R. v. Carson, 2016 ONCJ 596

R. v. Carson

Court Information

Court: Ontario Court of Justice

Citation: 2016 ONCJ 596

Court File No.: 14-20004

Date: September 16, 2016

Judge: Justice Catherine Kehoe

Heard: May 11, 2016

Parties

Crown: Her Majesty the Queen

Counsel for Crown: R. Zsigo

Defendant: Bruce Carson

Counsel for Defendant: P. McCann

Charges

The defendant, Bruce Carson, a former Designated Public Office Holder, was charged with three offences under the Lobbying Act, R.S.C. 1985, c. 44 (4th Supp.):

Count 1: Between August 13, 2009 and March 17, 2011, at the City of Ottawa, the City of Calgary and elsewhere in Canada, as a former Designated Public Office Holder, he did, for payment, undertake to communicate with Public Office Holders on behalf of the Energy Policy Institute of Canada in respect of the development of any policy or program of the Government of Canada, during the five year period after the day on which he ceased to be a Designated Public Office Holder, contrary to section 10.11(1)(a) of the Lobbying Act, thereby committing an offence contrary to section 14(2) of the said Act.

Count 2: Between August 25, 2010 and September 17, 2010, at the City of Ottawa, Ontario, the City of Calgary, Alberta, and elsewhere in Canada, as a former Designated Public Office Holder, he did, for payment, arrange a meeting between Public Office Holders and members of the Energy Policy Institute of Canada, during the five year period after the day on which he ceased to be a Designated Public Office Holder, contrary to section 10.11(1)(a) of the Lobbying Act, thereby committing an offence contrary to section 14(2) of the said Act.

Count 3: Between February 19, 2009 and March 3, 2010, at the City of Ottawa, Ontario, the City of Calgary, Alberta, and elsewhere in Canada, as a former Designated Public Office Holder, he did, as an employee of the Canada School of Energy and Environment, undertake to communicate with Public Office Holders in respect of the awarding of a grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada, contrary to section 10.11(1)(b) of the Lobbying Act, thereby committing an offence contrary to section 14(2) of the said Act.

Procedural Matters

4Initially, Counts 1 and 3 were amended on consent for the arraignment, adding the words "communicate with and", subject to submissions on the application to amend the Information. The defendant opposed the amendments to Counts 1 and 3. Neither the Crown nor Defence presented any evidence or made submissions as to whether or not there was or would be any prejudice to the defendant resulting from the amendments. However, in applying to amend the Counts on the first day of trial, even though the trial proceeded on the basis of an Agreed Statement of Fact, the Court found there is the potential of surprise and prejudice if the amendments are allowed. Therefore the application to amend the Information was denied.

5The trial proceeded on the basis of the Agreed Statement of Facts and the Book of Documents.

6Identification and jurisdiction are admitted. It is also admitted that the defendant fits the definition of "Designated Public Officer Holder" as defined in section 2 of the Lobbying Act. It is also admitted that all government officials referred to in the Agreed Statement of Facts are "Public Office Holders" as defined in section 2 of the Lobbying Act.

Admitted Facts and Findings

Background and Employment History

7The defendant was employed over the course of several years in senior advisory positions at various levels of government. From 2006 to 2009, he served as Senior Advisor to the Prime Minister. Between 2004 and 2006, he served as Director of Policy for the Conservative Party when Prime Minister Harper was in Opposition. He ended his career as a Senior Advisor in the Prime Minister's Office in February 2009.

8The defendant was planning to leave government employment in July 2008 and received a letter dated July 9, 2008 from the Office of the Conflict of Interest and Ethics Commissioner. The Commissioner was advised that the defendant would be leaving the Prime Minister's office in July 2008. Among other things, the defendant was advised that pursuant to section 35(2) of the Conflict of Interest Act, that he was:

1. Precluded from personally dealing with Ministers and the Departments of Environment, Industry and Natural Resources for a period of one year from the date he left office as he indicated that he had direct and significant official dealings with those entities during his last year in office;

2. The prohibitions in section 35 of the Conflict of Interest Act apply for one year following his last day in office, the period ending on July 11, 2009.

