Backgrounder on Interim Ethics Commissioner Konrad von Finckenstein’s negligently bad enforcement record and the 6 new loopholes he has created in federal ethics laws
(February 7, 2024)

---

Konrad von Finckenstein was handpicked in secret by the Trudeau Cabinet and appointed Interim Ethics Commissioner at the end of August 2023, replacing Mario Dion who resigned last February due to health reasons, and replacing Martine Richard who served briefly as Interim Ethics Commissioner but resigned after serious questions were raised about her independence and impartiality given she is Trudeau Cabinet minister Dominic LeBlanc’s sister-in-law.

In addition to being handpicked in secret by the ruling party Cabinet, Mr. von Finckenstein has a long history in the federal bureaucracy, as well as ties to big businesses, that raise serious questions about his independence and impartiality.  Mario Dion was also handpicked in secret by the Trudeau Cabinet, and also had a long history in the federal bureaucracy, and a record of 8 unethical actions when he was federal Integrity Commissioner.

Mr. von Finckenstein has buried at least 8 ethics complaints with secret rulings that let off everyone who was alleged to have violated conflict of interest or other ethics rules, based on what is known so far since September when he started his 6-month term in the position of Interim Ethics Commissioner.

In September he testified before the House Ethics Committee that he had “Eight open cases, which involve 11 people” (p. 3 of testimony).  Then in October he testified again and said that the cases were “gone” (p. 18 of testimony).  He has not issued any rulings finding anyone guilty, which means he let off all 11 of the alleged wrongdoers.

While Mr. von Finckenstein refused DWatch’s request that he disclose all 8 rulings (even though nothing in the Conflict of Interest Act nor in ss. 27(5.1) of the MP Code prohibits such disclosure), 2 of the 8 rulings address complaints that DWatch filed.

The first ruling is about DWatch’s complaint alleging Prime Minister Trudeau violated the Act by appointing his long-time friend David Johnston to investigate the PM’s actions on foreign interference.  Mr. von Finckenstein refused to even investigate the complaint based on the bizarre claim that the PM has a “constitutional prerogative” to appoint whomever he wants to any public office.  This ruling sets a dangerous precedent that allows the PM to appoint family, relatives and close friends to any federal government position.

The second ruling is about DWatch’s complaint requesting an investigation into Energy and Natural Resources Minister Jonathan Wilkinson, who is Trudeau’s senior B.C. minister, participating in meetings concerning B.C.-based Teck Resources Ltd. (which lobbied Wilkinson six times while his spouse has significant investments in financial institutions that are among the top investors in Teck).  Mr. von Finckenstein also refused to even investigate the situation based on the equally bizarre claim that the private interests “are too remote and speculative to cause them to conflict” with Wilkinson’s public duties.  This ruling also sets a dangerous precedent that allows Cabinet ministers and top government officials to participate in decisions when they have a financial conflict of interest.

Mr. von Finckenstein has also created 6 new loopholes in federal ethics laws to add to the 10 huge loopholes in the MP Code and the 10 huge loopholes in the Conflict of Interest Act that applies to the PM, Cabinet ministers, Cabinet staff, Cabinet appointees and top government officials.

The 6 new loopholes Mr. von Finckenstein has created are as follows:

