(1,815 pages total disclosed, with more than 2,185 pages still to be disclosed)

The summary below is a summary of the contents of the following 4 records, which are the only records of the 19 records disclosed that are not fully redacted or already publicly available:

1. General Findings and Analysis: Trudeau II Report, by Sgt. Pincince, dated Sept. 6, 2019 (19 pages).
2. Assessment Report: Obstruction of Justice – SNC-Lavalin Affair, by Sgt. Pincince dated Feb. 2, 2021 (134 pages).
3. Conclusions and Recommendations: Obstruction of Justice – SNC-Lavalin Affair, by Sgt. Pincince and Sgt. Arbour, and signed by Supt. MacLean, dated March 4, 2021 (8 pages).
4. RCMP “PROS” Record containing summary of investigation chronology and list of investigation records (75 pages with some pages fully or partially redacted (what happened on March 22, 2019 (pages 7-8) is redacted completely, and information appears to be redacted also from pages 14, 18, 23, 25-27, 34-38 and 40).

Records 5, 6 and 7, which contain the legal advice given to the RCMP concerning the investigation, are all fully redacted.

Records 8-19 are already publicly available, and consist of copies of:

• the Public Prosecution of Canada’s Handbook (Record 8);
• the August 2019 Trudeau II Report by the federal Conflict of Interest and Ethics Commissioner (Record 9);
• a compilation of publicly available news articles (Record 10);
• two House of Commons committee testimony and evidence transcripts (Records 11-12);
• four federal statutes (records 13-16);
• two Government of Canada reports re: the consultation on remediation and deferred prosecutions for corporations (Records 17-18), and;
• Anne McClelland report for the Government of Canada on the roles of the Minister of Justice and Attorney General (Record 19).

Click here to see the full list of 19 records.

The following is the summary of the contents of the above Records #1-4 listed above:

