LOBBYING REFORMS LACK TEETH

UNCLAS SECTION 01 OF 02 OTTAWA 000510

SIPDIS

SENSITIVE

E.O. 12958: N/A
TAGS: PGOV CA
SUBJECT: LOBBYING REFORMS LACK TEETH


1. (SBU) Summary: Canada has broadened and tightened federal
regulation of domestic lobbying since 1985, creating an independent
Office of the Commissioner of Lobbying in 2008, and building a new
Canadian model to enhance transparency and integrity in government.
However, the expanded role of the Commissioner remains a work in
progress and the Office's enforcement capability lacks teeth. The
real test will be the Commissioner's ability to detect, avert, or
punish in a future lobbying scandal, whenever that may come. End
summary.

INDEPENDENT COMMISSIONER OF LOBBYING
--------------


2. (U) Prime Minister Stephen Harper confirmed Karen Shepherd as
Canada's first federal Commissioner of Lobbying on June 30.
Parliament had created the independent Office of the Commissioner of
Lobbying in 2008, and Ms. Shepherd had served as interim
Commissioner since July 2008. The Commissioner is one of eight
independent "agents of Parliament" who report directly to the
Speakers of both the House of Commons and the Senate. (The other
seven are the Auditor General, the Chief Electoral Officer, the
Official Languages Commissioner, the Privacy Commissioner, the
Access to Information Commissioner, the Conflict of Interest and
Ethics Commissioner, and the Public Sector Integrity Commissioner.)



3. (U) The House of Commons and the Senate each formally approved
Ms. Shepherd's appointment after holding separate hearings. As a
means of minimizing the chances of political interference, only
Parliament may dismiss the Commissioner "for cause," unlike many
political appointees, who customarily serve "at the pleasure" of the
Prime Minister and whom he may dismiss at any time. Ms. Shepherd's
term runs for seven years.



4. (SBU) In a meeting with PolMinCouns on June 30, Commissioner
Shepherd confirmed that her position has no direct counterpart in
the United States. She pointed to similar positions in the U.S.
Senate and the U.S. House of Representatives that oversee lobbying
for each house, but commented that the Canadian Commissioner of
Lobbying has a much broader mandate, encompassing senior federal
government officials (Director General-level or above),officers of
the Canadian Armed Forces and the Royal Canadian Mounted Police
(RCMP),as well as parliamentarians and political staff who have
contact with lobbyists.


5. (SBU) Commissioner Shepherd also noted that each U.S. state and
many municipalities have their own lobbying legislation, but that
only six of Canada's ten provinces and three territories have their
own statutes. Among municipalities, only Toronto (Canada's largest
city) has its own law. However, in Quebec, provincial lobbying
legislation also extends to municipalities.


TIGHTENING THE RULES
--------------


6. (SBU) Parliament passed legislation requiring mandatory
registration of lobbyists in 1985 and has successively tightened
regulation. The 2008 Lobbying Act built on significant amendments
to enhance public disclosure in 2005 in the wake of a federal
"sponsorship scandal" over the awarding of government advertising
contracts in Quebec, and on Prime Minister Harper's flagship Federal
Accountability Act in December 2006. The Lobbying Act seeks to
balance legitimate lobbying activity with transparency and free and
open access to government. According to Commissioner Shepherd,
these reforms received broad support from all political parties, as
well as from the lobbying community itself, which "welcomed" the
added legitimacy the system provides. She added that political
events (public inquiries or "scandals" over government spending and
Qevents (public inquiries or "scandals" over government spending and
access) have been significant drivers for reform.

MANDATORY REGISTRATION
--------------



7. (U) The 2008 Lobbying Act regulates individuals or companies
lobbying federal elected members and senior government officials for
payment (excluding organizations and individuals who lobby without
fee). The Registry of Lobbyists has been in effect since 1989, and
a Lobbyists' Code of Conduct since 1996. The law mandates
disclosure of the identity of lobbyists and their clients,
departments to be lobbied, subject matter, lobbying methods, dates,
times and locations of meetings, and identity of officials
contacted, as well as the amount and source of all monies received
from the federal government. As of June 30, 2009, the Registry had
2,922 registered lobbyists (lobbying for payment),and identified
4,147 active lobbyists overall.


8. (U) The Office of the Commissioner posts monthly and quarterly
lobbying activity reports online. The Registry receives an average

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of 2,000 online hits per quarter, mostly from media, but also from
public officials and lobbyists themselves. The law does not track
lobbying by foreign countries, although Canadian individuals or
companies lobbying on behalf of foreign states must identify their
clients and report activity. The 2008 Lobbying Act mandates a
parliamentary review of the effectiveness of the legislation every
five years.

TRACKING COMPLIANCE, DOES IT WORK?
--------------


9. (SBU) According to Commissioner Shepherd, overall compliance is
"good." The Office uses media monitoring and public complaints to
track breaches of the Lobbying Act. It employs seven investigators
to identify and review potential violations, approximately 94 pct of
which involve minor compliance matters (failure to report on time or
to register) that the Office attempts to address primarily through
written notification and request for compliance. In more serious
cases, the Office may refer cases to the RCMP for further
examination and, thereafter, if warranted, to the Office of Public
Prosecutions for criminal prosecution. The Lobbying Act provides
for fines of between C$50,000 and C$200,000 and prison terms of up
to two years. However, so far courts have never levied fines or
jail sentences under the 2008 Act or preceding legislation. The
Commissioner tables investigation reports in Parliament, which then
become available to the public.


10. (SBU) Since 2004, the Office of the Commissioner and previous
agencies have settled approximately 30 serious violations through
mediation and referred 4 cases to the RCMP for further review.
According to Commissioner Shepherd, RCMP had forwarded only one of
these cases to the federal prosecutor, although eventually an
alternative dispute settlement resolved the case. Officials in the
Commissioner's office underscored to PolMinCouns that violators
would have to demonstrate "clear intent" to evade the Act and/or
that their actions would have to be "extremely egregious" to warrant
prosecution. Federal prosecutors must weigh the "public interest"
and limited resources in determining which cases to pursue. British
Columbia authorities have laid the most serious charges against an
individual who had breached both the British Columbia and federal
lobbying Acts; however, the provincial court merely ordered the
offender to write an essay. Overall, the Office of the Commissioner
sees its role less to punish than to maintain compliance, and that
the real penalty lies in "naming and shaming" possible offenders.
Officials noted -- and parliamentary officials separately confirmed
-- that the system has become self-policed, with Parliament and
other covered officials often verifying with the Office's website
whether individuals are registered as lobbyists before accepting
appointments.

COMMENT


11. (SBU) Canada's Parliament is creating a new and distinctly
Canadian "model" for the regulation of lobbying that, coupled with
parallel reforms to political party financing, aims to enhance
government accountability. The new mandate of the Commissioner of
Lobbying remains a work in progress. The system appears to be
working, even in the absence of genuine "teeth" for compliance
enforcement, but the real test will be the Commissioner's ability to
detect, avert, or punish in a future lobbying scandal, whenever that
may come.
BREESE