9In that letter, the Commissioner of Conflict of Interest and Ethics also advised the defendant about the 5-year prohibition against "lobbying" and that he should consult with the Commissioner of Lobbying concerning the provisions of that Act.

10However, the defendant did not leave the Prime Minister's office in July 2008. While he originally left the Prime Minister's office in October 2008, he returned for a one-month period from January 5, 2009 to February 4, 2009.

11The defendant was subject to a five-year prohibition against activities enumerated in section 5(1) and section 7(1) of the Lobbying Act. The prohibition commenced on February 4, 2009, ending on February 4, 2014.

12The defendant did not apply for or receive any exemption under the Lobbying Act during the material time period.

13During the material times the defendant was employed first by The Canada School of Energy and Environment (CSEE) beginning in August 2008 with the hiatus from January 5 to February 4, 2009. As of August 13, 2009, he was subsequently and concurrently a member of the Executive Committee and Vice-Chair of the Energy Policy Institute of Canada (EPIC).

The Canada School of Energy and Environment

Employment and Mandate

14On July 24, 2008, the defendant accepted an offer of employment from the Canada School of Energy and Environment (CSEE), as Executive Director. The defendant's remuneration package included a base salary of $258,000 per annum, a $900 per month car allowance and other financial benefits. According to the CSEE 2009-2010 Corporate Plan, the CSEE was created in 2007 as a joint initiative between the Universities of Calgary, Lethbridge and Alberta to promote collaboration among researchers addressing major energy and environmental issues and to support research that accelerates the progress of ideas towards commercialization. A component of the CSEE was to work with partners to develop a National Energy Strategy.

15It is admitted that as a non-share capital corporation governed by the Canada Corporation Act – Part II, the CSEE constitutes an "organization" as defined in section 2 of the Lobbying Act.

16The Executive Director job description included:

1. Stimulate discussion regionally, nationally and internationally among researchers and decision-makers to guide and inform public policy on energy and environmental issues;

2. Manage the relationship with the Federal government, including the reporting required by the CSEE contract with the Federal government;

3. Help secure additional significant funds for CSEE activities, especially incremental funding from the Federal government and Provincial governments;

4. Serve as an information resource for policy and industry leaders in their decision-making processes.

The CSEE Original Funding Agreement

18In the 2007 Federal government budget, funds were assigned for investment in 7 "Centres of Excellence" in science and technologies. The CSEE was one of the chosen Centres of Excellence.

19On March 7, 2007, a Funding Agreement was formalized between Industry Canada and the CSEE and a $15 million grant was awarded. At the time, the defendant was still a Senior Advisor in Prime Minister Stephen Harper's office and not involved in obtaining the grant. The funds would only be released upon certain objectives being accomplished by the CSEE, such as providing Industry Canada with a Corporate Plan. The first Corporate Plan was provided by the CSEE in 2008. The first release of funds was made to the CSEE on March 27, 2008.

20In 2009, Ms. Karen Corkery, the Director General of the Program Coordination Branch at Industry Canada, was involved with several government related funding agreements including the oversight of the funding agreement with the CSEE.

21In 2009, Ms. Corkery conducted a review of all 7 grants to the various "Centres of Excellence", including the CSEE. Ms. Corkery determined that the CSEE was not going to be able to spend the $15 million they had been granted in a prudent way in the 2-year window left on the agreement. If no amendment to the original agreement could be reached the $15 million would potentially have been forfeited back to the Crown.

Funding Agreement Provisions

23In the original agreement (the Funding Agreement, March 7, 2007), Article II, 2.1 states that the CSEE is in good standing under the laws of the jurisdiction in which it is to be registered and has the requisite power (corporate and other) to own its assets and to carry on its activities as contemplated by the Agreement.