1. The investigation, which began at the end of February 2019 by the RCMP’s Sensitive and International Investigations Unit, was mainly in the hands of RCMP Sgt. Fred Pincince (Record #1-3, and Record #4, various pages), and was overseen only somewhat by the Regional Crown Office of Ontario’s Minister of Attorney General (all names of people involved from that office are redacted: Record #4, pages 5 on), and more directly internally RCMP Legal Counsel, National Special Adviser – Financial Crimes Investigations John Ahern (Record #2, para. 317, page 130; Record #4, various pages (esp. pages 33-38)).
2. The investigation is called an “assessment” by the RCMP, even though Sgt. Pincince is clearly investigating whether obstruction of justice ( 139(2) of the Criminal Code) or intimidation of a justice system participant (clause 423.1(1)(b) of the Code) had occurred. Whether anyone committed a breach of trust (s. 122 of the Code) was not considered at all by the RCMP (Record #2, paras. 10-11, page 9; Record #3, para. 3, page 1; para. 10, page 4; and para. 12-14, pages 4-5).
3. Pincince evaluated the Conflict of Interest and Ethics Commissioner’s August 2019 Trudeau II Report as part of the process (Record #1).
4. The 16 times from August 14, 2018 to December 19, 2018 that PMO and Cabinet officials pressured then-Attorney General Jody Wilson-Raybould or her staff to to stop the prosecution of SNC-Lavalin are detailed (Record #2, pages 90-110).
5. What happened on March 22, 2019 is redacted completely from Record #4, pages 7-8, and information appears to be redacted also from Record #4, pages 14, 18, 23, 25-27, 34-38 and 40.
6. Wilson-Raybould met with RCMP officers on May 1, 2019 (Record #4, pages 12-13) and disclosed that she used a “burner phone” while abroad, and that members of her staff other than those she mentioned while testifying before the Justice Committee knew of the details of the situation. On Record #4, page 65, it is disclosed that the RCMP Sgt. Pincince asked her on May 1st not to disclose that she had met with the RCMP.
7. On May 16, 2019, the RCMP requested from the Department of Justice a waiver and authorization for access to documents that Ms. Wilson-Raybould was not allowed to disclose to the House Justice and Human Rights Committee under federal Cabinet Order in Council 2019-0105, but that request was denied on August 30, 2019 (Record #2, paras. 82-83, page 30). The RCMP did not apply to court for access to the other documents, or for the record of communications on computers, phones and all other devices used by Prime Minister Trudeau and all the other Cabinet officials involved in pressuring Ms. Wilson-Raybould and her staff (Record #2, para. 300-301, page 126; paras. 331-334, page 134; Record #3, paras. 5 (p. 2) and 21-23 (p. 7))).
8. Instead, the RCMP relied entirely on the public claims made by all these people which, of course, were all aimed at trying to make it seem like they had done nothing wrong. The RCMP also characterized all of the statements by all these people in a favourable way whenever possible, and always argued in favour of doubts concerning the success of a prosecution (Record #2, paras. 259, page 117; para. 278, page 121; paras. 295-299, pages 125-126; paras. 313-334, pages 130-134 – especially paras. 318, 320-32, 323-326, 328-330; Record #3, subparas. 9(e), (g) and (h), pages 3-4; paras. 15-18, pages 5-6; and paras. 19-20, pages 6-7).
9. Investigating officer Sgt. Pincince initially established that, to prove obstruction of justice in court, pressure must have been placed on someone to obstruct a proceeding in the justice system, and that such pressure had been put on Ms. Wilson-Raybould by Prime Minister Trudeau and various other Cabinet officials (Record #2, para. 234, page 87; para. 239, pages 88, and; para. 249, page 111) to obstruct the proceeding of a prosecution of SNC-Lavalin.
10. However, Sgt. Pincince then switches the standard to require proof of “a corrupt intent to interfere” before a prosecution for obstruction would be pursued (Record #2, paras. 250-301 (pp. 111-126 – especially paras. 287-290)).
11. Wilson-Raybould met with RCMP officers again on September 9, 2019 and provided them with three documents (Record #2, para. 179, page 55; Record #4, pages 18-19)
12. On Sept. 13, 2019, the RCMP began investigating lobbying activities regarding SNC-Lavalin (Record #4, page 19).
13. On October 11, 2019, Sgt. Pincince met with Nathalie Drouin to obtain a witness statement, and she gave him three documents (Record #2, para. 182, pages 55-56; Record #4, page 20).
14. In December 2019, the RCMP received a document disclosure from Ms. Wilson-Raybould (Record #2, para. 180, page 55).
15. In January 2020, the RCMP received a document disclosure from Jessica Prince (Record #2, para. 183, page 56).
16. On January 28, 2020, Jane Philpott met with the RCMP with regard to the Cabinet shuffle (Record #2, para. 185, page 56; Record #4, pages 26-27).
17. Wilson-Raybould met with RCMP officers for a third time on Feb. 19, 2020 ((Record #2, para. 181, page 55; Record #4, page 30).
18. On October 25, 2020, Ms. Prince met with RCMP officers, a meeting that had been first requested on September 18, 2019 (Record #2, para. 184, page 56; Record #4, pages 19 and 33-34).
19. On February 2, 2021, Sgt. Pincince completed the investigation Assessment Report (Record #2).
20. Sometime in March-April 2021, Supt. Mike MacLean supplied the investigation reports to RCMP headquarters (Record #4, pages 39-40; Record #3).
21. On March 23, 2021, RCMP Supt. Mike MacLean sent an email to Sgt. Pincince that contained the following statements from RCMP Commissioner Brenda Lucki’s office (Record #4, page 39):
    1. We need confirmation that we spoke to prosecution and that we did not have enough to substantiate any charge
    2. Need to confirm that we pushed as hard as possible and explored every avenue to meet and speak to any/all witnesses
    3. Need to confirm that we have exhausted all avenues to get evidence.

22. On Sept. 13, 2021, in response to a request from Supt. MacLean, Sgt. Pincince forwarded to the Commanding Officer of National Division the Assessment Report, Legal Opinion and Conclusion Report (Record #4, page 40).
23. On Dec. 20, 2021, Sgt. Pincince received an email from Supt. MacLean that “a decision was made but had not yet been communicated” (Record #4, page 41).
24. One year and one month later, on Jan. 25, 2023, Sgt. Pincince and Sgt. Lisa Williams communicated the decision to Ms. Wilson Raybould, and on Jan. 26 sent a letter to Conservative MP Andrew Scheer (Record #4, page 42).
25. Almost four months passed before, on May 16, 2023, the investigation file was reviewed for conclusion, and on May 19, 2023 Sgt. Pincince informed the ATIP Coordinator of the file conclusion (Record #4, page 42).