1. He is doubling from $30,000 to $60,000 the value of shares that Cabinet staff and top government officials can own in businesses they regulate or make decisions about, (Click here to see his bizarre interpretation – #3 re: Doubling the minimum value exemption and #4 re: CER appointees). This will allow Cabinet staff, top government officials and CER appointees to be in a direct, significant financial conflict of interest and to profit from the decisions they make.
2. He is now allowing members of the Canadian Energy Regulator (CER) to secretly invest in energy companies, which is possibly why the CER just approved Trans Mountain Corp. changing its pipeline construction plan. (Click here to see his bizarre interpretation – #4 re: CER appointees).
3. He is now allowing the Prime Minister to appoint anyone to any government position, even family members and friends (like David Johnston) even when they are investigating wrongdoing by the PM. As mentioned above, see for details his ruling on DWatch’s complaint alleging Prime Minister Trudeau violated the Act by appointing his long-time friend David Johnston to investigate the PM’s actions on foreign interference. Mr. von Finckenstein refused to even investigate the complaint based on the bizarre claim that the PM has a “constitutional prerogative” to appoint whomever he wants to any public office.
4. He is now allowing Cabinet ministers and top government officials to participate in a decision-making process even if their spouses have significant financial interests that will be affect by the decision. As mentioned above, see for details his ruling on DWatch’s complaint requesting an investigation into Energy and Natural Resources Minister Jonathan Wilkinson, who is Trudeau’s senior B.C. minister, participating in meetings concerning B.C.-based Teck Resources Ltd. (which lobbied Wilkinson six times while his spouse has significant investments in financial institutions that are among the top investors in Teck). Mr. von Finckenstein also refused to even investigate the situation based on the equally bizarre claim that the private interests “are too remote and speculative to cause them to conflict” with Wilkinson’s public duties.
5. He is now allowing Cabinet staff and top government officials to leave their position and move to another position in the government, or take a contract with the government, without any cooling-off period, even if the position conflicts with the past position. He is doing this because, he told the House Ethics Committee in October, he believes “there cannot be any conflict of interest between different government departments or agencies” and no one in government ever has “confidential information that would be harmful to the government” (Click here to see his bizarre interpretation – #1 re: Definition of the term “entity”).  Among many other conflicts of interest between government departments, his interpretation ignores the obvious reality that the interests and information held by ministers and their staff directly conflict with the interests of any agency, board, commission or tribunal that enforces laws that apply to the minister and his/her department.  It also ignores the reason for the cooling-off period, which is to prevent ministerial staff from developing relationships with top department officials and then receiving preferential treatment in hiring processes.
6. He has set a precedent by deciding not to investigate ethics complaints about a former MP simply because the MP is no longer an MP, which means all MPs have to do is hide their wrongdoing until they resign or retire or are defeated and then they will never be found guilty of violating the law. Mr. von Finckenstein disclosed when he testified on January 20, 2024 before the House Ethics Committee that he had decided not to investigate 4 complaints about a former MP solely because the MP was no longer an MP.

See more on Democracy Watch’s Stop Bad Government Appointments Campaign
and Government Ethics Campaign pages.

Backgrounder on Interim Ethics Commissioner Konrad von Finckenstein’s negligently bad enforcement record and the 6 new loopholes he has created in federal ethics laws
(February 7, 2024)

---

Konrad von Finckenstein was handpicked in secret by the Trudeau Cabinet and appointed Interim Ethics Commissioner at the end of August 2023, replacing Mario Dion who resigned last February due to health reasons, and replacing Martine Richard who served briefly as Interim Ethics Commissioner but resigned after serious questions were raised about her independence and impartiality given she is Trudeau Cabinet minister Dominic LeBlanc’s sister-in-law.

In addition to being handpicked in secret by the ruling party Cabinet, Mr. von Finckenstein has a long history in the federal bureaucracy, as well as ties to big businesses, that raise serious questions about his independence and impartiality.  Mario Dion was also handpicked in secret by the Trudeau Cabinet, and also had a long history in the federal bureaucracy, and a record of 8 unethical actions when he was federal Integrity Commissioner.

Mr. von Finckenstein has buried at least 8 ethics complaints with secret rulings that let off everyone who was alleged to have violated conflict of interest or other ethics rules, based on what is known so far since September when he started his 6-month term in the position of Interim Ethics Commissioner.

In September he testified before the House Ethics Committee that he had “Eight open cases, which involve 11 people” (p. 3 of testimony).  Then in October he testified again and said that the cases were “gone” (p. 18 of testimony).  He has not issued any rulings finding anyone guilty, which means he let off all 11 of the alleged wrongdoers.

While Mr. von Finckenstein refused DWatch’s request that he disclose all 8 rulings (even though nothing in the Conflict of Interest Act nor in ss. 27(5.1) of the MP Code prohibits such disclosure), 2 of the 8 rulings address complaints that DWatch filed.

The first ruling is about DWatch’s complaint alleging Prime Minister Trudeau violated the Act by appointing his long-time friend David Johnston to investigate the PM’s actions on foreign interference.  Mr. von Finckenstein refused to even investigate the complaint based on the bizarre claim that the PM has a “constitutional prerogative” to appoint whomever he wants to any public office.  This ruling sets a dangerous precedent that allows the PM to appoint family, relatives and close friends to any federal government position.

