobbying’s attempt to gut key ethical lobbying rules in ways that will allow lobbyists to lobby Cabinet ministers and MPs while campaigning or fundraising for them or soon afterwards, and the House Ethics Committee should join in loudly and clearly rejecting the Commissioner’s unethical proposals,” said Duff Conacher, Co-founder of Democracy Watch. “The Commissioner’s proposed unethical changes are based on one secret opinion that she commissioned from one law firm through a sole-source contract, an opinion she refuses to make public, which makes her proposed changes even more questionable.”

“MPs on the Ethics Committee should not allow themselves to be misled by the Commissioner or by the false claims that big business and big union lobbyists have made about the proposed changes that will gut key ethical lobbying rules,” said Conacher.

The Commissioner’s letter makes it clear that the Committee was misled by big business and big union lobbyists when they testified, as they made the false claim that the proposed changes would prohibit “everyone” including low-level campaign volunteers, from lobbying for one year. (Click here and see Key Facts #20-24; Cliquez ici pour voir Principaux faits #20-24).

In fact, current Code Rules 6 and 9 and a guideline Commissioner Bélanger has issued for Rule 9 cover many more people than the proposed new rules. Those current rules prohibit lobbying for at least 4 years (a “full election cycle” i.e. until after the next election) after anyone does any top-level or second-level campaigning or event organizing, or any fundraising, for a politician or party as a paid campaign staff person or as a volunteer, with no exceptions based on the time they spend doing these activities or their level of interaction with candidates or party officials while doing the activities.

Commissioner Bélanger is proposing to gut current Code Rules 6 and 9 and allow lobbyists under a proposed new Rule 6:

  1. To secretly campaign up to near-full-time, and fundraise unlimited amounts of money, for politicians and parties while lobbying them (as long as the campaigning/fundraising is done without frequent, extensive interaction with a candidate or party official – the current lobbying prohibition time period after these activities is at least 4 years);
  2. To secretly be a second-level, full-time campaign staff person or fundraiser for a politician and/or party and then only be prohibited from lobbying them for 1 year (i.e. before the next election – the current lobbying prohibition time period is at least 4 years);
  3. To secretly be a top-level, full-time campaign staff person or fundraiser for a politician and/or party and then only be prohibited from lobbying them for 2 years (i.e. also before the next election – the current lobbying prohibition time period is at least 4 years);

and not only can all of this campaigning and fundraising be done in secret by lobbyists, but also the Commissioner is proposing to give herself the power to secretly reduce a lobbyist’s 1-2 year lobbying prohibition down to an even shorter time period. (Click here and see Key Facts #25-33; Cliquez ici pour voir Principaux faits #25-33).

Democracy Watch and 25 other citizen groups with a total membership of 1.5 million Canadians call on the Committee to reject key changes to the federal Lobbyists’ Code of Conduct proposed by Commissioner of Lobbying Nancy Bélanger because the changes will gut ethical lobbying rules in ways that will allow secret, corrupt favour-trading between lobbyists and federal politicians. Click here to see the list of the 26 groups and other details.

As well, in an open letter sent to the Ethics Committee, 11 lawyers from 4 law firms (and also lawyers in private practice or other roles), and 21 law and political science professors from 14 universities in 8 provinces joined in calling on the Committee to reject the Commissioner’s proposed changes, and also to reject the Commissioner’s claim that the current 4-year lobbying prohibition violates the Charter. (Click here to see the letter in English; Cliquez ici pour voir la lettre en français). Several Supreme Court of Canada and other court rulings have clearly stated that Charter rights can be restricted to protect government integrity.

The Commissioner’s claim that the current 4-year lobbying prohibition violating the Charter is based on only one secret opinion (which the Commissioner refuses to make public) that the Commissioner paid law firm Goldblatt Partners for in a sole-source contract that was extended twice, increasing from $11,300 to $45,200 and then up to $90,400.

Under the current Code and Rule 9 guideline, and under the proposal the lawyers and professors set out in the open letter, if a person only makes a donation, volunteers a bit on a campaign, attends a fundraising event or puts an election sign on their lawn, they are not, and should not be, prohibited from lobbying for any time period, because many voters engage in these same low-level political activities.

As well, Commissioner Bélanger misleadingly claimed on her website that she received only 206 letters from voters opposing her proposed Code changes – in fact, more than 20,000 voters signed on to Democracy Watch’s petition on Change.org or its letter-writing campaign and sent emails to the Commissioner calling on her to stop gutting the Code, and also calling on federal party leaders and the House Ethics Committee to reject the Commissioner’s proposed Code changes, and to make other key changes to stop all secret, unethical lobbying.

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FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s Stop Secret, Unethical Lobbying Campaign and Government Ethics Campaign and Money in Politics Campaign

32 lawyers and professors call on House Ethics Committee to reject Lobbying Commissioner’s proposed gutting of key ethical lobbying rules

Commissioner’s proposed new Lobbyists’ Code would allow lobbyists to lobby politicians while secretly fundraising or campaigning for them

26 groups with 1.5 million+ supporters also oppose the Commissioner’s proposed gutting of the rules, as do 20,000+ petition signers

FOR IMMEDIATE RELEASE:
Monday, March 6, 2023

OTTAWA – Today, Democracy Watch released the open letter signed by 32 lawyers and law and political science professors from across Canada calling on the House of Commons Ethics Committee to reject some of Commissioner of Lobbying Nancy Bélanger’s proposed changes to the Lobbyists’ Code of Conduct because the changes will gut key ethical lobbying rules in ways that will allow lobbyists to do significant campaigning for, and fundraise unlimited amounts of money for, politicians and their parties and lobby them at the same time or soon afterwards. (Click here to see the letter in English; Cliquez ici pour voir la lettre en français).

The Ethics Committee is meeting in secret Tuesday, March 7 in the afternoon to decide what position it is going to take on the Commissioner’s proposed changes.

The open letter is signed by 11 lawyers from 4 law firms (and also lawyers in private practice or other roles), and 21 law and political science professors from 14 universities in 8 provinces.

A total of 26 citizen groups with a total membership of 1.5 million Canadians also call on the Committee to reject key changes to the federal Lobbyists’ Code of Conduct proposed by Commissioner of Lobbying Nancy Bélanger because the changes will gut ethical lobbying rules in ways that will allow secret, corrupt favour-trading between lobbyists and federal politicians. Click here to see the list of the 26 groups and other details.

As well, Commissioner Bélanger misleadingly claimed on her website that she received only 206 letters from voters opposing her proposed Code changes – in fact, more than 20,000 voters signed on to Democracy Watch’s petition on Change.org or its letter-writing campaign and sent emails to the Commissioner calling on her to stop gutting the Code, and also calling on federal party leaders and the House Ethics Committee to reject the Commissioner’s proposed Code changes, and to make other key changes to stop all secret, unethical lobbying.

