Democracy Watch calls on Auditor General to audit performance of federal Commissioner of Lobbying and RCMP

• Likely 1,600 lobbyists have violated Lobbying Act or Lobbyists’ Code since 2007 but only one has been found guilty of violating Act (with two others currently charged),and only 13 have been found in violation of theCode (none since 2012)
• In past 11 years, the Commissioner, RCMP and Crown prosecutors have decided not to penalize 67 lobbyists who have violated the Act and Code (who they are has been kept secret) – 81% of the lobbyists caught violating the Act and Code have not been penalized or prosecuted
• Another 52 people have been caught lobbying without registering but have been let off the hook because loopholes in the Act mean their secret lobbying was legal (who they are remains secret)
• Commissioner doesn't do any audits to find unregistered communications with government institutions and officials -- so likely only 5% of violators are caught – law and enforcement must be strengthened

Today, Democracy Watch called on the Auditor General to audit federal Commissioner of Lobbying Karen Shepherd’s and the RCMP performance record similar to the review the auditor did in 2010 of the very negligently weak enforcement record of the former federal Integrity Commissioner. Commissioner Shepherd is the front-line enforcer of the Lobbying Act and Lobbyists’ Code of Conduct and the RCMP are supposed to assist in enforcement. Together their enforcement record is as bad as the former Integrity Commissioner’s record.

In the past 11 years, the Commissioner of Lobbying, RCMP and Crown prosecutors have secretly decided not to penalize or prosecute 67 lobbyists who have violated the Act and Code (who they are remains secret). Another 52 people have been caught lobbying without registering but have been let off the hook because loopholes in the Act mean their secret lobbying was legal.

Since 1988, only one person has been found guilty of violating the Act, only two other people have been charged with violating the Act (Bruce Carson and Jamie Carroll), and only 13 have been found guilty of violating the Code. Commissioner Shepherd took until November 2011 to issue the first valid ruling on a violation of the Code, and two of the 13 who have been found guilty after the Commissioner was forced by court order to issue rulings. Commissioner Shepherd has not found anyone guilty of violating the Code since 2012.

So overall, since 1988, the Commissioner of Lobbying and her predecessors, and the RCMP, have only caught 83 people violating the Act and Code (anyone who violates the Act is automatically in violation of the Code) even though there are 5,000 registered federal lobbyists at any one time, and tens of thousands of people who have lobbied the federal government since 2007 when Commissioner Shepherd began her position – and 67 of those 83 people have been let off the hook.

In other words, Commissioner Shepherd, the RCMP and Crown prosecutors have decided not to penalize 81% of the lobbyists who have been caught violating the Act and Code.

On May 27, 2015, as she has in the past, Commissioner Shepherd testified before the House of Commons Standing Committee on Access, Ethics and Privacy and stated that her only enforcement action concerning unregistered communications between lobbyists and government institutions and officials is “monitoring the media”. She doesn’t do any random auditing of communications – which experts in law enforcement agree are necessary for effective law enforcement.

Given the weak enforcement practices, approach, attitude and record of Commissioner Shepherd, it is reasonable to assume that that only 5% of violators are likely caught. As a result, it is reasonable to conclude that actually about 1,600 people have violated the Lobbying Act and Lobbyists’ Code of Conduct since 2004, with 95% of them not even caught, and 81% of those who were caught let off the hook.

“Lobbying Commissioner Shepherd has clearly failed to enforce the federal lobbying law and code effectively as she has failed to even name and shame 81 percent of the lobbyists caught violating the law,” said Duff Conacher, Co-founder of Democracy Watch and Visiting Professor at the University of Ottawa. “Together with the RCMP and Crown prosecutors, she has a negligently weak enforcement record as bad as the former Integrity Commissioner’s record, and so Democracy Watch is calling on the Auditor General to do a similar review as the auditor did in 2010 of the former Integrity Commissioner’s performance.”

As well, the Act needs to be strengthened in all the ways the House Committee recommended in its May 2012 report, and more, to ensure secret, unethical lobbying is finally made effectively illegal and that most violators will be caught and effectively penalized. Conservative Treasury Board Minister Tony Clement has failed to do anything to implemented key changes recommended by the Committee.

The details of Commissioner Shepherd’s, the RCMP’s and Crown prosecutors’ very weak enforcement record are as follows:

• from April 1, 2004-March 31, 2011, secret rulings let at least 32 lobbyists off the hook because the RCMP and Crown refused to prosecute, and the Commissioner of Lobbying (or past Registrar of Lobbyists) has failed to rule publicly in all 32 cases that the lobbyist violated Lobbyists' Code; the Commissioner also failed to rule publicly on more than 55 cases, and; at least 17 lobbyists were caught lobbying but let off the hook with secret rulings because of loopholes in the Lobbying Act;
• from April 1, 2011-March 31, 2012, 18 new reviews were initiated and 30 reviews were completed, while three new investigations were initiated and six completed; of these, 15 new reviews found violations, but the Commissioner let six of the violators off the hook; as well, during this fiscal year, the Commissioner completed six other reviews from past years in which she let the violators off the hook, and closed two other cases from 2004-2005 that the Commissioner/Registrar had negligently failed to rule on for eight years, and let both violators off the hook; five were found guilty of violating the Code, but another six lobbyists were let off the hook because of loopholes in the Act;
• from April 1, 2012-March 31, 2013, 22 new reviews were initiated and 27 reviews were completed, while 3 new investigations were initiated and six completed; of these, 10 new reviews found violations, but the Commissioner let five of the violators off the hook; as well, during this fiscal year, the Commissioner completed three other reviews from past years in which she let the violators off the hook, and closed five other cases from 2006-2007 that the Commissioner/Registrar had negligently failed to rule on for six years, and let all five violators off the hook; no one was found guilty of violating the Code, and another 10 lobbyists were let off the hook because of loopholes in the Act;
• from April 1, 2013-March 31, 2014, 17 new reviews were initiated and 21 reviews were completed, while no new investigations were initiated, and none were completed; of these, two new reviews found violations, but the Commissioner let both of the violators off the hook; as well, during this fiscal year, the Commissioner completed five other reviews from past years in which she let the violators off the hook, and closed one other case from 2009 that the Commissioner/Registrar had negligently failed to rule on for four years, and let that violator off the hook; one lobbyist was found guilty of violating the Act (the first ever), and two people were charged, but no one was found guilty of violating the Code; an additional eight lobbyists were let off the hook after reviews because of loopholes in the Act while another 11 were contacted for what seemed like lobbying but claimed they were not required to register because of the loopholes, and;
• 38 cases still open as of March 31, 2014 –Commissioner Shepherd’s 2014-2015 annual report not yet available.