After nearly three years of consultations with stakeholders, the 2023 edition of the Lobbyists’ Code of Conduct (the Code) was published in the Canada Gazette on May 27, 2023. As of July 1, 2023, in-house and consultant lobbyists subject to the Lobbying Act (the Act) will be required to comply with the new rules.
Summary of changes
With an objective of fostering transparency and ethical lobbying, the 2023 edition codifies a more robust federal regime, providing guidance for lobbyists while remedying gaps identified by stakeholders in the 2015 edition. The new edition offers detailed definitions and examples to promote compliance with the Code and the Act. The most significant changes were made to rules surrounding conflict of interest, gifts and hospitality, and the duty of disclosure.
A “sense of obligation”
Lobbyists are now prohibited from lobbying an official where the official could reasonably be seen to have a sense of obligation to the lobbyist. Whether an official could reasonably be seen to have a sense of obligation to a lobbyist is identified with reference to the existence of a close relationship, as a result of political work for the official, and other circumstances not expressly identified in the Code.
Importantly, just as the previous version of the Code prohibited lobbying where there is an appearance of a conflict of interest, the updated Code prohibits lobbying not only where the official has an actual sense of obligation to the lobbyist, but where an official could reasonably “be seen to have a sense of obligation” to the lobbyist.
Lobbyists are prohibited from lobbying an official where a sense of obligation could arise as a result of a “close relationship.” This is defined as a close bond, based on personal affection, on mutual trust or loyalty, or on professional, business or financial interdependence, extending beyond simple acquaintance.
Political work & the “cooling-off” period
Conflicts of interest previously attributable to political activities will be codified as “political work.” This term captures both unpaid and paid work of a political or partisan nature. There will be two categories of political work: (1) leadership or senior political roles performed for officials or their political party, and (2) other political roles, functions or tasks.
If lobbyists engage in category (1) political work, they may not lobby for a cooling-off period of 24 months. The cooling-off period for category (2) is 12 months. Political work does not include forms of political participation, such as attending a fundraising or campaign event, personally displaying election signs or posting digital campaign material during an election period, making a political contribution in accordance with election law or being a member of a political party. In exceptional circumstances, the cooling-off period may be waived.
The cooling-off period was a predominant concern during consultation. Stakeholders submitted concerns that a rule limiting political engagement in the Code could amount to a prima facie violation of Section 2 and Section 3 of the Canadian Charter of Rights and Freedoms.
Other stakeholders advocated for an even longer cooling-off period of 10 years for category (1) political work, and five years for category (2) political work, claiming that the proposed one- and two-year time periods would allow for “rampant unethical lobbying.” In our view, the latter concern is addressed through the catch-all prohibition against lobbying where an official could be seen to have a sense of obligation to the lobbyist for other reasons not expressly identified in the Code (s. 4.3).
Ultimately, the commissioner of lobbying (the Commissioner) determined that dividing political work into two categories with proportional cooling-off periods ensured that the new rule would be minimally impairing, and proportionate to the Code’s objective of limiting situations where an official could be seen as having a sense of obligation towards a lobbyist. It remains to be seen whether a constitutional challenge will be brought in respect of either cooling-off period.
Gifts and hospitality allowance and exemption
Lobbyists will be allowed to provide a low-value gift or low-value hospitality to officials they plan to lobby, or currently are lobbying. The low-value limit is $40 per gift and/or per instance of hospitality, with an annual limit of $200. Gifts include sponsored travel. The updated Code specifies that the value of an instance of hospitality is determined on a per person basis by dividing the total cost of the food and/or beverage by the number of all individuals reasonably expected to attend the gathering, and does not include catering, rental or service charges.
Alongside this allowance, the Commissioner will have discretion to grant an exemption to the gift and hospitality limits by considering factors such as by how much the limit is exceeded, local market prices, if the gift or hospitality is related to the exercise of power, or any factors the Commissioner deems relevant.
These limits do not prevent lobbyists from providing gifts or hospitality to officials they do not lobby or expect to lobby. However, lobbyists should exercise caution even when providing gifts or hospitality to officials they do not lobby or expect to lobby, and should consider the political relationships those officials may have with other officials who are being lobbied.
Clarification of duties of disclosure
Amongst other clarifications in the updated Code, lobbyists using grassroots appeals to persuade the public to communicate with officials are now expressly required by the Code to identify their client or employer and the purpose of their communication. While grassroots communications were already included in the definition of lobbying in the Act, the previous version of the Code did not expressly state that the duty of disclosure extended to grassroots communications.
The author wishes to thank Madeline Heinke, law student, for her help in preparing this legal update.