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POLITICAL PARTIES - Officers - Lobbying Act - Offences

Thursday, October 12, 2017 @ 8:35 AM  

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Appeal by the accused, Carson, from conviction of offences under the Lobbying Act (Act) and sentence of a $50,000 fine. The appellant had served as an advisor to the Prime Minister of Canada between 2006 and 2009 and, under a new federal legislative scheme, was a “designated public office holder” and prohibited from engaging in lobbying for a five-year period after ceasing to hold office. After leaving his post, he became Executive Director of the Canada School of Energy and Environment (CSEE). While in this position, the appellant was involved in discussions with Industry Canada leading to an amended agreement that related to a $15 million grant. Then, the appellant participated in founding the Energy Policy Institute of Canada (EPIC), following which he communicated regularly with public office holders and met with the Minister of Natural Resources in support of the development of a strategy. The appellant was convicted of three counts in September of 2016. Counts one and two related to the appellant’s activity while he worked for EPIC. Count three related to the activity of the appellant while he was Executive Director at CSEE. At issue was whether the activities the appellant undertook were properly found to be prohibited activities within the meaning of the Act. The second issue was whether it was fair and reasonable to sentence the appellant to pay the maximum fine given his financial circumstances.

HELD: Appeal allowed in part. The conviction on the third count was overturned. The convictions on the first and second counts were upheld. The global sentence was reduced to a fine of $45,000. The Court disagreed with the trial judge’s conclusion that the activity the appellant undertook for the CSEE constituted prohibited lobbying. It was significant, but not conclusive, that dialogue was initiated by Industry Canada and not by the appellant. It was also significant that neither the appellant nor the officials he was speaking with believed he was involved in lobbying. They were alerted to the issue because both the original and the amended agreement contained representations and warranties that no unregistered lobbyist had lobbied on behalf of CSEE to obtain the funding and that CSEE was in compliance with the Lobbying Act. Although neither of these factors inoculated the appellant’s activities from conviction if he strayed into prohibited lobbying on behalf of CSEE, this evidence should have been given weight in considering whether prohibited activities had taken place. While the proposition that in certain circumstances, negotiating for extension of existing funding and for renewal of an agreement could become lobbying, properly interpreted, the appellant was not guilty of an offence in these circumstances. Responding to inquiries from government officials regarding a grant that had already been awarded and how and when it was to be spent was not clearly engaging in “communication in respect of the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada”. The trial judge failed to apply the principle that if there was ambiguity in the interpretation of a penal statute, the ambiguity had to be resolved in favour of the accused. With respect to counts one and two, the activities of EPIC and the activities the appellant undertook on its behalf were an exemplar of what the Act prohibited. As one of the convictions was overturned, it was necessary to adjust the global sentence. There was no error in principle in the trial judge’s finding that the evidence of the appellant’s financial circumstances was unpersuasive and that he remained employed and employable. A $45,000 fine was not manifestly unfit. Sentence: $45,000 fine.

R. v. Carson, [2017] O.J. No. 4646, Ontario Superior Court of Justice, C.U.C. MacLeod J., September 11, 2017. Digest No. TLD-October92017009