2004 FC 969
T-641-03
T-642-03
T-690-03
T-711-03
Democracy Watch (Applicant)
v.
The Attorney General of Canada (Office of the Ethics Counsellor) (Respondent)
Indexed as: Democracy Watch v. Canada (Attorney General) (F.C.)
Federal Court, Gibson J.--Toronto, May 17; Ottawa, July 9, 2004.
Administrative Law -- Judicial Review -- Certiorari -- Applicant seeking review of rulings, decisions of Ethics Counsellor finding no violations of Conflict of Interest and Post-Employment Code for Public Office Holders, Lobbyists Registration Act, Lobbyists' Code -- Application of "reasonable apprehension of bias" test -- Breach of principles of procedural fairness grounds for reasonable apprehension of specific bias on part of Ethics Counsellor -- Reasonable apprehension of institutional, structural bias on part of office of Ethics Counsellor also existing -- Standard of review for decisions, rulings reasonableness simpliciter -- Ethics Counsellor's expertise in respect of interpretation of expression "believes on reasonable grounds person has breached Code" not greater than that of Judge -- Ethics Counsellor applying wrong burden of proof, committing reviewable error with respect to first decision, ruling -- No reviewable error with respect to other three decisions, rulings -- Applications allowed.
Administrative Law -- Judicial Review -- Declarations -- Applicant seeking declarations with respect to four rulings, decisions of Ethics Counsellor finding no violations of Conflict of Interest and Post-Employment Code for Public Office Holders, Lobbyists Registration Act, Lobbyists' Code -- Declaratory reliefs sought moot in light of changes to Conflict of Interest and Post-Employment Code for Public Office Holders, Lobbyists Registration Act, Lobbyists' Code -- Declarations denied.
Practice -- Mootness -- Application of mootness test defined by S.C.C. in Borowski v. Canada -- Applications for judicial review not moot as continuing adversarial relationship, special circumstances, issues appropriate for judicial adjudication existing -- Declaratory reliefs sought moot.
These were applications for judicial review and for declaratory reliefs filed on behalf of the applicant (Democracy Watch) with respect to four rulings or decisions of the Ethics Counsellor. In the first ruling or decision, the Ethics Counsellor denied Democracy Watch's request for an investigation into circumstances that Democracy Watch believed to raise serious questions concerning violations of the federal Lobbyists' Code of Conduct (Lobbyists' Code) and the Conflict of Interest and Post-Employment Code for Public Office Holders (Public Office Holders' Code). The Ethics Counsellor noted that his ability to proceed with a matter under the Lobbyists' Code required that the individual against whom a complaint or allegation had been made was a lobbyist within the meaning of the Lobbyists Registration Act, or was an individual who was required to register as a lobbyist. In denying Democracy Watch's request, the Ethics Counsellor relied on an investigation carried out by the RCMP, which found that there was insufficient evidence to demonstrate in a court of law that Mr. Fugère (against whom Democracy Watch had made a complaint or allegation) had an obligation to register as a lobbyist. In the second ruling or decision, the Ethics Counsellor denied Democracy Watch's request for an investigation with respect to a situation involving John Dossetor, who had been Senior Policy Advisor to Allan Rock, then federal Minister of Health. The Ethics Counsellor could not conclude on reasonable and probable grounds that a breach of the Lobbyists' Code had occurred. In the third ruling or decision, the Ethics Counsellor denied Democracy Watch's request for an investigation with respect to situations involving nine lobbyists working with ministers and public office holders on their political party leadership campaign. The Ethics Counsellor was of the view that the obligation under the Public Office Holders' Code to ensure that there was not a conflict rested with the Minister and not the lobbyist. He also found that the factors to be considered in assessing whether a lobbyist had proposed or undertaken any action that would constitute improper influence on a public office holder were absent in the cases cited by Democracy Watch. In the fourth ruling or decision, the Ethics Counsellor denied Democracy Watch's request for an investigation with respect to donations to cabinet ministers. After reciting the factors quoted in the third ruling or decision, the Ethics Counsellor concluded he had no basis to believe on reasonable grounds that the Lobbyists' Code had been breached. Democracy Watch sought judicial review of these four rulings or decisions and requested a number of declarations. The issues to be addressed were (1) whether the Ethics Counsellor was biased against the applicant in rendering the four decisions (specific bias); (2) whether the Ethics Counsellor was subject to institutional or structural bias; (3) the appropriate standard of review; (4) whether the Court should disturb the decisions; and (5) whether the requested relief was available in the circumstances?
Held, the applications should be allowed; the declarations should be denied.
At the outset, the respondent's motion seeking the dismissal of the four applications for judicial review on the ground that they had become moot since the Office of Ethics Counsellor has ceased to exist in all respects was dismissed. Applying the test for mootness defined by the Supreme Court of Canada in Borowski v. Canada (Attorney General), the Court determined that the applications were not moot. The applications continued to present a live controversy that affects the rights of the parties where the respondent is the Attorney General of Canada and not simply the Ethics Counsellor. Judicial response was appropriate given a continuing adversarial relationship between Democracy Watch and the Attorney General of Canada. Special circumstances continued to exist, as matters of public office holders' and lobbyists' ethics, and public interest oversight of those matters, continue to attract much public attention. And there remain issues, at least in relation to lobbyists' ethics, that remain appropriate to judicial adjudication. The fact that the Act in question specifically identifies the Ethics Commissioner as other than a "federal board, commission or other tribunal" does not affect the reviewability of the decisions of those who continue to be charged with administration of the Lobbyist Code.
With respect to bias, the appropriate test was that of a "reasonable apprehension of bias". The mode of appointment of the Ethics Counsellor appeared to be extremely informal, the Ethics Counsellor held office during pleasure, and there was no evidence that the Ethics Counsellor had security of tenure. A reasonable and right-minded person, applying himself or herself to the question of specific bias on the part of the Ethics Counsellor against Democracy Watch, viewing the matter realistically and practically, and having thought the matter through, would conclude that there existed grounds for a reasonable apprehension of bias. This conclusion was sufficient to allow all four applications by reason of a breach of procedural fairness, that breach being grounds for a reasonable apprehension of specific bias on the part of the Ethics Counsellor against Democracy Watch deriving in part from his evident lack of independence and security of tenure, and in part from the pattern of his responses and lack of responses to petitions or complaints from Democracy Watch. Notwithstanding that conclusion, the other issues before the Court were also examined. There were no provisions in the Lobbyists Registration Act or the Public Office Holders' Code that might counter negative institutional characteristics of the office of the Ethics Counsellor. The dual role of the Ethics Counsellor and his office under the Lobbyists Registration Act and the Lobbyists' Code on the one hand and the Public Office Holders' Code on the other, when combined with the lack of independence of the Ethics Counsellor himself, impacts on the impartiality of the office as a whole and places the Counsellor and his office in a constant state of potential conflict of interest. Institutional or structural bias was found to exist and, once again, on that ground, all four applications were allowed.
The appropriate standard of review of each of the four decisions or rulings was reasonableness simpliciter. Nothing before the Court indicated that the Ethics Counsellor's expertise in respect of the interpretation of the expression "believes on reasonable grounds that a person has breached the [Lobbyists'] code" is greater than that of a judge of this Court, and the issues under review were in the nature of the application of law. The first ruling or decision did not address Democracy Watch's request for an investigation under section 10.4 of the Lobbyists Registration Act. The Ethics Counsellor based his decision on a report from the RCMP indicating that it could not be proven "beyond a reasonable doubt" that Mr. Fugère had breached the Lobbyists' Code. It was only necessary for the Counsellor to have reasonable grounds to believe that such a breach had occurred. Nothing before the Court indicated that the Ethics Counsellor concluded that no such grounds existed. As such, in the absence of the earlier decision regarding bias, the application for judicial review of the first decision or ruling would be granted. With respect to the second ruling or decision, although the delay in communicating the conclusion was unfortunate, the ruling or decision of the Ethics Counsellor was open to him. The Ethics Counsellor's interpretation of Rule 8 of the Lobbyists' Code, which underlays his third ruling or decision, was not such an "unreasonable interpretation" as to give rise to a reviewable error. The words of Rule 8 are clear and unambiguous. If the intent of the drafters of the Lobbyists' Code had been to reach "appearance" of conflict of interest, that result could easily have been accomplished. For the same reasons that supported the decision with respect to the third ruling or decision, the Ethics Counsellor's fourth ruling or decision contained no reviewable error.
As for the declarations sought by Democracy Watch, while the issues before the Court were not themselves moot, the declaratory reliefs sought were all moot in light of the very recent coming into force of the changes regarding the administration of the Lobbyists Registration Act, the Lobbyists' Code and the Public Office Holders' Code. Therefore, none of the declaratory reliefs sought were granted.
statutes and regulations judicially
considered
An Act to amend the Lobbyists Registration Act, S.C. 2003, c. 10.
| An Act to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other Acts in consequence, S.C. 2004, c. 7. |
| Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 2(1) "federal board, commission or other tribunal" (as am. idem, s. 15), 18(1) (as am by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26), (3) (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5; 2002, c. 8, s. 27). |
| Lobbyists Registration Act, R.S.C., 1985 (4th Supp.), c. 44, preamble, ss. 2(1) "Ethics Counsellor" (as enacted by S.C. 1995, c. 12, s. 1), "public office holder" (as am. by S.C. 2002, c. 8, s. 182(1)(w)), "registrar", 5(1) (as am. by S.C. 1995, c. 12, s. 3), 8, 9 (as am. idem, s. 5), 10 (as am. idem), 10.1 (as enacted idem), 10.2 (as enacted idem), 10.3 (as enacted idem), 10.4 (as enacted idem), 10.5 (as enacted idem), 14 (as am. idem, s. 7). |
| Statutory Instruments Act, R.S.C., 1985, c. S-22. |
cases judicially considered
applied:
Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; (1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75 Sask. R. 82; 47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38 C.R.R. 232; 92 N.R. 110; Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115; 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919; (1996), 140 D.L.R. (4th) 577; 42 Admin. L.R. (2d) 1; 205 N.R. 1; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247; (2003), 257 N.B.R. (2d) 207; 223 D.L.R. (4th) 577; 48 Admin. L.R. (3d) 33; 31 C.P.C. (5th) 1; 302 N.R. 1; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; (2003), 223 D.L.R. (4th) 599; [2003] 5 W.W.R. 1; 11 B.C.L.R. (4th) 1; 48 Admin. L.R. (3d) 1; 179 B.C.A.C. 170; 302 N.R. 34.
considered:
Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; (1997), 144 D.L.R. (4th) 1; 50 Admin. L.R. (2d) 199; 71 C.P.R. (3d) 417; 209 N.R. 20; Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884; (2003), 227 D.L.R. (4th) 193; [2004] 1 W.W.R. 1; 3 Admin. L.R. (4th) 163; 109 C.R.R. (2d) 65; 306 N.R. 34; Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259; (2003), 231 D.L.R. (4th) 1; [2004] 2 W.W.R. 1; 19 B.C.L.R. (4th) 195; 7 Admin. L.R. (4th) 1; [2004] 1 C.N.L.R. 342; 40 C.P.C. (5th) 1; 309 N.R. 201.
referred to:
Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245; (2002), 220 D.L.R. (4th) 1; [2003] 1 C.N.L.R. 341; 297 N.R. 1.
authors cited
Conflict of Interest and Post-Employment Code for Public Office Holders. Ottawa: Office of the Ethics Counsellor, 1994.
Conflict of Interest and Post-Employment Code for Public Office Holders. Ottawa: Office of the Ethics Commissioner, 2003.
Lobbyists' Code of Conduct. Ottawa: Office of the Ethics Counsellor, 1997.
Ministry and Activities for Personal Political Purposes -- Guidelines. Ottawa: Office of the Ethics Counsellor, June 2002.
APPLICATIONS for judicial review and for declaratory reliefs with respect to four rulings or decisions of the Ethics Counsellor who either refused to conduct investigations into alleged violations of the Conflict of Interest and Post-Employment Code for Public Office Holders, the Lobbyists' Code of Conduct, and the Lobbyists Registration Act or found that no such violations occurred. Applications allowed; declarations denied.
appearances:
Martin J. Doane for applicant.
Ian R. Dick and Shelley C. Quinn for respondent.
solicitors of record:
Paliare Roland Rosenberg Rothstein LLP, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Gibson J.:
INTRODUCTION
[1]These reasons follow the hearing of four applications for judicial review filed on behalf of the applicant (Democracy Watch) with respect to rulings or decisions of the Ethics Counsellor referred to in subsection 5(1) of the Conflict of Interest and Post-Employment Code for Public Office Holders1 (the Public Office Holders Code) and designated by the Governor in Council pursuant to section 10.1 of the Lobbyists Registration Act.2 The four applications were heard together. In the petitions or complaints underlying three of the rulings or decisions under review, Democracy Watch requested a "full and detailed investigation", essentially to determine whether ethics rules for lobbyists and public office holders were violated. In the fourth application, Democracy Watch requested a "clear", public ruling under the Lobbyists' Code of Conduct3 (the Lobbyists' Code), once again dealing with an issue as to whether a violation of the Lobbyists' Code had occurred. The rulings under review are dated, respectively, in two cases, March 21, 2003, and in the other cases, March 27 and March 31, 2003.
