Good afternoon, Mr. Chair and members of the committee.
I am pleased to be back with you today to discuss my investigation process. I will also briefly discuss the upcoming legislative review and will be pleased to answer any additional questions you may have concerning the recent amendments to the Designated Public Office Holder Regulations.
I am accompanied by Mr. René Leblanc, Deputy Commissioner, and Mr. Bruce Bergen, senior counsel.
I have a PowerPoint presentation that summarizes the key points I wish to address today concerning the investigation process. I believe you were provided with a copy.
The Lobbying Act came into force in July 2008 to increase the transparency of lobbying activities and help raise the confidence level of Canadians in the integrity of government decision-making.
My mandate has three components: establish and maintain a registry of lobbyists, which is our main tool to increase disclosure and transparency; reach out to lobbyists, their clients, and public office holders to raise awareness about the act; and ensure compliance.
Today I will focus primarily on how I ensure compliance with the Lobbying Act and the lobbyists' code of conduct. My investigation team currently consists of a director, four senior investigators, and a compliance officer. Every year I report to Parliament and to this committee on my activities in this and other areas. The investigations team is responsible for conducting administrative reviews and investigations. The team also verifies monthly communication reports and conducts exemption reviews. In addition, they monitor publicly available information such as media articles, social media, and the registry of lobbyists to identify potential breaches of either the act or the code.
In addition to identifying potential breaches from our own observations of the media and other publicly available information, anyone can make an allegation and inform my office about a suspected breach of the Lobbying Act or the lobbyists' code of conduct. I take all allegations seriously and evaluate each of them before I decide on a course of action. However, if I suspect that the subject matter may be under investigation by a peace officer, such as the Royal Canadian Mounted Police, I will contact them to determine whether or not I should suspend looking into the matter.
Since the coming into force of the Lobbying Act in July 2008, I have had to suspend looking into two files. If no one else is looking into the matter, I will initiate an administrative review if I suspect that a breach of the act or the code has occurred. Contraventions of the Lobbying Act are primarily linked to registrations. These include failing to register as a lobbyist, failing to register within the time limit, failing to provide the required information in the registration, failing to comply with a request for information, and failing to clarify or correct information in the registry of lobbyists.
Knowingly making false or misleading statements in a registration or any other document is also a contravention of the act. With respect to the lobbyists' code of conduct, it is important to note that it is not a statutory instrument. There are no fines or jail sentences for breaches of the code. The act instructs me to table a report on investigation in both houses of Parliament when I conclude an investigation into a breach of the code.
I would like to turn your attention to the administrative review, which is the fact-gathering portion of the investigative process. This process is intended to provide me with sufficient information to determine whether I should pursue the matter by initiating a formal investigation or if an alternate course of action is preferable. During an administrative review, my investigators will attempt to determine if there was an offence under the act by answering questions such as the following. Was the activity a registerable communication? Was the individual paid to engage in lobbying activities? If they were in-house lobbyists, did they meet the significant part of duties threshold? Was a meeting arranged in advance?
For breaches of the code such as rule 8, they will try to determine the extent to which a lobbyist may have advanced the private interest of a public office holder.
The administrative review process is extensive, because it may lead to an RCMP investigation. In addition, any decision I make may be the subject of an application for a judicial review in Federal Court. The length of time it takes to complete an administrative review will vary in each case, depending on the complexity of the file, the availability of witnesses, and other factors.
An administrative review can lead to one of four possible outcomes.
The review is closed because the allegation was not well founded. The reason that allegations are not well founded include that it was not a registerable activity, that it was not undertaken for payment, and that the subject did not meet the significant part of duties test. In these cases, I advise the subject and the complainant of this outcome in a letter. Since July 2008, I have closed nine files because the allegations were not well founded.
It is also possible that I close the administrative review even though the allegation is well founded. In cases where I consider the offence not serious enough to refer to the RCMP, I may choose to take measures that I consider better suited to ensuring compliance with the act. These measures may include educating the subject or requesting that a correction be made to the registry of lobbyists. These files are also subject to further monitoring. This is important if I want to be in a position to show intent or negligence should I eventually decide to refer the matter to the RCMP. Since July 2008, I have closed 16 files where the allegation was well founded and such measures were employed.
In cases when I determine that the allegation is serious and appears to be well founded, I can initiate a formal investigation if I have reason to believe that an investigation is necessary to ensure compliance with the Lobbying Act and the lobbyists' code of conduct. Further, if I have reasonable grounds to believe that an offence has been committed under the Lobbying Act or any other act of Parliament, I must refer the matter to a peace officer.
Since July 2008, I initiated eight investigations. The investigations process is similar to the Administrative Review. One of the main differences is that once an investigation is initiated, I can summon witnesses to give evidence and I can compel the production of documents. To date, my experience is that witnesses are cooperating and responding to our inquiries, and I have not had to use these powers.
At the conclusion of an investigation, the investigations team presents me with a report summarizing the case. The Act requires that I provide the subject of an investigation with an opportunity to present their views. To ensure due process, it is my policy to provide the person with a copy of the investigation report that I receive from the investigations team and give the person 30 days to respond.
Since July 2008 I have referred six files to the RCMP. I provide them with a comprehensive and well-documented case, including all the supporting evidence. When I refer a file to the RCMP, the act instructs me to suspend my investigation until the matter has been dealt with. Once the RCMP or the federal prosecutor has dealt with the matter, I may choose to resume the investigation as an investigation under the lobbyists' code of conduct, if I have sufficient grounds to do so.
The Lobbying Act includes penalties that may be imposed upon conviction. A fine of up to $50,000 and imprisonment for up to six months may be imposed on summary conviction for knowingly giving false information, making a misleading statement, or failing to file a return. The maximum fine goes up to $200,000 and imprisonment for up to two years for a conviction by way of indictment.