(1,815 pages total disclosed, with more than 2,185 pages still to be disclosed)

Click here to see a Summary of the Contents of the Records

1. General Findings and Analysis: Trudeau II Report, by Sgt. Pincince, dated Sept. 6, 2019 (19 pages).
2. Assessment Report: Obstruction of Justice – SNC-Lavalin Affair, by Sgt. Pincince dated Feb. 2, 2021 (134 pages).
3. Conclusions and Recommendations: Obstruction of Justice – SNC-Lavalin Affair, by Sgt. Pincince and Sgt. Arbour, and signed by Supt. MacLean, dated March 4, 2021 (8 pages).
4. RCMP “PROS” Record containing summary of investigation chronology and list of investigation records (75 pages with some pages fully or partially redacted (what happened on March 22, 2019 (pages 7-8) is redacted completely, and information appears to be redacted also from pages 14, 18, 23, 25-27, 34-38 and 40).
5. Advice Brief, undated, fully redacted (118 pages).
6. Discussion Paper, undated, fully redacted (87 pages).
7. Continuation Report RCMP Assessment, undated, fully redacted, reason given is that the 55 pages of the document are duplicates.
8. Public Prosecutions of Canada – Desk Book (publicly available here).
9. Trudeau II Report (Conflict of Interest and Ethics Commissioner report publicly available here).
10. Publicly available news stories (not linked because they are all publicly available).
11. Justice Committee meeting transcripts and submissions and briefs etc. from Feb. 21, 2019 and March 6, 2019 (not linked because they are all publicly available here).
12. Justice Committee meeting transcript from Feb. 27, 2019 (not linked because it is publicly available here).
13. Conflict of Interest Act (publicly available here).
14. Department of Justice Act (publicly available here).
15. Parliament of Canada Act (publicly available here).
16. Director of Public Prosecutions Act (publicly available here).
17. Expanding Canada’s toolkit to address corporate wrongdoing: discussion paper for public consultation (Government of Canada publication publicly available here).
18. Expanding Canada’s toolkit to address corporate wrongdoing: what we heard (Government of Canada publication publicly available here).
19. Review of Roles of the Minister of Justice and Attorney General (Government of Canada publication publicly available here).

 

Backgrounder on Key Loopholes in Canada’s Lobbying, Ethics, Election, Political Donation and Spending Laws that Allow for Foreign Interference

(May 2023)

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Commissioner of Lobbying and so-called Ethics Committee propose to gut key ethical lobbying rules in ways that will increase foreign interference

As more than 40 lawyers and professors, and 26 citizen groups, and the Globe and Mail (twice) have called for, the House Ethics Committee must reverse its positions and reject federal Commissioner of Lobbying Nancy Bélanger’s proposal to gut key ethical lobbying rules in the Lobbyists’ Code of Conduct in ways that will make secret interference in elections and secret activities to influence federal MPs easier for China and other foreign governments.

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

The so-called Ethics Committee also wants loopholes added to allow lobbyists to give MPs hundreds of dollars in gifts and meals annually, and to continue to allow lobbyists to give MPs trip junkets worth thousands of dollars annually.

Loopholes in lobbying law allow for secret lobbying

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 lobbying 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.

Loopholes in ethics laws allow for unethical decision-making

Federal ethics rules have huge loopholes that allow MPs to have secret jobs, Cabinet ministers and top government officials to have secret investments, and everyone to participate in decisions that they profit from, and to act unethically in many other ways.

The Procedure and House Affairs Committee failed to address any of these loopholes when it reviewed MP ethics rules in secret last year and issued an initial report in June. In fact, the Committee proposed, and the House approved on March 30th, a new loophole in their ethics rules that now allows lobby groups, including foreign-government sponsored groups, to pay for interns in MPs’ offices.