THE PARTIES
[2]In the affidavit of Duff Conacher filed on behalf of Democracy Watch, Mr. Conacher describes himself as "Coordinator" of Democracy Watch. He attests to the nature of Democracy Watch in the following terms:
Democracy Watch was founded in September 1993 and incorporated pursuant to federal law as a not-for-profit corporation. Democracy Watch is a non-partisan organization that advocates democratic reform, citizen participation in public affairs, government and corporate accountability, and ethical behaviour in government and business in Canada. In pursuit of its mandate, Democracy Watch has initiated various campaigns, including a campaign relating to government and lobbyist ethics.4
[3]At all material times, the Ethics Counsellor was Mr. Howard Wilson. The Office of Ethics Counsellor was created in 1994 when the Prime Minister of the day promulgated the Public Office Holders' Code, the most recent in a line of conflict of interest rules for public office holders which dates back to 1973. The Ethics Counsellor assumed a second set of responsibilities in February of 1996 pursuant to section 10.1 of the Lobbyists Registration Act.
THE RULINGS OR DECISIONS UNDER REVIEW
(a) The First Ruling or Decision
[4]By letter to the Ethics Counsellor dated March 27, 2001, Democracy Watch requested an investigation into circumstances that, it indicated, it believed to "raise serious questions concerning violations of the federal Lobbyists' Code of Conduct . . . and the Conflict of Interest and Post-employment Code for Public Office Holders". It noted:
Media reports through 1999 and early 2000 covered the activities of René Fugère, who reportedly acted at the time as an unpaid aide to Prime Minister Jean Chrétien and as a member of the executive of the Prime Minister's local Liberal riding association. In addition, the media reported clear evidence that Mr. Fugère was involved in the following activities:
| 1. being paid at least $15,000 to represent Philippe Clément and his company, Les Maisons Beam International, and its project to build modular homes in Grand-Mère, Québec (in the Prime Minister's riding) in its unsuccessful attempt to obtain over $1 million in federal grants; |
| 2. being paid to represent the Opiticiwan sawmill in Obedjiwan, Québec in its successful attempt to obtain a $300,000 grant from the federal government (the government turned the grant application down at least twice, but then approved the grant after Mr. Fugère was hired to represent the mill); and |
| 3. representing other companies seeking federal grants, including at least one other company in the Prime Minister's riding. |
Mr. Fugère did not register as a lobbyist for any of these activities, even though the media has reported clear evidence that he was being paid to communicate with federal public office holders in an attempt to influence the awarding of grants, conditions under which the Lobbyists Registration Act requires registration as a lobbyist.
Also according to media reports, staff of the Prime Minister's Office called Mr. Clément and were active in supporting his company's grant application, and possibly others.5
[5]The Ethics Counsellor responded by letter dated March 21, 2003. That letter reads in part as follows:
My ability to proceed with a matter under the Lobbyists' Code of Conduct requires that the individual against whom a complaint or allegation has been made is a lobbyist within the meaning of the Lobbyists Registration Act, or is an individual who is required to register as a lobbyist because conduct or activities in which they engaged constitute a registrable activity under the Lobbyists Registration Act.
Mr. Fugère did not register under the Lobbyists Registration Act for the activities reported by the media in 1999 and early 2000. In this regard, you will recall that following the National Post articles in May 1999 about Mr. Fugère's assistance to Auberge des Gouverneurs and Celebrity Boats to obtain government funding, the Registrar [under the Lobbyists Registration Act] communicated with the RCMP and requested that they investigate whether Mr. Fugère was in violation of the Lobbyists Registration Act.
The RCMP carried out its investigation and Crown prosecutors concluded in August 2000 that there was insufficient evidence to support a successful prosecution under section 5 of the Act. Their conclusion was based on the great difficulty of developing a case which could prove "beyond a reasonable doubt" that an individual was paid to communicate with a public office holder "in an attempt to influence" such matters as the awarding of a grant or contribution, etc. We were, therefore, unable to demonstrate in a court of law that Mr. Fugère had an obligation to register as a lobbyist. In this situation Mr. Fugère was never subject to the provisions of the Lobbyists' Code of Conduct.
The Government was concerned that we would never be able to successfully prosecute an individual who simply refused to register their lobbying activities. We concluded that the solution was to remove the phrase "in an attempt to influence" to place the focus on the act of communicating. This was proposed in Bill C-15 which has just completed Third Reading in the House of Commons and is now before the Senate. When this change comes into force we are confident we will be able to effectively enforce the Lobbyists Registration Act.6
The legislative initiative referred to in the foregoing quotation as Bill C-15 [An Act to amend the Lobbyists Registration Act] received Royal Assent on June 11, 2003.7 However, as at the dates of these applications, it had not been brought into force by order of the Governor in Council.
(b) The Second Ruling or Decision
[6]By letter dated April 12, 2001, Democracy Watch wrote to the Ethics Counsellor in part in the following terms:
We are filing this letter to request that you investigate a situation that Democracy Watch believes raise [sic] serious questions concerning violations of the Conflict of Interest and Post-Employment Code for Public Office Holders . . . and the federal Lobbyists' Code of Conduct . . . and Lobbyists Registration Act, . . . .
. . .
Until very recently, John Dossetor was the Senior Policy Advisor to Allan Rock, federal Minister of Health. He is clearly covered by the Public Office Holders Code. Evidence exists that while working for the government Mr. Dossetor dealt with the file concerning decisions with respect to Monsanto Canada's applications for approval of genetically modified foods.
On February 26, 2001, Monsanto advertised that it had hired Dossetor as Vice-President, Government Affairs (effective February 5, 2001) to build "alliances and partnerships though [sic] the government channel, and helping develop and articulate Monsanto's strategy for internal and external government audiences,"
. . .
Based on Mr. Dossetor's work with the government, his Monsanto job description, and federal ethics rules, Democracy Watch believes that anything he could do for Monsanto would violate at least one of the ethics rules. Also, if Mr. Dossetor is fulfilling the responsibilities of his job description, he likely should also be registered under the Lobbyists Registration Act and be adhering to the Lobbyists' Code.8
[7]By letter dated March 27, 2003, the Ethics Counsellor responded, in part, in the following terms:
While we do not appear to have formally closed off this matter with you, we nevertheless want you to know that we assured ourselves that Mr. Dossetor did meet all of his post-employment obligations under the Conflict of Interest Code.
In relation to the allegation that Mr. Dossetor was not registered as a lobbyist under the [Lobbyists Registration Act], it should be noted that Mr. Dossetor was not registered as a lobbyist at the time your organization submitted its complaint . . . . However, Mr. Dossetor did register as In-House (corporate) lobbyist on May 18, 2001, once his lobbying activities became a significant part of his duties at Monsanto Canada that is, once his duties with Monsanto constituted 20% or more of his duties. This is in conformity with the LRA Interpretation Bulletin, entitled "A Significant part of duties", . . . . That Bulletin provides:
| "Employees whose job[s] include a substantial or large amount of time fulfilling the duties described are subject to the registration requirements; 20 percent may be used as a guideline for what constitutes a significant part of their duties." |
With respect to the allegation that Mr. Dossetor had breached the Lobbyists' Code by his failure to disclose his obligations under the LRA, no further information was provided by Democracy Watch in support of this allegation.
Following the receipt of a complaint under the Lobbyists' Code of Conduct, preliminary inquiries are made by my Office in order to assist me in making a determination whether or not I believe on a [sic] reasonable and probable grounds that a breach of the Lobbyists' Code of Conduct has occurred. These preliminary inquiries, in the case of Mr. Dossetor, did not reveal any information that he was not in conformity with the Lobbyists' Code.
Therefore, on the basis of the information available, I cannot conclude on reasonable and probable grounds that a breach of the Lobbyists' Code of Conduct has occurred.9
(c) The Third Ruling or Decision
[8]By letter dated June 17, 2002, Democracy Watch filed a further petition or complaint with the Ethics Counsellor. That petition or complaint reads in part as follows:
We are filing this letter to request that you, in your legal position as enforcer of the federal Lobbyists' Code of Conduct . . . , investigate situations that Democracy Watch believes raise serious questions concerning violations of the federal Lobbyists' Code.
Democracy Watch believes that you personally are biased in fulfilling the role of enforcing the Lobbyists' Code because you also hold the separate legal position of compliance officer for the Conflict of Interest and Post-Employment Code for Public Office Holders. . ., and as a result you personally cannot fairly and impartially uphold the Lobbyists' Code. As you know, Democracy Watch has filed an application in Federal Court challenging, among other things, the legality of you holding both these positions. However, Democracy Watch is still filing this letter without prejudice to that court application because it believes that, if you are replaced by another person in the legal position of enforcer of the Lobbyists' Code, the position has sufficient independence and powers to fairly and impartially uphold the Lobbyists' Code . . . .
The Lobbyists' Code covers all lobbyists required to register under the [Lobbyists Registration] Act.
Recent media reports have confirmed that the following 9 lobbyists, all of whom are registered under the Act to lobby the federal government, have been in the past for various lengths of time (and, in some cases, are still) working with the following ministers and public office holders on at least one private initiative of each minister or public office holder (and possibly other initiatives), namely running for the leadership of a political party:10
[9]Democracy Watch then goes on to name nine individuals, the public office holder with whom each of the individuals is working on a leadership campaign and some or all of the clients of the individual on whose behalf he or she has been engaging in lobbying activities. In eight of the cases, the public office holder identified was, at the relevant time, a minister of the Crown. The other public office holder was, at the relevant time, a member of Parliament who was campaigning for the leadership of the Canadian Alliance Party.
[10]After further detailing its concerns, Democracy Watch concludes in the following terms:
In other words, Democracy Watch believes that lobbyists cannot work with a public office holder in any way without causing a conflict of interest, and that Rule 8 of the Lobbyists' Code in effect means that lobbyists must choose between being a lobbyist and working with public office holders, political parties or candidates for public office.
In your legal position as Ethics Counsellor enforcing the Lobbyists' Code, you are required under the Lobbyists Registration Act to investigate if you have a reasonable belief that a violation of the Lobbyists' Code has occurred. You have the full powers of a judge in your investigation (including the power to subpoena witnesses and compel evidence), and you are required to report your ruling to Parliament . . . .
We believe that a full and detailed investigation, using all of your investigative powers, is justified and needed to determine whether the 9 lobbyists named above have violated Rule 8 of the Lobbyists' Code.
We therefore request that you use your full powers under the Act to investigate these situations, determine if any of the named lobbyists have violated Rule 8 of the Lobbyists' Code, and report your rulings on these lobbyists to Parliament, as you are legally required to do.
We also request that if you learn of other registered lobbyists working with ministers, meaning doing anything that benefits the minister in any way, that you initiate investigations into whether they are violating Rule 8 of the Lobbyists' Code.
The standard for evaluating activities of public office holders under the Public Office Holders Code is whether "real, potential or apparent conflicts of interest" have been created (emphasis added). This standard creates an affirmative obligation on all public office holders to avoid even potential or apparent conflicts of interest.
We look forward to your investigation of this matter, and await your reply.11
[11]By letter dated March 21, 2003, the Ethics Counsellor replied, in part in the following terms:
Your letter [of June 17, 2002, just quoted from] arrived when this office had just completed guidelines for those Ministers who were pursuing or considering becoming involved in the campaign for the leadership of the Liberal Party. At the same moment I was still working on an interpretation of Rule 8 [of the Lobbyists' Code] which had earlier been requested by a lobbyist who wanted to be directly involved in one of the campaigns.
On June 11, 2002, the Prime Minister, as you are aware, released Guidelines--The Ministry and Activities for Personal Political Purposes. These Guidelines recognized that the pursuit of the leadership of a political party was a private interest and that the Conflict of Interest and Post-Employment Code for Public Office Holders . . . was directly relevant. . . .12
[12]After quoting from the Public Office Holders' Code and from the "Guidelines" referred to in the foregoing quotation, the Ethics Counsellor continued:
Our conclusion was that the obligation under the Conflict of Interest Code to ensure that there was not a conflict rested with the Minister and not the lobbyist. . . .
The question, however, remained whether Rule 8 -- Improper Influence of the Lobbyists' Code of Conduct . . . placed an obligation as well on lobbyists who were involved in a Minister's leadership campaign. As noted above, I had earlier been asked by a lobbyist for an interpretation of the Lobbyists' Code on this point. I completed my work shortly after the New Year and provided the interpretation on the application of Rule 8 to the individual who had requested it. As has been our practice I adapted the interpretation to remove personal information and placed this on our website on January 21, 2003. Because of your interest in Rule 8, I sent you a copy directly as a matter of courtesy.