The second ruling is about DWatch’s complaint requesting an investigation into Energy and Natural Resources Minister Jonathan Wilkinson, who is Trudeau’s senior B.C. minister, participating in meetings concerning B.C.-based Teck Resources Ltd. (which lobbied Wilkinson six times while his spouse has significant investments in financial institutions that are among the top investors in Teck).  Mr. von Finckenstein also refused to even investigate the situation based on the equally bizarre claim that the private interests “are too remote and speculative to cause them to conflict” with Wilkinson’s public duties.  This ruling also sets a dangerous precedent that allows Cabinet ministers and top government officials to participate in decisions when they have a financial conflict of interest.

Mr. von Finckenstein has also created 6 new loopholes in federal ethics laws to add to the 10 huge loopholes in the MP Code and the 10 huge loopholes in the Conflict of Interest Act that applies to the PM, Cabinet ministers, Cabinet staff, Cabinet appointees and top government officials.

The 6 new loopholes Mr. von Finckenstein has created are as follows:

1. He is doubling from $30,000 to $60,000 the value of shares that Cabinet staff and top government officials can own in businesses they regulate or make decisions about, (Click here to see his bizarre interpretation – #3 re: Doubling the minimum value exemption and #4 re: CER appointees). This will allow Cabinet staff, top government officials and CER appointees to be in a direct, significant financial conflict of interest and to profit from the decisions they make.
2. He is now allowing members of the Canadian Energy Regulator (CER) to secretly invest in energy companies, which is possibly why the CER just approved Trans Mountain Corp. changing its pipeline construction plan. (Click here to see his bizarre interpretation – #4 re: CER appointees).
3. He is now allowing the Prime Minister to appoint anyone to any government position, even family members and friends (like David Johnston) even when they are investigating wrongdoing by the PM. As mentioned above, see for details his ruling on DWatch’s complaint alleging Prime Minister Trudeau violated the Act by appointing his long-time friend David Johnston to investigate the PM’s actions on foreign interference. Mr. von Finckenstein refused to even investigate the complaint based on the bizarre claim that the PM has a “constitutional prerogative” to appoint whomever he wants to any public office.
4. He is now allowing Cabinet ministers and top government officials to participate in a decision-making process even if their spouses have significant financial interests that will be affect by the decision. As mentioned above, see for details his ruling on DWatch’s complaint requesting an investigation into Energy and Natural Resources Minister Jonathan Wilkinson, who is Trudeau’s senior B.C. minister, participating in meetings concerning B.C.-based Teck Resources Ltd. (which lobbied Wilkinson six times while his spouse has significant investments in financial institutions that are among the top investors in Teck). Mr. von Finckenstein also refused to even investigate the situation based on the equally bizarre claim that the private interests “are too remote and speculative to cause them to conflict” with Wilkinson’s public duties.
5. He is now allowing Cabinet staff and top government officials to leave their position and move to another position in the government, or take a contract with the government, without any cooling-off period, even if the position conflicts with the past position. He is doing this because, he told the House Ethics Committee in October, he believes “there cannot be any conflict of interest between different government departments or agencies” and no one in government ever has “confidential information that would be harmful to the government” (Click here to see his bizarre interpretation – #1 re: Definition of the term “entity”).  Among many other conflicts of interest between government departments, his interpretation ignores the obvious reality that the interests and information held by ministers and their staff directly conflict with the interests of any agency, board, commission or tribunal that enforces laws that apply to the minister and his/her department.  It also ignores the reason for the cooling-off period, which is to prevent ministerial staff from developing relationships with top department officials and then receiving preferential treatment in hiring processes.
6. He has set a precedent by deciding not to investigate ethics complaints about a former MP simply because the MP is no longer an MP, which means all MPs have to do is hide their wrongdoing until they resign or retire or are defeated and then they will never be found guilty of violating the law. Mr. von Finckenstein disclosed when he testified on January 20, 2024 before the House Ethics Committee that he had decided not to investigate 4 complaints about a former MP solely because the MP was no longer an MP.

See more on Democracy Watch’s Stop Bad Government Appointments Campaign
and Government Ethics Campaign pages.

