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The Hill Times, Simon Doyle, 30/6/2008 After four years on the job, outgoing Lobbyists Registrar Michael Nelson heads into retirement and reflects on his time in office. The chance of getting a conviction under the federal lobbying rules is slim, says Michael Nelson, Canada's outgoing federal lobbyists registrar.
In an outgoing interview with The Hill Times at his Albert Street office, Mr. Nelson, who has been registrar since July 2004, said there are several hurdles to clear before an investigation under the Lobbyists Registration Act can proceed to court, including an administrative review at the Office of the Registrar of Lobbyists, an investigation by the RCMP, a decision by the Crown to prosecute, and specific legal tests along the way.
Mr. Nelson also suggested that the RCMP and prosecutors feel they have more important things to focus on, such as child pornography and terrorism, than violations of the lobbying rules. Still, he said there are now some lobbying cases "in the hopper" at the RCMP that the Office of the Registrar of Lobbyists has built up as "very good cases."
Although there have never been any charges laid under the Lobbyists Registration Act—which officially becomes the Lobbying Act under a new set rules on July 2—Mr. Nelson said criminal charges are not the best way to measure whether the rules have been enforced. A new culture of "strategic enforcement" is taking hold, he said, in which senior officials and ministerial staff are helping to ensure that lobbyists are registered and abiding by the disclosure rules.
According to federal law, paid lobbyists are required to disclose their activities in an online public registry, which is being overhauled under new disclosure rules that come into force on July 2.
Karen Shepherd, the deputy registrar, will be appointed as interim commissioner on July 2. Mr. Nelson is set to retire this summer and is not going for the job as commissioner, a position that serves as an independent agent of Parliament.
Mr. Nelson spoke at length with The Hill Times at his office on June 24, reflecting on his time as registrar, how the office evolved, and some of the issues he's faced over the years. The following is an edited interview.
Critics have said that your office never thoroughly enforced the rules, either the Lobbyists' Registration Act or the Lobbyists Code of Conduct. No one has ever been charged under the Lobbyists Registration Act. There was the René Fugère investigation, but he was never charged, it seemed, because the law had loopholes. So why does it seem that the system's rules have never been enforced?
"Somebody said to me today, 'Are there enough policemen around?' Well, my view is it takes two to lobby, to do a lobbying transaction, and all public office holders are potential enforcers of the act. And you know how big the public office holder area is, I mean there's tens if not hundreds of thousands of them. I think the more education you get out about the fact that it's okay, it's more than okay, to say, 'Are you in compliance with the act? I can't find you in the registry,' or, 'The thing we were talking about is not what you're registered to talk to me about,' that is an act of enforcement.
"So the more that this office or the government of the day can cause that kind of enforcement to happen, that's another type of enforcement. I wouldn't attribute—I think it's an 847 per cent increase in 2005-06 in the number of [registered] in-house lobbyists—just to this office being adequately resourced for the first time. But you know as well as I do that the environment has changed for the first time. Ministers' offices are saying to people, 'Are you registered?' Deputies are saying that.
"So I think there's this enforcement that I would call 'strategic,' because it's not me saying to someone, 'You've got to register.' It's me saying to a whole bunch of people, 'It's okay to ask if they're registered.' Politicians are saying that, and that kind of enforcement is happening.
"Then we move to the penalties. One of the things I've learned in the last little while is that there are more actors than we think in that little stream of events that happens before someone is convicted. It's not just me sending someone to the RCMP, who then convicts them.
"It's me doing an investigation—we use the term administrative review—determining that it's within the two year [statute of limitations], sending it to the RCMP, and convincing them that it's important enough. There has been quite a sea change in the last couple of years that I've been quite happy with, with the RCMP. It sure wasn't like that when I came to the table. Even when they decide that they've got some evidence, they have to send it to the prosecutor to determine if there's a possibility of a conviction. Each one of these stages has its own test. The public interest test—is it in the public interest?
"Holy cow, when you've got all sorts of cases—terrorism, child pornography, all these things for the RCMP, the prosecutor's office, and the courts, to deal with—the probability, unless something egregious has happened, to get a conviction, is slim, and I think that has contributed over the years.
"What we've tried to do, and the RCMP have complemented us on it, is we've tried to build very, very good cases. So, we still think that, for anything that we have sent to them that's still in the hopper, it has a better chance than just sending a letter to them that says, 'I saw something in the newspaper.' "
So there are cases now that you've sent to the RCMP, that they're looking into?
"Yes. There are, and of course I can't talk about that. In our annual report, we talk about the fact that we have sent cases to the RCMP."
Up until recently do you think you've had enough resources to carry out your job?
"When I was given this job [in July 2004]... I was given something on the order of $300,000 and virtually no staff. So, over the next year, there was the Gomery Commission [into the sponsorship scandal], and there were various articles in the newspapers about lobbyists, and it became pretty clear that this job was a full-time job....
"We had to sort of limp our way through the next year. Industry Canada actually lent us the money. You don't actually get the money, depending on when your Treasury Board submission is approved. If you're too late for mains [the main estimates] in the spring, you don't get your money until supps [the supplementary estimates] in September, so we were doing what you call risk-managing the money ... .
