Under The Influence: R V Carson Broadly Defines Criminal Offence Of Influence Peddling

Lots of people will boast about their connections with government officials. Some people even get paid to lobby the government. But when does conduct cross the line into criminal influence peddling? In R. v. Carson, 2018 SCC 12 ("Carson"), the Supreme Court of Canada ("SCC") interpreted the offence of influence peddling broadly—it prohibits not only agreeing to influence the government regarding current business matters, but also business matters that the government could be involved with in the future.

Carson is a significant decision and has generated much commentary. For a lengthier discussion of the practical consequences for lobbyists, please see the post by our colleagues Adam Goldenberg and Jessica Firestone here.

Background

Bruce Carson ("Mr. Carson") was a former Senior Advisor in the Office of the Prime Minister. He agreed to use his government contacts to help sell point-of-use water treatment systems marketed and sold by H2O Professionals ("H2O") to First Nations. H2O, in turn, would pay Mr. Carson's girlfriend a commission on each treatment system sold to First Nations. Mr. Carson organized a number of meetings and communications with federal government officials, including at Indian and Northern Affairs Canada ("INAC"), promoting H2O's products.

Mr. Carson was charged with influence peddling contrary to s. 121(1)(d) of the Criminal Code. At trial, Mr. Carson admitted that he had influence with the government, and that he had demanded a benefit for another person as consideration for using his government contacts to help H2O. However, he denied that his influence was actually connected to a matter of business relating to the government.

The trial judge agreed and acquitted Mr. Carson (2015 ONSC 7127). The trial judge found that INAC had given point-of-use water treatment funding to First Nations with no strings attached. In other words, the First Nations Bands made purchasing decisions, not INAC. Because Mr. Carson's lobbying was effectively pointless (he was under the mistaken impression that INAC made the purchasing decisions), the trial judge held that he did not commit influence peddling.

A majority of the Ontario Court of Appeal reversed the acquittal and entered a conviction (2017 ONCA 142). The majority took a very broad interpretation of influence peddling, holding that the offence was effectively made out when Mr. Carson promised to help H2O by making some calls to help sell its products.

SCC Majority

The SCC held that...