My reasoning is set out in detail in the interpretation but I would highlight the following conclusion:
| "My conclusion is that it is not reasonable to believe that a lobbyist has exercised an improper influence on a Minister, placing him or her in a conflict of interest, merely because the lobbyist was assisting the Minister in a leadership campaign at the same time that the lobbyist was lobbying the Minister's department on behalf of a client. More broadly, I conclude that the mere fact that these two legitimate activities are being pursued by a lobbyist does not, in and of itself, breach the Lobbyists' Code of Conduct." |
This is not to say that Rule 8 would never apply in this situation but, as the interpretation states, "what constitutes an improper influence on a public office holder is a question of fact in each particular case." The interpretation of Rule 8 sets out the factors to be considered in assessing whether a lobbyist has proposed or undertaken any action that would constitute an improper influence on a public office holder. These factors include but are not limited to:
| - "whether there has been interference with the decision, judgment or action of the public office holder; |
| - whether there has been a wrongful constraint whereby the will of the public office holder was overpowered and whether the public office holder was induced to do or forbear an act which he or she would not do if left to act freely; and |
| - whether there has been a misuse of position of confidence or whether the lobbyist took advantage of a public office holder's weakness, infirmity or distress to alter that public office holder's actions or decisions." |
These factors are absent in the cases you cite. Furthermore, with the issuance of the Guidelines of last June, I am satisfied that Ministers and their offices have ensured that those lobbyists who are working on a Minister's campaign team have ceased lobbying that Minister's department. Some other lobbyists, in a similar situation, have chosen not to work on the respective campaign.
I do not, therefore, have any basis to believe on reasonable grounds that the persons you cite have breached the Lobbyists' Code. In the absence of such a belief an investigation under the provisions of the Lobbyists Registration Act cannot occur.13
(d) The Fourth Ruling or Decision
[13]By letter dated October 17, 2002, Democracy Watch again petitioned or complained to the Ethics Counsellor, requesting that he "investigate situations that Democracy Watch believes raise serious questions concerning violations of the federal Lobbyists' Code." After again recording its concern that the Ethics Counsellor is personally biased by reason of his responsibilities in relation to the Lobbyists' Code and the Public Office Holders' Code, Democracy Watch continued:
In June and early July 2002 you, in one or both of your two legal positions described above (you did not make it clear at the time), required Cabinet ministers Sheila Copps, John Manley, and Allan Rock to return donations they had received to their leadership campaign funds. You refused to disclose the sources and amounts of the donations, but according to media reports you claimed that the total returned by each minister was less than $50,000.
According to the Ottawa Citizen, you stated on July 11th (the date the ministers disclosed donations they had received) that your reason for requiring each minister to return some of the donations was as follows: "I was concerned that the minister was going to have to stand back on files that were just so important to their ministerial responsibilities that it would represent a serious impairment of the minister's abilities to carry out his or her responsibilities." You also made it clear that the donations were from sources which lobby the ministers, and that therefore the donations created the conflict that would require a minister "to have to stand back on files". The one returned donation which was made public, a $25,000 donation from BCE Inc. to Industry Minister Allan Rock, clearly fits within the standard you articulated, as BCE Inc. is registered to lobby Industry Canada.14
[14]After referring to provisions of the Lobbyists' Code and the Public Office Holders' Code, Democracy Watch continued in its letter:
Democracy Watch believes that a reasonable interpretation and application of these rules in the Lobbyists' Code and the Public Office Holders Code, along with a reasonable interpretation of the common law standard for finding that a public office holder is in a "conflict of interest", would result in the conclusion that any lobbyist who makes a donation in secret to any minister, especially a minister the lobbyist lobbies, would be violating Rule 8 of the Lobbyists' Code.
By requiring ministers to return some donations, you clearly indicated that you agreed with this interpretation of federal ethics rules for public office holders and lobbyists.
As a result, Democracy Watch believes that you have failed to uphold your legal duty to report to Parliament the findings of your investigations into the donations to the Cabinet ministers, and in that report to make public the identities of the lobbyists who, by making these donations, violated Rule 8 of the Lobbyists' Code.
In your legal position as Ethics Counsellor enforcing the Lobbyists' Code, you are required under the Lobbyists Registration Act to investigate if you have a reasonable belief that a violation of the Lobbyists' Code has occurred. You have the full powers of a judge in your investigation (including the power to subpoena witnesses and compel evidence), and you are required to report your ruling to Parliament . . . .
You may claim that you required the ministers to return the donations in your legal position as compliance officer of the Public Office Holders' Code. If this is your claim, Democracy Watch requests that you make it clear in a written statement that you were acting in this legal position. If you claim that you were acting in this legal position, Democracy Watch requests that you now, in your legal position as enforcer of the Lobbyists' Code, use your full powers under the Lobbyists Registration Act to investigate the donations made to ministers, to determine if any of [the] lobbyists who made donations have violated Rule 8 of the Lobbyists' Code, and to report your rulings on these lobbyists publicly to Parliament, as you are legally required to do.
In addition, Democracy Watch requests that you review and publicly rule, as you are required to do in your legal position as enforcer of the Lobbyists' Code, on whether the [sic] some of the donations from lobbyists you allowed the Cabinet ministers to keep are also a violation by the lobbyists of Rule 8 of the Lobbyists' Code.15
[15]After citing some donations by lobbyists that were apparently not required to be returned, Democracy Watch continued:
According to media reports, you stated on July 11th that "One has to balance this, and these sums were so very modest that I didn't think a credible case could be made for asking the minister to withdraw from those files or return those small contributions." Democracy Watch disagrees with the "balance" you claim to have established, and believes that you have failed to uphold your legal duties because you have not issued a clear ruling, from either of your two legal positions, as to how ethics rules apply to donations of such amounts from lobbyists or entities directly connected to a lobbyist. As a result, Democracy Watch requests a clear, public ruling under the Lobbyists' Code.16
[16]By letter dated March 31, 2003, the Ethics Counsellor replied, in part as follows:
Your letter expresses the view that "any lobbyist who makes a donation in secret to any minister, especially a minister the lobbyist lobbies, would be violating Rule 8 of the Lobbyists' Code." Later in the letter you state that you believe I have failed to uphold my legal duty to report to Parliament the findings of my investigations "into the donations to the Cabinet ministers, and in that report to make public the identities of the lobbyists who, by making these donations, violated Rule 8 of the Lobbyists' Code."
I should first point out that the political contributions that are made to Ministers pursuing the leadership of the Liberal Party are not made in secret. The Leadership Guidelines required that all contributions received before the publication of the Guidelines be disclosed within 30 days. Subsequent contributions which become known to the Minister must be disclosed within 60 days. Contributions made into the Minister's blind trust will be disclosed no later than 30 days before the convention.
Let me now address the possible application of Rule 8. . . .17
[17]After quoting Rule 8 [of the Lobbyists' Code of Conduct], the Ethics Counsellor continued:
Fundraising is an important part of the political process, including for leadership campaigns and is generally viewed as legitimate, particularly in circumstances where full public disclosure is provided. Drawing upon the interpretation I made about Rule 8 "Lobbyists and Leadership Campaigns" which, as you know, is on my website, I cannot conclude that the mere fact that a lobbyist has made a political contribution to a Minister involved in the leadership race in and of itself would constitute a breach of the Lobbyists' Code of Conduct.
This is not to say that Rule 8 would never apply in this situation but, as the interpretation states, "what constitutes an improper influence on a public office holder is a question of fact in each particular case." The interpretation of Rule 8 sets out the factors to be considered in assessing whether a lobbyist has proposed or undertaken any action that would constitute an improper influence on a public office holder. . . .18
[18]After reciting the same three factors that are quoted from his response to Democracy Watch's third petition or complaint as quoted above, the Ethics Counsellor concluded:
No information has come to my attention that indicates that any of these factors were present in the cases you mention. I, therefore, have no basis to believe on reasonable grounds that these individuals or organizations breached the Lobbyists' Code. In the absence of such a belief an investigation under the provisions of the Lobbyists Registration Act cannot occur.19
[19]For ease of reference, in the balance of these reasons, Democracy Watch's four petitions or complaints and the responses by the Ethics Counsellor to them will be referred to as the "Fugère" petition and ruling, the "Dossetor" petition and ruling, the "Nine Lobbyists" petition and ruling and the "Donations" petition and ruling.
RELIEF REQUESTED
[20]In the memorandum of fact and law filed on behalf of Democracy Watch, the following reliefs are requested:
- first, an order quashing each of the rulings by the Ethics Counsellor as described above;
- second, a declaration that Democracy Watch was deprived of its right to procedural fairness in the context of its four petitions or complaints;
- third, a declaration that the institutional scheme under the Lobbyists Registration Act, in so far as it permits the same person to carry out the responsibility of investigating and reporting to Parliament on alleged violations of the Lobbyists' Code and of administering the Public Office Holders' Code, raises a reasonable apprehension of bias;
- fourth, a declaration that the Ethics Counsellor, at all relevant times, lacked independence and suffered from structural bias by reason of the range of his responsibilities and those of his office and the resourcing of that office in government;
- fifth, a declaration that the Lobbyists Registration Act must be construed so as to prohibit the appointment of the same person to the office of Ethics Counsellor under the Lobbyists Registration Act as is appointed to the office of the Ethics Counsellor under the Public Office Holders' Code;
- sixth, a declaration that the Ethics Counsellor, at all relevant times, was biased against Democracy Watch; and
- finally, costs, inclusive of GST, and such other relief as this Court deems just.20
RELEVANT LEGISLATIVE AND RELATED PROVISIONS
[21]Judicial review lies to this Court from decisions of federal boards, commissions and other tribunals except such boards, commissions and other tribunals as are enumerated in subsection 28(1) [as am. by S.C. 2002, c. 8, s. 35] of the Federal Courts Act21 and except where otherwise provided by law. It was not in dispute before me that, at all relevant times, the Ethics Counsellor was a federal board, commission or other tribunal whose rulings or decisions were subject to judicial review by this Court. The definition "federal board, commission or other tribunal" in subsection 2(1)[as am. by S.C. 2002, c. 8, s. 15] of the Federal Courts Act, subsections 18(1) [as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26] and (3) [as am. by S.C. 1990, c. 8, s. 4] and section 18.1 [as enacted idem, s. 5; 2002, c. 8, s. 27] of that Act are set out in Schedule I to these reasons.
[22]At all times relevant to the applications for judicial review that are before the Court, the provisions of the Lobbyists Registration Act that are relevant and sections 8-10 of that Act that are relevant to a preliminary issue to which I will shortly turn, are set out in Schedule II to these reasons.
[23]Once again at all times relevant to the matters before the Court, the Lobbyists' Code, developed and adopted pursuant to section 10.2 of the Lobbyists Registration Act, is set out in full, including a related "message from the Ethics Counsellor", in Schedule III to these reasons. Its status would appear to be somewhat unclear. It is certainly not an enactment of Parliament, nor is it a statutory instrument for the purposes of the Statutory Instruments Act.22 That being said, following its development by the Ethics Counsellor, a process which he indicates involved "extensive consultation with a large number of people and organizations interested in promoting public trust in the integrity of government decision-making", it was reviewed by a standing committee of the House of Commons and was published in the Canada Gazette on February 8, 1997. While counsel for the respondent (the Ethics Counsellor) referred to the Lobbyists' Code as "non-law", I am not satisfied that it is fully accurate to characterize it in that manner.
[24]Finally, and once again in the form at all times relevant for the purpose of these matters, the relevant provisions of the Public Office Holders' Code are reproduced in Schedule IV to these reasons.
A PRELIMINARY ISSUE
[25]Late on Thursday, May 13, 2004, only a few days before the scheduled commencement of the hearing of these matters on Monday, May 17, 2004, counsel for the Ethics Counsellor served on counsel for Democracy Watch and delivered to the Registry of the Court at Toronto a motion record, without memorandum of argument, seeking the dismissal of the four applications for judicial review here in question on the ground that they had become moot. The rationale for the motion lay in the fact that on May 11, 2004, the Governor General in Council, on the recommendation of the Prime Minister, pursuant to section 42 of An Act to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other Acts in consequence,23 fixed May 17, 2004 as the day on which the substantive provisions of the Act in question came into force.24
[26]Briefly put, at the centre of the amendments made by the Act in question, was the creation of the offices of Ethics Commissioner and Senate Ethics Officer. The Ethics Commissioner, appointed by Order in Council P.C. 2004-656, with effect on May 17, 2004 effectively assumed the functions of the Ethics Counsellor in relation to Public Office Holders as defined in the Public Office Holders' Code. Additionally, the Act in question amended the Lobbyists Registration Act to delete all references to the Ethics Counsellor and to vest in the Registrar designated pursuant to section 8 of that Act functions under that Act that were, until May 17, 2004, functions of the Ethics Counsellor.
[27]In the result, effective on May 17, 2004, the Office of Ethics Counsellor ceased to exist in all respects.
[28]The Supreme Court of Canada defined the test for mootness in Borowski v. Canada (Attorney General).25 In his reasons in that matter, Justice Sopinka described the doctrine of mootness in the following terms at page 353:
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.