At 2.1(j) the Funding Agreement states:

"(j) in regards to CSEE's compliance with Lobbyist Legislation, and the rules respecting Fees & No Gifts, Inducements or Commissions,

(i) it has not, nor has any person on its behalf, paid or provided or agreed to pay or provide, to any person, directly or indirectly, a commission, contingency fee or any other consideration (whether monetary or otherwise) that is dependent upon the execution of the Agreement or the person arranging a meeting with any Public Office Holder;

(ii) it will not, during the term of this Agreement, pay or provide or agree to pay or provide to any person, directly or indirectly, a commission, contingency fee or any other consideration (whether monetary or otherwise) that is dependent upon the person arranging a meeting with any Public Office Holder;

(iii) any person who, for consideration, directly or indirectly, communicated with or arranged a meeting with any Public Office Holder, in respect of any aspect of this Agreement, prior to the execution of the Agreement, was in compliance with all requirements of the Act;

(iv) any person who, for consideration, directly or indirectly, during the term of this Agreement and in respect of any aspect of this Agreement, communicates with or arranges a meeting with any Public Office Holder will be in compliance with all requirements of the Act; and

(v) at all relevant time CSEE has been, is and will remain in compliance with the Act."

Section 20.5 states: "Relationship of the Parties Nothing contained in this Agreement shall be construed to place the Parties in the relationship of partners, join ventures or create an agency relationship and neither Party shall have any right to obligate or bind the other Party in any manner."

Section 20.11 states: "Uncommitted Amount If no agreement has been reached regarding the unspent portion of the Amount by March 31, 2010, then any uncommitted Amount shall be returned to the Minister."

Section 20.12 states: "Compliance with Laws In implementing this Agreement CSEE will comply with all applicable federal, provincial, municipal laws, including but not limited to, statutes, regulations, by-laws, ordinances and decrees."

Communications Regarding Amendment

24On January 13, 2010, the Amending Agreement was signed by the defendant on behalf of the CSEE. At paragraph 2, page 1, the Amending Agreement states, "CSEE restates and confirms its representations and warranties stated in Article II of the Funding Agreement, as amended by this Amending Agreement, as they apply to the Funding Agreement and this Amending Agreement."

At paragraph 3, page 1, the Amending Agreement states:

"Section 2.1(j) of the Funding Agreement is hereby deleted and replaced by the following:

'(j) CSEE undertakes to comply with the Lobbying Act, R.S. 1985 c.44 (4th Supplement) (herein referred to as the 'Act') and, in particular, that:

(i) it has not, nor has any person on its behalf, paid or provided or agreed to pay or provided or agreed to pay or provide, to any person, directly or indirectly, a commission, contingency fee or any other consideration (whether monetary or otherwise) that is dependent upon the execution of the Agreement to communicate with a Public Office Holder or to arrange a meeting with any Public Office Holder and any other person;

(ii) it will not, during the term of this Agreement, pay or provide or agree to pay or provide to any person, directly or indirectly, a commission, contingency fee or any other consideration (whether monetary or otherwise) that is dependent upon the person communicating or arranging a meeting with any Public Office Holder and any other person;

(iii) any person who, for payment, directly or indirectly, communicated with or arranged a meeting with any Public Office Holder and any other person, in respect of any aspect of this Agreement, prior to the execution of the Agreement, was in compliance with all requirements of the Act by filing a return with the Commissioner of Lobbying;

(iv) any person who, for payment, directly or indirectly, during the term of this Agreement and in respect of any aspect of this Agreement, communicates with or arranges a meeting with any Public Office Holder and any other person will be in compliance with all requirements of the Act by filing a return with the Commissioner of Lobbying; and

(v) at all relevant times CSEE has been, is and will remain in compliance with the Act.'"

Section 8 states: Section 20.9 of the Funding Agreement is hereby deleted and replaced with the following:

"20.9 Lobbying Act. CSEE declares that any person who has lobbied on its behalf to obtain the funding that is the subject of this Agreement and who is required to be registered pursuant to the Lobbying Act R.S. 1985 c. 44 (4th Supplement), was registered pursuant to that Act at the time the lobbying occurred."

