There are two key points I want this committee to consider, as it reflects on the lobbying commissioner's proposed code of conduct. The first is on the charter implications of what the commissioner has proposed, and the impact on how individual electors participate in the democratic process. The second is whether the potential infringement of charter rights helps the primary goal of the statute: to create a publicly available and transparent lobbying registry.
A ban on lobbying public office holders because of political activity is an ex post facto limitation on the freedom of assembly to join like-minded individuals in a campaign; on the freedom of speech to campaign to share political ideas; and on the democratic right to participate in an election, in the way the Supreme Court of Canada describes, in Figueroa v. R, as the ability to “meaningfully participate” in the democratic process.
I need you, as elected officials, to remember what your volunteers do. They drive people to the polls when they can't get there themselves. They remind people when and where to vote. They make sure electors are registered and help those who aren't registered get on the rolls. They scrutinize the vote count and ensure the democratic will of electors is not usurped. In short, they support, protect and defend our democracy. Why on earth would we want to dissuade a single Canadian from doing that? Even if the proposed code's ban is only for one year, that is still an ex post facto limitation on those rights.
The only judicial instruction about unacceptable political activities is the organization of a fundraiser by a registrant for a person who is the target of their lobbying. A bright-line test is where tens of thousands of dollars may be at issue, and the successful re-election of a candidate could turn on raising that capital. It was our friends at Democracy Watch who filed this suit, so many years ago. There is no evidence to suggest that routine political activities, regardless of their proximity to the candidate, rise to that level or anything proximate to it.
Can a reasonable person, with or without knowledge of the regulatory process, honestly believe the act of canvassing on behalf of a political candidate is so significant as to create a tension between a public office holder's obligation to a volunteer and their duties to their office? You are elected officials. I will allow you to use your own judgment as to what will or will not influence you. I don't think there are many reasonable people who think that door knocking will create this tension.
It is worth noting the proposed code specifically carves out individual contributions within the prescribed limits of the Canada Elections Act. It's $1,650 per year, versus a registrant not being allowed to provide refreshments of $40 twice in the course of a year. One of those two things is prohibited by the code. It's the smaller number.
Is it because Parliament set those limits? Is it because they are reasonable limits in a free and democratic society? When Parliament considers those changes, the tone of the constitutional discussion is different. If Parliament wants to limit the activities of electors, then Parliament will be accountable to them.
In conclusion, I want members of this committee to ask themselves this question: Do you honestly believe the people who gave up their time to support your election should be precluded from communicating with you on public policy issues? From the preamble of the act, I offer you two pillars upon which it is based: A system for the registration of paid lobbyists should not impede free and open access to government, and free and open access to government is an important matter of public interest. Telling an elector they can't communicate with someone flies in the face of those provisions.
I would welcome any questions you have.