Constitutional freedoms and the Lobbyists’ Code of Conduct

Where you stand depends entirely on where you sit. Where I sit is in front of a public and transparent lobbying registry that has over 6,800 registered lobbyists in a searchable and easily understandable database. I can cross-reference information from the Canadian Lobbyists Registry against publicly disclosed contributions to political parties and candidates and know who has paid what to whom and subsequently had reportable communications with them. Enterprising journalists do this quite a bit, actually.

A reminder of the intent and purpose of the Lobbying Act is instructive. The primary purpose of the act (and the commissioner whose office it creates) is to create a publicly accessible registry to allow Canadians to know who is lobbying who and on what issues.

Mission accomplished.

Is that mission enough? Duff Conacher’s recent editorial laments many things, some of which are actual problems. Others are not. If lobbying was restricted to Conacher’s satisfaction, it would strike at the heart of your constitutional rights. Notably, his favoured strawman is the concept of the unregistered “volunteer lobbying.”

A person who is not being paid to lobby is not a lobbyist. Those who choose to take time out of their busy days without remuneration are practising what constitutional scholars like to call freedom of expression or freedom of assembly. Any time anyone petitions Parliament, they are engaging in protected free speech. Any time a group comes together to engage Parliament, it is engaging in protected free assembly.

We use payment as the nexus for registration because it's something we can actually prove. Removing that nexus would make my neighbour a lobbyist for complaining to public servants on our street that there are too many provinces.

On the issue of the “significant part of duties,” Conacher is at least thrusting in the general direction of the problem. The significant part of duties test in the act is the nexus for determining if an entity is required to register. If one employee, or the cumulative equivalent, spends less than 20 per cent of their time engaging in registrable activity, the entity is not required to register.

The clause has evolved into a carveout for retiring designated public office holders and created the “minute-by-minute” accounting industry to determine what is, in fact, a significant part of one’s duties.

I will agree that the current statutory language treats the rights of Canadians differently based on who their employer is because consultant lobbyists are treated differently than in-house employees of otherwise registrable entities. The use of this clause to evade the Lobbyists’ Code of Conduct is not far-fetched and further distinguishes citizens based on their employment.

That seems unfair.

But is it as unfair as treating a junior staffer of a minister the same as the minister they worked for? A universal five-year ban is draconian for young people starting their careers. In this regard, the act needs reform. Can anyone honestly believe the entire complement of ministerial staff has the same post-employment influence as the minister they served? I believe the class of ministerial staffers from 2015 would like to have a conversation.

Finally, before I move on to substantive issues, as a proud Canadian, my eyebrow furls whenever an advocate for transparency calls for emulating the United States when it comes to ethics, transparency, and lobbying requirements. We are through the proverbial looking glass of united citizens for Citizens United.

If you honestly believe we live in the society Conacher describes, I urge you to support his organization. That is how a democracy works. Come together and advocate for what you believe. Ours is an open system that provides the necessary tools to the public and the Fourth Estate to scrutinize our officials.

There is a real issue in front of Parliament that will directly impact registrants. Conacher describes the proposed changes to the Lobbyists’ Code of Conduct as a weakening. I think they pose serious constitutional questions about the electoral process, the right to freely assemble with the like-minded, or the ability to facilitate the manifestation of the Section 3 charter rights of Canadians.

The proposed time-limited prohibition on lobbying public officer holders who benefited from certain “political activities” is a deterrent to what the Supreme Court of Canada affirms is the ability of citizens to meaningfully participate in the electoral process.

The analysis of political activities under the proposed code ignores the important role volunteers play in the political process. Volunteers, as candidate representatives, are essential to ensuring free and fair elections in Canada.

They ensure confidence in the electoral system and attest and protect the rights of those who may not be able to speak for themselves.

Volunteers provide access to the polls for people in their community and remind electors where and when to exercise their franchise.

Volunteers distribute information to electors to ensure they have the right materials to inform their vote. These elements of the franchise are the hallmarks of participatory democracy.

But more to the point: can a reasonable person, with or without knowledge of the regulatory process, honestly believe canvassing on behalf of a political candidate is so significant as to create tension between a public office holder’s obligation to a volunteer and their duties to their office? Does it amount to “creating a competing private interest”?

Poppycock.

Any official action which gives pause to an elector who wants to be engaged in the democratic process is something that should be looked at very critically. But don’t take my word for it. The Canadian Bar Association said in 2010 that “ex post facto determination of whether a particular activity contravenes the guidance creates a chilling effect on the ability of registered lobbyists to participate in the political process.”

That’s bad.

The proposed changes to the Lobbyists’ Code of Conduct are a direct assault on all of those essential political activities. The House of Commons Committee on Access to Information, Privacy and Ethics is entirely within its right to take the time to review this significant change. If limits are placed on these rights, it should only be done by Parliament, with a full and robust debate of its implications.

W. Scott Thurlow, a lawyer, was called to the bar of Ontario in 2003. He currently serves as counsel on legislation, regulatory matters and policies pertaining to chemicals management, climate change, elections law, government ethics and lobbying rules.

Thurlow has represented both candidates, elected officials and registrants under the Lobbying Act in their dealings with officers of Parliament. Thurlow has represented candidates in the Ontario courts and has served as legal counsel to dozens of election campaigns.