“More than 30 lawyers and professors from across Canada, and 26 citizen groups supported by more than one-and-a-half million Canadians, oppose the Commissioner of Lobbying’s attempt to gut key ethical lobbying rules in ways that will allow lobbyists to lobby Cabinet ministers and MPs while campaigning or fundraising for them or soon afterwards, and the House Ethics Committee should join in loudly and clearly rejecting the Commissioner’s unethical proposals,” said Duff Conacher, Co-founder of Democracy Watch. “The Commissioner’s proposed unethical changes are based on one secret opinion that she commissioned from one law firm through a sole-source contract, an opinion she refuses to make public, which makes her proposed changes even more questionable.”

In the current Code, Rules 6 and 9 and a guideline Commissioner Bélanger has issued for Rule 9 prohibit lobbying for 4 years (a “full election cycle” i.e. until after the next election) after a person does any significant campaigning or event organizing, or any fundraising, for a politician or party.

Commissioner Bélanger is proposing to gut these rules in the Code and allow lobbyists under a proposed new Rule 6:

  1. To secretly campaign up to near-full-time, and fundraise unlimited amounts of money, for politicians and parties while lobbying them;
  2. To secretly be a second-level, full-time campaign staff person or fundraiser for a politician and/or party and then only be prohibited from lobbying them for 1 year (i.e. before the next election – the current lobbying prohibition time period is 4 years);
  3. To secretly be a top-level, full-time campaign staff person or fundraiser for a politician and/or party and then only be prohibited from lobbying them for 2 years (i.e. also before the next election – the current lobbying prohibition time period is 4 years);

and not only can all of this campaigning and fundraising be done in secret by lobbyists, but also the Commissioner is proposing to give herself the power to secretly reduce a lobbyist’s 1-2 year lobbying prohibition down to an even shorter time period.

Commissioner Bélanger has made the very questionable claim that the current 4-year cooling-off period violates the Charter rights to freedom of expression and assembly, based on one secret opinion that the Commissioner paid law firm Goldblatt Partners for in a sole-source contract that was extended twice, increasing from $11,300 to $45,200 and then up to $90,400. Democracy Watch is asking the Ethics Committee to force the Commissioner to make the Goldblatt opinion public.

Given several Supreme Court of Canada and other court rulings have clearly stated that Charter rights must be restricted to protect government integrity, the lawyers and professors state in the open letter that a minimum 4-year prohibition on lobbying after significant political activities, or any fundraising, is a reasonable limit that is clearly compliant with the Charter, and is necessary to protect integrity in government and policy-making. The letter also calls for a rule that prohibits reducing that cooling-off period.

Under the current Code and Rule 9 guideline, and under the proposal the lawyers and professors set out in the open letter, if a person only makes a donation, volunteers a bit on a campaign, attends a fundraising event or puts an election sign on their lawn, they are not, and should not be, prohibited from lobbying for any time period, because many voters engage in these same low-level political activities.

Very unfortunately, several stakeholders have made inaccurate claims that the Commissioner’s proposed changes to the Code would mean people who do this low-level campaigning or volunteering for a candidate or political party would be prohibited from lobbying for one year afterwards. In fact, only people who campaign for 30 hours or more a week, or who have frequent, in-depth interaction with the candidate or party officials, will be prohibited from lobbying for one year afterwards (Click here and see Key Facts #20-24; Cliquez ici pour voir Principaux faits #20-24).

As detailed above, the actual undemocratic danger of the Commissioner’s proposed changes are that they will allow lobbyists to do significant campaigning for, and fundraise unlimited amounts of money for, politicians and their parties and lobby them at the same time or soon afterwards (Click here and see Key Facts #25-33; Cliquez ici pour voir Principaux faits #25-33).

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FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s Stop Secret, Unethical Lobbying Campaign and Government Ethics Campaign and Money in Politics Campaign

Loophole-filled, weakly enforced lobbying and ethics laws a sad joke

An edited version of the following op-ed by Democracy Watch Co-founder Duff Conacher was published by the National Observer on January 19, 2023.

The federal Lobbying Act and Lobbyists’ Code of Conduct, and federal ethics rules in the Conflict of Interest Act, MPs’ and Senators’ ethics codes, and public servants’ code, together with weak rules in the Canada Elections Act that allow much too high donations and loans to be used as unethical, undemocratic ways of influencing political parties and politicians, continue to be a collective sad joke because of huge loopholes and fatal flaws.

Overall, the system allows for secret favour trading between politicians and big businesses – it’s essentially a legalized bribery system of unethical, biased favour-trading – pay to play, cash for access and influence. This is not to say that every federal political decision-making process is undermined by politicians and officials trading favours with lobbyists – only that every process is vulnerable to being corrupted, in secret, by favour trading and serious conflicts of interests that leads to political decisions that protect the private interests of big businesses instead of protecting the public interest.

The Supreme Court ruled in 1996 that government ethics-related laws and codes must set high transparency and integrity standards, and be strictly and strongly enforced, or Canada will not be a democracy. More than 25 years later, we are still far from meeting the Supreme Court’s standard.

The loophole-filled, flawed federal rules: 1. allow for secret, unethical lobbying, mainly by big business lobbyists; 2. allow Cabinet ministers, their staff, top government officials, MPs and senators all to participate in decisions that they and their family members can profit or benefit from in secret, and; 3. do not even cover staff of MPs and senators.

Only one of the loopholes is usually mentioned in articles about the Lobbying Act – the rule that allows an employee of a business to lobby in secret without registering as long as they don’t lobby more than 20 percent of their work time. The House Ethics Committee unanimously called for that loophole to be closed 10 years ago, and again in June 2022.

But there are other huge loopholes the Committee continues to ignore. Businesses often lobby regulatory agencies about the enforcement of a law or regulation – none of that lobbying is required to be disclosed. Many businesses also lobby for tax credits, but in a highly questionable enforcement policy the Commissioner of Lobbying ruled that the credits are not a “financial benefit” (even though they clearly are) and, therefore, that lobbying also does not have to be disclosed.

No one is required to register and disclose their lobbying if they are not paid for it. Hired-gun “consultant” lobbyists can easily have their contract say their clients will pay them for advice, and then lobby for them in secret for free. This loophole also allows unpaid board members and retired executives of businesses and other organizations to lobby in secret.

Another loophole is that anyone can secretly lobby senior officials in any federal political party and they can pass on the lobbyist’s demands to their party’s politicians.

Even if a person is required to register their lobbying, only oral, pre-arranged communications that they initiate with office holders are required to be disclosed. Emails, letters and texts can be kept secret, as can any communications initiated by the office holder (except about a government financial benefit (other than a tax credit)).

If you can exploit a loophole so you are not required to register your lobbying, then the ethics rules in the Lobbyists’ Code don’t apply to you and you can do favours for politicians you are lobbying or will lobby, like fundraising and campaigning for them.

