Lobbying in Canada: Canada s First Guide to Federal and Provincial Lobbying Laws - Explained

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1 Lobbying in Canada: Canada s First Guide to Federal and Provincial Lobbying Laws - Explained Pierre B. Meunier October 25, 2004

2 Introduction Intent of this presentation Provide overview of lobbying legislation in Canada. Currently, lobbying legislation exists in 5 Canadian jurisdictions: Canada: federal level (1989) Ontario (1999) Nova Scotia (2002) British Columbia (2002) Quebec (2002)

3 Lobbying in Canada A tool for understanding the lobbying rules and staying abreast of changes Contains all laws, regulations, guidelines (ex: advisory and interpretation bulletins), decisions and supplementary documents for each jurisdiction

4 Why we created Lobbying in Canada Reference tool for all those involved in or affected by lobbying As lobbying grows, the rules of the game become more important 3200 registered lobbyists in Canada and growing Lobbying now touches nearly every aspect of public policy Mastering legislative requirements is critical for both lobbyists and public officials A number of scandals have raised the stakes

5 Spring 2002: Raining scandals In Quebec.. Pluie de scandales La Presse, March 23 Key PQ minister quits: Gilles Baril is 2 nd loyalist linked to lobbying Montreal Gazette, Feb. 13 Landry unveils lobbying rules Montreal Gazette, Feb. 14 Landry defends Oxygene Mtl Gazette, April 12 Le gouvernement dépose son projet de loi sur le lobbyisme La Presse, April 17

6 Raining scandals in 2002 (2) And in Ottawa.. The report so good they wrote it twice Globe and Mail, March 20 Ex-civil servant on leave as Groupaction probed Globe and Mail, April 12 Questionable contracts: Quebec ad bosses pitched ideas to Gagliano Globe and Mail, May 11 Groupaction criminal probe launched Globe and Mail, May 25 Conflict allegations fly: PM vows to tighten ethical guidelines Montreal Gazette, 24 May 2002

7 Federal legislation Overview Lobbyists Registration Act Enacted in 1989 and amended in 1995 First law of its kind in Canada Sets out requirements for who must register and what information must be provided Does apply to: Legislation, programs and policies The award of any grant, contribution, financial benefit or any contract by or on behalf of the Federal government Arrange a meeting between a public office holder and another person

8 Federal legislation Overview Does not apply to: Public proceedings (parliamentary committees) Submissions to public officials re enforcement, interpretation or application of law or regulation Submissions responding to written requests for advice or comment Creates public registry

9 Federal Act Scope of application Registration requirements by category: Consultant lobbyists: lobby on behalf of clients for pay. Must register within 10 days of each undertaking; advise Registrar when ended In-house lobbyists (corporate): employees who spend 20% of their time lobbying. Must register when they start, and annually. In-house lobbyists (organizations): senior paid officer must register at start, and semi-annually.

10 Federal Act Scope (2) Public Office Holder includes any officer or employee of Her Majesty in right of Canada, including: Senators and MPs Ministers and their staffs and appointees Officers, directors or employees of any federal Board, commission or tribunal Federal department employees Members of Armed Forces and RCMP

11 The Lobbyists Registrar - new duties since Bill C-4 Oversees Registry Authority to verify information submitted New responsibilities since entry into force of Bill C-4 on May 17, 2004 Bill C-4 eliminated Federal Ethics Counsellor Transferred powers to Registrar, hence Registrar now enforces Lobbyists Code of Conduct Activities subject to judicial review Unlike new Ethics Commissioner and Senate Ethics Counsellor created by Bill C-4, whose rulings are immune. Registrar rulings still vulnerable.