25In early 2009, Ms. Corkery initiated contact with the defendant, Executive Director of the CSEE, regarding whether or not the grant agreement needed to be changed. Ms. Corkery predominantly dealt with the defendant for the amendment throughout 2009 leading to the final amendments in 2010. The defendant responded to the issues raised by Industry Canada officials.

26It is admitted that the defendant, as Executive Director of the CSEE, engaged in communications concerning the amendments with various Public Office Holders in the months leading up to the formalized amended agreement.

27On April 20, 2009, the defendant met with Mr. Richard Dicerni, Deputy Minister of Industry Canada, regarding the possibility of amending the original Funding Agreement between the CSEE and Industry Canada. The meeting took place in Ottawa. In particular the defendant sought to extend the time in which the allotted $15 million could be spent as well as to amend the parameters of the Funding Agreement in accordance with the revised Corporate Plan and mandate of the CSEE.

28On May 8, 2009, the defendant had a conference call with Mr. Matthew King, then Associate Deputy Minister of Science and Innovation at Industry Canada regarding the proposed extension of the original Funding Agreement. In the Memorandum, dated May 8, 2009, the defendant wrote that during the call, they agreed that the original agreement would be extended to 2013-2014.

29On August 10, 2009, the defendant emailed Mr. Robert Dunlop, the new Associate Deputy Minister of Science and Innovation at Industry Canada, seeking a meeting regarding the revised mandate of the CSEE including the extension of years of operation.

30It is agreed, that the defendant did not initiate all of these communications. As Executive Director of the CSEE, the defendant was the contact person for Industry Canada with respect to the Amending Agreement.

31It is admitted that Ms. Corkery stated that it was the defendant who kept answering her emails and phone calls; that it was the defendant who would have led conversations with the three Universities regarding governance issues; that it would have been the defendant who acknowledged that the CSEE was not going to be able to invest their funds prudently over the original Funding Agreement period of 2 years; and that it was the defendant who proposed the 4-year Funding Agreement extension from 2010 to 2014.

32It is admitted that in a statement provided to the RCMP, Ms. Zoe Addington, Deputy Director of the CSEE, it was her view that the defendant's actions did not constitute "lobbying" as the CSEE reported to Industry Canada.

33On January 13, 2010, Ms. Corkery, on behalf of Industry Canada and the defendant, on behalf of the CSEE signed an "Amending Agreement" changing the original agreement. The changes included an amendment to section 5.1 extending the date of the agreement from March 31, 2010 to March 31, 2014.

34Additional changes to the original Funding Agreement (March 7, 2007), put emphasis on certain core activities/functions while less emphasis on other activities/functions. It is admitted in the Agreed Statement of Facts that the Amending Agreement did not require Treasury Board approval. However, at Article 20.1 of the Funding Agreement, it states:

"20.1 Amendment

(a) This Agreement may only be amended, modified or supplemented by a written agreement signed by both Parties.

(b) No material change to this Agreement will be made without the prior written approval of the Minister, and the consent of the Treasury Board of Canada."

The fact that the consent of Treasury Board was not sought has not been considered in the reasons for judgment.

The Energy Policy Institute of Canada (EPIC)

Formation and Membership

35In August 2009, at the same time that he was employed as Executive Director of the CSEE, the defendant participated in the founding of the Energy Policy Institute of Canada. It is admitted that EPIC also constitutes an "organization" as defined in section 2 of the Lobbying Act. EPIC was established to develop a comprehensive National Energy Strategy. Also present at the Founding Meeting with the defendant, were Mr. Thomas d'Aquino, Mr. Doug Black, Ms. Beth Diamond, and Mr. Larry Clausen. These individuals constituted the first Executive Directors for EPIC. In 2009, the Board was eventually reconstituted to include Mr. Gerry Protti and Mr. David Emerson, a former Federal Minister of International Trade, and Minister of Foreign Affairs in the Federal Government. At EPIC's Founding Meeting on August 13, 2009, the defendant was named Co-Chair.