Even if you are a registered lobbyist, the Code together with a loophole in the MP and senator ethics codes legalize lobbyists giving MPs the gift of unlimited sponsored travel, and other loopholes allow all federal politicians to accept gifts from friends, even if they are lobbyists.

Incredibly, the federal Commissioner of Lobbying, who is supposed to ensure ethical and transparent lobbying, is currently proposing to weaken key Code rules in ways that will allow for even more unethical favour-trading between lobbyists and parties and politicians.

The loopholes in federal lobbying and ethics rules also allow politicians and officials to leave office and start lobbying federal politicians and government officials the next day, in secret and unregistered. The so-called “five-year ban” on lobbying in the Lobbying Act only applies to registered lobbyists.

The much-too-high political donation and third-party spending limits in the Canada Elections Act, are additional layers in this smelly layer cake of unethical federal political decision-making. They allow people who can afford it to buy influence by donating up to $3,350 annually to each party and its riding associations, and wealthy individuals and lobby groups to spend more than $500,000 supporting parties during election campaigns, up to $1 million in the couple of months before that, and an unlimited amount between elections. Banks, which are regulated by the federal government, are also allowed to buy influence by making unlimited loans to parties and candidates.

Who pays for all this spending? We do, as every business adds a bit to the price of every product and service, gouging us to pay for their lawyers, lobbyists, and political donations and gifts. And none of this business advocacy spending is required to be disclosed (unlike in the U.S.). To level the lobbying playing field, at least business advocacy advertising should be banned, and a simple, very low cost, innovative method, used successfully in the U.S. should implemented by governments across Canada to require big businesses to facilitate citizens joining and donating millions of dollars to citizen advocacy groups to watch over every industry sector.

Finally, federal ethics and lobbying watchdogs are handpicked by the Cabinet through secretive processes that the Federal Court of Appeal has ruled are biased and so, not surprisingly, they often roll over like lapdogs and fail to enforce the few effective rules that exist. They are also allowed to make secret rulings, and so can relatively easily cover up any situation that may embarrass the ruling party.

The key questions are, will a critical mass of MPs in the current minority government situation work together, finally, to pass a bill to close all the loopholes that allow for secret, unethical lobbying and political decision-making, to decrease donation and spending limits to democratic levels, to require businesses to facilitate citizens banding together and raising money for public interest advocacy, and to strengthen enforcement of these key democracy laws?

And, given the same secret, unethical, undemocratic loopholes and donation and spending limits exist in every province (except Quebec which has closed many of them), will politicians across Canada also finally clean up their political decision-making processes?

Lobbying Commissioner’s proposed gutting of key ethical lobbying rules will make China and other foreign-government interference easier

Commissioner’s proposed new Lobbyists’ Code would allow lobbyists to lobby politicians while secretly fundraising or campaigning for them

25+ groups with 1.5 million+ supporters oppose the Commissioner’s proposed gutting of the rules

FOR IMMEDIATE RELEASE:
Thursday, March 2, 2023

OTTAWA – Today, Democracy Watch released the reasons why federal Commissioner of Lobbying Nancy Bélanger’s proposal to gut key ethical lobbying rules in the Lobbyists’ Code of Conduct will make secret interference in elections and secret activities to influence federal MPs easier for China and other foreign governments.

A total of 26 citizen groups with a total membership of 1.5 million Canadians call on the House of Commons Ethics Committee to reject key changes to the federal Lobbyists’ Code of Conduct proposed by Commissioner of Lobbying Nancy Bélanger because the changes will gut ethical lobbying rules in ways that will allow secret, corrupt favour-trading between lobbyists and federal politicians. Click here to see the list of the 25+ groups and other details.

“If MPs on the ethics committee approve the lobbying commissioner’s proposal to gut key ethical lobbying rules, it will create an even more dangerous threat to fair elections, government integrity and Canada’s democracy when combined with the existing loopholes and flaws in Canada’s lobbying, ethics, political donation and election laws,” said Duff Conacher, Co-founder of Democracy Watch.

The first dangerous threat is that Commissioner Bélanger is proposing to gut key ethical lobbying rules in the Lobbyists’ Code in ways that will allow lobbyists to do significant campaigning for, and fundraise unlimited amounts of money for, politicians and their parties and lobby them at the same time or soon afterwards.

The second dangerous threat is that the federal Lobbying Act contains huge loopholes that allow for secret lobbying and hiding who is behind and funding influence activities such as ad and social media campaigns that appeal to voters to pressure MPs. Some of the biggest loopholes are:

  1. Lobbying and influence activities do not have to be registered, even if they are well-funded efforts by an organization, if the people overseeing or doing the activities are not paid specifically to do the activities;
  2. Businesses and organizations are not required to register and disclose their attempts to influence MPs if their employees all together lobby less than 20% of their work time, and;
  3. Even if a lobby group is registered, it is not required to disclose its source of funding (other than Canadian government funding) or how much it spends on its lobbying and influence activities.

The third dangerous threat is that federal ethics codes allow lobbying organizations to give MPs and Senators the gift of unlimited trips and junkets, and they are allowed to take their family members, staff and associates with them (known as the “sponsored travel” loophole).

The fourth dangerous threat is that the Canada Elections Act has several flaws that make interference and influence easy by foreign-government connected or sponsored individuals, businesses and organizations, as follows:

  1. Individuals, businesses and organizations are allowed to collude with and provide secret support to nomination race contestants and party leadership race contestants;
  2. Non-citizens are allowed to vote in nomination races and party leadership races;
  3. The high donation limit of $3,300 annually to each party and its riding associations makes it easy to funnel large donations to candidates and parties through just a few people;
  4. The identities of people who donate less than $200 annually are not required to be disclosed, making it easy to funnel donations of less than $200 through many people to candidates and parties;
  5. Individuals, businesses and organizations are allowed to funnel money to each other to hide the actual source of funds used in election campaign spending;
  6. One wealthy individual, or a business with just a couple of shareholders, or an organization supported by just a couple of voters, is allowed to spend up to $1 million during the pre-election period, and more than $500,000 during the election campaign, trying to influence voters;
  7. Many types of false claims are allowed about election candidates, party leaders and MPs, and no enforcement agency has the power to order social media companies to remove false online posts or ads.
  8. Nomination race contestants, election candidates, parties and party leadership contestants are allowed to audit their own campaigns, which makes it easy for them to hide illegal donations and spending.