The Senate’s ethics code has many of the same loopholes, although it contains a few rules enacted in 2014 that, if the Senate Ethics Officer ever enforces the rules properly, will finally prohibit the unethical business activities and decision-making conflicts of interest by many Senators that the code currently allows.

Federal ethics laws also 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).

Loopholes in election law makes foreign interference and influence easy

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. 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.

Lack of effective honesty-in-politics law makes false claims legal

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.

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.

Enforcement watchdogs are handpicked partisan lapdogs who lack key powers and accountability

Enforcement of Canada’s election, political donation, lobbying and ethics laws is very weak, as all the watchdogs are handpicked by Cabinet through secretive, partisan, political appointment processes and they all lack key powers.

The watchdogs also can’t be challenged in court if they fail to do their jobs properly.

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 that allow for coverups of foreign interference. If the Panel members are not fully independent of the government and all political parties, and the flaws in the Protocol are not corrected, then the Panel will continue to cover up foreign interference instead of reporting it publicly and stopping it.

Also, the Trudeau Liberals’ 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.

See more details at 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

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

(Democracy Watch: February 2023)

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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.

Questions and Answers about the proposed Tech Industry Consumer Organization (TICO)

How a Canadian TICO with 1 million members and a $20-30 million annual budget can be formed

WHAT IS THE TECH INDUSTRY CONSUMER ORGANIZATION (TICO)?

The Tech Industry Consumer Organization (TICO) is a proposed federally chartered, non-profit organization designed to represent and educate consumers on tech industry issues. The TICO will advocate for fair service from tech industry companies (Google, Facebook, Amazon, Twitter, Tik Tok etc.) before industry regulators, the government and the courts. It will also educate tech consumers on issues such as fees, privacy, harassment etc.

The TICO model is based upon Citizen Utility Boards (CUBs) which have been established in four states in the U.S. In these states, all of the utilities were required to enclose a one-page pamphlet in their billing envelopes inviting people to join the CUB. About five percent of consumers usually join the CUB at a $40 annual membership fee. CUBs are independent, broad-based watchdog groups that are run democratically by their members and represent consumers’ interests in the marketplace. For example, in Illinois the CUB has 150,000 members, a $1.5 million annual budget, and has saved consumers more than $20 billion since 1983 by opposing rate hikes by utilities.

According to a national survey of Canadians, 64% of Canadians support the creation of the citizen watchdog groups using the pamphlet/email method.

In addition, a national coalition made up of 31 citizen groups with a total membership of 1.5 million Canadians supports the creation of citizen groups to watch over industry sectors using the pamphlet/email method.

HOW WILL THE TICO BE SET UP AND HOW WILL IT WORK?

To set up the TICO, the federal government must require federally-regulated Internet tech companies to include a notice at the top of every email they send to their 30 million customers and, for anyone who still receives mailings from these companies, 1-2 times each year to include a pamphlet in the same envelope.

Alternatively, the tech companies could volunteer to enclose the notice in their emails, and the pamphlet in their mailings, and as long as enough large companies volunteered enough tech consumers would receive the email notice and pamphlet to make the TICO viable.

The notice at the top of emails that tech companies send their customers will say something like “Need help from an independent consumer group dedicated only to helping you, click here to join the Tech Industry Consumer Organization (TICO). The pamphlet that tech companies would enclose in mailings to their customers will describe the TICO and invite consumers to join at a nominal annual membership fee ($20-30 — with a lower fee for people with low incomes). The government can either lend or grant to the TICO the funds needed to print the first pamphlet. After the first pamphlet, however, the TICO will pay all the costs of the pamphlet. As a result, the TICO can be set up at little or no cost to government or the tech companies.

If only about three percent of Canadian tech company customers join the TICO, it will have one million members and a $20-30 million annual budget. With these resources and large membership base, the TICO will be strong enough to counter the power of the big tech and big data companies.

The TICO will be a democratic organization, controlled by its members through the election of regional delegates and the TICO’s board of directors. The board will hire the TICO’s professional staff and determine the group’s policies.

WHAT WILL THE TICO DO?