36As Co-Chair, the defendant was to be paid an honorarium of $60,000.00 annually by EPIC. As his workload increased, due to his leadership role in drafting the various policy documents, the honorarium was at times supplemented or increased by further remuneration. As demonstrated in the EPIC Custom Transaction Detail Report, the defendant was paid $160,000.00 in honorarium by 16 cheques over the course of his tenure.

37Because the defendant was not an employee of EPIC, he was subject to the "Consultant Lobbyist" provisions of the Lobbying Act. Consequently, the prohibition against communicating with Public Office Holders is governed by section 10.11(a) in relation to EPIC. Whereas section 10.11(b) prohibits communications set out in section 7(1), section 10.11(a) prohibits communications set out in section 5(1). Section 5(1) prohibits all of the same kinds of communications captured by section 7(1) and adds an additional prohibition against arranging meetings with Public Office Holders.

EPIC Membership and Mandate

38The membership was composed of private sector members. The members were primarily private sector oil companies and later grew to include other entities involved in energy consumption and electricity production including Accenture, Aecon Corporation, Altalink Management Ltd., ATCO Group, Canadian Natural Resources Limited, Canadian Pacific Railway, Capital Power Corporation, Cenovus Energy Inc., E.I. du Pont Canada Company, Emera Inc., Enbridge Inc., Encana Corporation, Finning International Inc., General Electric Canada, Irving Oil, Petrobank Energy, Plutonic Power Corporation, Shell Canada Limited, Suncor Energy Inc., Terasen Inc., TransAlta Corporation, TransCanada Corporation, and Vestas Americas.

39EPIC was a private sector voice, advocating for business with the intention of shaping strategic aspects of energy policy and influencing the direction of policy with the federal, provincial and territorial governments.

40EPIC's mandate is reflected in several documents where it is states that the "mission and sole purpose is to develop a comprehensive pan-Canadian energy strategy which will provide the foundation for recommendation to the federal, provincial and territorial governments responsible for energy policy and regulation".

41A "launch document" was circulated among members of the EPIC Executive on September 10, 2009, which set out the mission:

"To marshal the most impressive Canadian business talent in the building of a common sense energy strategy that will deliver economic prosperity and a clean environment, and position our country as a global leader in energy innovation."

42At the Executive Committee Minutes, June 11, 2010, the Minutes state:

"Bruce provided an update on the Policy Work Group's progress. The Vancouver meeting was very successful and has resulted in a variety of members contributing additional input to the process. The research work by Michael Margolick will see a detailed outline reviewed by Bruce and Gerry the week of June 14th and this would also be presented at the June 23rd meeting in Calgary. Bruce and Gerry have produced a working document for June 23rd to be adjusted over the weekend and posted June 14th for members on the Membernet. A notice will be sent by Larry of the meeting and to let members know they can retrieve the document.

A series of meetings are planned as the initial A Canadian Energy Strategy document is finalized. Bruce will insert research findings and write a more detailed narrative in July. Commencing in early August a series of meetings will be scheduled with key energy Deputy Ministers…Minister Paradis is expected in Calgary during Stampede Week and EPIC will attempt to meet with him…

Members have expressed concern about "clean energy" and "green energy" and how EPIC would handle these terms. They will fit into our documentation but the focus will be on "energy"…

Membership Update

A variety of industry associations have expressed an interest to join. After discussion, it was concluded that an association may join in one of two ways:

1. Pay the annual fee of $50,000 but be represented by one of its member companies;

2. Pay an increased annual fee of $100,000 to directly participate."

43EPIC's intended audience was primarily the Federal government including the Prime Minister, Federal Cabinet Ministers and Senior Staff. The intent was to help design regulatory processes and make recommendations on regulatory reform. As reflected in the EPIC Minutes, dated February 3, 2010, the methodology to develop and shape EPIC's policy for eventual referral to governments was to ask its private sector member base "to create a list of issues impacting their company and sector that will benefit from defined policy structure".

