Federal Court of Appeal Hearing on Monday
Landmark Case Challenging Ruling that Approved of a Lobbyist Organizing
Fundraising Event for a Cabinet Minister He Was Registered To Lobby
Friday, January 9, 2009
OTTAWA - Today, as Democracy Watch's historic court challenge
of the Registrar of Lobbyists' ruling that a lobbyist did not violate
8 of the Lobbyists’ Code of Conduct
when he organized a fundraising
for a Cabinet minister he was registered to lobby is scheduled to be
the Federal Court of Appeal in Toronto this Monday, January 12th (File
the group highlighted the federal Conflict of Interest and Ethics
new guideline which strongly reaffirms that Cabinet ministers and other
officials essentially cannot accept any gifts or favours from anyone
or dealing with them even if the lobbyist is a friend or a relative.
Democracy Watch's appeal contests both of Frenette's
and will be heard by the Federal Court of Appeal in Toronto this
12th (File #A-128-08 -- To see Democracy Watch's Notice of
to the Federal Court of Appeal, click
here -- To see Democracy
Watch's factum for the appeal, click
The Guideline on Gifts contains the following key
Soon after Deputy Judge Frenette’s ruling in February 2008,
of Lobbyists Michael Nelson revealed that in December 2005 he had
a legal notice to all federally registered lobbyists (which he failed
post on his website or make public in any other way) stating that
will often place politicians in a conflict of interest when they raise
for them or their party or assist them in other ways. Incredibly,
months later the Registrar directly contradicted this notice when he
on Democracy Watch’s complaint.
The Registrar’s October 2006 ruling was on the complaint filed by Democracy Watch on April 13, 2000 about former Liberal MP-turned lobbyist Barry Campbell who, for Jim Peterson, then-Secretary of State (International Financial Institutions), “organized a benefit dinner for Mr. Peterson’s re-election campaign in 1999, at which $70, 000 was raised, while registered to lobby the Finance Ministry for a variety of financial institutions” (as Deputy Judge Frenette described it in para. 2 of his ruling). Campbell was registered as Chairman of the company APCO Canada to lobby on issues for which Peterson was responsible. The invitation to the fundraising event was sent out on APCO Canada letterhead, in an envelope and with a return envelope all identifying Mr. Campbell as the lead organizer of the event.
Democracy Watch alleged in the complaint that Campbell’s actions violated Rule 8 of the 12-year-old federal Lobbyists' Code of Conduct (Lobbyists’ Code), which states:
"8. Lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder."Former Ethics Counsellor Howard Wilson did not issue a public ruling on Democracy Watch’s April 2000 complaint about Mr. Campbell and Mr. Peterson, even though he enforced the Lobbyists’ Code until May 2004, and former Ethics Commissioner Bernard Shapiro refused to rule on the complaint (To see details about Democracy Watch's court challenge of the Ethics Commissioner's failure to enforce ethics rules, which was launched in September 2005, and which Democracy Watch withdrew in spring 2007 after Commissioner Shapiro resigned, click here).
In July 2002, Ethics Counsellor Wilson determined that then-Liberal Cabinet ministers Allan Rock, John Manley and Sheila Copps had to return donations they had received for their campaigns for the leadership of the Liberal Party because the donations had come from corporations that were lobbying them (To see details about the Ethics Counsellor's July 2002 decisions, go to Democracy Watch's October 17, 2002 news release).
However, in September 2002 Wilson then issued, in the opinion of Democracy Watch, an incorrect and illegal Advisory Opinion about Rule 8 that stated a federal lobbyist only violates Rule 8 if the lobbyist's actions:
interfere with the decisions of a public office holder (meaning a federal politician, member of their staff, Cabinet appointee, or a public servant) in a way that amounts to a “wrongful constraint whereby the will of the public office holder was overpowered” and/or if the public office holder “was induced to do or forbear an act which he or she would not do if left to act freely” and/or “whether the lobbyist took advantage of a public office holder's weakness, infirmity or distress to alter that public office holder's actions or decision.”(To see the full text of interpretation, go to: Advisory Opinion on Rule 8 of Lobbyists' Code)The federal Registrar of Lobbyists used the Ethics Counsellor’s Advisory Opinion as part of the basis of his October 10, 2006 ruling on Democracy Watch’s complaint (even though the Federal Court ruled in July 2004 that the Ethics Counsellor was biased, and even though the federal Lobbying Act prohibits such opinions -- To see a summary of the 2004 Federal Court ruling, click here). The Registrar concluded that Mr. Campbell was registered to lobby Mr. Peterson to lobby Mr. Peterson, but that organizing a benefit dinner for Mr. Peterson did not cause Mr. Peterson to treat APCO Canada or its clients favourably, and that the role and discretion of officials in Mr. Peterson’s office were not constrained.
Democracy Watch’s position is, given that the Preamble of the Lobbyists' Code states that together it and the ethics codes for public office holders (politicians, their staff and government officials) “play an important role in safeguarding the public interest in the integrity of government decision-making”, therefore the interpretation of Rule 8 of the Lobbyists' Code must be based on public office holders' ethics rules.
There are rules that make it clear what types of influence are improper and cause conflicts of interest in the 23-year-old federal Conflict of Interest and Post-Employment Code for Public Office Holders (which applies to Cabinet ministers, ministerial staff, and many senior government officials) and the Conflict of Interest Act which replaced that Code in July 2007, and in the four-year-old Conflict of Interest Code for Members of the House of Commons and in the four-year-old Conflict of Interest Code for Senators and in the 12-year-old federal Values and Ethics Code for the Public Service.
Specifically, all of these codes state that it is improper to
receive a gift of money, property or services that could influence a
Given that lobbyists, by definition, try to influence the decisions of
public office holders, Democracy Watch’s position is that Rule 8 of the
Code prohibits lobbyists from providing money, property or
services to public office holders.
- 30 -
FOR MORE INFORMATION, CONTACT:
NOTE: The Registrar of Lobbyists ruled on another 2 of the 8 complaints Democracy Watch filed between April 2000 and January 2004 concerning lobbyists doing various things for ministers they were lobbying, but for various reasons Democracy Watch did not file a court challenge of those two rulings. As a result, Democracy Watch is still waiting for rulings on 5 of its complaints from the new Commissioner of Lobbying (who replaced the Registrar of Lobbyists in July 2008) -- To see details and a summary of the history of the 8 complaints, click here
Democracy Watch's Government Ethics Campaign
Democracy Watch homepage