Background on the Trudeau Cabinet’s partisan, political, secretive and dishonest appointment processes for Ethics Commissioner, Commissioner of Lobbying and other key democracy watchdogs

Through 2016, the Trudeau Cabinet claimed that it was changing the Cabinet appointment process for key democratic good government watchdogs and other positions.  In fact, the Trudeau government did not change the appointment process at all other than adding the objective of diversity.

Then, in 2016-2017, the Trudeau Cabinet used the usual Cabinet-controlled, partisan and political process for appointing various democracy watchdogs.

With the Ethics Commissioner appointment process, the Trudeau Cabinet first misled opposition parties, the media and the public by falsely claiming there were no qualified candidates for Ethics Commissioner, and by falsely claiming that it had made the appointment process merit-based.

In a blatant violation of the federal Access to Information Act (ATIA), the Trudeau Cabinet hid the records for two years that made it clear there were five qualified candidates for Ethics Commissioner by spring 2017, and also qualified candidates for the position of Commissioner of Lobbying.

The Cabinet is still hiding the records concerning the appointment of Commissioner of Lobbying Nancy Bélanger, also in violation of the ATIA.

Through the 2016-2017 time period, the Trudeau Cabinet reappointed then-Ethics Commissioner Mary Dawson to three 6-month interim terms after her 7-year term was over, as long as she kept letting Trudeau and her Cabinet ministers off for clear violations of ethics rules.

Then, in November 2017, suddenly Mary Dawson was informed she would not be renewed for another term after she informed Trudeau that she was going to find him guilty of violating the Conflict of Interest Act for accepting the gifts of family trips to the Aga Khan’s private island in the Bahamas, and after Democracy Watch challenged her short-term reappointments in court.

To replace Dawson, the Trudeau Cabinet handpicked in secret Mario Dion as Ethics Commissioner, even though he had a record of 8 unethical actions when he was federal Integrity Commissioner.

The Cabinet failed to consult in any meaningful way with opposition parties about the appointment of Dion as Ethics Commissioner and Bélanger as Commissioner of Lobbying.  All Trudeau did was send the opposition party leaders a letter saying the Cabinet had chosen Dion and Bélanger and the opposition leaders had seven days to let the Cabinet know what they thought about those choices.

Concerning other federal democratic good government watchdogs, former Ontario Liberal MPP Madeleine Meilleur admitted in spring 2017 before a House Committee that when she was considering ending her political career she had talked with Trudeau’s then-senior adviser Gerald Butts, and also his Chief of Staff Katie Telford, and asked to be appointed as federal Commissioner of Official Languages. Her statement became so politically costly to the Trudeau Cabinet that she ended up withdrawing her candidacy.

After Julie Payette resigned from her Governor General position in 2021, the Trudeau Cabinet admitted that she was not properly vetted for the position.

The Trudeau Cabinet has also handpicked, through partisan, political Cabinet-controlled processes, all of Canada’s other current democratic good government watchdogs: the Chief Electoral Officer (who was switched by the Trudeau Cabinet for secret reasons); Auditor General; Information Commissioner; Privacy Commissioner; Parliamentary Budget Officer, and; the Governor General (who plays a key role in judging whether a prorogation or snap election should be allowed, and who governs after an election).

Background on the Trudeau Cabinet’s partisan, political, secretive and dishonest appointment processes for Ethics Commissioner, Commissioner of Lobbying and other key democracy watchdogs

Through 2016, the Trudeau Cabinet claimed that it was changing the Cabinet appointment process for key democratic good government watchdogs and other positions.  In fact, the Trudeau government did not change the appointment process at all other than adding the objective of diversity.

Then, in 2016-2017, the Trudeau Cabinet used the usual Cabinet-controlled, partisan and political process for appointing various democracy watchdogs.

With the Ethics Commissioner appointment process, the Trudeau Cabinet first misled opposition parties, the media and the public by falsely claiming there were no qualified candidates for Ethics Commissioner, and by falsely claiming that it had made the appointment process merit-based.

In a blatant violation of the federal Access to Information Act (ATIA), the Trudeau Cabinet hid the records for two years that made it clear there were five qualified candidates for Ethics Commissioner by spring 2017, and also qualified candidates for the position of Commissioner of Lobbying.

The Cabinet is still hiding the records concerning the appointment of Commissioner of Lobbying Nancy Bélanger, also in violation of the ATIA.

