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

(Democracy Watch: February 2023)

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

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

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

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

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

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

    “A lobbyist’s stock in trade is his or her ability to gain access to decision makers, so as to attempt to influence them directly by persuasion and facts. Where the lobbyist’s effectiveness depends upon the decision-maker’s personal sense of obligation to the lobbyist, or on some other private interest created or facilitated by the lobbyist, the line between legitimate lobbying and illegitimate lobbying has been crossed.” (para. 53)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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