cA democratic watchdog lost its appeal of a ruling that allowed campaigners for Liberal cabinet minister Chrystia Freeland to later lobby her department and staff.Democracy Watch (DWatch) was at the Federal Court of Appeal (FCA) Monday morning to appeal the June 2023 Federal Court ruling that it was reasonable for federal Commissioner of Lobbying Nancy Bélanger to let lobbyists Ben Bergen and Dana O’Born of the Council of Canadian Innovators (CCI) off the hook even though they lobbied Liberal Minister of Finance Chrystia Freeland’s department and staff soon after co-managing her election campaign and serving on her riding association executive.The appeals court agreed with the previous ruling, to the disappointment of Democracy Watch co-founder Duff Conacher."Even though any lobbyists' actions that took place before July 1, 2023 that come to light in the future will be investigated by the Commissioner of Lobbying under the rules in the previous version of the Code, and even though the commissioner is still reviewing more than 30 ongoing cases that are covered by the previous code, the court ruled that how the commissioner interprets those rules is a dead issue, which was a very unreasonable and questionable thing for the court to do," Conacher told the Western Standard by email."Very likely there will soon be another case before the courts concerning a ruling by the commissioner under the rules in the previous version of the code, which will show how wrong it was for the court to rule today that the commissioner's interpretation of those previous rules is a dead issue."DWatch’s two cases were heard together given they are about the same situation. DWatch argued that Bergen and O’Born’s lobbying violated Rule 6 of the federal Lobbyists’ Code of Conduct. According to the commissioner’s website, Rule 6 prohibits lobbyists from putting a politician in even an appearance of a conflict of interest. Rule 9 prohibits lobbying a politician or their staff for years after campaign or fundraising for them or assisting them in any other significant way.DWatch wanted the FCA to overturn the commissioner’s and Federal Court’s rulings and find that lobbyists who campaign for or assist politicians and then lobby them soon afterwards put them in an apparent conflict of interest. Another similar situation came to light recently involving Jenni Byrne. She assisted Pierre Poilievre’s campaign to win the Conservative Party leadership and has served as an adviser since, but has also been linked to lobbying of Poilievre’s staff and shadow cabinet.“By letting the CCI lobbyists off the hook, issuing other similarly weak rulings in recent years letting off other unethical lobbyists and by gutting key ethical lobbying rules, Lobbying Commissioner Nancy Bélanger is continuing the negligent enforcement record of her predecessor Karen Shepherd who let off 84% of the lobbyists who violated the law during her decade as commissioner,” said Conacher.Bélanger finally issued two rulings in March 2020 (a delay of almost three years after DWatch filed its complaint) that Bergen and O’Born did not violate Lobbyists’ Code of Conduct rules 6, 8, 9 or 10 which prohibit assisting a politician in any significant way and then lobbying their office or officials afterwards.The cases heard Monday morning had faced many delays. In fall 2020, DWatch was waiting for the Supreme Court of Canada (SCC) to decide whether to allow DWatch to appeal the Federal Court of Appeal’s ruling on its case challenging former Lobbying Commissioner Karen Shepherd’s decision not to investigate the Aga Khan for giving Justin Trudeau’s family and friends a trip to his private Bahamas island. The FCA finally ruled that the public has no right to have a complaint ruled on by the commissioner and therefore no right to challenge a decision not to investigate a complaint. The SCC decided not to hear DWatch’s appeal.Then, the Trudeau Cabinet filed a motion to have DWatch’s cases thrown out, but the Federal Court rejected the motion because in the Bergen and O’Born cases DWatch is challenging the commissioner’s final rulings under section 10.5 of the Lobbying Act after completing her investigations. In contrast, in the Aga Khan case, the commissioner refused to investigate under subsection 10.4(1) of the Act.DWatch was represented by Andrew Montague-Reinholdt and Rhian Foley of Nelligan O’Brien Payne LLP.
