Canada: Quebec's Lobbyists Commissioner Calls For Complete Overhaul Of Lobbying Transparency And Ethics Act

BACKGROUND

In a report entitled Simplicité, Clarté, Pertinence, Efficacité – Réforme de l’encadrement du lobbyisme (Report), Quebec's Lobbyists Commissioner (Commissioner) turned the spotlight on the legal framework applicable to lobbying activities and called for an overhaul of the Lobbying Transparency and Ethics Act (Act).

The Act, which has been in effect since 2002, sets out a regime designed to foster transparency in the lobbying of municipal and provincial public office holders and ensure that lobbying activities are properly conducted. Under this regime, any enterprise or consultant lobbyists must be registered in the registry of lobbyists.

On February 12, 2019, Bill 6 proposed amendments to the Act. Bill 6 aims to transfer the responsibilities of the registry of lobbyists to the Commissioner and to increase the prescription period for bringing penal proceedings from one year to three. These amendments are not currently in effect.

REPORT

The Report provides an overview of the various issues raised regarding the Act. It also introduces 34 recommendations and considerations, in four sections, in order to enhance the current regime and address these issues.

Below, we discuss the noteworthy elements in each section (except those currently covered by Bill 6) and highlight the significant differences from the current regime.

1. Scope of the Act

The first section of the Report focuses on the principles deemed appropriate by the Commissioner to enhance the scope of the Act, including activities, institutions, individuals and entities.

No Minimum Threshold Requirement for Registration

The Commissioner considers the removal of minimum thresholds of activities which apply to lobbyists under the current Act and proposes to eliminate the current requirement whereby registration is only mandatory for employees for whom lobbying activities comprise a significant part of their jobs.

Furthermore, the Commissioner proposes that all consultant lobbyists (i.e., those not employed by a company or organization) be required to register in the registry, including those who receive no compensation for their activities. At present, registration is not required for consultant lobbyists who receive no compensation for their lobbying activities.

Application of the Act to All Public Institutions

According to the Commissioner, the Act should apply without exception to all provincial and municipal public institutions, including Quebec's public education institutions, which are currently not covered by the Act.

Application of the Act to All Types of Lobbyists

The Commissioner recommends that the Act apply to any individual or entity carrying out lobbying activities, regardless of their nature. In 2015, Bill 56 (which died on the order paper) contained a similar proposal requiring that not-for-profit organizations also be subject to the Act.

2. Responsibility and Obligations Regarding Lobbying Activities

The second section of the Report introduces principles that, according to the Commissioner, would clarify certain obligations and responsibilities pertaining to lobbying.

Joint Responsibility of Entities and Their Representatives

The Commissioner underlines the necessity of assigning to enterprises the responsibility of registering their representatives, disclosing their lobbying activities and ensuring compliance with the Act, rather than simply assigning such responsibility to their most senior officer or the representatives, as is currently provided for in the Act.

Appointment of an Institutional Representative

The Commissioner recommends that a provision be added to the Act requiring that each public institution appoint a representative responsible for the application of the Act. The Act respecting Access to documents held by public bodies and the Protection of personal information includes similar measures with respect to freedom of information requests.

Restrictions During and After Public Office

The Commissioner recommends the establishment of ethical principles and obligations that would apply to elected officials and heads of public institutions during and after their terms. He also opens the door to certain "pre-employment" restrictions. These would differ from the current regime under which such rules only apply to certain elected officials or heads of public institutions once their term of office has ended.

3. Disclosure

The Report's third section sets out principles that would enable the development of an efficient disclosure process for lobbying activities in Quebec.

Timely Disclosure

The Commissioner underlines the need for an effective, mandatory and open disclosure system to ensure more timely disclosures of information and the following up of all lobbying activities.

According to the Report, this objective could be achieved by adjusting the registration and disclosure periods (which are currently set at 30 days for consultant lobbyists and at 60 days for enterprise lobbyists following their respective lobbying activities) and by adding certain follow-up requirements.

Relevance of Disclosed Information

The Commissioner recommends that all relevant information be disclosed to the public. The Report lists, in a non-exhaustive manner, certain additional information that may be deemed relevant, such as (i) the recipients of lobbying activities; (ii) the nature and frequency of communications between parties; (iii) amounts spent on lobbying; and (iv) lobbyists' potential political links.

4. Compliance with the Legislative Framework, Responsibilities, Powers and Duties

The final section of the Report focuses on administrative and technical aspects of the Act, including the Commissioners' powers and duties as well as the penalty regime.

Introduction of an Administrative Monetary Penalty Regime

The Commissioner calls for a rethinking of the types of penalties that may be imposed in the event of an offence under the Act. Currently, the Act provides for penal, disciplinary and civil penalties, although the latter option is rarely used.

To this end, the Report mentions that granting the Commissioner the power to impose administrative monetary penalties would foster better management of public funds and eliminate the need for the Commissioner to alert the Director of Criminal and Penal Prosecutions of offences under the Act.

CONCLUSION

The progress of Bill 6 in the national assembly and the publication of the Report by the Commissioner demonstrate a real desire for the modernization of the current system, now in its 17th year. It remains to be seen whether the Government of Quebec will hear the Commissioner's call for change and address some of the concerns raised in the Report.

In any case, the Act in its current form remains in effect. As such, any business or individual that interacts with municipal or provincial public office holders should be familiar with the current regime and comply with the applicable requirements.

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© 2019 Blake, Cassels & Graydon LLP.

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