The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant. [Emphasis added.]
[29]As to the issue of whether a court should exercise its discretion to hear a matter notwithstanding the fact that no present live controversy continues to exist, Justice Sopinka outlined three considerations to be taken into account. The first is that a court's competence to resolve legal disputes is rooted in the adversary system. Thus, if no adversarial relationship continues between the parties, a court should be reluctant to intervene. Second, is a concern for judicial economy. In the absence of special circumstances that make it worthwhile to apply scarce judicial resources to resolve an issue, a court should be very reluctant to undertake resolution of the issue. Justice Sopinka speaks of matters of public importance and matters with respect to which a resolution is in the public interest as special circumstances that would warrant a court exercising its discretion to apply scarce judicial resources. Finally, Justice Sopinka counsels that a court must be sensitive to its proper law-making function, that is to say, that its role is that of the adjudicative branch in our constitutional framework and not that of the legislative branch.
[30]After hearing submissions from counsel and adjourning briefly to consider those submissions and related authorities referred to by counsel, I determined to hear these applications, first on the ground that they are not moot, which is to say that I was satisfied that the applications continued to present a live controversy that affects the rights of the parties where the respondent is the Attorney General of Canada and not simply the Ethics Counsellor, and secondly, on the ground that, even if the matters were moot, judicial response to the applications before the Court was appropriate given a continuing adversarial relationship between Democracy Watch and the Attorney General of Canada, albeit not between Democracy Watch and the Ethics Counsellor or the Office of the Ethics Counsellor. Further, I concluded that special circumstances warranting application of judicial resources to the matters before the Court continued to exist, as matters of public office holders' and lobbyists' ethics, and public interest oversight of those matters, continue to attract much public attention. Finally, Parliament having spoken, there remain issues, at least in relation to lobbyists' ethics, that remain appropriate to judicial adjudication. The fact that the Act in question very specifically identifies the Ethics Commissioner as other than a "federal board, commission or other tribunal" within the meaning of subsection 2(1) of the Federal Courts Act, simply does not affect the reviewability of the decisions of those who continue to be charged with administration of the Lobbyists' Code.
[31]In the result, an order issued dismissing the respondent's motion seeking dismissal on the ground of mootness of the four applications for judicial review that are before the Court.
THE SUBSTANTIVE ISSUES
[32]In the memorandum of fact and law filed on behalf of the Ethics Counsellor, the issues before the Court are described in the following terms:
| 1. Was the Ethics Counsellor biased against the Applicant in rendering the four decisions in question ("specific bias")? |
| 2. Was the Ethics Counsellor subject to "institutional bias" when rendering the decisions in question? |
| 3. What is the appropriate standard of review for this Court to apply in reviewing the decisions in question? |
| 4. Should this Court disturb the decisions of the Ethics Counsellor? |
| 5. Is the requested relief available in the circumstances?26 |
[33]While counsel for Democracy Watch was not as specific in his memorandum of fact and law in characterizing the issues, I am satisfied that there was essentially no dispute before the Court that the foregoing characterization of the issues is appropriate.
[34]Since the issue of standard of review does not arise in the event that I were to find a reasonable apprehension of bias on the part of the Ethics Counsellor, either on the basis of "specific bias" or "institutional bias", I will deal with the bias issues first. I will then turn to the issue of the appropriate standard of review of the findings or decisions in question, then to review of those findings or decisions against the appropriate standard and finally to the issue of the reliefs requested.
[35]While neither counsel identified costs as an issue worthy of submissions, both sides requested costs. I will turn briefly to that subject once I have completed my analysis with respect to the foregoing issues.
ANALYSIS
| (a) Bias |
| (i) The Appropriate Test |
[36]Counsel for Democracy Watch urged before the Court that bias, whether specific or institutional and whether perceived or real, undermines public confidence in the rulings or decisions of a federal board, commission or tribunal. He urged that public confidence is a cornerstone to the administration of the Public Office Holders' Code and the Lobbyists' Code, both of which are directed to the objective of ensuring public confidence in the integrity of governmental operations. In the circumstances, counsel urged that the appropriate test for determination of whether or not the Ethics Counsellor and his office demonstrated bias in arriving at the rulings or decisions under review is that of a "reasonable apprehension of bias". In Committee for Justice and Liberty et al. v. National Energy Board et al.,27 Justice de Grandpré wrote at pages 394-395:
It is on this material that the Federal Court of Appeal unanimously came to its conclusion:
| On the totality of the facts, which have been described only in skeletal form, we are all of the opinion that they should not cause reasonable and right minded persons to have a reasonable apprehension of bias on the part of Mr. Crowe, either on the question of whether present or future public convenience and necessity require a pipe-line or the question of which, if any, of the several applicants should be granted a certificate. |
I have already stated my concurrence with this reading of the facts.
. . .
The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly."
I can see no real difference between the expressions found in the decided cases, be they reasonable apprehension of bias, "reasonable suspicion of bias, or real likelihood of bias". The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".
This is the proper approach which, of course, must be adjusted to the facts of the case. The question of bias in a member of a court of justice cannot be examined in the same light as that in a member of an administrative tribunal entrusted by statute with an administrative discretion exercised in the light of its experience and of that of its technical advisers.
The basic principle is of course the same, namely that natural justice be rendered. But its application must take into consideration the special circumstances of the tribunal. As stated by Reid, Administrative Law and Practice, 1971, at p. 220:
| . . ."tribunals" is a basket word embracing many kinds and sorts. It is quickly obvious that a standard appropriate to one may be inappropriate to another. Hence, facts which may constitute bias in one, may not amount to bias in another. |
[37]Bias or absence of bias is, of course, an aspect of procedural fairness. In Bell Canada v. Canadian Telephone Employees Association,28 Chief Justice McLachlin and Justice Bastarache, for the Court, wrote at paragraph 21:
The requirements of procedural fairness--which include requirements of independence and impartiality--vary for different tribunals. As Gonthier J. wrote in IWA v. Consolidated-Bathurst Packaging Ltd., . . .: "the rules of natural justice do not have a fixed content irrespective of the nature of the tribunal and of the institutional constraints it faces". Rather, their content varies. As Cory J. explained in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), . . . the procedural require-ments that apply to a particular tribunal will "depend upon the nature and the function of the particular tribunal". . . . As this Court noted in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), . . . administrative tribunals perform a variety of functions, and "may be seen as spanning the constitutional divide between the executive and judicial branches of government" . . . . Some administrative tribunals are closer to the executive end of the spectrum: their primary purpose is to develop, or supervise the implementation of, particular government policies. Such tribunals may require little by way of procedural protections. Other tribunals, however, are closer to the judicial end of the spectrum: their primary purpose is to adjudicate disputes through some form of hearing. Tribunals at this end of the spectrum may possess court-like powers and procedures. These powers may bring with them stringent requirements of procedural fairness, including a higher requirement of independence . . . . [Citations omitted.]
[38]Counsel for the Ethics Counsellor urged that the Office of the Ethics Counsellor was "closer to the executive end of the spectrum", its purpose being to develop and supervise the implementation of particular government policies. As such, counsel urged, the appropriate test for determining bias on the part of the Ethics Counsellor was whether or not he approached the petitions or complaints of Democracy Watch with an open mind rather than whether he demonstrated a reasonable apprehension of bias in arriving at the rulings or decisions under review. In support of this submission, counsel noted the lack of any parliamentary mandate for the implementation of the Public Office Holders' Code and the lack of anything in the Lobbyists Registration Act that would indicate an intent on the part of Parliament that the Ethics Counsellor designated under that Act should have a high degree of independence and exercise strict impartiality. Counsel further urged that the mandate of the Ethics Counsellor was much more legislative and policy oriented than judicial or quasi judicial, particularly in determining whether or not to institute a formal investigation under the Lobbyists Registration Act and Lobbyists' Code and in the conduct of informal investigations regarding the activity of public office holders, as contrasted with his responsibilities in the conduct of a formal investigation under the Lobbyists Registration Act and the related Lobbyists' Code.
[39]I favour the test for determination of bias, whether specific or institutional, urged on behalf of Democracy Watch given the critical role of the Ethics Counsellor in enhancing "public confidence in the integrity of public office holders and the decision-making process in government"29 and the "integrity and honesty [of lobbyists in] all relations with public office holders, clients, employers, the public and other lobbyists"30 and the acknowledgement in the preamble to the Lobbyists' Code that matters within the purview of the responsibility of the Ethics Counsellor are important matters of public interest and that the Code itself "is an important initiative for promoting public trust in the integrity of government decision-making."
[40]In the result, I will approach the allegations of bias, both specific and institutional, that are brought forward on behalf of Democracy Watch, on a standard of "reasonable apprehension of bias", not viewed through the eyes of a person of "very sensitive or scrupulous conscience" but rather taking into account the guidance from the Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board et al. quoted above that the grounds for reasonable apprehension of bias must be "substantial".
| (ii) Bias Generally |
[41]Counsel for Democracy Watch urged that the evidence before the Court should lead it to conclude that the same evidence, viewed through the eyes of a right-minded person who had applied himself or herself to the question, gives rise to a reasonable apprehension of bias on the part of the Ethics Counsellor against Democracy Watch in responding to the petitions or complaints under review. In particular, counsel urged that the evidence before the Court regarding the mode of appointment of the Ethics Counsellor, his security of tenure or lack thereof and his financial security or insecurity should lead the Court to conclude that the Ethics Counsellor lacked the independence, both in fact and appearance, from the Prime Minister, the Minister of Industry and the Clerk of the Privy Council that should, in all the circumstances, be a requirement of his office. Further, counsel urged, the pattern of results in relation to petitions or complaints such as those under review and the delay in responding to such petitions or complaints should also contribute to a finding of reasonable apprehension of bias.
[42]The mode of appointment of the Ethics Counsellor, both under the Public Office Holders' Code and under the Lobbyists Registration Act, would appear to be informal in the extreme, particularly when contrasted with the mode of the recent appointment of the Ethics Commissioner referred to earlier in these reasons. The mode of appointment of the Ethics Counsellor to administer the Public Office Holders' Code is not specified in the Code. No evidence was before the Court as to the manner of his designation or appointment to perform that function. That Code does, however, indicate that the Ethics Counsellor is to exercise his or her functions thereunder "under the general direction of the Clerk of the Privy Council." Under the terms of the Lobbyists Registration Act, the Ethics Counsellor was "designated" for the purposes of the Act. The Act reflects no particular qualifications that would warrant designation. In fact, the Governor in Council is authorized to designate "any person".
[43]All of the foregoing is to be contrasted with the appointment process surrounding the recent appointment of the Ethics Commissioner. The Order in Council reflecting that appointment indicates that the appointment was preceded by consultations with "the leader of every recognized party in the House of Commons" and that "the House of Commons had, by resolution dated April 29, 2004, approved the appointment" of the Prime Minister's nominee.
[44]There was no evidence before the Court that the Ethics Counsellor held office other than during pleasure, presumably the pleasure of the Prime Minister. Once again, by contrast, the Ethics Commissioner was appointed "to hold office during good behaviour for a term of five (5) years," at a salary within a significant range that exceeds at its lower end the salary of superior court judges in Canada at the effective date of his appointment.
[45]The incumbent of the position of Ethics Counsellor at all relevant times, was, apparently, a public servant of long standing at the time of his designation or appointment. He apparently continued to be a public servant during his tenure as Ethics Counsellor. Counsel for the Ethics Counsellor urged that on the basis of the foregoing, the Court should conclude that the Ethics Counsellor had security of tenure as a public servant and that he was reasonably well remunerated when judged against the range of his responsibilities. While I accept the foregoing, there was nothing whatsoever in the evidence before the Court that would demonstrate that the Ethics Counsellor had any security of tenure in his position as Ethics Counsellor as opposed to his situation as a member of the public service of Canada. Nor did the evidence demonstrate that if the Ethics Counsellor were removed from that office, he would have any assurance of a further appointment in the public service in an office and at a classification and level of remuneration that would be satisfactory to him.
| (iii) Specific Bias |
[46]The pattern of outcomes on petitions or complaints filed with the Ethics Counsellor by Democracy Watch and the time taken to respond to those petitions or complaints are, I am satisfied, both relevant to the issue of specific bias. Between April 13, 2000 and October 17, 2002, Democracy Watch filed 11 petitions or complaints with the Ethics Counsellor alleging violations of the Lobbyists' Code and/or the Public Office Holders' Code. At the date of filing of Democracy Watch's application record, that is to say December 23, 2003, seven of Democracy Watch's 11 petitions or complaints had been responded to, in each and every case rejecting Democracy Watch's request for a formal investigation under section 10.4 of the Lobbyists Registration Act, or equivalent relief, notwithstanding the fact that the obligation to commence an investigation under that provision arises where the Ethics Counsellor believes "on reasonable grounds", not a particularly high threshold or standard, that a person had breached the Lobbyists' Code. Indeed, at the hearing of this matter, it was not in dispute that no investigation under section 10.4 [as enacted by S.C. 1995, c. 12, s. 5] of the Lobbyists Registration Act had ever been undertaken by the Ethics Counsellor, notwithstanding the sensitivity of, and public interest in, the relationships between lobbyists and public office holders.