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FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s Stop Secret, Unethical Lobbying Campaign, Government Ethics Campaign, Money in Politics Campaign, Honesty in Politics Campaign, and Stop Fake Online Election Ads Campaign

Democracy Watch calls on Commissioner of Canada Elections to investigate interference by China in 2019 and 2021 elections

Public inquiry needed only if House Committee and Commissioner fail to investigate fully, reveal key information, and issue public reports recommending comprehensive changes to strengthen election integrity

Bill C-76 in 2018 was much too weak to stop foreign interference, and weakened false claim rules and third-party spending limits

FOR IMMEDIATE RELEASE:
Tuesday, February 28, 2023

OTTAWA – Today, Democracy Watch release the letter it has sent to Commissioner of Canada Elections Caroline Simard requesting that she investigate and issue, as soon as possible, a public report on whether she will impose penalties on or prosecute anyone involved in China-sponsored interference in the 2019 or 2021 federal elections.

According to reports by Global News, sources claim that the Canadian Security Intelligence Service (CSIS) provided to the federal government the following information:

  1. During the 2019 election at least 11 Liberal and Conservative candidates received funds and support from a network of third-party interest groups and individuals based in Canada, and China’s government was the source of the funds;
  2. The network of groups and individuals received a total of about $250,000 from a Toronto-based organization coordinated by a Toronto businessman, and China’s government Consulate in Toronto was the source of the funds and directed the distribution of the funds, and;
  3. That a Liberal election candidate and a former Ontario Liberal MPP and Cabinet minister were part of the network.

According to the Globe and Mail, sources claim that CSIS provided to the federal government information about the 11 candidates but not about funding being transferred to them, and about the former Ontario Liberal MPP and Cabinet minister, and also about China-sponsored interference also in the 2021 election in support of the Liberals and against the Conservatives, including funneling donations and candidates reimbursing donors the amount not covered by the donation tax credit.

As the letter details, it is a violation of the Canada Elections Act:

  1. For a third party (individual or group) to use foreign money for activities to support or oppose candidates or parties;
  2. For someone who is not a Canadian citizen or permanent resident to make a donation (ss, 363(1)).
  3. For someone to make a donation that exceeds the annual individual limit (s. 367);
  4. For someone to make a donation using someone else’s or some entity’s money (ss. 370(1)) (including volunteering while being paid by someone else or some other entity);
  5. For a third party to fail to register if they spend more than $500 (s. 352);
  6. For a third party to collude with a candidate or party, including by sharing information (s. 351.01).

“Enough evidence of China-government sponsored election interference in the 2019 and 2021 federal elections has been reported to make it clear that the Commissioner needs to do a full investigation and issue a public report of what the investigation reveals concerning violations of Canada’s election law,” said Duff Conacher, Co-founder of Democracy Watch. “A public inquiry would delay the enactment of clearly needed changes, and will only be needed if the Commissioner, the House Committee and the national security committee of parliamentarians fail to investigate China’s election interference fully, fail to reveal key information about what happened, or fail to issue public, comprehensive reports recommending all the key changes needed to stop future interference.”

“The Liberal’s Bill C-76 in 2018 was much too weak to stop foreign interference, and it actually weakened rules prohibiting false claims and excessive election spending by wealthy individuals and interest groups, and the Prime Minister essentially controls the monitoring and disclosure of foreign interference in our elections, so it is already clear that many changes are needed to ensure fair and democratic federal elections,” said Conacher.

As Democracy Watch pointed out at the time, the Liberal government’s Bill C-76 in 2018 was much too weak to stop foreign interference, and actually weakened some rules, as:

  1. It failed to prohibit collusion between third parties (individuals, businesses or groups) and nomination race contestants (or party leadership race contestants), including voting by non-citizens in those races.
  2. It failed to decrease the too-high donation limit, which makes it easier for someone or some entity to funnel money to others to make large donations to candidates and parties.
  3. It failed to prohibit third parties from funneling money to each other to hide the actual source of funds used in election spending.
  4. It more than doubled the amount that third parties can spend supporting candidates and parties during an election campaign, and set meaninglessly high spending limits for third parties during the pre-election period, which makes collusion between third parties easier.
  5. It weakened rules in ways that allow for more false claims about candidates and party leaders.
  6. And it failed to empower Elections Canada and the Commissioner of Canada Elections to order social media companies to remove false posts and ads (and the 2021 budget also failed to address the false claims problem).

As well, the Liberal government’s election integrity plan was too weak and focused on the twin charades of educating citizens to recognize misinformation (which is impossible unless you are an expert in everything) and cooperating with social media companies that continue largely ineffective efforts to stop misinformation.

In addition, the Liberal government’s so-called “independent” Critical Election Incident Public Protocol Panel is not independent at all, as it is made up of public servants who were chosen by, and serve at the pleasure of, Prime Minister Trudeau, and the Cabinet Directive for the Protocol has several flaws, as follows:

  1. It is not legally binding on the Panel, and there are no penalties if the Panel violates any part of the Protocol;
  2. The section 6.0 process sets a much-too-high threshold for informing the public of interference (the interference essentially must threaten the ability of the entire national election to be free and fair);
  3. Even if the Panel decides (by consensus) that the interference meets the threshold, the section 5.0 process does not set any deadline by which the Panel is required to inform anyone of the interference;
  4. The section 9.0 Assessment also does not set any deadline by which a so-called “independent” report is required to be released about the effectiveness of the Protocol at “addressing threats” during the previous election.
  5. The section 9.0 Assessment is done by whomever the ruling party Cabinet chooses, so the assessor is not independent in any way. Trudeau’s Cabinet chose Morris Rosenberg, former head of the Trudeau Foundation when the Foundation received a $200,000 donation donation from two China-connected businessmen, to do the assessment for the 2021 election. Mr. Rosenberg’s contract terms have not been disclosed in the federal government contract registry.

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FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s Money in Politics Campaign, Honesty in Politics Campaign, and Stop Fake Online Election Ads Campaign

Democracy Watch calls on Ontario Integrity Commissioner to investigate Premier Ford for accepting family gifts from lobbyists and developers at stag-and-doe party

If Commissioner rules gifts were illegal, then Ford may have also violated ethics law by participating in decision to allow Greenbelt developments

Integrity Commissioner negligently issued an opinion about the party without even investigating – has a lapdog record of very weak enforcement

FOR IMMEDIATE RELEASE:
Thursday, February 23, 2023

TORONTO – Today Democracy Watch sent a letter to Ontario Integrity Commissioner David J. Wake calling on him to investigate and rule whether Premier Ford violated the provincial government ethics law when his family accepted benefits from lobbyists and property developers who were invited to his daughter’s stag-and-doe party in August 2022, and who seek favourable decisions from Ford’s Cabinet. The letter summarizes the details.

Commissioner Wake negligently issued an opinion clearing the party based only on information provided by, and claims made by, Premier Ford. Based on a Global News report about the party and Commissioner Wake’s opinion, there is no evidence that Commissioner Wake asked Premier Ford who invited the lobbyists and developers to the party, nor exactly what the invitations requested in terms of donations to Ford’s daughter, nor whether any lobbyist donated any of the prizes party attendees could win. It is also negligent for the Commissioner not to make the opinion available in full on his website.

