The Lobbying Act (the "Act"), and its
related Regulations1, will come into force on July
2, 2008, bringing with it new accountability and transparency
rules for lobbyists, along with increased penalties for
non-compliance with the regime.
Are You Affected?: Definition of "Lobbying"
If you are compensated (either as an in-house or consultant
lobbyist) for communicating with public officer holders with
respect to the following matters:
changing federal laws, regulations, policies or programs
(subject to certain exceptions);
obtaining a financial benefit (e.g. a grant or
in certain cases, obtaining a government contract;
for consultant lobbyists, arranging a meeting between a
public office holder and another person/organization,
your activities are likely considered lobbying and you are,
under both the current and new regime, required to register
with the Federal government.
Additionally, the Act imposes additional requirements and
obligations on lobbyists as well as makes several significant
changes to the lobbying regime overall. The following is a
brief overview of some of the key changes that will be
implemented on July 2, 2008.
Key Changes: What You Need to Know
Commissioner of Lobbying - the position
of Registrar of Lobbyists will be abolished and a new,
independent Commissioner will be appointed, with powers to
enforce the Act and the Lobbyists' Code of
Conduct. The Commissioner will also have enhanced powers
of investigation under the Act.
Offences and Penalties - the Act extends
from two to ten years the period during which potential
summary conviction infractions may be investigated and
prosecuted. The Act also doubles the monetary penalties for
lobbyists who are found guilty of breaching the requirements
of the Act to $50,000 (and/or six months'
imprisonment) on summary conviction and $200,000 (and/or two
years' imprisonment) on indictment.
Designated Public Office Holders
("DPOHs") - the Act creates a new class of
public office holder known as Designated Public Office
Holders ("DPOHs"). These are certain officials
responsible for high-level decision-making in government
including, among others, ministers, ministers of state and
ministerial staff, deputy ministers, associate and assistant
deputy ministers and chief executives of departments and
agencies and officials in those organizations. The Act
imposes increased reporting requirements regarding
communications with DPOHs, as well as certain obligations and
responsibilities on DPOHs themselves (as described
Monthly Reporting – the
existing registration requirement for all lobbyists (in-house
and consultant) has not changed. However, the Act also
requires lobbyists to file monthly returns regarding oral
communications arranged in advance with DPOHs (in certain
circumstances, a return must be submitted even if a
communication was initiated by a DPOH). Returns must disclose
the date of each communication, the name and title of the
DPOH involved, the institution in which they serve/are
employed, and the subject matter. A return must be submitted
no later than 15 days after the end of the month if: (a)
communication with a DPOH took place during the subject
month; (b) information previously filed is incomplete or no
longer correct; (c) lobbying activities have terminated or no
longer require registration; and/or, (d) five months have
passed since the end of the last month for which a return was
filed (i.e. six months is the longest period that may pass
without a return being filed). The first monthly returns
under the new regime are due August 15, 2008.
Verifying Returns - under the new
regime, the Commissioner may verify the content of monthly
returns directly with the DPOH involved. DPOHs will have
thirty days to respond to a verification request and either
confirm or correct the information submitted by the lobbyist.
Should the Commissioner find the information submitted to be
incorrect or incomplete, the matter will be pursued with the
5 Year Prohibition on Lobbying by Former
DPOHs - subject to certain exceptions (or a
successful exemption application), the new regime prohibits,
among others, former DPOHs from lobbying the Government of
Canada (as a consultant or in-house lobbyist) for five years
after leaving their former position.
Contingency Fees Banned - currently,
lobbyists are permitted to base fees on the success of their
efforts so long as such arrangements are disclosed. Under the
new regime, the payment or receipt of contingency payments
(even partial) are banned entirely with respect to consultant
lobbyists and their clients (note, this restriction does not
apply to in-house lobbyists).
1. Designated Public Office Holder Regulations and
Lobbyists Registration Regulations.
The content of this article does not constitute legal
advice and should not be relied on in that way. Specific advice
should be sought about your specific circumstances.
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