[47]Of the seven complaints or petitions from Democracy Watch that were responded to by December 23, 2003, response times ranged between one month and approximately 24 months. At the same date, no response had been received to three other complaints or petitions filed by Democracy Watch after 31 months, 33 months and 39 months, respectively.
[48]On the basis of the foregoing considerations, I reluctantly conclude that a reasonable and right-minded person, applying himself or herself to the question of specific bias on the part of the Ethics Counsellor against Democracy Watch and in favour of responding to issues arising under the Public Office Holders Code as opposed to under the Lobbyists' Code with interrelated impacts under the Public Office Holders' Code, viewing the matter realistically and practically, and having thought the matter through, would conclude that there existed grounds for a reasonable apprehension of bias.
[49]In the light of the foregoing, and without going further, I conclude that the applications for judicial review that are before the Court must be allowed by reason of a breach of the principles of procedural fairness, that breach being grounds for a reasonable apprehension of specific bias on the part of the Ethics Counsellor against Democracy Watch deriving in part from his evident lack of independence and security of tenure, and in part from the pattern of his responses and lack of responses to petitions or complaints from Democracy Watch. That conclusion notwithstanding, bearing in mind that my decision herein might be the subject of an appeal, I will nonetheless go on and examine the other issues before the Court.
| (iv) Institutional or Structural Bias |
[50]In 2747-3174 Québec Inc. v. Québec (Régie des permis d'alcool ),31 Justice Gonthier, writing for eight of the nine presiding judges, described the matter before the Court in the following terms in paragraph [40] of his reasons:
In its motion in evocation, the respondent corporation challenged the structure and operations of the Régie des permis d'alcool. Its challenge is based on certain of the Régie's institutional characteristics but does not concern the actual conduct of the decision makers in the present case. In its submissions, the respondent questioned both the Régie's institutional impartiality and its independence.
[51]Thus, the issue there before the Court was one of institutional or structural bias as opposed to specific bias.
[52]Justice Gonthier continued at paragraph 44 of his reasons:
As a result of Lippé, . . . , and Ruffo v. Conseil de la magistrature, . . . , inter alia, the test for institutional impartiality is well established. It is clear that the governing factors are those put forward by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, . . . . The determination of institutional bias presupposes that a well-informed person, viewing the matter realistically and practically--and having thought the matter through--would have a reasonable apprehension of bias in a substantial number of cases. In this regard, all factors must be considered, but the guarantees provided for in the legislation to counter the prejudicial effects of certain institutional characteristics must be given special attention. [Citations omitted; emphasis in the original.]
[53]On the facts before the Court, I find no "guarantees provided for in the legislation to counter the prejudicial effects of certain institutional characteristics". Once again on the facts before the Court, the only relevant legislation is the Lobbyists Registration Act. Neither that Act nor the Public Office Holders' Code nor the Lobbyists' Code reflects any provisions that might counter negative institutional characteristics of the office of the Ethics Counsellor.
[54]Elements of the evidence before the Court that I have referred to on the issue of bias generally speak to the independence, not only of the Ethics Counsellor himself but of the office that he heads. Additional evidence before the Court speaks also to both the issues of impartiality and independence. The evidence discloses no statutory or equivalent base to the office; it would appear, like the Ethics Counsellor himself, to have existed and to have continued to exist, at the will of the Prime Minister. The dual role of the Ethics Counsellor and his office under the Lobbyists Registration Act and the related Code on the one hand and the Public Office Holders' Code on the other, certainly when combined with the lack of independence of the Ethics Counsellor himself, impacts on the impartiality of the office as a whole. The dual role places the Ethics Counsellor, and through him his office, in a constant state of potential conflict of interest both in allocation of resources and in fully and effectively carrying out the dual mandates. Finally, throughout the record of the cross-examination on the affidavit of the officer in the office of the Ethics Counsellor who provided evidence on the applications before the Court, there appears reference to under-resourcing of the office, both in human resource and monetary resource terms, to a degree that impacted on its ability to respond, in a timely manner, to the range of matters coming before it.
[55]On the basis of the foregoing with respect to bias generally, and of the foregoing briefly stated specific considerations, I once again reluctantly conclude that a well-informed person, viewing the matter realistically and practically--and having thought the matter through--would have a reasonable apprehension of bias on the part of the institution, the office of the Ethics Counsellor, in a substantial number of cases.
[56]In the result, I conclude that the issue of institutional or structural bias must be determined in favour of Democracy Watch and that, once again, on that ground, each of the four applications for judicial review that are before the Court should be determined in favour of Democracy Watch.
| (b) Standard of Review of the Rulings or Decisions |
[57]Counsel for Democracy Watch and counsel for the Ethics Counsellor were not in disagreement that the appropriate standard of review is to be determined on the basis of a pragmatic and functional analysis and that Law Society of New Brunswick v. Ryan32 and Dr. Q v. College of Physicians and Surgeons of British Columbia33 provide complete guidance for the application of a pragmatic and functional analysis to the determination of the appropriate standard of review. That is as far as the consensus between counsel went on the issue of the appropriate standard of review. Counsel for Democracy Watch urged that, against a pragmatic and functional analysis, on the facts of this matter, the appropriate standard of review is correctness. By contrast, counsel for the Ethics Counsellor urged that the appropriate standard of review is at the other end of the three-station spectrum, that is to say, patent unreasonableness.
[58]In the Ryan decision, Justice Iacobucci, for the Court, wrote at paragraph 1 of his reasons:
According to the governing jurisprudence, a court reviewing the decision of an administrative tribunal should employ the pragmatic and functional approach to determine the level of deference to be accorded to the decision in question. The appropriate level of deference will, in turn, determine which of the three standards of review the court should apply to the decision: correctness, reasonableness simpliciter, or patent unreasonableness.
[59]At paragraph 27 of the same reasons for decision, Justice Iacobucci continued:
The pragmatic and functional approach determines the standard of review in relation to four contextual factors: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purposes of the legislation and the provision in particular; and (4) the nature of the question--law, fact, or mixed law and fact. [Citations omitted.]
[60]On the first factor, the presence or absence of a privative clause or statutory right of appeal, counsel returned to agreement in acknowledging that none of the Lobbyists Registration Act, the Public Office Holders' Code and the Lobbyists' Code, assuming for the moment that the latter two instruments are relevant for the purposes of determination of the appropriate standard of review, contains a privative clause or statutory right of appeal. In the result, the first factor is essentially neutral.
[61]Justice Iacobucci noted in Canada (Director of Investigation and Research) v. Southam Inc.34 that the second factor, the expertise of the tribunal relative to that of the reviewing court on the issue in question and the third factor, the purposes of the legislation and the provision at issue in particular, overlap, at least on the facts that were there before the Court. Further, Chief Justice McLachlin, at paragraph 28 in Dr. Q, suggests that consistent with the foregoing and the last preceding quotation from Ryan, the "nature of the specific issue before the administrative decision-maker" must be considered in relation to the relative expertise of the decision maker and the Court. Thus, I will consider the relative expertise of the tribunal and this Court, the purposes of the legislation and the particular provision at issue and the nature of the question, law, fact or mixed law and fact, together.
[62]Not surprisingly, counsel for Democracy Watch urged that the "key issues" before the Court involve questions of law relating to the interpretation and application of the various terms and concepts within the Lobbyists' Code and the Lobbyists Registration Act. Counsel further urged that the Ethics Counsellor has no particular expertise, and certainly no greater expertise than that of this Court, on such issues and that the purpose of the legislation and related codes adds little to the mix. By contrast, counsel for the Ethics Counsellor urged that the dominant factor is the expertise of the Ethics Counsellor which, he urges, is extensive on all matters related to the Public Office Holders' Code and, in particular, the Lobbyists' Code.
[63]I reach a conclusion different from that advocated by counsel. While the Ethics Counsellor, during his tenure in that office, has undoubtedly acquired a significant degree of expertise in the interpretation and administration of the Lobbyists Registration Act, the development, interpretation and administration of the Lobbyists' Code and the interpretation and administration of the Public Office Holders' Code, there was no evidence before the Court to indicate that he has a significant degree of expertise in the interpretation of the expression "believes on reasonable grounds" contained in subsection 10.4(1) of the Lobbyists Registration Act which is critical, when applied to the facts or allegations reflected in any particular petition or complaint, to a determination of whether or not a formal investigation under section 10.4 of that Act is required. Certainly, there was nothing before the Court to indicate that his expertise in respect of the interpretation of that phrase is greater than that of a judge of this Court.
[64]Finally, the purpose of the Lobbyists Registration Act, the Lobbyists' Code and the Public Office Holders' Code and of the provisions particularly at issue, I am satisfied, add little if anything to the analysis leading to determination of the appropriate standard of review.
[65]In the result, I am satisfied that the issues under review on the four applications for judicial review before the Court are in the nature of the application of law, that is to say, the concept of "believes on reasonable grounds that a person has breached the [Lobbyists] code" to the particular facts that were before the Ethics Counsellor and are now before the Court. In the result, I conclude that the appropriate standard of review of the four rulings or decisions before the Court is reasonableness simpliciter or, more simply, reasonableness.
[66]Once again in Ryan,35 Justice Iacobucci wrote at paragraphs 46, 47 and 55:
Judicial review of administrative action on a standard of reasonableness involves deferential self-discipline. A court will often be forced to accept that a decision is reasonable even if it is unlikely that the Court would have reasoned or decided as the tribunal did. . . .
The standard of reasonableness basically involves asking "After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?". . . Deference is built into the question since it requires that the reviewing court assess whether a decision is basically supported by the reasoning of the tribunal or decision-maker, rather than inviting the court to engage de novo in its own reasoning on the matter.
. . .
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere. . . . This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling. . . . [Some citations and some text omitted.]
| c) Reviewable Error on the Part of the Ethics Counsellor in Each of the Four Rulings or Decisions Under Review |
| (i) The Fugère Ruling or Decision |
[67]In the Fugère petition or complaint described earlier in these reasons, Democracy Watch set out in some detail its reasons for believing why "a full and detailed investigation is needed to determine whether ethics rules for lobbyists and public office holders were broken in . . . situations involving Mr. Fugère". Its reasons for its belief were acknowledged to be drawn entirely from media reports. Democracy Watch wrote:
We believe that clear evidence exists that René Fugère's activities met the standard that triggers the requirement to register under the Lobbyists Registration Act, and that by not registering he broke the Lobbyists Code. We also believe, given that he did not register, that he may have also not disclosed to his clients his obligations under the Lobbyists Registration Act and the Lobbyists Code.36
[68]Subsection 10.3(1) [as enacted by S.C. 1995, c. 12, s. 5] of the Lobbyists Registration Act provides that individuals required to file a return under subsection 5(1) [as am. idem, s. 3] of that Act "shall" comply with the Lobbyists' Code. Under the headings "Rules" and "Transparency", the Lobbyists' Code sets out a series of obligations of lobbyists, a term that would appear to be co-extensive with the range of "individuals" referred to in subsection 10.3(1) of the Lobbyists Registration Act.
[69]The Ethics Counsellor's affiant on the applications before the Court attests:
All investigations pursuant to the Lobbyists' Code are undertaken in accordance with an internal policy entitled Lobbyists' Registration Act Investigations. . . .37
[70]That "internal policy" is included in the application record.38 The policy provides in part that:
. . . in order to ensure that complaints are not made in bad faith, complainants will be required to provide first-hand knowledge of details or facts in support of their complaint. Jurisdiction to receive and act on the complaint will also need to be established.39
[71]There is no evidence before the Court that objection was taken by the Ethics Counsellor or his office to reliance by Democracy Watch on media reports as the basis for the Fugère petition or complaint. In the result, I am satisfied that the Ethics Counsellor accepted the media reports on which Democracy Watch relied in its petition or complaint as representations in the nature of "facts or information of which judicial or official notice may be taken", the only representations that, pursuant to the internal investigations policy, the Ethics Counsellor was entitled to receive from Democracy Watch before commencement of a formal investigation under section 10.4 of the Lobbyists Registration Act.
[72]Staff in the office of the Ethics Counsellor apparently conducted an informal preliminary investigation into the Fugère petition or complaint. The results of that informal investigation apparently constitute the basis for the Ethics Counsellor's ruling or decision in relation to the Fugère petition or complaint. In substance, that ruling or decision was reflected in the following paragraph, earlier quoted in these reasons but quoted again here for ease of reference:
The RCMP carried out its investigation and Crown prosecutors concluded in August 2000 that there was insufficient evidence to support a successful prosecution under section 5 of the [Lobbyists Registration] Act. Their conclusion was based on the great difficulty of developing a case which could prove "beyond a reasonable doubt" that an individual was paid to communicate with a public office holder "in an attempt to influence" such matters as the awarding of a grant or contribution, etc. We were, therefore, unable to demonstrate in a court of law that Mr. Fugère had an obligation to register as a lobbyist. In this situation Mr. Fugère was never subject to the provisions of the Lobbyists' Code of Conduct.40 [Emphasis added.]
