Report on Investigation — The Lobbying Activities of Michael McSweeney (Page 7 of 8)

Mr. McSweeney's Views and my Perspective on those Views

Issues

Mr. McSweeney's perspective on the report of the Investigations Directorate that was provided to him pursuant to subsection 10.4(5) of the Lobbying Act was provided to me in three letters from his legal counsel, Jack Hughes of Borden Ladner Gervais, dated August 23 and 30, 2010 and December 13, 2010.

1. Procedural Fairness

Mr. Hughes raised a number of points regarding procedural fairness in his letter of August 23^rd. The process used by my Office to carry out administrative reviews and investigations in relation to the investigation of allegations under the Lobbyists' Code of Conduct under section 10.4 of the Lobbying Act is described earlier in this Report. I clarified the process in my reply to Mr. Hughes of December 2, 2010.

2. Errors of Fact

Mr. Hughes pointed out a number of "errors of fact" regarding the involvement of Mr. McSweeney in the Halton Conservative Association fundraiser held on September 24, 2009, and in relation to Mr. McSweeney's activities as a lobbyist. I have taken notice of the discrepancies between the investigation report and Mr. McSweeney's view of the events surrounding the fundraiser and regarding Mr. McSweeney's communications with Minister Raitt in his capacity as a lobbyist for the Cement Association of Canada.

I accept Mr. McSweeney's description of the events surrounding the fundraiser. In my view, there is a difference in degree from the description of Mr. McSweeney's activities set out in the report of the Investigations Directorate and Mr. McSweeney's description. In summary, Mr. McSweeney has indicated that he was not a primary organizer of the fundraiser, but rather that he was involved as a ticket seller. He was not a member of the board of the Halton Conservative Association, and his involvement came primarily as a result of the request from his brother. Nonetheless, in my view, although Mr. McSweeney's involvement was to a lesser degree than others who were involved as the primary organizers of the fundraiser, his participation in selling ticket for the fundraiser constitutes involvement in the organization of the fundraiser.

3. Errors of Law

Three "Errors of Law" were raised in relation to the application of Rule 8 in this case. From my perspective, these representations were very important elements of Mr. McSweeney's position. I have considered each of the arguments and wish to address them in a substantive manner in this Report on Investigation.

i. Retroactive Application of the Rule 8 Guidance

Mr. McSweeney argues that my Guidance on Conflict of Interest – Rule 8 (Lobbyists' Code of Conduct) has a retroactive effect, as there was no guidance at all between March 12, 2009 and the date of issuance of the Guidance in November 2009. This alleged retroactive application of the Guidance is contrasted with my predecessor's statement that "It would be unfair to retroactively impose my approach to the enforcement of the Lobbyists' Code of Conduct upon lobbyists who operated under the previous approach to enforcing the Code." ¹¹ This statement was made by the former Registrar of Lobbyists in relation to his decision to enforce the Principles of the Lobbyists' Code of Conduct, along with the Rules of the Code.

In my view, this is not what I have done in this case. Rather, I take the view that the decision of the Federal Court of Appeal on March 12, 2009 had the effect of changing the manner in which Rule 8 of the Lobbyists' Code of Conduct must be interpreted, effective on that date. The Court, in striking down the previous Guidance, clearly intended that its decision should apply to events prior to that date, as it struck down the Registrar's ruling of October 10, 2006. In addition, the Court, in declaring the previous interpretation of Rule 8 to be "unreasonable" and setting aside the Registrar's decision, stated clearly at paragraph 57 that "…Democracy Watch has achieved its objective of clarifying the interpretation of the Code." As a result, in my view, the Federal Court of Appeal intended that its clarified interpretation of Rule 8 be effective on the date of the decision.

The decision of the Federal Court of Appeal on the interpretation of Rule 8 has guided lobbyists since March 12, 2009. My Guidance was developed to further assist lobbyists in making judgments regarding their lobbying activities and their political activities and as a tool for the purposes of analyzing the activities of lobbyists in the Rule 8 context. There is no obligation on me to issue guidance respecting Rule 8, nor regarding the Code in general. I have done so in order to provide guidance about a potentially difficult area of the law. My view is that there was no gap in the law after March 12, 2009 – the Federal Court of Appeal decision established a revised interpretation of Rule 8. Finally, I do not agree that my Guidance has retroactive effect – and in my view, the same is true of the Clarifications about Political Activities of August 2010 ¹².