It is a violation of the provincial Members’ Integrity Act to accept a “fee, gift or personal benefit that is connected directly or indirectly with the performance of his or her duties of office.” (subsection 6(1)) and only basic gifts or benefits that MPPs receive when attending public community events are allowed according to the Commissioner’s own guideline.

The Commissioner’s own guideline webpage states that: MPPs should avoid circumstances where a reasonable person might conclude that a gift or benefit was given with an intention to influence them in carrying out their duties.”

The Commissioner’s guideline also says to check with the Commissioner’s office before accepting a gift, and MPPs are also required to file a disclosure form with the Commissioner within 30 days after receiving any gift or benefit worth more than $200 (subsections 6(3) and (4)). Premier Ford only sought the Commissioner’s opinion five months after the party was held, and there is no mention in the Commissioner’s statements reported by the media about Premier Ford disclosing anyone or any entity giving more than $200 through the party, nor does Ford’s 2022 financial disclosure form list any gifts or benefits.

Commissioner Wake’s opinion that it was fine that lobbyists and property developers who seek favourable decisions from the Ford Cabinet paid for and attended the party (and may have donated above the ticket price) was based on:

  1. The ridiculous conclusion that Premier Ford didn’t know about the gifts (he knew the party had a ticket price, and he knew who attended the party, so he knew they paid the ticket price);
  2. The irrelevant ground that the property developers are friends of the Ford government (there is no exception for accepting gifts and benefits from friends if they are lobbyists or are seeking favourable decisions from your Cabinet), and;
  3. The irrelevant ground that no government business was discussed at the party (the lobbyists, developers and Ford could easily discuss government business after the party).

While it has been confirmed by the Toronto Star that property developers with a stake in developing the Greenbelt attended the wedding of Premier Ford’s daughter, including some who sat with Premier Ford at the wedding, it has not been confirmed whether they paid the ticket price and/or made a donation above the ticket price for the stag-and-doe party.

If any Greenbelt developers did pay or donate to attend the party, Commissioner Wake should not only find that Premier Ford violated the gift rules in the MIA, he should also find that Ford participating in the decision to open the Greenbelt to development violated the rules in the MIA that prohibit “improperly” furthering the interests of anyone or any entity (sections 2-4).

Commissioner Wake has a very weak enforcement record:

  1. He let off Premier Ford even though he participated in the decision to appoint his old friend Ron Taverner as OPP Commissioner, and as an executive at the Ontario Cannabis Store;
  2. He also let off members of Ford’s staff even though he had clear evidence they gave Taverner preferential treatment in violation of the rules;
  3. He let off Ford even though he appointed his campaign adviser and staffperson Jenni Byrne to the Ontario Energy Board, and appointed his family lawyer to chair the Public Accountants Council, and;
  4. He has let off dozens of lobbyists for clear violations of Ontario’s lobbying law (Democracy Watch is currently challenging those rulings on lobbyists in court).

“Ontario’s Integrity Commissioner should not have rolled over like a lapdog and approved, without even investigating, the gifts and money Premier Ford and his family received from lobbyists and developers who attended his family’s party,” said Duff Conacher, Co-founder of Democracy Watch. “Commissioner Wake should conduct a full investigation, and if he finds that property developers with Greenbelt connections provided any gifts or benefits to the Ford family, he should also find that Premier Ford violated the ethics law by participating in the decision to open up the Greenbelt to development.”

– 30 –

FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s Government Ethics Campaign, Money in Politics Campaign and Stop Secret, Unethical Lobbying Campaign

Big business and big union lobbyists mislead House Ethics Committee with false claims about proposed new Lobbyists’ Code

Commissioner’s proposed new Code would allow lobbyists to lobby politicians while secretly fundraising or campaigning for them

25+ groups with more than 1.5 million supporters oppose Lobbying Commissioner’s gutting of key ethical lobbying rules – House Ethics Committee should also reject proposed changes

FOR IMMEDIATE RELEASE:
Tuesday, February 21, 2023

OTTAWA – Today, Democracy Watch released Key Facts (en français) about federal Commissioner of Lobbying Nancy Bélanger’s proposed changes to the Lobbyists’ Code of Conduct to counter the false claims that big business and big union lobbyists have made before the House Ethics Committee about the changes at hearings last Tuesday and Friday.

These lobbyists have claimed that the proposed Lobbyists’ Code changes will mean anyone who does low-level campaigning or volunteering for a candidate or political party will be prohibited from lobbying for one year afterwards. In fact, only people who campaign for 30 hours or more a week, or who have frequent, in-depth interaction with the candidate or party officials, will be prohibited from lobbying for one year afterwards (Click here and see Key Facts #20-24; Cliquez ici pour voir Principaux faits #20-24).

In other words, under the proposed changes, no one who does low-level campaigning or volunteering would ever be prohibited from lobbying for one year afterwards. They would all be allowed to lobby right after their campaigning or volunteering.

The actual key, unethical dangers of the Commissioner’s proposed changes to the federal Lobbyists’ Code are that they will allow lobbyists:

  1. To secretly campaign for and fundraise unlimited amounts of money for politicians and parties while lobbying them (currently if a lobbyist campaigned or fundraised for a politician or party up to nearly full-time, they would be prohibited from lobbying them for 4 years);
  2. To secretly be a second-level, full-time campaign staff person or fundraiser for a politician and/or party and then only be prohibited from lobbying them for 1 year (i.e. before the next election – the current lobbying prohibition time period is 4 years);
  3. To secretly be a top-level, full-time campaign staff person or fundraiser for a politician and/or party and then only be prohibited from lobbying them for 2 years (i.e. also before the next election – the current lobbying prohibition time period is 4 years);

and not only can all of this campaigning and fundraising be done in secret by lobbyists, but also the Commissioner is proposing to give herself the power to secretly reduce a lobbyist’s 1-2 year lobbying prohibition down to an even shorter time period.

See Backgrounder for details. (Click here and see Key Facts #25-33; Cliquez ici pour voir Principaux faits #25-33).

“Everyone should be concerned when high-powered lobbyists who represent wealthy interests mislead MPs, especially when they make false claims in order to win changes that gut ethical lobbying rules in ways that will allow lobbyists to fundraise, campaign and do other favours for Cabinet ministers and other politicians they are lobbying,” said Duff Conacher, Co-founder of Democracy Watch.

The big business and big union lobbyists also made the false claim that they would not be able to make representations to MPs if Commissioner Bélanger’s proposed limits of $40 per MP for each gift or hospitality, and $80 annually, were made. In fact, in Ottawa and across Canada (except in some remote areas), catered receptions and meal events cost only $17-$40 per person on average, and coffee meetings only $10.