[73]With great respect, the foregoing simply does not address Democracy Watch's request for an investigation under section 10.4 of the Lobbyists Registration Act. Subsection (1) of that section provides that where the Ethics Counsellor "believes on reasonable grounds" that a person has breached the Code, the Ethics Counsellor shall investigate to determine whether a breach has occurred. To trigger the application of subsection 10.4(1), it is not necessary that the Ethics Counsellor or any other person be able to demonstrate, on a standard of "beyond a reasonable doubt", in a court of law, that Mr. Fugère had an obligation to register as a lobbyist. Rather, it was only relevant that the Ethics Counsellor "believes on reasonable grounds", a much lower standard than "beyond a reasonable doubt" that Mr. Fugère had breached the Code.
[74]While it might have been open to the Ethics Counsellor to conclude that he did not have reasonable grounds for believing that Mr. Fugère had breached the Code, there is nothing before the Court, and certainly nothing in the Ethics Counsellor's response to the Fugère petition or complaint, to indicate that he so concluded. In the result, against a standard of review of reasonableness simpliciter, I am satisfied that the Ethics Counsellor's "response" is simply unresponsive to the Fugère petition or complaint and as such, reflects reviewable error.
[75]In the absence of my earlier determination regarding bias, Democracy Watch's application for judicial review of the ruling or decision with respect to the Fugère petition or complaint would nonetheless be granted and the matter would be referred back to the current appropriate authority for redetermination of whether or not a formal investigation should be undertaken in relation to the Fugère petition or complaint made by Democracy Watch.
| (ii) The Dossetor Ruling or Decision |
[76]Like the Fugère petition or complaint, Democracy Watch's Dossetor petition or complaint concluded with a request that the Ethics Counsellor "undertake a full and detailed investigation", in the case of Mr. Dossetor, to determine whether he was acting in violation of "federal ethics and/or lobbying rules." The evidence on which Democracy Watch relied in support of its Dossetor petition or complaint included a published advertisement by his employer announcing his employment and indicating the nature of his duties with his new employer. With regard to Mr. Dossetor's duties in his earlier employment as a public office holder, Democracy Watch simply alleged that "[e]vidence exists" that while employed as a public office holder Mr. Dossetor "dealt with the file concerning decisions with respect to [his new employer's] applications for approval of genetically modified foods." Once again, the evidence before the Court discloses no objection on the part of the Ethics Counsellor to the nature of the "evidence" relied upon by Democracy Watch in support of its petition or complaint. Also once again, a preliminary investigation was undertaken by officials in the office of the Ethics Counsellor.
[77]In his ruling or decision with regard to the Dossetor petition or complaint, the Ethics Counsellor discloses to Democracy Watch, in some detail, the findings of the preliminary investigation conducted by his office. He correctly reflects the issue before him as being to make "a determination whether or not I believe on . . . reasonable and probable grounds that a breach of the Lobbyists' Code of Conduct has occurred." While the grammar and use of the words "and probable" in the immediately foregoing quotation are somewhat problematic, they do not go to the heart of the issue that was before the Ethics Counsellor. The Ethics Counsellor concluded that the preliminary investigation conducted by his office "did not reveal any information that [Mr. Dossetor] was not in conformity with the Lobbyists' Code." In the result, he concluded that "on the basis of the information available, I cannot conclude on reasonable and probable grounds that a breach of the Lobbyists' Code of Conduct has occurred." Impliedly, his conclusion was to the effect that a formal investigation under section 10.4 of the Lobbyists Registration Act could not be justified.
[78]While the conclusion of the Ethics Counsellor was undoubtedly not the conclusion that Democracy Watch was seeking, and certainly the delay of almost two years in communicating the conclusion was unfortunate, once again, against a standard of review of reasonableness simpliciter, I am satisfied that the ruling or decision of the Ethics Counsellor in relation to the Dossetor petition or complaint was open to him.
| (iii) The Nine Lobbyists Ruling or Decision |
[79]Like the Fugère and Dossetor petitions or complaints, the Nine Lobbyists' petition or complaint relied, in this case to a minimal extent, on media reports. However, unlike those petitions or complaints, the Nine Lobbyists' petition or complaint then went on to rely on substantial "first-hand knowledge", presumably derived by Democracy Watch from its own research. It noted that each of the nine lobbyists' in question was registered under the Lobbyists Registration Act to lobby the federal Government and each had been "in the past for various lengths of time (and, in some cases are still) working with [identified] ministers and public office holders on at least one private initiative of each minister or public office holder. . . , namely running for the leadership of a political party". After explaining its rationale for believing that the activities of the nine lobbyists would place public office holders in a "conflict of interest", Democracy Watch then concluded that the nine lobbyists had violated Rule 8 of the Lobbyists' Code. In the result, Democracy Watch wrote:
We therefore request that you use your full powers under the Act to investigate these situations, determine if any of the named lobbyists have violated Rule 8 of the Lobbyists' Code, and report your rulings on these lobbyists to Parliament, as you are legally required to do.41
[80]Once again, staff of the office of Ethics Counsellor apparently conducted an informal preliminary investigation into the Nine Lobbyists' petition or complaint.
[81]In his ruling or decision with regard to the Nine Lobbyists' petition or complaint, the Ethics Counsellor wrote:
Your letter arrived when this Office had just completed guidelines for those Ministers who were pursuing or considering becoming involved in the campaign for the leadership of the Liberal Party. At the same moment I was still working on an interpretation of Rule 8 which had earlier been requested by a lobbyist who wanted to be directly involved in one of the campaigns.42
[82]The Ethics Counsellor went on to note that on June 11, 2002, the Prime Minister released "The Ministry and Activities for Personal Political Purposes -Guidelines". After quoting from those Guidelines, the Ethics Counsellor wrote:
Our conclusion was that the obligation under the Conflict of Interest Code to ensure that there was not a conflict rested with the Minister and not the lobbyist. . . .
The question, however, remained whether Rule 8-Improper Influence of the Lobbyists' Code of Conduct . . . placed an obligation as well on lobbyists who were involved in a Minister's leadership campaign.43
[83]A generalized interpretation in response to the foregoing concern, adapted from a particular interpretation, was published by the Office of the Ethics Counsellor. Based on that generalized interpretation, which reflected a range of factors to be considered in determining on the particular facts of any case whether Rule 8 might be infringed, the Ethics Counsellor concluded:
These factors are absent in the cases you cite. Furthermore, with the issuance of the Guidelines of last June, I am satisfied that Ministers and their offices have ensured that those lobbyists who are working on a Minister's campaign team have ceased lobbying the Minister's department. Some other lobbyists, in a similar situation, have chosen not to work on the respective campaign.
I do not, therefore, have any basis to believe on reasonable grounds that the persons you cite have breached the Lobbyists' Code. In the absence of such a belief an investigation under the provisions of the Lobbyists Registration Act cannot occur.44
[84]Counsel for Democracy Watch urged that the Ethics Counsellor's interpretation of Rule 8 of the Lobbyists' Code was unreasonable and that, therefore, his ruling or decision in respect of the Nine Lobbyists' petition or complaint was not only incorrect but also made in reviewable error against a standard of reasonableness simpliciter. In support of this submission, counsel relied on Wewaykum Indian Band v. Canada,45 where eight judges of the Supreme Court addressed concerns that an earlier decision of the Court in the same matter should be set aside by reason of concerns that one member of the full Court had, many years earlier, engaged in activities which were alleged to give rise to a reasonable apprehension of bias in the Court's earlier decision [[2002] 4 S.C.R. 245]. At paragraph 57 and following of the Court's reasons, under the heading "The Importance of the Principle of Impartiality", the Court noted that the motions before it required it to "examine the circumstances of this case in light of the well-settled, foundational principle of impartiality of courts of justice." I note the specific reference to impartiality of courts of justice. The Court goes on in the same paragraph to note that:
Simply put, public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so. [Emphasis added.]
I am not satisfied that Wewaykum, speaking as it does to "those who adjudicate in law" and more specifically to the issue of public confidence in judgments of the Supreme Court of Canada, provides any guidance that is useful in determining the issues here before the Court.
[85]Democracy Watch urged that Rule 8 of the Lobbyists' Code should be interpreted to include the concept of appearance of a conflict of interest as well as actual conflict of interest and that, with such an interpretation, Democracy Watch's petition or complaint should be sustained against a standard of review of reasonableness simpliciter. I would not be prepared to conclude on the evidence before me that the Ethics Counsellor's interpretation of Rule 8 of the Lobbyists' Code, issued on January 21, 2003, and underlying his ruling or decision on the Nine Lobbyists' petition or complaint, in and of itself, was such an "unreasonable interpretation", strict as it was, as to give rise to a reviewable error. The words of Rule 8 are clear and unambiguous. If the intent of the drafters of the Code had been to reach "appearance" of conflict of interest, that result could easily have been accomplished: compare, for example, sections 3.5, 23.1 and paragraph 27.1(a) of the Public Office Holders' Code. I am not prepared to imply that such was their intent.
[86]Similarly, the fact that, in the submissions on behalf of Democracy Watch, the ruling or decision in respect of the Nine Lobbyists' petition or complaint might be seen to be inconsistent with specific rulings46 of officers having similar responsibilities in other jurisdictions in Canada, to those of the Ethics Counsellor is, in and of itself, insufficient to warrant a conclusion by this Court that, against a standard of review of reasonableness simpliciter, the ruling or decision in question was made in reviewable error.
[87]With great respect to the able and imaginative submissions on behalf of Democracy Watch, against the standard of review of reasonableness simpliciter, I cannot conclude that the ruling or decision of the Ethics Counsellor with respect to the Nine Lobbyists' petition or complaint demonstrates reviewable error. In the circumstances, that ruling or decision will not be set aside on the basis of reviewable error.
| (iv) The Donations Ruling or Decision |
[88]The Ethics Counsellor's ruling or decision with respect to the Donations petition or complaint raises essentially the same issues as those raised in respect of the Nine Lobbyists ruling or decision. In the memorandum of fact and law filed on behalf of Democracy Watch, counsel wrote:
These two Rulings share a common analytical foundation and therefore common defects. They are both based on the Ethics Counsellor's unreasonable interpretation of Rule 8 of the Lobbyists' Code issued on January 21, 2003.47
[89]I agree with the reference to a "common analytical foundation". In his ruling or decision in relation to the Donations petition or complaint, the Ethics Counsellor wrote:
Let me now address the possible application of Rule 8--- Improper Influence of the Lobbyists' Code which reads:
| "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."48 |
[90]In the Donations petition or complaint, the issue as earlier discussed in these reasons was contributions by lobbyists to possible leadership campaigns by government ministers. The Ethics Counsellor continued:
Fundraising is an important part of the political process, including for leadership campaigns and is generally viewed as legitimate, particularly in circumstances where full public disclosure is provided. Drawing upon the interpretation I made about Rule 8 "Lobbyists and Leadership Campaigns" which, as you know, is on my website, I cannot conclude that the mere fact that the lobbyist has made a political contribution to a Minister involved in the leadership race in and of itself would constitute a breach of the Lobbyists' Code of Conduct.
This is not to say that Rule 8 would never apply in this situation but, as the interpretation states, "what constitutes an improper influence on a public office holder is a question of fact in each particular case".49
[91]After once again setting forth certain of the factors to be considered in assessing whether a lobbyist has proposed or undertaken an action or actions that would constitute an improper influence on a public office holder, the same factors quoted in his ruling or decision on the Nine Lobbyists' petition or complaint, the Ethics Counsellor concludes:
No information has come to my attention that indicates any of these factors were present in the cases you mentioned. I, therefore, have no basis to believe on reasonable grounds that these individuals or organizations breached the Lobbyists' Code. In the absence of such a belief an investigation under the provisions of the Lobbyists Registration Act cannot occur.
[92]For the same brief reasons that support my conclusion in respect of the Nine Lobbyists' petition or complaint, I conclude that the Ethics Counsellor made no reviewable error against a standard of review of reasonableness simpliciter in reaching the foregoing conclusion.
[93]In the result, on the basis of reviewable error alone, this application for judicial review with respect to the Donations ruling or decision would be dismissed.
SUMMARY OF CONCLUSIONS
[94]In summary, the four applications for judicial review that are before the Court will each be allowed by reason of my finding that, on the totality of the evidence before the Court, there existed grounds for a reasonable apprehension of bias, on the part of the Ethics Counsellor and his office, both specific against Democracy Watch and institutional or structural, and that such bias resulted in a breach of the principles of procedural fairness in arriving at the rulings or decisions under review. But for such conclusion, the Fugère ruling or decision would be set aside on the ground that, against a standard of review of reasonableness simpliciter, the ruling or decision was made in error. With respect to the other three rulings or decisions before the Court, those being the Dossetor ruling or decision, the Nine Lobbyists' ruling or decision and the Donations ruling or decision, the applications for judicial review in respect of those rulings or decisions would be dismissed on the ground that, once again on a standard of review of reasonableness simpliciter and on the basis of the totality of the evidence before the Court, they evidence no reviewable error.