The TICO will hire economists, experts, organizers, lobbyists and attorneys to represent consumers.

The TICO will also educate consumers through price surveys, public forums, shopping guides and various other publications.

WHY IS THE TICO NEEDED IN CANADA?

The tech companies are amongst the largest and most powerful companies in the world. There have been ongoing complaints about privacy invasions, harassment, gouging and other abuses by these companies, including encouraging and spreding misinformation and disinformation to undermine elections and policy-making. In addition, many groups representing women, visible minorities and people with low incomes have documented discrimination by these companies.

Consumers are an important part of Canada’s Internet tech industry system, but because of lack of resources their voice is not strong enough to be heard by governments, especially given the enormous resources and strength of the tech industry lobby. The TICO will give act as an umbrella group to bring together consumers and existing consumer groups an organized voice for their interests on tech industry issues in the marketplace.

With tech industry companies offering many products and services that are highly technical, consumers often lack the information needed to ensure they are served fairly and well and are not abused in any way. The TICO will also provide this information, encouraging competition in the marketplace and better service for all tech consumers.

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For more details, go to Democracy Watch’s Citizen Association Campaign

Backgrounder on Democracy Watch’s 9 cases challenging Ontario Integrity Commissioner rulings on lobbyists in 2019-2020, 6 cases filed in 2021, one case filed in 2022 and one case filed in 2023

From April 2018 to March 2020, Ontario Integrity Commissioner J. David Wake issued 192 secret Advisory Opinions, closed 135 secret compliance reviews at the initial stage, and resolved 436 cases informally in secret (Click here to see Backgrounder on Integrity Commissioner’s Rulings 2018-2020). At least some of those 763 secret decisions by Commissioner Wake allowed dozens of other lobbyists to lobby unethically.

The first three cases of the nine cases Democracy Watch filed in 2020 challenge rulings #6 and 7 on page 52 of the Commissioner’s 2019-2020 Annual Report, and ruling #10 on page 53 of the Report. These are the first public Commissioner rulings enforcing section 3.4 of the Lobbyists Registration Act (LR Act). The cases are Division Court file numbers 632/20, 633/20 and 634/20. Click here to see the Notice of Application challenging ruling #6 (the other two applications are very similar).

The cases challenge the first three public rulings of the Integrity Commissioner’s unknown number of decisions in the past few years that have let dozens of people (and maybe more) violate section 3.4 by lobbying Doug Ford and his Cabinet ministers soon after they campaigned, fundraised or worked for Ford and/or Ontario’s PC Party in the 2018 leadership race and election, and/or worked for Ford or one or more of his ministers since the election.

Section 3.4 was added to the LR Act on July 1, 2016, and it prohibits lobbying any politician or other public office holder if it will create a real or potential conflict of interest or make it improper for them to further the interests of the lobbyist or their clients.

The other six cases of the nine total cases challenge rulings #s 5, 14, 17 and 23 (the four lobbyists who also failed to register) and rulings #s 13 and 20 (the two lobbyists who violated the lobbying ethics rule) in the Commissioner’s 2019-2020 Annual Report. The six cases are Division Court file numbers 644/20, 645/20, 646/20, 647/20, 648/20 and 669/20.

In her November 2021 ruling, Ontario Divisional Court Justice Favreau unjustifiably blocked the cases from proceeding by falsely claiming that the nine cases did not challenge the Commissioner’s interpretation and application of the LR Act (in fact, all of them do), and falsely claiming that hearing the cases would expose the identity of the lobbyists. The Federal Court has allowed similar cases to proceed, with the lobbyists’ identity protected by a confidentiality order.

An August 2022 ruling of a Divisional Court panel of justices upheld the judge’s ruling blocking the nine cases.

All nine cases also ask the courts to rule that Commissioner Wake was biased when he issued the six rulings, given he knew that he would need the unanimous approval of Ford’s Cabinet and all MPPs to be re-appointed for a second five-year term, which happened on December 1, 2020 (although many MPPs were not present for that snap vote).

Democracy Watch is appealing to the Ontario Court of Appeal with the hope that it will allow the nine cases to proceed so that the courts will do a full review of the Integrity Commissioner’s rulings, and order them corrected.