As well, MP salaries are in the top 5% in Canada, and they are given expense accounts to cover the cost of almost all their hospitality expenses, so they can simply pay themselves to go to receptions and other events held by lobbyists (Click here and see Key Facts #5-9; Cliquez ici pour voir Principaux faits #5-9).

More than 25 citizen groups with a total membership of 1.5 million Canadians call on the Committee to reject key changes to the federal Lobbyists’ Code of Conduct proposed by Commissioner of Lobbying Nancy Bélanger because the changes will gut ethical lobbying rules in ways that will allow secret, corrupt favour-trading between lobbyists and federal politicians. Click here to see the list of the 25+ groups and other details.

As well, Commissioner Bélanger misleadingly claimed on her website that she received only 206 letters from voters opposing her proposed Code changes – in fact, more than 20,000 voters signed on to Democracy Watch’s petition on Change.org or its letter-writing campaign and sent emails to the Commissioner calling on her to stop gutting the Code, and also calling on federal party leaders and the House Ethics Committee to reject the Commissioner’s proposed Code changes, and to make other key changes to stop all secret, unethical lobbying.

“Groups supported by more than one-and-a-half million Canadians oppose the Commissioner of Lobbying’s attempt to gut key lobbying ethics rules in ways that will allow for secret, corrupt favour-trading between lobbyists and Cabinet ministers and MPs, and the House Ethics Committee should join in loudly and clearly rejecting the Commissioner’s unethical proposals,” said Duff Conacher, Co-founder of Democracy Watch. “The Lobbying Commissioner is contradicting herself by proposing new rules to ban lobbyists from giving gifts and hospitality worth more than $80 a year, while gutting other rules to allow lobbyists to secretly campaign and raise unlimited amounts of money for politicians and parties while lobbying them.”

“The Commissioner of Lobbying’s proposed changes to the Lobbyists’ Code are perverse and deeply unethical and will allow lobbyists to give secret campaign and fundraising support to politicians they are lobbying, including support similar to the secret funding allegedly given by China-sponsored organizations to candidates in the 2019 federal election,” said Conacher.

The Commissioner has also made the very questionable claim that the current 4-year cooling-off period violates the Charter right to freedom of expression, based on one opinion that the Commissioner paid law firm Goldblatt Partners for in a sole-source contract that was extended twice, increasing from $11,300 to $45,200 and then up to $90,400. Given several Supreme Court of Canada and other court rulings have clearly stated that Charter rights must be restricted to protect government integrity, Democracy Watch is asking the Committee to force the Commissioner to make the Goldblatt opinion public.

Democracy Watch and the other citizen groups call on the House Ethics Committee to order the Commissioner to make the following reasonable changes to the Code that will prevent unethical lobbying while allowing for low-level political activity by lobbyists:

  1. Keep in the Code the current loophole-free Rule 6 that prohibits lobbying anytime there is an appearance of a conflict of interest;
  2. Increase the cooling-off period under proposed new Rule 6 from 5 years up to 10 years during which a lobbyist is prohibited from lobbying after significant fundraising or campaigning for a politician or party (instead of lowering it to 1-2 years);
  3. Create a new category of lower-level political activity (including doing any fundraising) with a 5-year cooling-off period prohibition on lobbying;
  4. Allow lobbying right away after political activity only if the lobbyist only canvasses or volunteers no more than a couple of times during a campaign, and;
  5. Don’t allow reductions of any of the cooling-off periods.

– 30 –

FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s Stop Secret, Unethical Lobbying Campaign and Government Ethics Campaign

List of 26 citizen groups opposed to federal Commissioner of Lobbying’s proposal to gut key ethical lobbying rules

The following 21 citizen groups from across Canada with a collective membership of more than 1 million Canadians, and two prominent Canadians, all oppose federal Commissioner of Lobbying Nancy Bélanger’s proposal to gut key ethical lobbying rules in her proposed new Lobbyists’ Code of Conduct in ways that will allow for corrupt favour-trading between lobbyists and Cabinet ministers and other federal politicians.

The 19 groups and two prominent Canadians instead support reasonable proposals for changes to the Lobbyists’ Code that will prevent unethical lobbying while allowing for a reasonable amount of volunteering and canvassing (but no fundraising) for candidates and parties.

Click here to see a summary of the Commissioner’s proposal to gut the rules to allow for rampant unethical lobbying, and the groups’ reasonable counter-proposal for rules that will prevent unethical lobbying while allowing for low-level political activity by lobbyists.

Click here to see details about the Commissioner’s unethical proposal to gut key federal ethical lobbying rules.

Citizen Groups

B.C. Civil Liberties Association
Canadian Institute for Information and Privacy Studies
Centre for Free Expression
Canadian Association of Physicians for the Environment (CAPE)
Citizens’ Climate Lobby Canada
Citizens for Public Justice
Climate Action Network
Democracy Watch
Dogwood
Ecology Action Centre
Environmental Defence
Leadnow
MakeWay
Nature Canada
Neighbours United
OpenMedia
Prevent Cancer Now
Shift (Action for Pension Wealth and Planet Health)
Sierra Club B.C.
Stand.earth
Unlock Democracy Canada

Individuals

  • David Suzuki
  • Alan Broadbent

Other citizen groups also opposed to the Commissioner’s proposals

As well, another 5 organizations with a combined total membership of more than 500,000 Canadians essentially joined the groups and individuals above in calling for reasonable changes to the Lobbyists’ Code that protect government integrity and prevent unethical lobbying, while allowing for low-level canvassing and volunteering by lobbyists on campaigns.

The World Wildlife Fund (WWF) made a submission in June 2022 to Commissioner of Lobbying Bélanger about her proposed new Code rules on behalf of other organizations which can be seen on this page. As that page notes, the submission was withdrawn by the WWF in a letter sent to Commissioner Bélanger on July 25, 2022 because the groups realized that their “submission could be interpreted to support a relaxing of lobbying rules for actors who are lobbying to further degrade the climate and biodiversity of this planet. Commissioner Bélanger has refused to publish the letter withdrawing that submission, but you can click here to see it.

The groups involved in the withdrawn submission are as follows:

  • Canadian Environmental Law Association
  • Canadian Parks and Wilderness Association
  • Equiterre
  • Sierra Club Canada Foundation
  • World Wildlife Fund

25+ groups with more than 1.5 million supporters oppose Lobbying Commissioner’s gutting of key ethical lobbying rules – House Ethics Committee should also reject proposed changes

Commissioner’s proposed new Code would allow lobbyists to secretly fundraise and campaign for politicians while lobbying them

New Code will also allow secret support similar to secret funding allegedly given by China-sponsored organizations to candidates in 2019 election

FOR IMMEDIATE RELEASE:
Tuesday, February 14, 2023

OTTAWA – This afternoon, Democracy Watch will testify on behalf of more than 25 citizen groups with a total membership of 1.5 million Canadians at a hearing of the House Ethics Committee, and will call on the Committee to reject key changes to the federal Lobbyists’ Code of Conduct proposed by Commissioner of Lobbying Nancy Bélanger because the changes will gut ethical lobbying rules in ways that will allow secret, corrupt favour-trading between lobbyists and federal politicians.