12 Judicial review of rulings on lobbyists Democracy Watch v. A.G. Canada (Office of the Ethics Counsellor) 2004 F.C. 969 Federal Court decision, July 9, 2004 First judicial review of ruling on lobbyists conduct and application of Code of Conduct Court quashed 4 rulings by former Ethics Counsellor Howard Wilson, due to Wilson s lack of independence (served at pleasure of PM) Rulings raised questions about connections between lobbyists and ministers, and PM

13 Bill C-15 (S.C. 2003, C.10) Bill C-15: An Act to Amend the Lobbyists Registration Act Royal assent since June 11, 2003, but still not in force Enactment expected in 2005, simultaneously with regulations Once in force, this legislation will: Strengthen enforcement capacity by eliminating the requirement that lobbying activities must be an attempt to influence Require Registrar to notify police about offences Require all lobbyists to file semi-annual returns

14 Lobbyist Registration Regulations Details on filing of returns and other documents Registration forms included in regulations Specifies when a document is deemed received

15 Lobbyists Code of Conduct In effect since 1997 Defines acceptable standards Breach triggers Registrar s investigative powers Contraventions of Code excluded from penalty provisions of Act Thus, no fines, but bad publicity and loss of credibility in dealings with office holders

16 Lobbyists Code of Conduct Eight key rules When lobbying federal office holders, lobbyists must: Disclose who they represent and reasons for approach Provide accurate info and not knowingly mislead Inform their client (employer) of their obligations Avoid divulging confidential info without consent Avoid using confidential info in course of activities Avoid conflict of interest of those involved without consent Advise officials that clients have been informed of any potential or apparent conflict Avoid exercising improper influence

17 Federal system in practice Number of registered lobbyists 1638 in September 2004 Prohibited acts Contravening any provision of the Act except compliance with the Lobbyists Code of Conduct Making false or misleading statements on returns Penalties Fines up to $25,000 (summary conviction) False or misleading statements on returns can lead to $25,000 and/or 6 months in prison If with indictment, $100,000 and up to 2 years in prison

18 Ontario - Overview First province to regulate lobbying Lobbyist Registration Act, 1998 came into force on January 15, 1999 Does apply to: Privatizing and outsourcing of government activities and Sale of government owned assets Key differences in relation to Federal Act In-house lobbyist (organization) defined more broadly Knowingly placing an official in conflict of interest is an offence

19 Ontario Overview (2) No code of conduct Registrar can remove lobbyist or return with notice but without hearing No provision for imprisonment Compliance with Act and regulation Now overseen by Office of the Integrity Commissioner, but Most tasks relating to lobbyists registration currently delegated to the Registrar in the Lobbyists Registration office

20 Ontario Regulations and Guidelines Regulations Fees 20% rule for a significant part of duties for In-House lobbyists Advisory and interpretation bulletins Definition of public office holders in relation to Ontario Hydro and other government entities in the electricity sector Clarification of a significant part of duties In-house organization lobbyists clarification of filing periods Guide to the Lobbyists Registration Act (Jan. 1999)

21 Ontario system in practice Number of registered lobbyists 861 in March 2004 Prohibited acts Failure to register or register properly on time Failure to notify registrar of changes False or misleading information in returns Placing public office holder in conflict of interest Penalties: fines of up to $25,000 for contravention of Act (not regulations)

22 Nova Scotia - Overview Lobbyists Registration Act came into force in October 2002 Key differences in relation to Federal Act Broader definition of In-house lobbyist (organization) Knowingly placing an official in conflict of interest is an offence (like Ontario) Public office holders includes officers, directors of an agency of government as defined in Auditor General Act, but excludes members of provincial police No code of conduct No designation of a person responsible for compliance

23 Nova Scotia - Regulations and Guidelines Registration and filing fees increased slightly as of April 1, 2004 Electronic filing not free for all categories of lobbyists Guide to the Nova Scotia Registry of Lobbyists issued in April 2004

24 Nova Scotia system in practice Number of registered lobbyists 107 in July 2004 Prohibited acts Failing to provide required information on time Failing to notify Registrar of changes Making false or misleading statements on returns Placing public office holder in a conflict of interest Penalties: fines of up to $25,000 (1 st offence) and $100,000 (subsequent) for failing to register as required

25 B.C. - Overview Act came into force August 2002 Key differences in relation to Federal Act: Names of categories of lobbyists Narrower definition of organization Wider definition of lobbying Expressly includes officers, directors of corporations defined in B.C. Financial Administration Act as public office holders No designation of a person responsible for compliance No code of conduct Some changes to s. 4 of Act (July 2003) on content of return (re who has been lobbied).

