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Supreme Court of Canada strikes a blow against public’s right to complain about government and lobbyist wrongdoing by refusing to allow DWatch to appeal Federal Court of Appeal ruling in Aga Khan case

FCA ruled public has no right to have a complaint ruled on by Lobbying Commissioner and no right to challenge the Commissioner’s rulings in court – SCC ruling also stops two other court cases vs. the Commissioner

FCA ruling nixed Federal Court ruling that ordered Commissioner to investigate Aga Khan and his foundation further for possible lobbying law violations

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

Thursday, October 15, 2020

OTTAWA – Today, Democracy Watch announced that the Supreme Court of Canada (SCC) has ruled that DWatch can’t appeal the Federal Court of Appeal’s ruling in the Aga Khan case issued last April, and has ordered it to pay costs to the government.

The FCA ruled that the public has no right to have complaints investigated by 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, and even on the basis of public interest standing. Sebastian Spano is representing Democracy Watch in the application to appeal, which is SCC file no. 39202.

The Supreme Court’s ruling makes 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.

In its submissions to the SCC, DWatch argued that the FCA’s ruling set 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 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.

“In its shocking refusal to allow Democracy Watch’s appeal, the Supreme Court has joined the Federal Court of Appeal in striking a serious blow against the public’s rights to complain about corruption and wrongdoing by politicians, government officials and lobbyists, and to hold democracy watchdogs accountable for failing to do their jobs properly and issuing rulings that protect wrongdoers,” said Duff Conacher, Co-founder of Democracy Watch. “Very unfortunately, the Federal Court of Appeal’s bad ruling will now be used across Canada to stop the public from holding government and other watchdogs accountable for wrongful decisions.”

By refusing to allow DWatch’s appeal, the Supreme Court has also stopped two other ongoing DWatch cases that were 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.

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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