Information & Ethics Committee on Feb. 3rd, 2023

[Nancy Bélanger]

Yes. It's a good question.

You are all subject to making sure that you're not furthering the private interests of your friends. I think that is important.

Who is a friend is a difficult question to answer. I want people to call us so that we can help them navigate it. We have a definition of a close bond. It's personal affection. We will look at the facts. Do you see this person regularly? Even if you don't, do you call that person when you have the biggest problem in the world?

It will depend on the facts of each case. We will advise people and say, “Don't do it.” You know you should always err on the side of caution and not lobby. If you have your own doubts about whether or not this person is a friend, you probably should not lobby them.

We have given a list of definitions and indicators of what we would be looking at. It's a list of examples to try to guide the lobbyists in making sure that they stay on the right side of the line.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

Lobbyists, I believe, can request a reduction in the cooling-off period.

[Nancy Bélanger]

Yes.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

Would those requests be made public? Would those be on the record?

[Nancy Bélanger]

That is a very good question. If it's something that this committee thinks I should do, I would definitely consider it.

Obviously, there are some serious privacy concerns in getting advice and a reduction. Unless it's in my code that I would make those things public, the individual would need to consent. They would likely let you know that they've received a reduction before they come and lobby you.

If this is something that the committee wants me to pursue, I can do that. I would likely consult my colleague the Privacy Commissioner to make sure that I was not doing anything untoward.

It is a good point. It's probably a good suggestion. It would enhance transparency for sure, so I would consider that.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

I have one final point on another detail.

You have this $80 limit for hospitality. Much of the hospitality I get from lobbyists.... I don't get taken out for lunch very often, but I go to receptions. Everybody here gets invited to three, four, five or eight receptions every night. Is it reasonable for a lobbyist to keep track of who shows up at those receptions and how many...?

Some lobbyists are working for various groups through the year. How do they manage that? I mean, it's good to have that detail, but then it gets kind of unwieldy.

[Nancy Bélanger]

Right now, the guidance doesn't mean very much. Lobbyists can offer hospitality, and if the recipient can accept it, they can give it.

Let's not forget that you're not the only ones who are being lobbied and offered hospitality. The senators are, and all the public servants are too. I am required to figure out who can accept what, and under what regime. By making this rule, we have now brought it back into regulating lobbyists to all be on the same level playing field with everybody they lobby.

Now when I hear that it's going to be a burden.... It's not that complicated. We've offered a formula. You expect 300 people and you order food for 300 people. You take your total and divide it, and it has to be under $40 each. It's who you offer it to. Whether they show up or don't show up or eat $50 worth or eat zero is not the test. We are not averaging it out. We are sending a signal that it has to be reasonable.

I see in the news often that there has likely been some.... I'm bringing it back. As far as I'm concerned, from the lobbyist's perspective, the whole hospitality area has gone unregulated for far too long, so we're bringing it back.

When I hear from lobbyists that I will be infringing on a parliamentary privilege, I have some serious concerns. That's why we landed where we've landed.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

Thank you.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Cannings.

Before we go to Mr. Dalton and the next round, I'm going to use my privilege as chair to ask a question.

Ms. Bélanger, it refers to the letter you sent to the committee on December 14 regarding the cooling-off period and the legal opinion that you sought. In it, you said that the charter gives a “low threshold for infringement of the freedom of expression set by the Courts” and that the new cooling-off period would “likely be justified under section 1 of the Charter”.

Is there anything in previous court rulings or any other jurisprudence that would affirm what that charter infringement would be?

In other words, you sought this legal opinion and they said it would be justified under this part, but not under this part. Are there any rulings that the expert legal opinion could refer to?

[Nancy Bélanger]

I'll give a charter analysis course 101.

The first test is to examine whether or not the rule as written infringes any constitutional rights. When it came to freedom of expression, I am stopping people from lobbying for at least two years or a year, depending on the circumstances. The courts have said the minute you stop people from being able to speak—it's a very low threshold—the freedom of expression has been breached.

Then when you look at section 1, is it justified? Is there a reason for this and has it been crafted in a way that it minimally impairs charter rights? When the objective is to ensure that we have ethical and transparent lobbying and that lobbyists do not lobby people who have a sense of obligation towards them, the legal opinion says that this objective is clear.

In the way the rule has been crafted, we're not stopping people from doing political work. In fact, we're letting them do it, but if they choose to do so, there might be limits on who they can lobby afterwards. It's only the people that they've helped get elected, and their close associates.

