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Questions and Answers for the Commissioner's Guidance on Conflict of Interest – Rule 8 (Lobbyists' Code of Conduct)
There is a guidance document entitled "Commissioner's Guidance on Conflict of Interest – Rule 8 (Lobbyists' Code of Conduct)" available on the OCL website.
Rule 8 of the Lobbyists' Code of Conduct states that "Lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder".
The Lobbyists' Code of Conduct (the Code) was designed to assure the Canadian public that lobbying is done ethically and with the highest standards with a view to conserving and enhancing public confidence and trust in the integrity, objectivity and impartiality of government decision-making.
The Code requires lobbyists — individuals who are paid to communicate with federal public office holders in regard to certain government decisions — to comply with its principles and eight rules. The principles set out, in positive terms, the goals and objectives to be attained, without establishing precise standards. The rules provide more detailed requirements for behaviour in certain situations.
In short, the Commissioner's Guidance states that a lobbyist may be in breach of Rule 8 if:
- the lobbyist's actions create a real conflict of interest for a public office holder, or
- the lobbyist's actions create the appearance of a conflict of interest for a public office holder.
The Commissioner of Lobbying has, for the purposes of the Lobbyists' Code of Conduct, interpreted real or apparent conflict of interest as follows:
A conflict of interest can be created by the presence of a tension between the public officer holder's duty to serve the public interest and his or her private interest or obligation created or facilitated by the lobbyist by the lobbyist.
The Conflict of Interest Act establishes clear conflict of interest rules for public office holders. In that legislation, which applies to Ministers of the Crown, their staff and advisors and many appointees of the Governor in Council, section 4 provides as follows:
"…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".
Other codes of conduct make reference to conflict of interest and what that may mean for their members. For example, the Values and Ethics Code for the Public Service applies to all public servants working in the federal public administration. This Code directs public servants to arrange their private affairs in a manner that will prevent real, apparent or potential conflicts of interest from arising, and if they do arise, the Values and Ethics Code for the Public Service directs that conflicts should be resolved in favour of the public interest.
References to the concept of conflict of interest are set out in the Conflict of Interest Code for Senators and the Conflict of Interest Code for Members of the House of Commons. Those Codes are nearly identical and provide a similar constraint upon furthering private interests to the detriment of the public interest. The Conflict of Interest Code for Senators reads as follows:
When performing parliamentary duties and functions, a Senator shall not act or attempt to act in any way to further his or her private interests, or those of a family member or to improperly further another person's or entity's private interests.
Lobbying activities may be in breach of Rule 8 of the Lobbyists' Code of Conduct if they create a real or apparent conflict of interest for a public office holder. A conflict of interest may exist because of a "reasonable apprehension" of an apparent conflict of interest, rather than a demonstration of interference with the public duties of a public office holder.
The determination of what constitutes an improper influence upon a public office holder must remain a question of fact in each case. Depending on the specific circumstances, a competing obligation or private interest could arise from factors such as, but not limited to:
- the provision of a gift, an amount of money, a service, or property, without an obligation to repay;
- the use of property or money that is provided without charge or at less than its commercial value; and
- political activities.
There are various factors to consider in assessing whether a lobbyist's actions constitute a real or apparent conflict of interest and, as a result, a breach of Rule 8. Those various factors include but are not limited to:
- Whether a lobbyist proposed or undertook an action that can be reasonably seen as advancing the private interests of a public office holder;
- Whether an action proposed or undertaken by a lobbyist places the private interest and public duties of a public office holder in a possible conflict;
- Whether the action proposed or undertaken by the lobbyist can be reasonably seen as creating a tension between the personal obligation and public duties of a public office holder;
- Whether the action proposed or undertaken by the lobbyist can be reasonably seen as creating an obligation on the part of a public office holder to advance the interests of the lobbyist, his employer, or his client; and
- Whether the action proposed or undertaken by the lobbyist can be reasonably seen as creating a conflict, tension or obligation that could diminish public trust in the integrity, objectivity and impartiality of government decision-making.
In assessing whether an action constitutes or could be considered to be improper influence on a public office holder, lobbyists should consider the ethical responsibilities of public office holders, including those set out in the aforementioned Conflict of Interest Act and the applicable codes of conduct for the public service, members of Parliament and Senators. This should aid lobbyists in determining whether the actions they undertake or propose to undertake could place the public office holder in a position of a real or apparent conflict of interest.
In 2002, the Ethics Counsellor was asked to examine the application of the Lobbyists' Code of Conduct, in particular Rule 8, to a situation where lobbyists might be in a possible conflict of interest if they were registered under the then Lobbyists Registration Act to lobby a federal department at the same time that they were involved in assisting the Minister of that department on a possible bid for the leadership of the Liberal Party. He issued guidelines entitled "Rule 8 – Improper Influence – Lobbyists and Leadership Campaigns".
The 2002 Guidelines have been the subject of a decision of the Federal Court of Appeal in Democracy Watch v. Campbell and Attorney General of Canada (Registrar of Lobbyists) 2009 FCA 79. In that decision, the Federal Court of Appeal held that an interpretation of Rule 8 based upon the previous 2002 Guidelines, was unreasonable. The Federal Court of Appeal decision is located at: decisions.fca-caf.gc.ca
The 2002 Guidelines regarding Rule 8 took the position that the "improper influence" set out in Rule 8 must be such that public office holders are placed in a position of being interfered with in making a decision or judgment, or taking an action. The standard was such that only the inappropriate use of the lobbyists' authority or trust of the public office holder was considered an improper influence. The result was held to be the deprivation of the public office holder's free will.
The Federal Court of Appeal concluded that such an interpretation of Rule 8 was unreasonable and that Rule 8 is principally a rule that prohibits lobbyists from placing public office holders in a conflict of interest. As a result, the words "improper influence" must be understood as an elaboration of, and not a limitation on, the notion of "conflict of interest". This constitutes a significant shift from the approach taken in the 2002 Guidelines and broadens the scope of circumstances in which Rule 8 may apply.
The Federal Court of Appeal summarized the concept of improper influence in paragraph 52 of the decision:
"Improper influence has to be assessed in the context of conflict of interest, where the issue is divided loyalties. Since a public office holder has, by definition, a public duty, one can only place a public office holder in a conflict of interest by creating a competing private interest. That private interest, which claims or could claim the public office holder's loyalty, is the improper influence to which the Rule refers".
More information on Conflict of Interest – Rule 8 (Lobbyists' Code of Conduct)
