On April 30, 2008, proposed regulations necessary for amendments to the current Lobbyists Registration Act to come into force (including renaming it the Lobbying Act) were published in Part II of the Canada Gazette. The amendments to the Lobbyists Registration Act were passed by Parliament on December 12, 2006 as part of the omnibus Federal Accountability Act.
The Lobbyists Registration Regulations (the Regulations) set out the procedures required for lobbyists to comply with the registration rules included in the Lobbyists Registration Act as amended by the Federal Accountability Act. Apart from these procedural issues, two items are of particular importance to those communicating with government officials.
First, the publication of the Regulations in the Canada Gazette paves the way for the amendments to the Lobbyists Registration Act which will also come into force on July 2, 2008.
Second, the Regulations define "prescribed communication" for the purposes of the monthly reporting requirement.
Sections 69(4) and 70(2) of the Federal Accountability Act amend the Lobbyists Registration Act to require consultant and in-house lobbyists to file a monthly return setting out basic information relating to any "prescribed communication." However, the Federal Accountability Act did not define "prescribed communication." The Regulations define a "prescribed communication" as follows:
-
With respect to a consultant lobbyist, a
prescribed communication is a communication from a
consultant lobbyist to a Designated Public Office
Holder1 that:
- was made orally, was arranged in advance of the
communication, was initiated by a person other than a
public office holder and relates to one or more of the
topics listed in subparagraphs 5(1)(a)(i) to (vi) of the
Lobbyists Registration Act; or
- was made orally, was arranged in advance of the
communication, was initiated by a public office holder
(as opposed to someone outside government) and relates to
one or more of the topics listed in subparagraphs
5(1)(a)(v) or (vi) of the Lobbyist Registration
Act.
- was made orally, was arranged in advance of the
communication, was initiated by a person other than a
public office holder and relates to one or more of the
topics listed in subparagraphs 5(1)(a)(i) to (vi) of the
Lobbyists Registration Act; or
-
With respect to an in-house lobbyist, a
prescribed communication is a communication from an
in-house lobbyist to a Designated Public Office Holder
that:
- was made orally, was arranged in advance of the
communication, was initiated by a person other than a
public office holder and relates to one or more of the
topics listed in subparagraphs 7(1)(a)(i) to (v) of the
Lobbyists Registration Act; or
- was made orally, was arranged in advance of the
communication, was initiated by a public office holder
(as opposed to someone outside of government) and relates
to one or more of the topics listed in subparagraph
7(1)(a)(v) of the Lobbyists Registration
Act.
- was made orally, was arranged in advance of the
communication, was initiated by a person other than a
public office holder and relates to one or more of the
topics listed in subparagraphs 7(1)(a)(i) to (v) of the
Lobbyists Registration Act; or
Subparagraphs 5(1)(a)(i) to (vi) of the Lobbyists Registration Act identify the topics of communications that are subject to registration with respect to consultant lobbyists as being communications with a public office holder with respect to:
- the development of any legislative proposal by the
Government of Canada or by a member of the Senate or the
House of Commons;
- the introduction of any Bill or resolution in either
House of Parliament or the passage, defeat or amendment of
any Bill or resolution that is before either House of
Parliament;
- the making or amendment of any regulation as defined in
subsection 2(1) of the Statutory Instruments
Act;
- the development or amendment of any policy or program of
the Government of Canada;
- the awarding of any grant, contribution or other
financial benefit by or on behalf of Her Majesty in right of
Canada; or
- the awarding of any contract by or on behalf of Her
Majesty in right of Canada.
Subparagraphs 7(1)(a)(i) to (v) of the Lobbyists Registration Act identify the topics of communications that are subject to registration with respect to in-house lobbyists. The topics that require registration for in-house lobbyists are the same as those for consultant lobbyists, with the exception that "the awarding of a contract by or on behalf of Her Majesty in Right of Canada" is not included.
Apart from a monthly reporting requirement, other key amendments to the Lobbyists Registration Act provided for in the Federal Accountability Act include:
- Ban on Contingency Fees: To help enforce this
ban, consultant lobbyists will have to certify that they are
not receiving a contingency fee.
- Five-year ban on lobbying by former Designed Public
Office Holders: Designated Public Office Holders are
prohibited from lobbying for a period of five years.
- The Registrar of Lobbyists will be upgraded to the
"Office of the Commissioner of Lobbying": The
Commissioner will be an agent/officer of Parliament with
increased investigative and reporting powers.
- Longer enforcement periods and tougher
sanctions: Penalties for contravening the Lobbyists
Registration Act will be increased to $50,000 (currently
$25,000) and/or up to six months' imprisonment for
offences proceeding by way of summary conviction, while the
maximum fine will be $200,000 (currently $100,000) and/or
imprisonment for up to two years where proceedings are by way
of indictment. The limitation period for the commencement of
proceedings will be increased to five and 10 years for
summary convictions and indictments, respectively. Lobbyists
convicted may be prohibited from lobbying for up to two years
and all offences will be made public.
McCarthy Tétrault will be closely monitoring these developments in order to offer guidance to clients who may interact with the federal government.
Footnote
1. Subsection 67(2) of the Federal Accountability Act amends the Lobbyists Registration Act and creates the new concept of "Designated Public Office Holder," which includes Ministers, Ministerial staff, Deputy Ministers, Associate Deputy Ministers, Assistant Deputy Ministers, members of the Prime Minister's transition team and anyone else designated by Cabinet, which, pursuant to the Designated Public Office Holder Regulations, includes the top ranks of the Armed Forces and senior advisors to the Privy Council that are appointed by the Governor in Council.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