26 B.C. Regulations and Guidelines Regulations Defines government institution and government corporation When filings are deemed received Fees Advisory and interpretation bulletins None to date Guide to the Lobbyists Registration Act for Lobbyists (July 2003). A modified guide is also available for the public

27 B.C. system in practice Number of registered lobbyists 147 in August 2004 Prohibited acts Failing to provide required information on time Failing to notify Registrar of changes Making false or misleading statements on returns Penalties: fines of up to $25,000 for Unregistered lobbying Providing inaccurate or misleading information Failing to provide timely updates

28 Quebec Overview Lobbying Transparency and Ethics Act in force since June 13, 2002 Key differences in relation to Federal Act Different categories and definitions Consultant lobbyist Enterprise lobbyist Organization lobbyist

29 Quebec Overview (2) Definition of lobbying includes communications attempting to influence : decision re issue of permit, licence, certificate or other authorization decision re awarding of a contract (applies to all categories, not just consultant lobbyists) decisions to appoint any public office holder within the meaning of the act respecting the Ministère du Conseil Exécutif

30 Quebec Key differences Definition of lobbying includes Arranging a meeting between official and a third party (not just for consultant lobbyists) Significant part of job activities for enterprise and organization lobbyists (20%, according to notice by Lobbyists Commissioner) includes preparation and follow-up time

31 Quebec Key differences (2) Definition of lobbyist includes In-house lobbyists who are not compensated Definition of public office holder includes Municipal officials and their staffs, government enterprises and groups, but excludes police force Until July 1, 2005, only municipalities over 10,000

32 Quebec Other key features Two officials Registrar ( Conservateur ), who is also the Personal and Movable Real Rights Registrar Lobbyists Commissioner, who administers certain provisions of Act and Code of Conduct Confidentiality orders to limit disclosure Available upon demonstration to Lobbyists Commissioner that disclosure could harm economic or financial interests of client 6 months (renewable), but no exemption from basic registration requirements

33 Quebec Code of conduct Only provincial lobbyists code to date Regulation under Act, in force since March 4, 2004 Contains obligations similar to federal code, but also requires that lobbyists: Act with the spirit of the Act and regulations Take the public interest into account Not induce a public office holder to contravene applicable standards of conduct found in: Regulations under Quebec Public Service Act Regulations under Act Respecting the Ministère du Conseil exécutif

34 Quebec Code of conduct (2) Lobbyists must also: Not lobby in relation to matters for which they have been retained as advisors to govt. officials Not act in any manner that may discredit the occupation of lobbyist Be diligent and cooperative in their relations with Commissioner and Registrar Violations disciplinary measures and/or fines of $500 to $25,000

35 Quebec Regulations and Guidelines Regulations More extensive than in other jurisdictions Cover requirements for returns and notices (content and form), and operation of registry Guidance documents Two new Interpretation Bulletins issued by Registrar in past year, concerning Details to be included in returns, and client codes Details concerning registration by most senior officer in enterprise or organization

36 Quebec system in practice Number of registered lobbyists 487 in October 2004 Prohibited acts (in addition to those in Code) Failure to register or do so properly or advise of changes; providing false or misleading information Working for success fees or awards of contracts etc. Breaking restrictions that apply to former public officers Hindering the work of the Lobbyists Commissioner or lobbying in violation of a prohibitive decision by him/her

37 Quebec system in practice (2) Penalties most comprehensive in Canada Recovery of amount or value of compensation received, upon finding of breach of Act or Code Offences and fines apply also to Code of Conduct Fines of $5,000 to $25,000 (1 st offence) and $10,000 to $50,000 (subsequent offences)

38 Conclusion on understanding lobbying legislation in Canada Devil is in the details Critical for everyone affected to understand laws, regulations, codes and guidance documents No prosecutions yet, but there s a first time for everything. Knowledge is power For lobbying legislation, it is also the key to being effective in the halls of power

39 Me Pierre B. Meunier Fasken Martineau DuMoulin LLP Barristers and Solicitors Stock Exchange Tower Suite 3400, P.O. Box Place Victoria Montréal, Québec Canada H4Z 1E9 Direct phone : Fax :

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