Lobbying In Canada After R. v. Carson

It is a crime, punishable by up to five years in prison, to:

Have, or pretend to have, influence with the Government of Canada or a provincial government; and agree to use that influence, in exchange for something of value, in connection with any matter of business that the government could facilitate. The foregoing constitutes the offence of "influence peddling" under s. 121(1)(d) of the Criminal Code. So said a majority of the Supreme Court of Canada in R. v. Carson, 2018 SCC 12, released last week.

But, if it is criminal to agree to use one's influence to try to get a government to do something, then what about lobbying — a perfectly legal activity that is regulated by the federal Lobbying Act and by comparable legislation in every province?

Carson leaves this question unanswered. Unlike the majority of the Court of Appeal for Ontario (2017 ONCA 142, at paras. 37-46, per Pardu J.A.), neither Karakatsanis J., for a majority of the Supreme Court of Canada, nor Côté J., in dissent, so much as mentioned lobbying in their respective reasons. Lobbyists, and the private entities that employ them, are left to read between the lines.

Here is how we would do so.

Lobbyists must be careful to sell communication, not influence

After Carson, it is more important than ever for those who engage in federal or provincial lobbying to refrain from suggesting that they have any particular sway with the government or its officials. Rather, lobbyists should focus their pitches on their skills as communicators.

The Lobbying Act envisions the lobbyist's role as enabling the client to communicate effectively with public office holders, not to exercise the lobbyist's own influence over those public office holders. It is the client, not the lobbyist, who ultimately persuades the government to act (or refrain from acting) as the client hopes it will.

By hewing carefully to this conception of lobbying, those who are paid to communicate with public office holders should avoid the reach of s. 121(1)(d) of the Criminal Code. After Carson, there will be few limits on that provision's scope, but the Lobbying Act will be one of them, as discussed below. Until courts clarify precisely where communication ends and influence begins, lobbyists should be clear that they are selling the former, not the latter.

For those who actually have "influence" with the federal government or that of a province, as that term is used in s. 121(1)(d) of the Criminal Code, the Supreme Court of Canada's decision in Carson makes any paid lobbying a riskier proposition than it ever has been. Still, as the Supreme Court of Canada held some 35 years ago, "influence" requires more than an ability to open doors or arrange meetings; it entails the power to affect government decisions. After Carson, lobbyists should take care not to claim "influence" they do not have — and those with actual "influence" should take care not to lobby at all.

Business "relate[s]" to the government whenever the government could be involved

The question in Carson was whether an individual namely, Bruce Carson, a former senior advisor to Prime Minister Stephen Harper could be convicted of influence peddling, even if the government had not been directly involved in the "matter of business" in connection with which he had agreed to exercise his influence. In Mr. Carson's case, Mr. Carson had agreed to speak to federal officials, Cabinet ministers, and staffers on behalf of a private company seeking to sell point-of-use water treatment systems to First Nations. At the time of the agreement...