Carson's Alleged Actions are Legal

The real scandal: Canada's lobbying rules are full of loopholes and are barely enforced.

This week the organization I run, Democracy Watch, pointed out that the situation revealed by the Aboriginal Peoples Television Network about former PMO adviser Bruce Carson is scandalous not only because of Carson’s activities, but also because his alleged secret lobbying is legal. Due to loopholes in federal laws, the ethics commissioner and lobbying commissioner, along with the RCMP, didn't catch him because they don’t do random inspections, and no one will likely find Carson violated any laws – again because of loopholes, but also because of vague laws and weak enforcement by the commissioners, the RCMP, and Crown prosecutors.

How many people have to be let off the hook before federal politicians will close the loopholes and strengthen enforcement to make secret, unethical lobbying clearly illegal?

Read more:

Canada's Race to the Tax Bottom: Corporations may soon end up paying no taxes.

Sleepwalking into an Election: Canadians' alienation from politics can only end in disaster.

Last Saturday, Prime Minister Stephen Harper made the false claim that the Conservatives had enacted “very strong rules” in the federal Accountability Act. Hopefully, the House Access, Privacy and Ethics Committee will begin the process of closing the many huge loopholes in the federal Lobbying Act when hearings begin Wednesday, and will continue to push to close the many other big loopholes in the other key laws changed in 2006 by the so-called Accountability Act as those laws are reviewed over the next year.

Carson’s activities are legal under the Lobbying Act and Lobbyists' Code of Conduct because of loopholes that only require people to register as lobbyists and disclose their activities if they are paid as a consultant to lobby, or paid as an employee of a business to lobby for 20 per cent or more of their work time.

The evidence revealed so far is that Carson was not paid to contact anyone in the federal government about the water filtration systems that a company was trying to sell to First Nations reserves (or if he was paid, that he was lobbying less than 20 per cent of his work time).

The so-called five-year ban on lobbying by former cabinet ministers, staff and appointees is actually only a ban on being a registered lobbyist, and so it does not apply to Carson because, again, according to the evidence revealed so far, he was not required to register as a lobbyist. According to other evidence, Carson’s fiancée, but not Carson, would have been paid if the company had sold its systems.

In any case, the RCMP and Crown prosecutors have never charged, let alone successfully prosecuted, anyone for violating the Lobbying Act since it became law in 1988 – even though at least six cases have been referred to them in just the past three years. As well, Commissioner of Lobbying Karen Shepherd has a very weak enforcement record over the past three years that includes failing to issue public rulings on dozens of complaints and letting at least 16 lobbyists who were in violation of the act or Lobbyists' Code off the hook with secret rulings.

There are measures in the Conflict of Interest Act that prohibit former public office holders from taking “improper advantage” of their former office (section 33), and from giving “advice to his or her client, business associate or employer using information that was obtained in his or her capacity as a public office holder and is not available to the public” (subsection 34(2)).

However, Carson’s alleged secret lobbying was legal, and therefore Conflict of Interest and Ethics Commissioner Mary Dawson will likely find that it was proper. (It should be noted that Dawson has never issued interpretation bulletins concerning these measures to define what is “improper,” and the Federal Court ruled in 2004 in the case of Sinclair Stevens that he could not be found guilty for violating a vague rule that was not clearly defined.) As well, Dawson has a very weak enforcement record and has let every Conservative who is alleged to have violated the ethics measures in the Conflict of Interest Act off the hook since she became commissioner in July 2008. This includes creating loopholes in the act that don’t actually exist and refusing to rule on valid complaints, such as the complaint filed by Democracy Watch on May 6, 2010, concerning the treatment given to Rahim Jaffer by Helena Guergis and various other Conservative ministers and ministerial staff.

There are also measures in the Conflict of Interest Act that prohibit former senior cabinet staff from working in any way with any type of organization they had “direct and significant official dealings” with during their last year in office (subsection 35(1)), and from making “representations” to any government institutions they had such dealings with during their last year in office (subsection 35(2)). As well, former cabinet ministers cannot lobby their former cabinet colleagues (subsection 35(3)).

However, these measures apply for only one year after senior cabinet staff leave office (two years for former cabinet ministers (section 36)). So even though he was a senior adviser on aboriginal issues, because Carson left the PMO in 2008, his contact with government officials in 2011 is not prohibited by the measures.

Finally, to be guilty of “influence peddling” under the Criminal Code (section 121(1)(d), which only a few people have been found guilty of in Canadian history, a person must clearly have or pretend to have influence with the government or a cabinet minister or government official, and clearly demand or accept a benefit for themselves or another person in return for using (or not using) their influence.

Based on the evidence revealed so far, Carson did not clearly have, or pretend to the water filtration company to have, influence with anyone in the federal government, nor did he clearly demand or accept a benefit in return for using his influence.

Finally, another part of the scandal is that it was, yet again, the media who discovered the questionable activities by a lobbyist. Commissioners Dawson and Shepherd are empowered under the laws they enforce to conduct random inspections and audits to determine what former public office holders are doing, and whom in government they are contacting, but both have refused to use these powers. And the RCMP are also not watching lobbying activities closely.

These same loopholes in laws, and weak enforcement, exist in provincial, territorial, and municipal governments across Canada. As a result, similar secret, unethical lobbying is likely occurring at every level of government.