Democracy Watch also filed six more cases in 2021 challenge rulings #1 and 3 on page 52 of the Commissioner’s 2020-2021 Annual Report and rulings #5, 6 and 8 on pages 53-54 of the Report. The cases are Division Court file numbers 587/21 to 592/21. Click here to see the Notice of Application challenging ruling #6 (the other five applications are very similar).

Democracy Watch filed one more case in 2022 challenging the ruling that begins at the bottom of page 57 and continues onto page 58 of the Commissioner’s 2021-2022 Annual Report in which the Integrity Commissioner again let a lobbyist off even though they violated the law in several ways. Click here to see the Notice of Application. The case is Division Court file number 390/22.

Democracy Watch filed another case in 2023 challenging the ruling that begins at the bottom of page 58 and continues onto page 59 of the Commissioner’s 2022-2023 Annual Report in which the Integrity Commissioner again let a lobbyist off even though they violated the law in several ways. Click here to see the Notice of Application.

These additional eight cases are on hold until the rulings are issued in the initial nine cases.

Democracy Watch’s total of 17 cases challenge 16 of the Integrity Commissioner’s rulings made in the past three years (two of the cases challenge different aspects of one of the Commissioner’s rulings). Nick Papageorge and Wade Poziomka of Ross McBride LLP are representing Democracy Watch for all the cases.

To access any of the court files on any of the 17 cases, email the Divisional Court registry office at: [email protected].

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

Backgrounder on federal Commissioner of Lobbying’s attempt to gut key ethics rules in the Lobbyists’ Code of Conduct

(Democracy Watch: February 2023)

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Summary

Commissioner of Lobbying Nancy Bélanger first proposed to reduce the cooling-off period during which a lobbyist would not be allowed to lobby from 5 years down to 1 to 2 years in her December 2021 draft of the new proposed Code.

Big businesses and unions pushed for even shorter cooling-off periods, and Commissioner Bélanger rolled over like a lapdog and gave them what they want by creating a huge loophole in proposed Rule 6 in the proposed new Code (November 2022 version), and in the proposed new definition of “other political work” in the new Code’s Appendix, that will allow lobbyists to fundraise and campaign for Cabinet ministers, political parties and MPs at the same time as lobbying them. Proposed new Rule 6 will also allow the Commissioner to secretly shorten the 1-2 year prohibition on lobbying that the Commissioner is proposing for lobbyists who work full-time on campaigns for politicians or parties.

Commissioner Bélanger also fails in her proposed new Code to specify exactly whom a lobbyist will be prohibited from lobbying if they campaign or fundraise for a party. Will they be prohibited from lobbying the party leader only or, given assisting a party assists everyone in the party, will they be prohibited from lobbying everyone in the party?

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.

Commissioner Bélanger’s proposed new Rule 6 blatantly contradicts the proposed new Objectives and Expectations sections, and proposed Rules 5, 7.1 and 7.2, in the new Code, all of which strictly prohibit lobbying when there is even an appearance of a conflict of interest. New Rule 6 also blatantly contradicts the proposed new Rules 3 and 4 that prohibit lobbyists giving gifts or hospitality worth more than $30 annually. New Rule 6 also blatantly the 5-year prohibition in the Lobbying Act on lobbying by ministers, their staff and MPs after they leave their position.

By gutting the Code rules in ways that allow lobbyists to do favours for Cabinet ministers and MPs and Senators, the Commissioner will also likely gut the ethics rules for ministers, MPs and Senators. How? All of those ethics rules currently have a blanket rule that says you can’t “improperly” further another person’s or entity’s interests.

It would, of course, be improper for a Cabinet minister or MP or Senator to further the interests of a lobbyist who had raised money for them or done other favours for them. However, by changing the Lobbyists’ Code to legalize unlimited fundraising and favour-doing by lobbyists for ministers and other federal politicians, the Commissioner is effectively saying that it is proper for lobbyists to do these favours. As a result, it will no longer be “improper”.

That means that the Ethics Commissioner, or a court, could also conclude that it is no longer “improper” for a Cabinet minister to do favours for a lobbyist who has done favours for the minister or the minister’s party, no matter how badly that favour-trading smells.