"So I was able to put together the organization that I needed at the time. Then when the Lobbying Act came on the horizon there was the possibility of asking for more money because the commissioner would have more powers. Again, I went to Treasury Board and asked, and they gave us a one-time lump sum in the order of $750,000 last year to get going on the new Lobbyists Registration System, and then they gave us some extra, ongoing money and some more registry staff ...
"Parliament has been very good to me. I cannot say that things haven't been done because I haven't had the resources."
When you started this job [it was part-time and] you also served as an assistant deputy minister at the Industry Department .... Did you have much of an idea that the office would become what it's become now? Maybe no one did.
"I certainly didn't. I had no idea whatsoever. It was a piece of work that needed to get done, and sometimes corporate services shops are used as incubators when the department has a function that it doesn't know what to do with, and this happens all over town. I believe at one point the Department of Fisheries and Oceans' Small Craft Harbours was with the corporate services group. The passport office, I believe, was over at Foreign Affairs within that group. You don't always find everything you think you'll find when you're heading for corporate services.
"Generally speaking, the people there, who are the ADMs, have enough experience that they can manage through something until the system decides what to do with it. In this case, it became pretty clear after a year that, we had to get out of the most lobbied department in government [the Industry Department], and that it was taking way more of my time [than expected]."
So you dropped your other responsibilities.
"I did. You've seen my bio, you've seen the various things I've done. There are many, many, many corporate ADMs in town, but there's only one registrar. So, I said, 'I'll do this.'"
After you leave this position, what do you think you'll remember as a highlight of your time in office?
"Being more in touch with Parliament than I've ever been in my career ... I think you've heard me use this expression, as I have at a couple of Parliamentary committees, that appearing is almost like having a meeting with my boss. I wasn't trying to be cute."
Do you think there's much unregistered lobbying that goes on now? I understand that on occasion your office receives tips.
"I think there are probably fewer people who could claim that they don't know about the law than there used to be, and there are many, many more minister's offices that are just refusing to talk to someone unless they're registered. So, that might be an indication that this strategic enforcement is working and that there's less unregistered lobbying."
I understand you've decided not to go for the commissioner's job?
"No. If I stayed until August I'd have 37 years of service [in the government], and I'll be 55 years old in July. That means a couple of things. It means that having served that much time, I can retire with a pension .... This is a deputy's job, and, if I'm already 55, do I really want to do seven more years? My answer is no....
"I'm still young enough to have another career doing something else, and if that's playing guitar, which is what I'd love to do, then that's pretty tough."
During the 2006 election campaign, you issued a notice to lobbyists that they should not be working on political campaigns, because they could be in breach of the Code of Conduct. Some lobbyists seemed annoyed that this opinion would come in the middle of a campaign. Why did you choose that time to announce that opinion?
"I'll be very careful because whatever I say could end up in someone else's affidavit in court [see sidebar]. The timing was not that I saw a whole bunch of bad stuff happening, it's just that the court ruled in my favour. What I had determined was that Mr. [Barry] Campbell had not breached the act, and I had determined that because he did it at a time when he was working under an interpretation of the code that was the ethics counsellor's. The judge agreed that it was not fair that I should impose [my view].
"So what I decided to do was send a message saying it's not open season. It had nothing to do with whether there was an election coming. There was a judgment that could be spun, perhaps, into, 'It's open season.'
"I thought the prudent thing to do was to at least put a message out to say it is not. There would have been more to come. In fact I had promised GRIC [the Government Relations Institute of Canada] that I'd put a clarification on the website, but now with the court case, it's just not something I can do."
But it seemed you had reversed or changed your interpretation of "improper influence" under Rule 8 of the code. Originally I believe you supported former ethics counsellor Howard Wilson's opinion, which was that a registered lobbyist working on a fundraiser for a Cabinet minister was not improper influence. My understanding is that you supported that opinion. Now you're saying those activities could be a breach of the Code?
"I'm not going to go any further [because it's before the courts], but I do interpret the code differently, and that's a matter record. But I have never said that it is a breach of the code."
Last year you reported that a lobbyist had breached the code and the Lobbyists Registration Act. That was the first time that had ever been done, as you reported with Neelam Makhija, and a Federal Court decision has since said that you exceeded your powers in tabling those investigative reports. Was it an important decision for you, do you think, to go that far in reporting a breach of the act?
"It was certainly important to have done it, because of the very first question you asked: There's never been any convictions. The RCMP don't even say that they've looked into anything, and there's never been anything done under the code, and the code has been around since 1996 ...
"I continue to believe that you're much better off to educate people so that they don't do this, it is important in any system, because people like yourself and other observers will continue to say, 'Where's the evidence of enforcement?' They see evidence as convictions. It was important to me as registrar to do that part of my job, and now that I had the means to do it."
As you're leaving do you have any message for Parliamentarians?
"I would hope that they would think about the entire act, the preamble as well all of the rules, and support the work of the commissioner, particularly the outreach work, because leverage is a terribly important thing for a small organization. I think we have an act that from beginning to end is in very good shape. Let's let it run for a few years. Parliament will have another look at it in 2010 or so."
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