Through the 2016-2017 time period, the Trudeau Cabinet reappointed then-Ethics Commissioner Mary Dawson to three 6-month interim terms after her 7-year term was over, as long as she kept letting Trudeau and her Cabinet ministers off for clear violations of ethics rules.

Then, in November 2017, suddenly Mary Dawson was informed she would not be renewed for another term after she informed Trudeau that she was going to find him guilty of violating the Conflict of Interest Act for accepting the gifts of family trips to the Aga Khan’s private island in the Bahamas, and after Democracy Watch challenged her short-term reappointments in court.

To replace Dawson, the Trudeau Cabinet handpicked in secret Mario Dion as Ethics Commissioner, even though he had a record of 8 unethical actions when he was federal Integrity Commissioner.

The Cabinet failed to consult in any meaningful way with opposition parties about the appointment of Dion as Ethics Commissioner and Bélanger as Commissioner of Lobbying.  All Trudeau did was send the opposition party leaders a letter saying the Cabinet had chosen Dion and Bélanger and the opposition leaders had seven days to let the Cabinet know what they thought about those choices.

Concerning other federal democratic good government watchdogs, former Ontario Liberal MPP Madeleine Meilleur admitted in spring 2017 before a House Committee that when she was considering ending her political career she had talked with Trudeau’s then-senior adviser Gerald Butts, and also his Chief of Staff Katie Telford, and asked to be appointed as federal Commissioner of Official Languages. Her statement became so politically costly to the Trudeau Cabinet that she ended up withdrawing her candidacy.

After Julie Payette resigned from her Governor General position in 2021, the Trudeau Cabinet admitted that she was not properly vetted for the position.

The Trudeau Cabinet has also handpicked, through partisan, political Cabinet-controlled processes, all of Canada’s other current democratic good government watchdogs: the Chief Electoral Officer (who was switched by the Trudeau Cabinet for secret reasons); Auditor General; Information Commissioner; Privacy Commissioner; Parliamentary Budget Officer, and; the Governor General (who plays a key role in judging whether a prorogation or snap election should be allowed, and who governs after an election).

Democracy Watch has won for you more than 200 democracy, bank accountability and corporate responsibility changes to federal, provincial, territorial and municipal laws across Canada (See details below).

Between now and 2028 is the biggest window of opportunity in decades to win more key democracy, bank accountability and corporate responsibility changes across Canada. Please click here now to support the campaigns winning these key changes.

No matter what issue or problem concerns you about governments or big businesses, these changes will help stop their bad decisions and abuses of power that harm you, your family, the environment and your community.

When Democracy Watch started up in fall 1993, all of the following undemocratic, unethical and secretive political and big business activities were legal across Canada (with just a few exceptions):

1. Unlimited donations to political parties and politicians from businesses, unions, other wealthy private interests and wealthy individuals (except in Quebec)
2. Secret donations to riding associations
3. Unlimited spending during elections by businesses, unions and other wealthy private interests and wealthy individuals (except in Quebec)
4. Secret lobbying
5. Unethical decision-making by politicians and government officials
6. Unethical lobbying
7. False claims in government budgets and spending announcements
8. Politicians having secret trust funds
9. The PM and Premiers calling unfair snap elections
10. Politicians leaving their position and becoming lobbyists right away
11. Big businesses making decisions and doing things only to boost their profits
12. Banks gouging and putting unlimited holds on cheques, and refusing to open accounts for people with low incomes
13. Banks dodging billions in taxes every year

and

1. Ethics laws or codes for politicians and government officials didn’t even exist in most parts of Canada (except in SK and for federal Cabinet ministers, but both were full of loopholes)
2. Government officials enforced their own ethics standards (usually letting each other off for clear violations)
3. Politicians enforced their own ethics rules
4. Federal Cabinet ministers essentially enforced their own secrecy rules
5. Federal politicians enforced many of the rules for Canada’s Big Banks and insurance companies that gave big donations to the politicians and their parties
6. The fines for violating federal lobbying and election laws were too weak to discourage violations
7. Whistleblowers were not protected from retaliation when they reported wrongdoing
8. Banks faced a max. $500,000 penalty for violating consumer protection laws

After all these campaigns Democracy Watch has led, almost always by organizing and coordinating a national coalition of citizen groups to push all together for key changes, and filing strategic lawsuits