If a person is convicted of an offence under the Lobbying Act, I may also prohibit that person from engaging in lobbying activities for up to two years. However, no charges have been laid to date under the Lobbying Act.
As I mentioned earlier, the lobbyists' code of conduct is a non-statutory instrument, and there are no fines or jail sentences associated with breaches of the code. I am required, however, to table a report on investigation in both houses of Parliament to disclose my findings, conclusions, and the reasons for these conclusions, once the investigation into an alleged breach of the code is complete.
In preparing a report on investigation to outline my findings and explain my reasons for them to Parliament, I consider all the information before me to reach my own conclusions on the file. I consider the report that was submitted to me by my investigations team as well as the views presented by the subject.
I expect to table a number of reports on investigation this fiscal year. My reports on investigation are primarily intended to expose wrongdoing and deter the lobbyist from repeating the offence. My predecessor tabled four reports to Parliament in 2007 in which he determined that the allegations of unregistered lobbying were well founded and that the result was that the lobbyist under investigation had breached the lobbyists' code of conduct. Reports to Parliament also provide an incentive for all lobbyists to comply with the act and the code.
In closing, I would like to share my views with you about issues that you may wish to consider in the context of the legislative review. Approximately 5,000 lobbyists are registered to lobby federal public office holders, and every month hundreds of communications with designated public office holders are disclosed by lobbyists.
The issues I wish to raise with you are based on my experience in enforcing the act. Several lobbyists have been coming forward to voluntarily disclose that they were late in registering. It is encouraging to realize that a growing number of registrants are disclosing breaches of the act voluntarily. This year alone nine of the 23 administrative reviews initiated by my office were the result of voluntary disclosures.
However, my experience in enforcing the act has caused me to consider possible amendments that could be considered during a legislative review. For instance, are the compliance measures available to the commissioner appropriate, given the range of possible infractions? The only enforcement option at my disposal for a breach of the act is a referral to the Royal Canadian Mounted Police.
Penalties were increased when the Lobbying Act came into force, but so far no one has been charged. It appears that both the RCMP and the federal prosecutor have a high threshold for initiating a prosecution. As a result, prosecutions have not been commenced in 10 of the 11 cases referred to the RCMP since 2005. One case is still with the RCMP for consideration.
In the only lobbying case that has resulted in a sanction, the Attorney General elected to address the violation of the federal Lobbyists Registration Act by means of an alternative dispute resolution. This case ended with a requirement for the individual to write an essay outlining his experience and describing the lessons to be learned by former government employees whose subsequent activities require registration under the act.
For less serious transgressions, such as late filing of monthly communication reports, I do not believe the public interest would be well served if I were to refer such a file to the RCMP. In my view, such an offence does not warrant a criminal investigation. However, late filings do negatively impact transparency, and habitual late filings may warrant a type of sanction, such as an administrative monetary penalty, which is not currently available under the Lobbying Act but exists in some provincial lobbying legislation and in other federal legislation.
Another consideration is whether the legislation is capturing the individuals it was intended to regulate. Currently the act does not require the registration of organizations or corporations whose employees do not collectively spend a significant part of their duties on lobbying federal public office holders or who are not paid to do so. In considering these issues, I would put in a word of caution about the potential burden changing these provisions may represent for some. In that respect, it is important to keep in mind the principles on which the act is founded, in particular that free and open access to government is an important matter of public interest.
The information being disclosed in monthly communication reports may also be worth reviewing. Currently, monthly communication reports do not always indicate who is actually at the meeting. In the case of in-house registrations, for instance, only the senior reporting officer is listed in a monthly report, rather than the lobbyists who are present at the meeting. While there is an argument for requiring that senior decision-makers in corporations and organizations must be accountable for filing monthly communication reports on behalf of their firms, I believe it would be more transparent to also include the names of those actually engaging in lobbying activities and meeting with designated public office holders.
I would also like to submit that the determination of what is oral and arranged communication is not always as straightforward as one would think, and deserves some attention.
I would like to conclude my remarks with a few comments on the new regulations, which came into force on September 20 of this year. Since I already addressed this issue in some detail the last time I was here, I will be brief.
Members of Parliament and senators have always been considered public officer holders under the Lobbying Act. Before September 20, lobbyists were required to file an initial registration when they communicated with you for payment with regard to certain subjects. Since September 20, lobbyists are also required to disclose oral and arranged communications with you and monthly communication reports.
You may be interested to know that, in October alone, the number of monthly communication reports jumped to 1,600, from an average of about 600 in the months prior. The Registry of Lobbyists has easily absorbed the increased volume.
As designated public office holders, the five-year prohibition now applies to you. As a result, you will not be able to work as a consultant lobbyist nor be employed to lobby on behalf of a not-for-profit organization when you leave office. However, the Act allows you to be employed as an in-house lobbyist by a corporation, but only if lobbying does not constitute a significant part of your duties.
The Lobbying Act provides me with the power to grant exemptions to the five-year prohibition if granting an exemption would not be contrary to the spirit of the Lobbying Act. To date, I have received sixteen applications and have only granted four, all of them based on exceptional circumstances.
When the new regulations came into force, I sent an information package to members of Parliament and senators as well as to speakers of both houses of Parliament. Since then, I have contacted the party caucuses of the Senate and House of Commons and offered to go and explain the amended regulations and answer questions.
Finally, since September 20 my office has received about 100 inquiries from lobbyists, members of Parliament, and senators requesting additional information about the new regulations.
I want to thank you for your attention and I will now be pleased to answer your questions.