It is also limited in time, and, depending on the facts, the time could be reduced. If somebody is your campaign manager and within a week you realize that it's not working and you let them go, they shouldn't be prohibited from lobbying you for two years.

Some facts will be reviewed. According to the opinion, it was crafted in a way that the court would likely simply say that it's justified.

[The Chair, Conservative, John Brassard]

Okay.

You also mentioned that you went externally. Can I ask where you went for that opinion?

[Nancy Bélanger]

It's actually in the public domain that I have a service contract with Goldblatt.

[The Chair, Conservative, John Brassard]

Okay.

[Nancy Bélanger]

That's in the public domain: Goldblatt Partners.

[The Chair, Conservative, John Brassard]

It used to be Sack Goldblatt Mitchell.

[Nancy Bélanger]

Yes, exactly.

Now, for the record, this is not a law firm that is registered to lobby, and they did a conflict-of-interest screen, so they were not in a conflict when they provided me with this legal opinion.

[The Chair, Conservative, John Brassard]

Okay. Thank you, Ms. Bélanger.

We're now going to go to Mr. Barrett for five minutes.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Thanks very much, Chair, I appreciate that. We'll have Mr. Dalton take the next set of questions.

Commissioner, thanks for joining us again this morning.

Can you give us an update about how many investigations you've undertaken—a total, which is something that's available in your report—and a total of how many have been referred to the RCMP? Also, how many investigations and referrals to the RCMP are ongoing?

[Nancy Bélanger]

I have referred, since my appointment, 11 files to the RCMP. I know that there has been one charge laid, and they have returned five files recently to me. I haven't decided yet what I will do with that, so there are likely five or six still ongoing.

Right now, I have probably 35 open files that are being looked at, either at the preliminary assessment stage or the investigation stage. It's always around 30 that we have ongoing.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

On what's in the news, we saw that with ArriveCAN, the principals of a company called GC Strategies were in almost constant contact with senior officials directly related to their field of business. Again, this is in the public domain through access to information requests. Att one point they were even inviting the most senior person with respect to the business they wanted to do in IT and technology to an after-hours party. There were constant meetings, constant invitations. Should that be considered lobbying?

I mean, that is exactly what.... If you walked out onto Main Street in any of our communities and asked someone, if you could find someone when it's -40°C.... On any other day, if you walked out and there was someone there and you asked them, “Does that sound like lobbying to you?”, they're going to say, “Yes, of course that's lobbying.”

[Nancy Bélanger]

Not all communications with public office holders are considered lobbying under the Lobbying Act. It's considered lobbying by a lot of people, but the Lobbying Act does not cover all of the situations that are communications with public office holders.

The Lobbying Act needs to be reviewed. I can't say it enough. The last review was in 2012. We skipped 2017 and 2022. It needs to happen.

Yes, contracting was not in my preliminary recommendations in 2021 because I simply had not studied it enough, but I have now, and I have looked at the regime in B.C., and I do believe that there is a gap in the Lobbying Act with respect to contracting for organizations and corporations. It's not for consultants, obviously.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Right.

We heard testimony at another committee this week, at government operations—and it was reported in the media—that the former head of McKinsey had taken a dinner with the now Deputy Prime Minister at her private residence. That firm has since done significant business—in excess of $100 million—with the government.

If there was a friendship there and no business was discussed, I think that perhaps a reasonable person might say that was not a lobbying interaction, but if the relationship is based only around business—and that seems to be the comment that Mr. Barton has made—even a dinner at a private home would be considered a lobbying effort.

[Nancy Bélanger]

Well, the location right now is not an issue; it's the communication itself and whatever was discussed as to whether or not it would be considered lobbying.

Right now, if they're talking about getting a contract for an organization, that is not lobbying. From the perspective of the public office holder, I don't regulate that. I can only regulate lobbyists that are registered, and when I say “registered”, I mean those whose names appear on the registry. There's a gap there. Organizations and corporations do not need to register until they've met the significant part of the duties threshold, so there is a lot of communication that's happening that is not covered by the Lobbying Act right now. That needs to change.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Yes, and with respect to that calculation, that percentage, would you say that who is being lobbied is relevant? If a low-level member of a government relations firm reaches out to a backbench opposition member on one occasion, would that not be different from the chief executive officer of a multi-billion-dollar international conglomerate having direct communication with a member of the Privy Council?

Do you believe that the Lobbying Act should treat those interactions differently?

[The Chair, Conservative, John Brassard]

Give a quick answer, Ms. Bélanger, please.