ii. Incorrect Application of the Principles in Democracy Watch

Mr. McSweeney relies upon the Federal Court of Appeal's judgment in making the argument that he did not cultivate a sense of personal obligation, or create a private interest, by his actions in relation to the fundraiser on behalf of Minister Raitt. However, in my view, this is a restricted or limited interpretation of the Court's decision. It is clear to me that the Federal Court of Appeal considered that "facilitating" or "advancing" a public office holder's private interest is equivalent to "creating" such a private interest. In addition, it is also clear that the Court considered that "… Any conflict of interest impairs public confidence in government decision-making." ¹³ The Court also stated that "… Where the lobbyist's effectiveness depends upon the decision maker's personal sense of obligation to the lobbyist, or on some other private interest created or facilitated by the lobbyist, the line between legitimate and illegitimate lobbying has been crossed." ¹⁴

In my view, Mr. McSweeney's legal argument is too narrow and restrictive an interpretation of the Federal Court of Appeal's decision. Such a narrow and restrictive approach is the type of approach that the Federal Court of Appeal overturned in concluding that the Registrar's interpretation of Rule 8 was unreasonable. I have considered Mr. McSweeney's argument that the facts surrounding his involvement in the fundraiser fall short of having the effect of advancing the private interest of Minister Raitt to a moderate degree. I take the view that, by selling tickets to the fundraiser, Mr. McSweeney did advance the private interest of Minister Raitt in her re-election. This involvement in selling tickets to the fundraiser was a greater degree of involvement than simply buying a ticket and attending the event would have been. I do not consider that I have applied the principles of the Court's decision incorrectly.

iii. Cannot be Reconciled with Reports Issued by the Conflict of Interest and Ethics Commissioner

Mr. McSweeney argues that the Investigation Report he received is irreconcilable with the reports regarding Minister Raitt issued by the Conflict of Interest and Ethics Commissioner, Mary Dawson. ¹⁵ I have read Commissioner Dawson's reports. In her report entitled The Raitt Report (made under the Conflict of Interest Act), Commissioner Dawson concluded that Minister Raitt had not breached the Conflict of Interest Act because "…the political contribution, volunteer time and resources provided by the lobbyists in connection with the fundraiser were given to the organizer of the event, the Halton Conservative Association." As a result, Commissioner Dawson found no breach by the Minister of the prohibition against accepting a gift or other advantage under the Conflict of Interest Act. The Commissioner made a similar finding in her other report under the Conflict of Interest Code for Members of the House of Commons, that Minister Raitt had not accepted a gift or other benefit in contravention of that Code.

The legislation that Commissioner Dawson administers provides a definition of conflict of interest, set out in section 4 of the Conflict of Interest Act, as follows:

"For the purposes of this Act, a public office holder is in a conflict of interest when he or she exercises an official power, duty or function that provides an opportunity to further his or her private interests or those of his or her relatives or friends or to improperly further another person's private interests."

In my opinion, this is a definition of an actual conflict of interest, similar to that used by the Ethics Counsellor in his original Guidance regarding Rule 8, and applied by the Registrar of Lobbyists in the case of Democracy Watch v. Campbell et al. This is the approach to conflict of interest that the Federal Court of Appeal did not consider to be reasonable for the Registrar to apply in the case of the conduct of lobbyists. Mr. McSweeney argues that a finding of no conflict of interest by the Conflict of Interest and Ethics Commissioner cannot be reconciled with a finding that a conflict of interest was created by his actions. I take the view that this is not the correct interpretation of Commissioner Dawson's conclusions. However, I believe that such a seemingly irreconcilable conclusion can be reconciled. In my view, this is because the two standards of conflict of interest are different. For public office holders, the definition in the Conflict of Interest Act clearly sets out the standard for conflict of interest. For lobbyists, a standard of conflict of interest that incorporates the concept of apparent conflict of interest arises as a result of a decision of the Federal Court of Appeal.

I am required to examine the activities of a lobbyist in light of the new standard of conflict of interest established by the Federal Court of Appeal. I believe that this situation is indeed reflected in Commissioner Dawson's decision, as she recognized the possibility that Minister Raitt could be placed into a position of an appearance of a conflict of interest by asking her to enter into "…an agreed compliance measure establishing an interim conflict of interest screen to prevent any potential conflicts of interest, more particularly, any potential for preferential treatment." Commissioner Dawson states in her report: "… I was concerned that, should a situation arise where Minister Raitt had to make an official decision involving the Cement Association of Canada, she could be subject to allegations of preferential treatment because of the help that Mr. McSweeney had provided for the fundraiser." ¹⁶ From my perspective, this could create the appearance that a lobbyist had placed a public office holder into a position of conflict of interest.

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11 – supra, footnote 1 at paragraph 9 Back to text

12 – supra, footnote 3 Back to text

13 – supra, footnote 1 at paragraph 48 Back to text

14 – supra, footnote 1 at paragraph 53 Back to text

15 – The Raitt Report, (made under the Conflict of Interest Act) and The Raitt Report, (made under the Conflict of Interest Code for Members of the House of Commons), Mary Dawson, Conflict of Interest and Ethics Commissioner, May 13, 2010 Back to text

16 – supra, at page 25 Back to text