Bruce Carson should have his convictions for violating the federal Lobbying Act quashed because the “poorly drafted” legislation enacted by the former Conservative government he served under doesn’t clearly define the criminal offences it created, his lawyer argued Wednesday.
Mr. Carson, a one-time top aide to former Conservative prime minister Stephen Harper, was found guilty last year on three counts of improper lobbying after an Ottawa court ruled that he had violated the five-year prohibition on lobbying by ex-designated public office holders during his time with an Alberta-based think-tank and an industry-led energy advocacy body. He was subsequently slapped with a $50,000 fine.
Mr. Carson is appealing both the verdict and sentence.
The five-year ban was introduced by the Harper government in 2008 to prevent top government officials from cashing in on their connections after leaving office by immediately lobbying former colleagues.
But Patrick McCann, the attorney for Mr. Carson, told an Ottawa courtroom at this one-day appeal hearing on Wednesday that ambiguous wording and missing definitions in the legislation that created the offence made it unclear about what activities constituted lobbying.
Most notably, the law fails to define lobbying but it has been interpreted by the courts to constitute activities that require registering with the lobbying commissioner.
Mr. McCann argued that it wasn’t fair to punish Mr. Carson for activities that were poorly explained in the legislation.
“This legislation, quite frankly, in my submission, is very poorly drafted. It doesn’t make clear a number of issues and concepts that it intends to create,” he said.
Crown attorney Vern Brewer countered that Mr. McCann was relying on an excessively narrow reading of the legislation that would create numerous loopholes and undermine the law’s intent to shine a light on lobbying activities.
He called for a broader reading of the law that would be reflective of the core of the legislation, which is to provide “public disclosure” of those seeking, for themselves or on others’ behalf, “public money.”
He also noted that Mr. Carson didn’t seek advice prior to engaging in lobbying activities, despite being a high-ranking former public office holder captured under the legislation.
No date for a decision on the appeal was released before proceedings adjourned. Seated in court Wednesday, Mr. Carson appeared calm and stone-faced.
The entire case against Mr. Carson rests upon interpretation of the Lobbying Act, with no witnesses called over the course of his initial trial.
Mr. Carson was accused of violating by the five-year prohibition by lobbying for an extension of a government grant for the Canada School of Energy and Environment (CSEE), a research group jointly established by the universities of Alberta, Calgary, and Lethbridge that he joined as executive director in 2008 after leaving the Prime Minister’s Office.
The school had received $15-million from the federal government in 2007 with instructions that it must be spent by the end of March 2010 or whatever was remaining would be forfeited.
In early 2009, a bureaucrat with what was then Industry Canada (now called Innovation, Science, and Economic Development Canada) initiated contact with Mr. Carson to discuss whether the grant agreement needed to be changed, and Mr. Carson reached out to various public officials prior to the deal being extended to 2014, according to information contained in the initial court ruling.
Mr. McCann argued that an extension of a grant didn’t constitute a financial benefit under the act, and had legislators wanted to include this provision they could’ve easily added it to the law.
Individuals have to register with the lobbying commissioner if they are lobbying the government for a financial award under the legislation.
Mr. Brewer responded that clearly the extension of the grant should be classified as a financial benefit because had the deadline not been extended, the school would have lost out on the bulk of the funding.
Mr. Carson was also accused of breaching the five-year prohibition for his work for the Energy Policy Institute of Canada, an industry-backed group advocating for the development of a national energy policy, that he helped found in the summer of 2009.
Mr. McCann argued that Mr. Carson, who wasn’t formally designated as an employee of the group but was rather paid an honorarium, which worked out to $60,000 per year, never agreed to lobby for EPIC but instead had signed on to perform policy work.
While there was no contract between the two sides, the Crown argued at the trial that it could be clearly inferred that EPIC was compensating Mr. Carson for activities that would constitute lobbying, which trial judge Justice Catherine Kehoe supported in her ruling through the Ontario Court of Justice.
At the appeal hearing Wednesday, Mr. Brewer pointed to communications between Mr. Carson and EPIC executives to argue that the former PMO adviser was indeed conducting lobbying, citing, in particular, emails sent by Mr. Carson talking up his conversations with then-environment minister and Conservative MP Peter Kent (Thornhill, Ont.) about the proposed energy strategy.
He also argued that using the more rigid interpretation provided by the defence would allow others to skirt the law, saying if the argument was accepted, lobbying entities could write up phoney agreements claiming someone was hired to conduct policy development instead of the actual task of lobbying, and escape without a penalty.
Mr. McCann also said Mr. Carson should be acquitted because the act only restricts lobbying on government policies and programs, and Canada doesn’t have in place a national energy policy.
Legislators, he said, could have added the creation of government policy to the stipulation to make it clear that this activity was prohibited, but it shouldn’t be read into the law by adjudicators as it would place Mr. Carson in a situation in which he is being punished for violating a law he didn’t know existed.
“It’s most appropriate…that [the legislation] be strictly construed, narrowly interpreted, and that a person who’s going to be convicted for an offence under that, it should be an offence that he would obviously know he was committing,” Mr. McCann told the court.
“You cannot expect people to be able to guess what words might be included.”
Mr. Brewer countered that the development of a national energy policy would touch upon existing government policies and programs of the government, and EPIC was essentially advocating for a clear-eyed compilation of these policies to develop a comprehensive national strategy.
The original trial judge fined Mr. Carson $50,000, saying that it was necessary to impose a steep fee to “deter” Mr. Carson and others who would engage in lobbying and ignore the law.
Between 2009 and 2011, the span of the violations, Mr. Carson made roughly $600,000 for his lobbying work, according to court documents.
He was given five years to pay the fine.
At the appeal hearing, Mr. McCann reiterated that his client couldn’t afford to pay the penalty because it was too steep.
He said Mr. Carson’s financial situation has deteriorated in recent years after he was accused of attempting to influence government officials to purchase water filtration units sold by a company that employed his then-girlfriend.
He was originally acquitted of that charge in the fall of 2015 but was convicted on appeal earlier this year.
The Hill Times