In Democracy Watch Canada v. Attorney General of Canada (Democracy Watch), the Federal Court (Court) held that the Commissioner of Lobbying of Canada (Commissioner) acted reasonably in finding that two former employees of Chrystia Freeland (then the Minister of International Trade) did not create a conflict of interest. Democracy Watch had argued that the employees contravened the Lobbyists' Code of Conduct (Code) by communicating with the then Parliamentary Secretary to Ms. Freeland, David Lametti, or his staff. This case offers a rare glimpse into how the Code is interpreted by the Commissioner.
Background
Between 2013 and 2017, two individuals worked or volunteered for
Ms. Freeland's election campaign, office, and/or electoral
district association. In 2016, both individuals began working for
the Council of Canadian Innovators (CCI) and were identified as
lobbyists employed by CCI in the Registry of Lobbyists. CCI was
registered to lobby Global Affairs Canada (which encompassed the
Ministry of International Trade).
CCI reported in the Registry of Lobbyists four communications from
the two individuals to Mr. Lametti or his staff. The Commissioner
found that, by initiating these communications, the two individuals
did not place Ms. Freeland in a conflict of interest, contrary to
Rules 6 and 9 of the conflict of interest provisions of the
Code. Democracy Watch Canada sought judicial review of the
Commissioner's decisions.
The Court's Decision
The Court held that the Commissioner's decisions with respect to both Rules 6 and 9 were reasonable.
Rule 6
Rule 6 states that "a lobbyist shall not propose or
undertake any action that would place a public office holder in a
real or apparent conflict of interest." Democracy Watch argued
that the Commissioner unreasonably and narrowly interpreted what
constitutes an "apparent conflict of interest." Democracy
Watch asserted that the Commissioner conflated the objective test
— whether a reasonable observer would conclude that the
public office holder's ability to exercise their official
powers, duties, and functions must have been affected by their
private interests — with that used to analyze a real conflict
of interest by focusing on the actual conduct of the minister.
Instead, it argued, the analysis should focus on the behaviour of
the lobbyists and whether that behaviour creates an apparent
conflict in the eyes of the public.
The Court rejected this argument and held that the
Commissioner's articulation of the test was reasonable. The
Commissioner focused on the conduct of the lobbyists, not the
minister, and considered all the relevant precedents and source
material in articulating the test for an apparent conflict of
interest. These precedents and materials supported an objective
test based on the actual circumstances, rather than speculation. It
was therefore reasonable for the Commissioner to find that a
reasonable observer would not conclude that by having conversations
with Mr. Lametti and his staff, the individuals would have affected
Ms. Freeland's ability to exercise her official powers, duties,
and functions.
Rule 9
Rule 9 provides, "[w]hen a lobbyist undertakes political
activities on behalf of a person which could reasonably be seen to
create a sense of obligation, they may not lobby that person for a
specified period if that person is or becomes a public office
holder. If that person is an elected official, the lobbyist shall
also not lobby staff in their office(s).
Democracy Watch argued that the Commissioner took too limited of an
approach to the interpretation of (1) "that person," and
(2) "staff." First, they argued that Mr. Lametti and his
staff should be included within the scope of "that
person" because lobbying Ms. Freeland's Parliamentary
Secretary necessarily entailed the lobbying of Ms. Freeland.
Second, they claimed that Mr. Lametti and his staff should be
included within the scope of Ms. Freeland's "staff,"
which cannot be lobbied pursuant to Rule 9.
The Court rejected both arguments, finding that it was not
unreasonable to interpret "that person" as referring to
Ms. Freeland, alone. That interpretation is consistent with the
ordinary meaning of those words and with the remainder of Rule 9,
which refers to "that person" as being the public office
holder with whom lobbying should not be directed. Further, the
Court held that it was reasonable for the Commissioner to find that
Mr. Lametti and his staff were not Ms. Freeland's
"staff" because Mr. Lametti was an elected official with
staff of his own. The minister does not have authority over the
terms and conditions of the Parliamentary Secretary's
appointment as she would for her staff.
Key Takeaways
Democracy Watch provides useful insight into the deferential standard of review the Court applies to the Commissioner's decisions as well as judicial affirmation of the Commissioner's interpretation of Rules 6 and 9 of the Code. In particular, it confirms that an apparent conflict of interest will be assessed from the viewpoint of a reasonable observer with a focus on the behaviour of the lobbyists. Further, it confirms that the analysis of whether a conflict of interest has been created under Rule 9 must focus on the actual person lobbied and not an indirect connection to the public office holder whom the individuals are prohibited from lobbying.
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