By Hershell Ezrin
At a time when the functioning of democracy in its responsiveness to the pandemic’s challenges is under intense scrutiny around the world, efforts to improve the transparency surrounding Canadian government decision-making should be applauded.
Political and lobbyist transparency, election finance reform and other factors affecting the conduct of elections have finally moved to the legislative forefront federally and in Ontario.
While there remains no assurance that implementation will occur in advance of the next electoral cycle, if at all, the legislative changes under review address a number of loopholes and experience at both levels.
Their adoption in whole or part may have long term effects on how advocacy influences government decisions and the public’s ability to understand what is happening behind the scenes. They further address how lobbying is conducted in a COVID-19 virtual world.
The preliminary recommendations circulated by the federal Commissioner of Lobbying to improve the current legislation have been provided in response to a November 2020 request from the House of Commons Standing Committee on Access to Information, Privacy and Ethics.
The last review to the federal Lobbying Act took place in 2012; the Lobbyist’s Code of Conduct, was updated in 2015. In addition to the unimplemented recommendations from the 2012 effort, the Commissioner has also “reviewed Canadian provincial and territorial regimes, as well as the cities of Ottawa and Toronto which are part of the network of federal and provincial lobbying regulators”.
As described, the recommendations presented seek to balance “that open and free access to government decision-makers is a matter of public interest and that lobbying is a legitimate activity” with enhancing public trust in ethical government decision-making.
The recommendations are based and assessed on four principles: transparency, fairness, clarity and efficiency.
Among the most significant changes proposed is an effort to amend the Lobbying Act to remove the “significant part of duties” registration threshold for in-house lobbyists which differs from 50 hours per year to 20% of the duties of one employee in various Canadian jurisdictions.
This definition would be replaced federally by an obligation to register lobbying activities by default unless a limited exemption based on objective criteria applies. The rationale is the current system is difficult to apply and to enforce.
In pursuit of transparency and clarity, the Commissioner is also proposing to expand reporting requirements for monthly communication reports. The key change would require that monthly communication reports be prepared for all oral communications (expanding a narrower definition of when an oral communication has to be reported) with designated public office holders and list all those who participated in the communication.
From my perspective, this change would be particularly relevant in the COVID-19 period. According to the Commissioner, “current monthly communication reports do not list the names of the lobbyists or the client who are present during an oral communication (i.e. a meeting, telephone call, videoconference or other verbal communication), anyone who accompanied them, or any other public office holders who participated in the communication.”
In what is likely to be a controversial recommendation, the Commissioner is proposing that lobbyist registrants add reporting of additional contextual information in monthly public filings. Such contextual information would make it easier for the media or interested stakeholders to find important information that would contribute to the transparency of the process. Examples offered include such things as whether lobbying occurred during a sponsored trip or during an event offered by a lobbyist. Where a designated public office holder is an elected official, it could also include whether political donations have been provided.
A year-old Ontario private members’ Bill 162, supported by the major political parties as well as the PC Government House Leader, complements a number of initiatives reflected in the federal recommendations. Slowly wending its way through Committee stage after second reading, this bill would also require increased public disclosure by lobbyists and by Ministers.
The tabled Bill would require detailed filings in respect of consultants and in-house lobbyists including dates and times. More significantly, the bill refers to “any electronic communications made or received” during the reported period, particularly relevant during this COVID-19 period.
Legal experts have raised questions as to whether the breadth of this new draft requirement might compel lobbyists “to submit the full content of all emails, texts and electronic messages on the subject being advocated.”
In addition to increasing penalties, the Bill would compel the Integrity Commissioner to conduct investigations into allegations of wrongdoing advanced not only by MPPS (the current situation) but also by the public in certain circumstances. Changes would also be made to the Public Service of Ontario allowing broader public referral to the Integrity Commissioner.
Finally, in late February 2021, the Ontario government moved ahead with proposed amendments that affect elections laws.
If passed, the proposed changes will increase the election contribution limits for individual and candidates and significantly change the ability of third-party political advertisers to spend in the critical pre-election period, extending the controls and limits on spending to 12 months from the current six-month period. The proposals also introduce amendments to expand the list of activities in which third-parties could not engage in any attempt to circumvent the spending limit.
The role of third-party advocates has been a particularly sore point for the Ontario PCs; it is not surprising they continue to seek to reduce their influence. Over the last two decades, PCs have fought groups such as Working Families, bankrolled by unions, for their consistent attacks on the PC party and its leadership. Observers have claimed several of the past Ontario elections since 2003 have been affected by third-party strategic spending on attack ads.
In the virtual world of politics that the COVID-19 pandemic has forced, the range of changes could contribute significantly to broader transparency while acknowledging the place of advocacy in our democratic system. These recommendations can help bolster trust in government.
Hershell Ezrin is a Professor of Government Relations, Seneca at York, and former Principal Secretary to Liberal Premier David Peterson.