On Aug. 23, the federal commissioner of lobbying provided an important clarification and practical perspectives to assist in better understanding the new enforcement guidelines on Rule 8 of the Lobbyists’ Code of Conduct issued by the commissioner last November.
This is of the utmost importance for lawyers who are engaged or contemplate becoming engaged in federal political activities, or who advise lobbyists and clients in their relations with “public office holders,” which include ministers, ministers’ staff, deputy ministers, and associate and assistant deputy ministers. While lawyers may see their involvement as “second nature” in the political process, there are critical issues that must be considered when participating in federal political activities.
The new clarifications to Rule 8 provide assistance in better appreciating what activities, common to many lawyers, may be breached in the context of the Lobbyists’ Code of Conduct.
The clarifications provide that purchasing a ticket to a fundraising or contributing money within the limits provided by the Canada Elections Act are not likely to place a “public office holder” in a conflict of interest. However, a greater risk of creating an appearance of a conflict of interest exists where a lobbyist is a member of a public office holder’s constituency association or has participated in a campaign for the election of the public office holder.
A high risk of breaching Rule 8 also exists where the lobbyist engages in political activities that may advance the private interest of that public office holder. Such activities may include being a member of the board of directors of a public office holder’s constituency association, organizing a fundraising activity for the benefit of the public office holder or their constituency association, or chairing a campaign for the election of the public office holder.
Lawyers must be aware of the changes to lobbying rules as well as the application of the Lobbyists’ Code of Conduct.
Background re: Rule 8
Rule 8 states: “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.”
A lobbyist may be in breach of Rule 8 if the lobbyist’s actions create a real conflict of interest or the appearance of a conflict of interest for a public office holder. Furthermore, a conflict of interest can be created by the presence of a tension between the public office holder’s duty to serve the public interest and his or her private interest or obligation created or facilitated by the lobbyist.
The commissioner had originally advised that determining what constitutes an improper influence upon a public office holder is a question of fact in each case. Lobbyists must ensure their participation in political activities does not cause a tension between the public office holder’s duty to serve or protect the public good and his or her private interest or obligation.
The commissioner identified specific factors that, depending on the specific circumstances, may give rise to a competing obligation or private interest. They include:
• the provision of a gift, an amount of money, a service, or property without an obligation to repay;
• the use of property or money that is provided without charge or at less than its commercial
value; and
• political activities.
There are various factors to consider in assessing whether a lobbyist’s actions constitute a real or apparent conflict of interest and, as a result, a breach of Rule 8. These factors include, but are not limited to whether:
• a lobbyist proposed or undertook an action that can be reasonably seen as advancing the
private interests of a public office holder;
• an action proposed or undertaken by a lobbyist places the private interest and public duties of a
public office holder in a possible conflict;
• the action proposed or undertaken by the lobbyist can be reasonably seen as creating a tension
between the personal obligation and public duties of a public office holder;
• the action proposed or undertaken by the lobbyist can be reasonably seen as creating an
obligation on the part of a public office holder to advance the interests of the lobbyist, his
employer, or his client; and
• the action proposed or undertaken by the lobbyist can be reasonably seen as creating a conflict,
tension or obligation that could diminish public trust in the integrity, objectivity, and impartiality of
government decision-making.
In assessing whether an action has or could be considered to have improper influence on a public office holder, lobbyists should consider the ethical responsibilities of public office holders, including those set out in the Conflict of Interest Act and the applicable codes of conduct for the public service, members of Parliament, and senators. Rule 8 was intended to aid lobbyists in determining whether the actions they undertake or propose to undertake could place the public office holder in a position of a real or apparent conflict of interest.
Clarification regarding ‘political activities’:
One of the perceived problems identified with regard to the new guidelines is with respect to the interpretation of “political activities.” There is no definitive definition of what “political activities” encompasses. Some have also argued the wide interpretation of “political activities” may be in breach of s. 2 of the Charter of Rights and Freedoms. Thus, it is difficult to determine what kind of political activity is prohibited by the new enforcement guidelines on Rule 8.
On Aug. 23, the commissioner provided some clarification on this stating that political activities and registerable lobbying activities are both legal and legitimate. The issue of conflict of interest and the application of Rule 8 may arise when the two intersect.
The commissioner’s clarification provides that: “The risk of creating the appearance of a conflict of interest is proportionate to the degree to which a lobbyist’s actions advance the private interest of a public office holder; and the degree to which that lobbyist may interact with the public office holder.”
The commissioner illustrates four different characterizations of activities that may or may not create a conflict of interest:
1. A lobbyist who advances the private interest of a public office holder to a low degree or does not interact with that specific public office holder when conducting registerable lobbying activity has a low risk of creating a real conflict of interest or the appearance of a conflict of interest.
2. A lobbyist who interacts closely with a public office holder when conducting registerable lobbying activities, but participates in political activities that advance the private interest of the public office holder to a low degree, would not be in breach of Rule 8. Examples of such activities include:
• voting in an election;
• placing a sign on a lawn;
• purchasing a ticket to a fundraising event such as a barbecue or golf tournament; or
• donating money to an election campaign within the limits established in the Canada Elections
Act
3. A lobbyist who interacts closely with a public office holder when conducting registerable lobbying activities and participates in political activities that advance the private interest of that public office holder to a higher degree is at a greater risk of creating an appearance of a conflict of interest, and would increase the potential for a breach of Rule 8. Examples of such activities include:
• being a member of a public office holder’s constituency association; or
• limited participation in a campaign for the election of the public office holder.
4. A lobbyist who interacts closely with a public office holder when conducting registerable lobbying activities and participates in political activities that advance the private interest of that public office holder to a high degree is likely in breach of Rule 8. Examples of such activities include:
• being a member of the board of directors of a public office holder’s constituency association;
• organizing a fundraising activity for the benefit of the public office holder or his or her
constituency association; or
• chairing a campaign for the election of the public office holder.
Concluding comment:
The commissioner of lobbying has provided some significant clarity regarding prohibited forms of “political activity” for lawyers (and the public) who engage in lobbying activity. Nevertheless, there still exists some ambiguity as to exactly what kind of political activities would be prohibited by Rule 8 and it remains uncertain whether Rule 8 complies with s. 2 of the Charter. The factual circumstances in individual cases should be considered in the context of a lobbyist’s and public office holder’s relationships and activities. It will be interesting to see how these issues play out further in the context of day-to-day relationships and political engagement.
Jacques J.M. Shore is national chairman of Gowlings’ government affairs practice and is a partner at the firm’s Ottawa office. Guy Régimbald is an associate in the Gowlings Ottawa office practising in the area of public law.
