Federal lawyers say the courts have undermined Canada’s regime for monitoring lobbyists’ activities by weighing in on the lobbying commissioner’s Aga Khan ruling, new court documents show.
In April, the Federal Court ordered Nancy Bélanger, the Commissioner of Lobbying, to reconsider the decision not to investigate a complaint into Prime Minister Justin Trudeau’s vacation with the Aga Khan, a billionaire philanthropist.
Mr. Trudeau travelled to the Aga Khan’s private island in the Bahamas in January, 2017, amid discussions of funding projects between the Aga Khan and Mr. Trudeau’s government. In December of that year, then-conflict of interest and ethics commissioner Mary Dawson said the trip violated ethics rules. The lobbyist commissioner at the time, Karen Shepherd, chose not to investigate, saying the case did not fall under the scope of the Lobbying Act because the Aga Khan was not paid to lobby.
The legal documents, filed to the Federal Court of Appeal on Monday, argue that the court did not have jurisdiction to conduct a judicial review of the commissioner’s refusal to investigate, and that the commissioner is accountable to the Houses of Parliament – not the court.
Duff Conacher, co-founder of Democracy Watch – the organization that challenged the commissioner’s ruling that Mr. Trudeau’s vacation was legal – said the commissioner is the enforcer of the Lobbyists’ Code of Conduct and the Lobbying Act and has judicial powers when making rules about violations of the Code. He said the commissioner is an agent of Parliament but is not covered by Parliamentary privilege, which protects officers of Parliament from being reviewed by courts.
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“There is nothing in any law in Canada that says the courts cannot review those rulings by the commissioner to determine whether they are correct, and there’s nothing in the Lobbying Act that says that, either,” Mr. Conacher said.
The federal lawyers also argue that the court’s ruling is contrary to binding precedent, and to the Lobbying Act’s purpose, text and legislative history. They contend that the ruling expands the commissioner’s jurisdiction under the Act to individuals and activities that do not involve paid lobbying and that significant changes to the lobbying regime should made by Parliament through amendments to the Act.
Mr. Conacher said the court’s ruling determines what the Act means under a correct, legal interpretation. The legislative history of the Act, he said, is to ensure the public knows who’s involved in lobbying.
He also said the case has already been a “triple win” because it has determined that the commissioner should be investigating more broadly the role of everyone who might be involved in lobbying; it has determined the concept of compensation in the Act – whether the Aga Khan was compensated; and has determined that the general investigative standard of the commissioner should be to investigate anyone over any concerns.
The Federal Court of Appeal stayed its decision earlier this month, meaning the commissioner will not have to probe whether the Lobbying Act was breached until a final ruling is made on the appeal case.
Ms. Bélanger declined to comment, as the appeal is before the court, except to say that she values and will respect the court’s decision.
Mr. Conacher said he expects the Federal Court of Appeal ruling will be similar to the Federal Court’s ruling.
“It is the legally correct ruling if you actually look at the whole law of interpreting and applying laws like the [Lobbying Act and the Lobbyists’ Code],” he said.