Commissioner Bélanger appeared before the Committee on February 3rd about her proposed new Lobbyists’ Code. DWatch sent the Committee members 10 key questions to ask the Commissioner in advance, and afterwards sent the Committee a response to misleading, very questionable statements the Commissioner made when testifying to the Committee (Click here to see the response in English; Cliquez ici pour voir la soumission en français).

As well, Commissioner Bélanger misleadingly claimed on her website that she received only 206 letters from voters opposing her proposed Code changes – in fact, more than 20,000 voters signed on to Democracy Watch’s petition on Change.org or its letter-writing campaign and sent emails to the Commissioner calling on her to stop gutting the Code, and also calling on federal party leaders and the House Ethics Committee to reject the Commissioner’s proposed Code changes, and to make other key changes to stop all secret, unethical lobbying.

Commissioner Bélanger is proposing to gut the federal Lobbyists’ Code and allow corrupt favour-trading by changing key ethics rules in ways that will allow lobbyists:

  1. To secretly campaign for and fundraise for politicians and parties up to nearly full-time while lobbying them (currently if a lobbyist campaigned or fundraised for a politician or party up to nearly full-time, they would be prohibited from lobbying them for 4 years);
  2. To secretly be a second-level, full-time campaign staff person for a politician and/or party and then only be prohibited from lobbying them for 1 year (the current lobbying prohibition time period is 4 years);
  3. To secretly be a top-level, full-time campaign staff person for a politician and/or party and then only be prohibited from lobbying them for 2 years (the current prohibition time period is 4 years);
  4. and not only can all of this campaigning and fundraising be done in secret, but also the Commissioner is proposing to give herself the power to secretly reduce a lobbyist’s 1-2 year lobbying prohibition down to an even shorter time period.

See Backgrounder for details.

In complete contrast, the Commissioner’s new Code proposes to limit lobbyists to giving (directly or indirectly) no more than $80 annually in gifts or hospitality to politicians, political staff or government officials they are lobbying.

If a lobbyist giving gifts or hospitality to a politician worth more than $80 annually is unethical, so is a lobbyist raising thousands of dollars, campaigning or doing other valuable favours for a politician or their political party.

The Commissioner has also made the very questionable claim that the current 4-year cooling-off period violates the Charter right to freedom of expression, based on one opinion that the Commissioner paid law firm Goldblatt Partners for in a sole-source contract that was extended twice, increasing from $11,300 to $45,200 and then up to $90,400. Given several Supreme Court of Canada and other court rulings have clearly stated that Charter rights must be restricted to protect government integrity, Democracy Watch is asking the Committee to force the Commissioner to make the Goldblatt opinion public.

The Commissioner posted her proposed new unethical Code on her website on a Friday afternoon in November without issuing a news release about it, and tried to shove it into force by January. Thankfully, the Ethics Committee stopped the Commissioner from doing that in early December.

“Groups supported by more than one-and-a-half million Canadians oppose the Commissioner of Lobbying’s attempt to gut key lobbying ethics rules in ways that will allow for secret, corrupt favour-trading between lobbyists and Cabinet ministers and MPs, and the House Ethics Committee should join in loudly and clearly rejecting the Commissioner’s unethical proposals,” said Duff Conacher, Co-founder of Democracy Watch. “The Lobbying Commissioner is contradicting herself by proposing new rules to ban lobbyists from giving gifts and hospitality worth more than $80 a year, while gutting other rules to allow lobbyists to secretly campaign and raise unlimited amounts of money for politicians and parties while lobbying them.”

“The Commissioner of Lobbying’s proposed changes to the Lobbyists’ Code are perverse and deeply unethical and will allow lobbyists to give secret campaign and fundraising support to politicians they are lobbying, including support similar to the secret funding allegedly given by China-sponsored organizations to candidates in the 2019 federal election,” said Conacher.

Democracy Watch and the other citizen groups call for the following reasonable Code changes that the House Ethics Committee should order the Commissioner to make, changes that will prevent unethical lobbying while allowing for low-level political activity by lobbyists:

  1. Keep in the Code the current loophole-free Rule 6 that prohibits lobbying anytime there is an appearance of a conflict of interest;
  2. Increase the cooling-off period under proposed new Rule 6 from 5 years up to 10 years during which a lobbyist is prohibited from lobbying after significant fundraising or campaigning for a politician or party (instead of lowering it to 1-2 years);
  3. Create a new category of lower-level political activity (including doing any fundraising) with a 5-year cooling-off period prohibition on lobbying;
  4. Allow lobbying right away after political activity only if the lobbyist only canvasses or volunteers no more than a couple of times during a campaign, and;
  5. Don’t allow reductions of any of the cooling-off periods.

In total, 25+ citizen groups with supporters totaling more than 1.5 million Canadians oppose the Commissioner’s proposed changes. Democracy Watch and 20 other citizen organizations, and also David Suzuki and Alan Broadbent, call jointly on the House Ethics Committee to stop Commissioner Bélanger from gutting the Lobbyists’ Code and instead to make reasonable changes that prevent unethical lobbying. Another 5 organizations essentially joined the call by withdrawing their support for the Commissioner’s proposed changes last July. Click here to see the list of the 25+ groups and other details.

– 30 –

FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s Stop Secret, Unethical Lobbying Campaign and Government Ethics Campaign

Reasons why a long cooling-off period (4 years or more) prohibiting lobbying after significant political activity is entirely Charter compliant

(Democracy Watch: February 2023)


The three key principles of the Supreme Court of Canada’s (SCC) “egalitarian model” for all political processes, including elections and policy-making processes in between elections, that have been established in the 1997 Libman, 2004 Harper and other case rulings are:

  1. the rules must ensure that all political processes appear to the public to have integrity, and actually have integrity;
  2. the rules must ensure substantive equality of opportunity for substantively equal participation and influence in all political processes;
  3. adequate information must be provided to voters to ensure they can make informed choices in all political processes.

Objective 1, ensuring public confidence by ensuring the appearance of integrity standard is upheld, is clearly the fundamental objective, first because objective 1 is clearly connected to and supported by objective 2. If every voter has an equal opportunity for equal participation and influence in all political processes, then the public will have good reason to have confidence in the integrity of all processes, as no one voter will be given special access or be allowed to have undue influence based on being wealthy, fundraising or campaigning or doing other favours for, or giving gifts to, politicians or public officials they are lobbying.

Secondly, objective 1 is also clearly the fundamental objective based on other SCC jurisprudence, as the SCC ruled in 1996 in R. v. Hinchey – if strict rules are not strongly upheld to ensure not only the integrity of government, but also that the government appears in every way to have integrity, then Canada will not be a democracy.

