Likely 2,100 lobbyists have violated Lobbying Act or Lobbyists’ Code since 2008 but only 4 have been found guilty of violating Act, and only 13 have been found in violation of the Code (none since 2012)
Commissioner doesn’t do any audits to find unregistered communications with government institutions and officials — so likely only 5% of violators are caught – enforcement must be strengthened
Since 2008, the Commissioner, RCMP and Crown prosecutors have decided not to penalize 88 of the 105 lobbyists (84%) who they have caught violating the Act and Code (and they have kept the identity of the 88 violators secret)
Commissioner has taken three or more years to issue a ruling on one-third of the situations she has investigated since 2008
Commissioner has not issued a public ruling since the Liberals were elected in October 2015 despite receiving many complaints – she is biased as Trudeau Cabinet has handed her 3 six-month contracts worth $100,000 each since June 2016
FOR IMMEDIATE RELEASE:
Friday, November 24, 2017
OTTAWA – In an open letter sent yesterday, Democracy Watch called on the Auditor General to audit federal Commissioner of Lobbying Karen Shepherd’s and the RCMP performance record similar to the review the auditor did in 2010 of the very negligently weak enforcement record of the former federal Integrity Commissioner. Commissioner Shepherd is the front-line enforcer of the Lobbying Act and Lobbyists’ Code of Conduct and the RCMP are supposed to assist in enforcement. Together their enforcement record is as bad as the former Integrity Commissioner’s record.
From April 1, 2008 to March 31, 2017, according to Commissioner of Lobbying Karen Shepherd’s annual reports, she and the RCMP and Crown prosecutors have secretly decided not to penalize or prosecute 88 of the 105 lobbyists (84%) who have been caught violating the Lobbying Act or the Lobbyists’ Code (when you violate the Act you automatically violate the Code). The details of why those 88 have been let off the hook are not disclosed by the Commissioner, the RCMP or Crown prosecutors. The fact that they have been let off is mainly the Commissioner’s fault because the Commissioner is the front-line enforcer of the Act who decides whether to refer any case to the RCMP and Crown prosecutors for possible prosecution.
Using the likely very conservative estimate that, since 2008, 10,000 different people have lobbied the federal government in ways that would have required them to register under the Lobbying Act, the Commissioner and her predecessors and the RCMP have caught only 1% of those people violating the Act or the Code.
Given the weak enforcement practices, approach, attitude and record of Commissioner Shepherd and the RCMP, it is reasonable to assume that only 5% of violators are likely caught, and therefore that actually about 2,100 people have violated the Lobbying Act and Lobbyists’ Code of Conduct since 2008.
In addition, of the 189 cases that Commissioner Shepherd has reported that she has reviewed since she became commissioner in 2008, she has taken three years or more to issue a ruling on 59 (31.2%) of those complaints.
As well, Commissioner Shepherd has not issued a public ruling since the Liberals were elected despite receiving five complaints of clear violations from Democracy Watch alone since late May 2016. She has also refused to recuse herself from investigating these complaints. Democracy Watch filed a court case in July challenging the Commissioner of Lobbying for being in a conflict of interest because the Trudeau Cabinet’s re-appointed her last June to her third six-month interim term — so she is essentially currently serving at the pleasure of the Trudeau Cabinet.
“Lobbying Commissioner Shepherd has clearly failed to enforce the federal lobbying law and code effectively as she has failed to even name and shame 84 percent of the lobbyists caught violating the law and has taken more than three years to rule on many violations,” said Duff Conacher, Co-founder of Democracy Watch and Part-time Professor of law and political science at the University of Ottawa. “Together with the RCMP and Crown prosecutors, the Lobbying Commissioner has a negligently weak enforcement record as bad as the former Integrity Commissioner’s record, and so Democracy Watch is calling on the Auditor General to do a similar review as the auditor did in 2010 of the former Integrity Commissioner’s performance.”
On May 27, 2015, as she has in the past, Commissioner Shepherd testified before the House of Commons Standing Committee on Access, Ethics and Privacy and stated that her only enforcement action concerning unregistered communications between lobbyists and government institutions and officials is “monitoring the media.” She didn’t do any random auditing – which experts in law enforcement agree is necessary for effective law enforcement – until the 2015-2016 fiscal year and since then has only audited communication reports filed by registered lobbyists. To catch unregistered lobbying, obviously the phone, email, and PIN communications of ministers and top government officials must be audited.
For the 88 people who were caught but have been let off the hook, the Commissioner has kept their identity secret and has only given them warnings or required them to write an essay or be educated about the law and monitored by the Commissioner’s office for a year or so after their violation (summary information about how the Commissioner has dealt with these cases is disclosed in these reports).
Since 1988, only four people have been found guilty of violating the Act (Andrew Skaling, Bruce Carson and Jamie Carroll (see also here re: Carroll) and Hervé Pouts).
As well, only 13 people have been found guilty of violating the Code. Commissioner Shepherd took from July 2007 until November 2011 to issue the first valid ruling on a violation of the Code, and two of the 13 (Réné Fugère and André Nollet) were only found guilty after the Commissioner was forced to issue a ruling under a court order that Democracy Watch won. Commissioner Shepherd has not found anyone guilty of violating the Code since 2012.
The extremely low violation rate for the Act and the Code is another clear sign of negligently weak enforcement on the part of the Commissioner and her predecessors and the RCMP. Lobbying in secret or unethically benefits both the lobbyist and also often the government official being lobbied, as they escape accountability for doing an unethical or secret deal that may make the government look bad. As a result, it is simply unbelievable that only 1% of people who have lobbied the federal government since 2007 in ways that require registration have failed to register or have violated the Act or Code in some other way.
In addition, since 2004 at least another 71 people have been caught lobbying without registering but have been let off the hook because huge loopholes in the Act mean their secret lobbying was legal. The loopholes include that a person is not required to register if they are doing unpaid lobbying, or if they are lobbying a regulatory agency about the enforcement of a law that applies to them or their client, or if they work for a business and lobby less than 20% of their work time.
In addition to stronger enforcement, the Act needs to be strengthened in all the ways the House Committee recommended in its May 2012 report, and more, to ensure secret, unethical lobbying is finally made effectively illegal and that most violators will be caught and effectively penalized.
Former Conservative Treasury Board Minister Tony Clement failed to do anything to implemented key changes recommended in 2012 by the Committee, and the Liberals failed to include any promises in their 2015 election platform. The House Committee is required to review the Lobbying Act within the next six months.
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179 Cell: 416-546-3443
Democracy Watch’s Government Ethics Campaign page and Audit Ethics Commissioner and Lobbying Commissioner Campaign page