And with the support of people from across Canada

 

And after an average of 700 media appearances every year (click here to see details)

Many undemocratic, unethical and secretive political and big business activities are now illegal:

1. Donations by businesses, unions and other wealthy interests are banned almost everywhere in Canada (except in Saskatchewan (SK), Newfoundland (NF) and the Yukon (YK))
2. Donations by individuals to political parties and politicians are limited to $100 annually (in Quebec) or $1,000 up to a few thousand dollars annually (everywhere else, except again in SK, NF and YK)
3. Donations to riding associations are required to be disclosed publicly at least every year
4. Spending is limited during elections by businesses, unions and other wealthy private interests and wealthy individuals (except again in SK, NF and YK)
5. Truth-in-budgeting watchdogs have been established at the federal level and in Ontario
6. Politicians secret trust funds have been banned
7. Ethics laws or codes have been enacted for politicians and government officials across Canada (although they have loopholes in them)
8. Most lobbying is required to be disclosed publicly across Canada
9. Ethics rules for lobbyists exist at the federal level, and in Ontario and B.C.
10. Federal politicians who leave their positions are banned for 5 years from most lobbying
11. Election dates are fixed somewhat at the federal level and in every province and territory
12. Big businesses are now allowed to, and in some ways required to, make decisions and do things to protect the interests of all stakeholders
13. Bank cheque holds are limited and they are required to open accounts for people with low incomes
14. Banks are required to issue an annual Public Accountability Statement that discloses changes to their services across Canada
15. Banks are now paying an excess profits tax and some of their tax-dodging loopholes are being closed

and

1. Ethics watchdogs have been established to enforce ethics rules that apply to politicians and government officials across Canada (and, even though the watchdogs are not as independent as they should be, the Prime Minister and several federal and provincial Cabinet ministers have been found guilty of violating ethics rules)
2. Lobbying watchdogs have been established to enforce lobbying transparency rules across Canada (and to enforce ethical lobbying rules at the federal level and in Ontario and B.C., and even though the watchdogs are not as independent as they should be, several lobbyists have been found guilty of violating the rules)
3. The fines for illegal lobbying and illegal election activities at the federal level have been doubled
4. The federal Information Commissioner now has the power to order the release of federal government information
5. Bank gouging is now monitored by the Financial Consumer Agency of Canada (FCAC)
6. Banks face a max. $50 million penalty for violating consumer protection laws
7. Whistleblowers are protected in some ways when they report government and big business wrongdoing at the federal level, and in Ontario and Alberta

To see details about all these changes, click here.

But we need your support now to win even more changes to protect you and your family and the environment and your community from abuses and gouging.

No matter what issue or problem concerns you about governments or big businesses, these changes will help stop their bad decision and abuses of power that harm you, your family, the environment and your community.

How will these changes help? The changes we are going to win will require politicians and big business executives to be more honest, ethical, open and waste-preventing, and make them more accountable to you and all voters, which help stop their abuses of power.

Federal politicians, and politicians in Ontario, B.C., Manitoba and other provinces, will be reviewing their 7 key democracy laws, and key big bank, insurance and big business accountability laws, over the next couple of years. We need your support now to build 8 national coalitions, and to win 6 key lawsuits, all aimed at winning key changes:

• to stop the influence of big money interests completely (including foreign-funded groups)
• to stop all secret, unethical lobbying (including by foreign-backed lobby groups)
• to stop all excessive government secrecy
• to ban all secret investments by politicians and government officials in businesses they regulate
• to stop all unethical decisions by politicians, their staff, and government officials
• to stop all false claims that mislead voters
• to stop all unfair snap elections
• to stop all gouging by Canada’s big banks, insurance companies, TV, cell phone and Internet companies and other big business abuses of power
• to protect all whistleblowers who report wrongdoing
• to stop politicians choosing their own watchdogs (who often return the favour by acting like lapdogs)
• to ensure strong, independent, effective and quick enforcement of all rules
• and to ensure high penalties for all violations.

Please click here now and become 1 of the 1,000 Canadians giving $5-10 a month to make winning these changes possible

Thank you!  And please Share this page with anyone you think may be interested in helping win these key changes.

(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)

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).

 

(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)

---

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

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

(May 2023)

---

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

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)

---

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.

(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.

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.

---

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

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.

---

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