The RCMP wanted to lay charges of illegal lobbying against Julie Couillard last year, but federal prosecutors balked and closed the file on Conservative MP Maxime Bernier's ex-girlfriend, The Globe and Mail has learned.
The Office of the Commissioner of Lobbying supported laying charges, but failed to persuade the Public Prosecution Service of Canada of the merits of the Mounties' case, sources said.
To justify their decision, federal prosecutors worried that judge would throw the charges out because a new Lobbying Act was introduced in 2008, after the alleged infractions occurred.
The decision raises fresh questions about the effectiveness of the Conservative Party's promised crackdown on the shadowy world of lobbyists. Legal experts say that this could mean all cases of unregistered lobbying that occurred within the first two years of the Harper government are already off-limits to law-enforcement authorities.
In the 2006 election campaign, the Conservatives promised to extend the period of time police would have to pursue such files and lay charges to five years from two. The pledge was part of a new accountability regime on which the Tories have had mixed success: full reform of the Access to Information system has not happened yet, and the government's integrity commissioner recently departed in disgrace.
Mr. Bernier was forced to resign as foreign affairs minister in 2008 after his confidential briefing notes ended up in Ms. Couillard's hands. The controversy grew to include allegations of illegal lobbying after revelations that in 2007, Ms. Couillard had acted on behalf of the Kevlar Group, a real estate firm that was seeking a contract to construct a federal building in Quebec City.
In her subsequent autobiography, Ms. Couillard acknowledged making representations on the file to Mr. Bernier and to Bernard Côté, a senior ministerial aide at Public Works Canada.
According to court records, Kevlar paid Ms. Couillard $7,500 a month for six months in 2007, for a total of $45,000.
Under the Lobbyist Registration Act, which was in place in 2007, Ms. Couillard would have had to declare any lobbying activity, or face a fine of $25,000. The law had a two-year statute of limitations for illegal lobbying.
A new Lobbying Act came into effect in July, 2008, with similar registration requirements, and tougher penalties for unregistered lobbying. The new act also increased the statute of limitations to five years.
The Office of the Commissioner of Lobbying was of the view that the five-year period in the new law could apply to infractions that took place while the previous law was still in force, because the definition of the infraction was relatively unchanged. This interpretation RCMP would have given the RCMP until 2012 to charge Ms. Couillard.
The Public Prosecution Service of Canada argued that the government had not specifically called for the statute of limitations to apply retroactively. The federal agency also pointed to a 1993 precedent in which a man involved in prostitution, Lincoln Ford, persuaded the Ontario Court of Appeal to overturn charges because of changing statutes of limitations. Accordingly, any charge against Ms. Couillard had to be laid by 2009.
However, in Mr. Ford's case, the old statute of limitations had already expired when the government made the change, and the court ruled that this gave him "freedom from vulnerability to prosecution."
When the lobbying legislation changed in 2008, the statute of limitations in Ms. Couillard's case had yet to expire.
Charles-Maxime Panaccio, a vice-dean at the University of Ottawa law school, said that this means that federal prosecutors could have authorized charges.
"The two-year statute of limitations had not expired when the Lobbying Act came into effect," he said. "In that context, the new five-year statute of limitations applied retroactively."
Mr. Pannacio said prosecutors seemed to be "overcautious."
In an interview with Radio-Canada this week, Ms. Couillard said she was relieved to learn that no charges would be laid against her. She added she was unaware of any registration obligation during her dealings with Kevlar.