The SCC also ruled in 1996 in Harvey that “the integrity of the electoral process” is “at the heart of a free and democratic society” (para. 19) and that “such an objective is always of pressing and substantial concern in any society that purports to operate in accordance with the tenets of a free and democratic society” (para. 38) and that “If democracies are to survive, they must insist upon the integrity of those who seek and hold public office” (para. 61). In Harvey, the SCC denied a politician’s Charter right to run for re-election as a member of the legislature because the politician had violated the provincial election law.

Also, as the Federal Court of Appeal ruled unanimously in 2009 in Democracy Watch v. Campbell, 2009 FCA 79 (CanLII), [2010] 2 FCR 139:

    “A lobbyist’s stock in trade is his or her ability to gain access to decision makers, so as to attempt to influence them directly by persuasion and facts. 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.” (para. 53)

In its 8-1 ruling in 2018 in R. v. Carson, 2018 SCC 12 (CanLII), [2018] 1 SCR 269 upholding the conviction for influence peddling of Bruce Carson, a former senior advisor to Prime Minister Harper, the SCC echoed the previous rulings, citing several past cases and stating that the Criminal Code prohibition on influence peddling aims to preserve both government integrity and the appearance of government integrity” and that:

    “As this Court’s jurisprudence on both judicial independence and the impartiality of the public service demonstrates, the appearance of integrity, impartiality, and independence are tied to actual integrity, impartiality, and independence…”

    “The behaviour criminalized by this section risks depriving citizens of a true democracy predicated on free and open access to government. Corruption and the sale of influence, whether real or apparent, with government may undermine the integrity and transparency that are crucial to democracy.” (paras. 38-39)

With these and other rulings, the SCC has made it clear that, in order to comply with the fundamental constitutional principle of democracy, rules must ensure the appearance of integrity (from the public’s perspective, not from the perspective of politicians, political staff, government officials or lobbyists), and the actual integrity, of all political processes.

Current Lobbyists’ Code Rules 6 and 9, and how the Commissioner has interpreted them, uphold this legal standard because Rule 6 prohibits a lobbyist from proposing or undertaking any action that would place a public office holder in an appearance of a conflict of interest, and Rule 9 specifically prohibits lobbyists from lobbying someone they have helped politically in any significant way for 4 years.

Yes, this 4-year cooling-off period violates Charter section 2(b) freedom of expression and 2(d) freedom of association rights. However, this restriction only applies to people who have done significant campaigning or any fundraising — favours that, if they lobby the politician or party they helped, clearly create the appearance that the politician owes them, which is an appearance of a conflict of interest.

The 4-year cooling-off period does not apply to anyone who does a bit of volunteering for a candidate, or makes a donation that is legal under the Canada Elections Act, or attends a fundraising event, or puts a sign on their lawn. The cooling-off period leaves everyone free to express themselves through issuing a news release, holding a public debate event, writing an op-ed or letter-to-the-editor, publishing a book, or doing any other things to express their views on any political issue.

And the cooling-off period only applies to people who are required to be registered under the federal Lobbying Act because they are paid to lobby either through direct communications with office holders or grass-roots appeals to members of the public to communicate with office holders (NOTE: there are huge loopholes in the Act that allow for lobbying without registering).

In other words, under the current Lobbyists’ Code rules and cooling-off period, the employees of any business, union or organization, as long as they are not involved in the lobbying activities of the business, union or organization, can volunteer on campaigns and fundraise for politicians and parties (as long as they are not directed by the executives of the business, union or organization to do these things).

In other words, based on the number of registered lobbyists at any one time at the federal level in Canada, the 4-year cooling-off period only applies to about 1,000 to 2,000 people who would want to campaign or fundraise for a politician or party either to be politically active, or as a means of buying influence when they lobby them.

Given the above SCC rulings – given the SCC has clearly ruled that ensuring the public’s confidence in government by ensuring the appearance of integrity in all political processes, and ensuring substantive equality of opportunity for substantive equality of participation and influence, are the key standards that must be upheld, above all other Charter rights, it is very unlikely that the SCC would, under section 1 of the Charter, conclude that it is an unreasonable limit to have a 4-year cooling-off period to prevent a couple of thousand paid lobbyists from lobbying politicians they helped by raising thousands of dollars for them or helping them win the last election.

It is highly unlikely that the SCC would find the current 4-year cooling-off period unreasonable just to allow 1,000-2,000 lobbyists to corrupt federal government policy-making processes by buying influence through campaigning, fundraising and doing other favours for politicians and parties.

It is very likely that the SCC would view a 4-year cooling-off period as:

  1. essential to ensuring the appearance of government integrity;
  2. essential to ensuring the public’s confidence in the integrity of government;
  3. essential to ensuring that the 27.5 million voters who are not paid lobbyists have an equal opportunity to equal participation and influence in government policy-making processes, and;
  4. essential to protecting Canada’s democracy.

The SCC’s section 1 analysis would very likely conclude that a 4-year cooling-off period is the minimum length of time required to prohibit lobbying after doing political favours, and that actually a longer time period is justifiable, for the following reasons:

  1. The legislative goal is pressing and substantial because appearance of government integrity must be ensured, as must the public’s confidence in that integrity, as must equality of opportunity for equality of participation and influence in policy-making processes, or we will not have democracy;
  2. The 4-year cooling-off period is rationally connected to the goal because if someone does a favour for a politician then the politician has an appearance of a conflict of interest, so the person must be prohibited from lobbying them for a significant period of time (until the apparent conflict of interest is gone);
  3. There is no other practical way to restrict the right, and the restriction is a practical minimum. If you allowed the lobbyist to lobby, but required the politician to recuse themselves from the policy-making process, then politicians who are elected to make policies would be prevented from doing their jobs. Better to prevent the lobbyist from cashing in and profiting from doing political favours. Four years is likely too-short a period, not too long, because a politician would owe anyone who helped them in any significant way to win an election, including by raising money for them, for the rest of their career. Four years is a reasonable period because it prohibits the lobbying until after the next election when the politician will owe a new group of people for helping them get re-elected.
  4. The salutary effects are much greater than the deleterious effects. The salutary effects of the cooling-off period are that corruption of policy-making processes is prevented, the appearance of integrity standard is upheld, the rule gives the public more confidence in the integrity of government, and gives 27.5 million voters more equality in terms of influence over policy-making processes. The deleterious effect is that 1,000-2,000 lobbyists can’t cash in on doing favours for politicians and can’t corrupt policy-making processes through the unethical buying of influence over politicians, and;
  5. The context is rampant distrust of government integrity — with several surveys over the past several years showing only 10-20 percent of Canadians trust politicians, and that a large majority think politicians protect wealthy elites and don’t really care about the concerns of most voters.