RELIEFS
[95]As noted earlier in these reasons, Democracy Watch requested an order quashing each of the four rulings or decisions by the Ethics Counsellor that are before the Court. That relief will be granted.
[96]Democracy Watch further requested a series of declarations as follows: first, that it was deprived of its right to procedural fairness in the context of its four complaints or petitions; secondly, that the institutional scheme under the Lobbyists Registration Act, in so far as it permits the same person to carry out the responsibility of investigating and reporting to Parliament on alleged violations of the Lobbyists' Code and to administer the Public Office Holders' Code raises a reasonable apprehension of bias; thirdly, that the Ethics Counsellor, at all relevant times, lacked independence and suffered from structural bias by reason of the range of his responsibilities and those of his office and the resourcing of that office in government; fourthly, that the Lobbyists Registration Act must be construed so as to prohibit the appointment of the same person to the office of Ethics Counsellor under the Lobbyists Registration Act as is appointed to the office of the Ethics Counsellor under the Public Office Holders' Code; and finally, that the Ethics Counsellor, at all relevant times, was biased against Democracy Watch.
[97]At the close of the hearing of the motion on behalf of the Ethics Counsellor to dismiss the four applications for judicial review that are before the Court on the ground of mootness, as earlier referred in these reasons, I indicated that that motion would be dismissed and an order has gone to that effect. I also indicated that I was satisfied that, while the issues before the Court were not themselves moot, the declaratory reliefs sought were all moot in light of the very recent coming into force of the relatively radical changes regarding the administration of the Lobbyists Registration Act and Code and the Public Office Holders' Code. None of the declaratory reliefs sought on behalf of Democracy Watch will be granted, notwithstanding the fact that my findings in respect of the four applications for judicial review would indicate that, if the recent modifications in law had not been effected, all or a number of the declaratory reliefs might well have been warranted.
[98]Democracy Watch seeks its costs, inclusive of GST, in respect of the four applications for judicial review. In light of the substantial success of Democracy Watch before this Court, the requested relief as to costs will be granted.
1 Application record of the applicant, Vol. 1, Tab 7A.
2 R.S.C., 1985 (4th Supp.), c. 44 [s. 10.1 (as enacted by S.C. 1995, c. 12, s. 5)].
3 Application record of the applicant, Vol. 1, Tab 7B.
4 Application record of the applicant, Vol. 1, Tab 6, p. 42, para. 2.
5 Application record of the applicant, Vol. 1, Tab 6E, pp. 144-145.
6 Application record of the applicant, Tab 6F, pp. 148-149.
7 S.C. 2003, c. 10.
8 Application record of the applicant, Vol. 1, Tab 6G, pp. 151-152.
9 Application record of the applicant, Vol. 1, Tab 6H, pp. 154-155.
10 Application record of the applicant, Vol. 1, Tab 6I, p. 157.
11 Application record of the applicant, Vol. 1, Tab 6I, p. 162.
12 Application record of the applicant, Vol. 1, Tab 6J, p. 164.
13 Application record of the applicant, Vol. 1, Tab 6J, pp. 165-166.
14 Application record of the applicant, Vol. 1, Tab 6L, pp. 174-175.
15 Application record of the applicant, Vol, 1, Tab 6L, pp. 175-176.
16 Application record of the applicant, Vol. 1, Tab 6L, p. 176.
17 Application record of the applicant, Vol. 1, Tab 6M, pp. 178-179.
18 Application record of the applicant, Vol. 1, Tab 6M, p. 179.
19 Application record of the applicant, Vol. 1, Tab 6M, p. 179.
20 Application record of the applicant, Vol. 4, Tab 17, pp. 1682-1683.
21 R.S.C.,1985, c. F-7 [s. 1 (as am.by S.C. 2002, c. 8, s. 14)].
22 R.S.C., 1985, c. S-22.
23 S.C. 2004, c. 7 ( the Act in question).
24 P.C. 2004-655.
25 [1989] 1 S.C.R. 342.
26 Respondent's Record, Tab 1, p. 000017, para. 47.
27 [1978] 1 S.C.R. 369.
28 [2003] 1 S.C.R. 884 (not cited before me).
29 S. 2 of the Conflict of Interest Code [Conflict of Interest and Post-employment Code for Public Office Holders (2003)].
30 Lobbyists' Code, Statement of Principles.
31 [1996] 3 S.C.R. 919.
32 [2003] 1 S.C.R. 247.
33 [2003] 1 S.C.R. 226.
34 [1997] 1 S.C.R. 748, at para. 50.
35 Supra, note 32.
36 Application record of the applicant, Vol. 1, Tab 6E, p. 146.
37 Application record of the applicant, Vol. 1, Tab 7, para. 22, p. 367.
38 Application record of the applicant, Vol. 1, Tab 7C, pp. 404-410.
39 Application record of the applicant, Vol. 1, Tab 7C, pp. 404-405.
40 Supra, para. 5.
41 Application record of the applicant, Vol. 1, Tab 6I, p. 162.
42 Application record of the applicant, Vol. I, Tab 6J, p. 164.
43 Application record of the applicant, Vol. 1, Tab 6J, p. 165.
44 Application record of the applicant, Vol. 1, Tab 6J, p. 166.
45 [2003] 2 S.C.R. 259.
46 See: Rulings of the Integrity Commissioner - Ontario located at http://www.oico.on.ca: report re Eves, Clement, Flaherty and Coburn dated November 28, 2003; report re Eves and Clement dated August/13/03; report re Flaherty dated February 8, 2002; report re Harris and Harnick dated May 16, 2001; and rulings of the B.C. Conflict of Interest Commissioner located at http://www.gov.bc.ca/oic: application by McPhail re Minister Sindi Hawkins; application by Delaney re Minister Stan Hagen; ruling re Glen Clark and application by Tsawwassen Homeowners Association re Minister John Van Dongen.
47 Application record of the applicant, Vol. 4, Tab 17, para. 109, p. 1681.
48 Application record of the applicant, Vol. 1, Tab 6M, p. 179.
49 Application record of the applicant, Vol. 1, Tab 6M, p. 179.
SCHEDULE I
(paragraph 21)
FEDERAL COURTS ACT
2. (1) In this Act,
. . .
"federal board, commission or other tribunal" means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;
. . .
18. (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
. . .
(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.
. . .
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
(2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.
(3) On an application for judicial review, the Federal Court may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
(5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may
(a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and
(b) in the case of a defect in form or a technical irregularity in a decision or order, make an order validating the decision or order, to have effect from such time and on such terms as it considers appropriate.
SCHEDULE II
(paragraph 22)
LOBBYISTS REGISTRATION ACT [ss. 2(1) "Ethics Counsellor" (as enacted by S.C. 1995, c. 12, s. 1), "public office holder" (as am. by S.C. 2002, c. 8, s. 182(1)(w), "registrar", 5(1) (as am. by S.C. 1995, c. 12, s. 3), 8, 9 (as am. idem, s. 5), 10 (as am. idem), 10.1 (as enacted idem), 10.2 (as enacted idem), 10.3 (as enacted idem), 10.4 (as enacted idem), 10.5 (as enacted idem), 14 (as am. idem, s. 7)]
Whereas free and open access to government is an important matter of public interest;
And whereas lobbying public office holders is a legitimate activity;
And whereas it is desirable that public office holders and the public be able to know who is attempting to influence government;
And whereas a system for the registration of paid lobbyists should not impede free and open access to government;
Now therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
. . .
2. (1) In this Act,
"Ethics Counsellor" means the Ethics Counsellor designa-ted pursuant to section 10.1;
. . .
"public office holder" means any officer or employee of Her Majesty in right of Canada and includes
(a) a member of the Senate or the House of Commons and any person on the staff of such a member,
(b) a person who is appointed to any office or body by or with the approval of the Governor in Council or a minister of the Crown, other than a judge receiving a salary under the Judges Act or the lieutenant governor of a province,
(c) an officer, director or employee of any federal board, commission or other tribunal as defined in the Federal Courts Act,
(d) a member of the Canadian Armed Forces, and
(e) a member of the Royal Canadian Mounted Police;
"registrar" means the registrar designated pursuant to section 8.
. . .
5. (1) Every individual who, for payment, on behalf of any person or organization (in this section referred to as the "client"), undertakes to
(a) communicate with a public office holder in an attempt to influence
(i) the development of any legislative proposal by the Government of Canada or by a member of the Senate or the House of Commons,
(ii) 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,
(iii) the making or amendment of any regulation as defined in subsection 2(1) of the Statutory Instruments Act,
(iv) the development or amendment of any policy or program of the Government of Canada,
(v) the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada, or
(vi) the awarding of any contract by or on behalf of Her Majesty in right of Canada, or
(b) arrange a meeting between a public office holder and any other person,
shall, not later than ten days after entering into that undertaking, file with the registrar, in the prescribed form and manner, a return setting out the information referred to in subsection (2).
. . .
8. The Registrar General of Canada may designate any person employed in the office of the Registrar General of Canada as the registrar for the purposes of this Act.
9. (1) The registrar shall establish and maintain a registry in which shall be kept a record of all returns and other documents submitted to the registrar under this Act.
(2) The registry shall be organized in such manner and kept in such form as the registrar may determine.
(3) The registrar may verify the information contained in any return or other document submitted to the registrar under this Act.
(4) The registry shall be open to public inspection at such place and at such reasonable hours as the registrar may determine.
10. (1) The registrar may issue advisory opinions and interpretation bulletins with respect to the enforcement, interpretation or application of this Act other than under sections 10.1 to 10.6.
(2) The advisory opinions and interpretation bulletins are not statutory instruments for the purposes of the Statutory Instruments Act and are not binding.
10.1 The Governor in Council may designate any person as the Ethics Counsellor for the purposes of this Act.
10.2 (1) The Ethics Counsellor shall develop a Lobbyists' Code of Conduct respecting the activities described in subsections 5(1), 6(1) and 7(1).
(2) In developing the Code, the Ethics Counsellor shall consult persons and organizations that he or she considers are interested in the Code.
(3) The Code shall be referred to a committee of the House of Commons before being published under subsection (4).
(4) The Code is not a statutory instrument for the purposes of the Statutory Instruments Act, but the Code shall be published in the Canada Gazette.
10.3 (1) The following individuals shall comply with the Code:
(a) an individual who is required to file a return under subsection 5(1) or 6(1); and
(b) an individual who, in accordance with paragraph 7(3)(f), is named in a return filed under subsection 7(1).
(2) Section 126 of the Criminal Code does not apply in respectof a contravention of subsection (1).
10.4 (1) Where the Ethics Counsellor believes on reasonable grounds that a person has breached the Code, the Ethics Counsellor shall investigate to determine whether a breach has occurred.
(2) For the purpose of conducting the investigation, the Ethics Counsellor may
(a) in the same manner and to the same extent as a superior court of record,
(i) summon and enforce the attendance of persons before the Ethics Counsellor and compel them to give oral or written evidence on oath, and
(ii) compel persons to produce any documents or other things that the Ethics Counsellor considers necessary for the investigation, including any record of a payment received, disbursement made or expense incurred by an individual who is required to file a return under subsection 5(1) or 6(1) or by an individual who, in accordance with paragraph 7(3)(f), is named in a return filed under subsection 7(1), in respect of any matter referred to in any of subparagraphs 5(1)(a)(i) to (vi) or paragraphs 6(1)(a) to (e) or 7(1)(a) to (e), as the case may be; and
(b) administer oaths and receive and accept information, whether or not it would be admissible as evidence in a court of law.
(3) The investigation shall be conducted in private.
(4) Evidence given by a person in the investigation and evidence of the existence of the investigation are inadmissible against the person in a court or in any other proceeding, other than in a prosecution of a person for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made to the Ethics Counsellor.
(5) Before finding that a person has breached the Code, the Ethics Counsellor shall give the person a reasonable opportunity to present their views to the Ethics Counsellor.
(6) The Ethics Counsellor, and every person acting on behalf of or under the direction of the Ethics Counsellor, shall not disclose any information that comes to their knowledge in the performance of their duties and functions under this section, unless
(a) the disclosure is, in the opinion of the Ethics Counsellor, necessary for the purpose of conducting an investigation under this section or establishing the grounds for any findings or conclusions contained in a report under section 10.5; or
(b) the information is disclosed in a report under section 10.5 or in the course of a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made to the Ethics Counsellor.
10.5 (1) After conducting an investigation, the Ethics Counsellor shall prepare a report of the investigation, including the findings, conclusions and reasons for the Ethics Counsellor's conclusions, and submit it to the Registrar General of Canada who shall cause a copy of it to be laid before each House of Parliament on any of the first fifteen sitting days on which that House is sitting after it is received.