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. Several Supreme Court of Canada and other Canadian court rulings have clearly stated that Charter rights must be restricted to protect government integrity, and as a result it is clear that the current 4-year cooling-off period complies with the Charter.

Commissioner Bélanger has also backed off from requiring lobbyists to be honest always. In her December 2021 draft of the proposed new Code, Rule 2 clearly prohibited lobbyists making false claims to office holders and the public. In her latest draft, Rule 2.1 is has been weakened to only require taking reasonable steps to avoid misleading office holders and the public.

Details of the Commissioner’s proposed gutting of key ethical lobbying rules

Commissioner Bélanger gave no hint in her initial consultation in December 2020 on possible Lobbyists’ Code changes that she was planning to gut these key rules in the Code to roll back ethics standards for federal lobbyists 25 years in ways that will, once again, allow for rampant unethical lobbying and corrupt favour-trading between lobbyists and Cabinet ministers and other federal politicians.

Under the current Lobbyists’ Code rules, if a person does significant campaigning, or any fundraising, for a federal politician or political party, they are prohibited from lobbying for 4 years until after the next election (Click here to see the Commissioner’s guideline on current Code Rule 9).

The Commissioner proposes in the new draft Code Rule 6 (and in the proposed definition of “other political work” in the Appendix of the new Code) to allow lobbyists to secretly fundraise, campaign and do other favours for Cabinet ministers, MPs and Senators at the same time as lobbying them, as long as the lobbyist does those activities less than nearly full-time and without significant contact with the politician. No disclosure will be required of any lobbyist’s fundraising or campaigning activities for any politician or party.

For lobbyists who work full-time on politician or political party campaigns or fundraise for them to help them win an election, the Commissioner is proposing that they only be prohibited from lobbying for 1-2 years. As a result, these lobbyists will be allowed to lobby people they helped win the last election before the next election, with again no disclosure of their campaigning and fundraising.

The Commissioner is also proposing to give herself the power under new Code Rule 6 to secretly shorten the already-too-short 1-2 year lobbying prohibitions.

Democracy Watch’s interventions to stop the gutting of the rules

Democracy Watch filed a submission in December 2020, and a second submission in February 2022, and a third submission in June 2022, all calling for key changes to strengthen key Lobbyists’ Code rules, and enforcement, and the second submission also called on the Commissioner to stop proposing to gut key ethics rules in the Code.

By changing the rules, Commissioner Bélanger is also trying to negate the effect of an upcoming Federal Court ruling on two cases Democracy Watch filed in August 2020. The cases challenge the Commissioner’s rulings that let lobbyists Ben Bergen and Dana O’Born of the Council of Canadian Innovators (CCI) off even though they co-chaired Chrystia Freeland’s 2015 election campaign, and served in her riding association, and then lobbied her office. The ruling will determine whether the Commissioner failed to enforce the current Code rules.

“Commissioner Bélanger not only has an equally bad record as past lobbying lapdogs, she is now proposing to change some of the rules she enforces to try to avoid being found guilty of failing to enforce those rules,” said Duff Conacher, Co-founder of Democracy Watch. “The lobbying law needs to be changed to close huge loopholes that allow for secret, unethical lobbying, and to require effective enforcement by the Commissioner.”

“It is unfortunately not surprising that Commissioner Bélanger is trying to gut key federal ethics rules for lobbyists, given that she was handpicked by the Trudeau Cabinet through a secretive, dishonest process that the Federal Court of Appeal ruled was biased,” said Conacher.

History of Canada’s federal ethical lobbying rules

Since 1997 when the Lobbyists’ Code became federal law, it has been illegal for a registered lobbyist to do anything for, or give anything to, a federal politician, political staff person, government official or employee that would create even the appearance of a conflict of interest, including fundraising or campaigning for a politician or party and then lobbying them soon afterwards. Huge loopholes in the federal Lobbying Act unfortunately allow for secret, unregistered lobbying that is not covered by the Code’s rules.

