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Supreme Court of Canada to rule on Thursday if DWatch can appeal Federal Court of Appeal ruling in Aga Khan case that public can’t file complaints with Lobbying Commissioner or challenge Commissioner’s rulings in court

FCA ruling nixed Federal Court ruling that ordered Commissioner to investigate Aga Khan and his foundation further for possible lobbying law violations – if SCC upholds FCA ruling it will also stop two other court cases

Federal Court ruling also extended lobbying disclosure and ethics rules to many more business, union and organization board members, and expanded Lobbying Commissioner’s investigation mandate

Wednesday, October 14, 2020

OTTAWA – Today, Democracy Watch announced that the Supreme Court of Canada will rule tomorrow, Thursday, October 15, 2020, on whether DWatch can appeal the Federal Court of Appeal’s ruling in the Aga Khan case issued last April Fool’s Day. The FCA ruled that the public has no right to file complaints with the federal Commissioner of Lobbying, and so members of the public are prohibited from challenging the Commissioner’s rulings in court, even if a ruling ignores all the evidence and is full of errors. Sebastian Spano is representing Democracy Watch in the application to appeal, which is SCC file no. 39202.

The FCA’s ruling made the Lobbying Commissioner into an unaccountable czar, which is dangerous given the Commissioner has let off 84% of lobbyists caught violating the federal lobbying law and/or code since 2007.

DWatch is arguing that the FCA’s ruling sets a bad precedent that contradicts past SCC and FCA rulings as it shuts out the public from the enforcement system for the lobbying law and code, which is one of several key federal government public accountability systems.

Lawyers have expressed concern here and here about the negative implications of the FCA’s ruling on the rights of the public to hold government officials and watchdogs accountable for bad decisions.

If the Supreme Court does not allow DWatch to appeal, and upholds the FCA’s ruling, it will also stop two other ongoing DWatch cases that are challenging rulings by the Lobbying Commissioner:

  1. DWatch’s case challenging the Commissioner’s ruling letting Apotex Inc. off for Barry Sherman’s fundraising for, and lobbying of, the Trudeau Liberals;
  2. DWatch’s case challenging the Commissioner’s ruling letting Clearwater Seafoods off for Mickey McDonald’s fundraising for, and Clearwater’s lobbying of, the Trudeau Liberals;

In March 2019, Democracy Watch won the landmark Federal Court ruling that rejected former Commissioner of Lobbying Karen Shepherd’s secret September 2017 ruling that, even though the Aga Khan was lobbying Prime Minister Trudeau, and is chair of the Aga Khan Foundation, which is registered to lobby the PM, because someone at the Foundation claimed the Aga Khan wasn’t paid to lobby for it, the Lobbying Act and Lobbyists’ Code of Conduct were not violated when the Aga Khan gave Trudeau and his family and friends free vacations on his private island in the Bahamas.

“The Trudeau Liberals wasted taxpayers’ money on protecting Trudeau’s old family friend the Aga Khan from accountability for unethical lobbying by appealing the Federal Court’s ruling, and very unfortunately the Federal Court of Appeal’s ruled that the Lobbying Commissioner is a czar who can’t be held accountable by the public or the courts no matter how bad the Commissioner’s rulings are,” said Duff Conacher, Co-founder of Democracy Watch. “Hopefully, the Supreme Court of Canada will allow Democracy Watch’s appeal, and will issue a strong ruling that will finally stop, after more than a dozen years, the Lobbying Commissioner’s negligently weak enforcement of the federal lobbying law and code.”

“This case is a real test of whether the Supreme Court of Canada cares about protecting the public’s right to complain about wrongdoing by lobbyists and politicians and government officials, and the public’s right to go to court to hold democratic good government watchdogs accountable when they ignore the facts and law and let wrongdoers off the hook,” said Conacher. “The Federal Court of Appeal’s ruling showed it doesn’t care about protecting the public’s rights to ethical government – hopefully the Supreme Court will show it cares by allowing Democracy Watch’s appeal.”

The Federal Court ruling rejected Commissioner Shepherd’s ruling as “unreasonable” because it was “a narrow, technical, and targeted analysis that is lacking in transparency, justification, and intelligibility when considered in the context the Commissioner’s duties and functions” (para. 146). As a result, the court ordered new Commissioner of Lobbying Nancy Bélanger) to re-examine the actions of everyone at the Aga Khan Foundation with “a broad view of the circumstances.”

The Lobbyists’ Code, which the Commissioner enforces, prohibits lobbyists registered under the Lobbying Act from doing anything for, or giving anything to, anyone they are lobbying, and requires compliance with several strongly worded principles.

The Federal Court ruling also greatly broadened the scope of the Lobbying Act to cover board members of businesses and other organizations who are compensated in any way or receive “anything of value” – including even the value of being given a position as a member of board (paras. 134-143). In the past, the Lobbying Commissioner has interpreted the Act as requiring board members to disclose their lobbying in the Registry of Lobbyists only if they were paid more than their expenses.

In addition, the Federal Court’s ruling required the Commissioner to investigate and issue a public ruling whenever there are “potential compliance questions” (para. 133) concerning the actions of anyone, or any business or organization that relate to the requirements of the Lobbying Act or Lobbyists’ Code (paras. 127-134).

The Trudeau government, represented by the Attorney General of Canada, appealed to the Federal Court of Appeal (FCA). The FCA didn’t rule on any part of the Federal Court’s ruling other than deciding that the public has no right to file complaints with the Lobbying Commissioner, and so is prohibited from challenging the Commissioner’s rulings in court, no matter how much the rulings ignore the facts and the law.

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

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