The standard for determining whether a lobbyist has placed a public office holder in a conflict of interest should be the same as the standard for determining whether or not a public office holder was placed in that conflict of interest by a lobbyist. GRIC notes that for public office holders the Conflict of Interest Act arguably sets the criteria and meaning for a real conflict of interest only. I say “arguably” because the committee has heard evidence that the test for apparent conflict of interest is implicit in the act. The Lobbyists' Code of Conduct, on the other hand, explicitly targets both real and apparent conflicts, creating a situation where the ethical bar could be seen as higher for lobbyists than for public office holders and a situation where lobbyists can be guilty of placing a public office holder in a conflict of interest that the public office holders were never actually in.
As GRIC noted in its last appearance before this committee, in February 2011, the Commissioner of Lobbying tabled a report in Parliament finding that a lobbyist had breached rule 8 of the Lobbyists' Code of Conduct and had therefore placed a public office holder in a conflict of interest. This ruling pertained to actions that took place in 2004, five years before the current rules were put in place. The retroactive application of the 2009 rules to 2004 events was never addressed or explained by the Office of the Commissioner of Lobbying. Moreover, the Conflict of Interest and Ethics Commissioner had already concluded, based on the exact same set of facts, that the actions in question did not constitute a conflict of interest on the part of the public office holder.
In other words, one officer of Parliament examined the facts and concluded that a public office holder was not in a conflict of interest, and then another officer of Parliament examined the exact same set of facts and concluded that a lobbyist had placed the public office holder in a conflict of interest, which the public office holder was apparently never really in. Logic, due process, and the fundamental tenets of natural justice dictate that once a public office holder is found by a quasi-judicial body not to have been in a conflict of interest, no individual can then reasonably be found by another quasi-judicial body to have placed that public officer holder in a conflict of interest based on the same set of facts.