(2) The report may contain details of any payment received, disbursement made or expense incurred by an individual who is required to file a return under subsection 5(1) or 6(1) or by an individual who, in accordance with paragraph 7(3)(f), is named in a return filed under subsection 7(1), in respect of any matter referred to in any of subparagraphs 5(1)(a)(i) to (vi) or paragraphs 6(1)(a) to (e) or 7(1)(a) to (e), as the case may be, if the Ethics Counsellor considers publication of the details to be in the public interest.
. . .
14. (1) Every individual who contravenes any provision of this Act, other than subsection 10.3(1), or the regulations is guilty of an offence and liable on summary conviction to a fine not exceeding twenty-five thousand dollars.
(2) Every individual who knowingly makes any false or misleading statement in any return or other document submitted to the registrar under this Act, whether in electronic or other form, is guilty of an offence and liable
(a) on summary conviction, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months, or to both; and
(b) on proceedings by way of indictment, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both.
(3) Proceedings by way of summary conviction in respect of an offence under this section may be instituted at any time within but not later than two years after the time when the subject-matter of the proceedings arose.
SCHEDULE III
(paragraph 23)
LOBBYISTS' CODE OF CONDUCT
Message from the Ethics Counsellor
The Lobbyists' Code of Conduct is the result of extensive consultations with a large number of people and organizations interested in promoting public trust in the integrity of government decision-making. The Code was reviewed in the fall of 1996 by the Standing Committee on Procedure and House Affairs, published in the Canada Gazette on February 8, 1997, and came into effect on March 1, 1997.
The purpose of the Lobbyists' Code of Conduct is to assure the Canadian public that lobbying is done ethically and with the highest standards with a view to conserving and enhancing public confidence and trust in the integrity, objectivity and impartiality of government decision-making. In this regard, the Lobbyists' Code of Conduct complements the registration requirements of the Act to amend the Lobbyists Registration Act, which came into force on January 31, 1996.
Lobbyists--individuals who are paid to communicate with federal public office holders in an attempt to influence government decisions--are required to comply with the code. "Public office holder" means virtually anyone occupying a position in the federal government and includes members of the Senate and the House of Commons and their staff, officers and employees of federal departments and agencies, members of the Canadian Armed Forces and the Royal Canadian Mounted Police.
The Code begins with a preamble which states its purposes and places it in a broader context. Next comes a body of overriding principles which are in turn followed by specific rules. The principles set out, in positive terms, the goals and objectives to be attained, without establishing precise standards. The rules then provide more detailed requirements for behaviour in certain situations. The principle[s] therefore provide a framework for the Code as expressed in the rules. As a consequence, the powers of investigation which are provided to the Ethics Counsellor will only be triggered where there is an alleged breach of a rule.
The Office of the Ethics Counsellor puts great stress on its advisory role and is available to offer comment and guidance to lobbyists on the application of the Lobbyists' Code of Conduct. An important means of communicating more widely our advice and other Code developments will be through annual reports to Parliament.
We welcome questions and enquiries not only from lobbyists but from other members of the public as well.
. . .
Preamble
The Lobbyists' Code of Conduct is founded on four concepts stated in the Lobbyists Registration Act:
| · Free and open access to government is an important matter of public interest; |
| · Lobbying public office holders is a legitimate activity; |
| · It is desirable that public office holders and the public be able to know who is attempting to influence government; and, |
| · A system for the registration of paid lobbyists should not impede free and open access to government. |
The Lobbyists' Code of Conduct is an important initiative for promoting public trust in the integrity of government decision-making. The trust that Canadians place in public office holders to make decisions in the public interest is vital to a free and democratic society.
To this end, public office holders, when they deal with the public and with lobbyists, are required to honour the standards set out for them in their own codes of conduct. For their part, lobbyists communicating with public office holders must also abide by standards of conduct, which are set out below.
Together, these codes play an important role in safeguarding the public interest in the integrity of government decision-making.
Principles
Integrity and Honesty
Lobbyists should conduct with integrity and honesty all relations with public office holders, clients, employers, the public and other lobbyists.
Openness
Lobbyists should, at all times, be open and frank about their lobbying activities, while respecting confidentiality.
Professionalism
Lobbyists should observe the highest professional and ethical standards. In particular, lobbyists should conform fully with not only the letter but the spirit of the Lobbyists' Code of Conduct as well as all the relevant laws, including the Lobbyists Registration Act and its regulations.
Rules
Transparency
1. Identity and purpose
Lobbyists shall, when making a representation to a public office holder, disclose the identity of the person or organization on whose behalf the representation is made, as well as the reasons for the approach.
2. Accurate information
Lobbyists shall provide information that is accurate and factual to public office holders. Moreover, lobbyists shall not knowingly mislead anyone and shall use proper care to avoid doing so inadvertently.
3. Disclosure of obligations
Lobbyists shall indicate to their client, employer or organization their obligations under the Lobbyists Registration Act, and their obligation to adhere to the Lobbyists' Code of Conduct.
Confidentiality
4. Confidential information
Lobbyists shall not divulge confidential information unless they have obtained the informed consent of their client, employer or organization, or disclosure is required by law.
5. Insider information
Lobbyists shall not use any confidential or other insider information obtained in the course of their lobbying activities to the disadvantage of their client, employer or organization.
Conflict of interest
6. Competing interests
Lobbyists shall not represent conflicting or competing interests without the informed consent of those whose interests are involved.
7. Disclosure
Consultant lobbyists shall advise public office holders that they have informed their clients of any actual, potential or apparent conflict of interest, and obtained the informed consent of each client concerned before proceeding or continuing with the undertaking.
8. Improper influence
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.
SCHEDULE IV
(paragraph 24)
PUBLIC OFFICE HOLDERS' CODE
| 2. Object |
The object of this Code is to enhance public confidence in the integrity of public office holders and the decision-making process in government
| a. while encouraging experienced and competent persons to seek and accept public office; |
| b. while facilitating interchange between the private and the public sector; |
| c. by establishing clear rules of conduct respecting conflict of interest for, and post-employment practices applicable to, all public office holders; and |
| d. by minimizing the possibility of conflicts arising between the private interests and public duties of public office holders and providing for the resolution of such conflicts in the public interest should they arise. |
| 3. Principles |
Every public office holder shall conform to the following principles.
| 1. Ethical Standards: |
| Public office holders shall act with honesty and uphold the highest ethical standards so that public confidence and trust in the integrity, objectivity and impartiality of government are conserved and enhanced. |
| 2. Public Scrutiny: |
| Public office holders have an obligation to perform their official duties and arrange their private affairs in a manner that will bear the closest public scrutiny, an obligation that is not fully discharged by simply acting within the law. |
| 3. Decision-Making: |
| Public office holders, in fulfilling their official duties and responsibilities, shall make decisions in the public interest and with regard to the merits of each case. |
| 4. Private Interests: |
| Public office holders shall not have private interests, other than those permitted pursuant to this Code, that would be affected particularly or significantly by government actions in which they participate. |
| 5. Public Interest: |
| On appointment to office, and thereafter, public office holders shall arrange their private affairs in a manner that will prevent real, potential or apparent conflicts of interest from arising but if such a conflict does arise between the private interests of a public office holder and the official duties and responsibilities of that public office holder, the conflict shall be resolved in favour of the public interest. |
| 6. Gifts and Benefits: |
| Public office holders shall not solicit or accept transfers of economic benefit, other than incidental gifts, customary hospitality, or other benefits of nominal value, unless the transfer is pursuant to an enforceable contract or property right of the public office holder. |
| 7. Preferential Treatment: |
| Public office holders shall not step out of their official roles to assist private entities or persons in their dealings with the government where this would result in preferential treatment to any person. |
| 8. Insider Information: |
| Public office holders shall not knowingly take advantage of, or benefit from, information that is obtained in the course of their official duties and responsibilities and that is not generally available to the public. |
| 9. Government Property: |
| Public office holders shall not directly or indirectly use, or allow the use of, government property of any kind, including property leased to the government, for anything other than officially approved activities. |
| 10. Post-Employment: |
| Public office holders shall not act, after they leave public office, in such a manner as to take improper advantage of their previous office. |
. . .
| 4. Interpretation |
1) The following definitions apply for the purposes of this Part and the Schedule:
. . .
| "Public office holder" means |
| (a) a minister of the Crown, a minister of state or a parliamentary secretary; |
| (b) a person, other than a public servant, who works an average of fifteen hours or more a week on behalf of a minister of the Crown or a minister of state, including persons working on a contractual or voluntary basis; |
| (c) a Governor in Council appointee, other than the following persons, namely: |
| i. a Lieutenant-Governor, |
| ii. officers and staff of the Senate, House of Commons and Library of Parliament; |
| iii. a person appointed or employed under the Public Service Employment Act who is a head of mission within the meaning of subsection 13(1) of the Department of Foreign Affairs and International Trade Act, |
| iv. a judge who receives a salary under the Judges Act, |
| v. a military judge within the meaning of subsection 2(1) of the National Defence Act; and |
| vi. an officer of the Royal Canadian Mounted Police, not including the Commissioner; and |
| (d) a full-time ministerial appointee designated by the appropriate minister of the Crown as a public office holder. |
. . .
| 5. Duties of the Ethics Counsellor |
| 1. Under the general direction of the Clerk of the Privy Council, the Ethics Counsellor is charged with the administration of this Code and the application of the conflict of interest compliance measures set out in this Part as they apply to public office holders. |
| 2. Information concerning the private interests of a public office holder provided to the Ethics Counsellor is confidential until a Public Declaration, if any, is made with respect to that information. |
| 3. It is the responsibility of the Ethics Counsellor to ensure: |
| a. that information provided under subsection (2) shall be kept in strict confidence and any record thereof kept in secure safekeeping in accordance with the Privacy Act; |
| b. that any information provided by public office holders for a public purpose is placed in personal unclassified files in the Public Registry; and |
| c. that no more than five years following an individual's departure from public office, the records and files referred to in (a) and (b) are destroyed, in accordance with National Archives policy and the Privacy Act, unless they are material to an ongoing complaint made regarding a public office holder's obligations under this Code. |
. . .
Gifts, Hospitality, and Other Benefits
| 20. When Declined |
| 1. Gifts, hospitality or other benefits including those described in section 21 that could influence public office holders in their judgment and performance of official duties and responsibilities shall be declined. |
| 2. In the case of ministers of the Crown, ministers of state and parliamentary secretaries, travel on noncommercial chartered or private aircraft for any purpose shall be prohibited except in exceptional circumstances and may only be accepted with the prior approval of the Ethics Counsellor. |
. . .
| 23. Avoidance of Preferential Treatment |
| 1. A public office holder shall take care to avoid being placed or the appearance of being placed under an obligation to any person or organization, or the representative of a person or organization, that might profit from special consideration on the part of the office holder. |
| 2. In the formulation of government policy or the making of decisions, a public office holder shall ensure that no persons or groups are given preferential treatment based on the individuals hired to represent them. |
| 3. A public office holder shall not accord preferential treatment in relation to any official matter to family members or friends or to organizations in which they, family members or friends, have an interest. |
. . .
Part III - Post-employment Compliance Measures
| 26. Interpretation |
| For purposes of this Part, "public office holder" refers to the same positions subject to Part II, as set out in section 4, with the exception that ministerial staff and other public office holders as defined at paragraph (b) of the definition of "public office holder" under subsection 4(1) must be designated by their minister for this Part to apply. |
| 27. Object |
| Public office holders shall not act, after they leave public office, in such a manner as to take improper advantage of their previous public office. Observance of this Part will minimize the possibilities of: |
| (a) allowing prospects of outside employment to create a real, potential or apparent conflict of interest for public office holders while in public office; |
| (b) obtaining preferential treatment or privileged access to government after leaving public office; |
| (c) taking personal advantage of information obtained in the course of official duties and responsibilities until it has become generally available to the public; and |
| (d) using public office to unfair advantage in obtaining opportunities for outside employment. |
. . .
| 29. After Leaving Office: |
| Prohibited Activities |
| 1. At no time shall a former public office holder switch sides by acting for or on behalf of any person, commercial entity, association, or union in connection with any specific ongoing proceeding, transaction, negotiation or case to which the Government is a party and where the former public office holder acted for or advised the Government. |
| 2. Nor shall former public office holders give advice to their clients using information that is not available to the public concerning the programs or policies of the departments with which they were employed, or with which they had a direct and substantial relationship during the period of one year immediately prior to the termination of their service in public office. |
| 30. Limitation Period |
| Former public office holders, except for ministers of the Crown and ministers of State for whom the prescribed period is two years, shall not, within a period of one year after leaving office: |
| (a) accept appointment to a board of directors of, or employment with, an entity with which they had direct and significant official dealings during the period of one year immediately prior to the termination of their service in public office; or |
| (b) make representations for or on behalf of any other person or entity to any department with which they had direct and significant official dealings during the period of one year immediately prior to the termination of their service in public office. |