Former Commissioner of Lobbying Karen Shepherd, forced by a unanimous Federal Court of Appeal ruling won by Democracy Watch in 2009, set a five-year cooling-off period under the Code that prohibited lobbying after fundraising or campaigning for a politician or party (Click here to see archive doc re: the Commissioner’s five-year rule, in “The risk diminishes with time” subsection).

Five years is still much too short, as the appearance of a conflict of interest continues for much longer, but it at least prohibits registered lobbyists from lobbying politicians they had helped until after the next election. The Lobbying Act also prohibits former office holders from being a registered lobbyist for five years after they leave office (Click here to see the five-year rule in section 10.11 of the Act).

Now, in her proposed new Code made public in late November, Commissioner Bélanger is gutting that rule and proposing new rules that will allow lobbyists to lobby politicians and parties soon after they fundraise or campaign for them – right after or one or two years later, depending on how much they fundraise or help the politician or party, and possibly an even shorter cooling-off period if the Commissioner grants a reduction. Click here to see the Commissioner’s proposed new Code Rule 6 and, in the Appendix, the “Political Work” section which sets out specific rules related to Rule 6’s no time, and one- and two-year prohibitions.

List of Seriously Unethical, Secretive and Undemocratic Actions by Doug Ford’s PC Party Government from May 2018 to May 2022

Based on the following 25 seriously unethical, secretive and undemocratic actions, Democracy Watch gives the Doug Ford PC Party government an F fail grade for the past four years:

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1. Issued a brief, incomplete 2018 election platform that misled voters about what Ford’s PC Party planned to do (especially it’s planned unethical and undemocratic actions).
2. Ford refused to disclose his mandate letters to Cabinet ministers despite being ordered three times to disclose them, and wasted taxpayer’s money for four years trying to keep them secret.
3. Ford tried to appoint his old friend Ron Taverner as Ontario’s top cop.
4. When that was justifiably condemned as a dangerously unethical appointment that would damage law enforcement and government accountability, Ford offered Taverner an executive job at the Ontario Cannabis Store.
5. Imposed more political Cabinet control over appointments to agencies, boards, commissions and tribunals (ABCTs), and also made changes to give Cabinet more control over provincial judge appointments.
6. Then appointed inexperienced, party-connected people to many ABCTs, drastically decreasing protection of human rights, the rights of renters, social welfare rights, consumers and the environment, which resulted in record-high complaints.
7. Set up a PC Party fake news service on social media using the public’s money, and then Ford and Cabinet ministers gave exclusive access to the service’s fake reporters while refusing to answer the real media’s questions.
8. Ford appointed one of his top election campaign advisers to a plum job in Washington, and increasing his pay by $75,000.
9. Ford appointed his campaign adviser and staff person Jenni Byrne to the Ontario Energy Board.
10. Ford appointed his family lawyer as chairperson of the Public Accountants Council.
11. Allowed dozens of former 2018 PC Party campaign workers, and Cabinet minister staff, to lobby for big businesses.
12. Gave many of the big business clients of Ford-PC Party connected lobbyists what they want.
13. Ford allowed his Chief of Staff to pressure police to enforce a law the way the PC Party government wanted it enforced.
14. Ford allowed his Chief of Staff to do favours for family members, friends and PC-Party connected people.
15. Violated the right of Ontarians to sue the government for negligent, harmful actions.
16. Violated the right of Ontarians to health care services when they travel outside of Canada.
17. Violated the public consultation requirement in Ontario’s environment protection law.
18. And then again violated the public consultation requirement in Ontario’s environment protection law.
19. Violated the requirement to consult with Indigenous peoples before proceeding with resource developments.
20. Violated Charter rights by trying to force gas stations to put a PC Party government propaganda sticker on pumps.
21. Violated the rights of students to fund their own student associations.
22. Violated the Charter rights of interest groups to inform voters about issues leading up to an election, and also made changes to allow wealthy donors to have more influence over politicians and parties.
23. And then Ford became the first Ontario Premier to use the notwithstanding clause to ensure he could violate Charter rights.
24. Lied in an ad about the carbon tax.
25. Issued one-page 2022 election platform that is again likely misleading voters about everything a PC government will do (especially unethical and undemocratic actions).