Roles and Responsibilities

44Mr. Gerry Protti, given his extensive background in energy policy both in the private and public sectors, was to head a Policy Group with the defendant and eventually develop the policy document for EPIC.

45While Mr. Protti was to work with representatives of EPIC's membership to get some sense of consistency on broad themes, the defendant's role was to draft the strategic energy paper. As set out in the Founding Meeting Minutes, the defendant was to prepare initial drafts of policy materials for circulation the week of August 17, 2010.

Communications with Federal Government Representatives

46On February 3, 2010, in a meeting attended by the defendant, the EPIC Executive Committee, including Mr. Gerry Protti and Mr. David Emerson now members of the Executive Committee, it was agreed that Mr. David Emerson and the defendant would "not lobby the Federal Government on behalf of EPIC". At the meeting February 3, 2010, under Government Relations, the Minutes state:

"A review of the lobbyist legislation has been conducted. Legal counsel has informed us that it will not be required to register all directors and members of EPIC, only the delegated lobbyists for the organization need be registered.

With this resolved, the letters to government will be sent this week under the signature of Doug.

Moved by Doug Black and seconded by Larry Clausen that David Emerson and Bruce Carson will not lobby the federal government on behalf of EPIC."

47Mr. Protti described the defendant's role and background as follows:

"Bruce Carson did not have actual technical background in the areas in terms of recommendations; did not have industry contacts; was a good policy head and a good writer; was seen as somebody who really understood the Ottawa scene very well; was one of the most knowledgeable people in the country on how to navigate the Federal process; and had good knowledge of the Federal system and a tremendous set of contacts."

48The defendant was the primary point of contact for EPIC as it related to communications with the Federal Government. Mr. Protti and the EPIC Executive were aware that the defendant communicated regularly on behalf of EPIC with Public Office Holders. The defendant regularly updated EPIC Executive members about discussions he had with various Federal Ministers, Associate Deputy Ministers and their Chiefs of Staff.

49On January 19, 2010, the defendant sent an email to Mr. Doug Black and Mr. David Emerson, both members of the EPIC Executive Committee, about a meeting he had with the Minister of Natural Resources, Mr. Christian Paradis, and his Chief of Staff, Mr. Marc Vallieres, informing Mr. Black and Mr. Emerson that he had an upcoming meeting with them in Ottawa to brief Minister Paradis and Mr. Vallieres on EPIC's initiative.

50On February 11, 2010, the defendant sent an email regarding EPIC, stating that "all of these pieces can be pulled together – and working with Deputy Ministers and eventually with Ministers develop the elements of a National Clean Energy Strategy for Canada".

51On February 15, 2010, the defendant was in communication with Mr. Bruce Winchester Senior Policy Advisor to the Minister of Natural Resources, Mr. Christian Paradis, regarding a "Ministers' Dinner". Mr. Winchester invited the defendant to this dinner. On February 17, 2010, at the Palliser Hotel in Calgary, the defendant attended the dinner in his capacity as a representative of EPIC. This meeting was attended by EPIC stakeholders mostly oil industry players and public officials, including Minister Paradis and Mr. Winchester.

52Ms. Cassie Doyle, the Deputy Minister (DM) of Natural Resources from July 2006 to October 2010, was an Associate Deputy Minister (ADM) at Environment Canada prior to July 2006. Ms. Doyle knew the defendant in a professional capacity before he left the Prime Minister's Office (PMO) in 2009 when she was ADM at Environment Canada. At the time the defendant was Chief of Staff with Ms. R. Ambrose, the Minister of the Environment. Ms. Doyle also worked with the defendant while she was Deputy Minister at Natural Resources Canada and he was at the PMO as a Senior Advisor. The defendant worked very closely with Ms. Doyle providing advice on a Natural Resources Canada file.

Ms. Doyle knew that the defendant, as a result of his years with the PMO, had extensive connections with the Federal Public Service, including connections with the Clerk of the Privy Council Office and access to Deputy Ministers.

53On March 23, 2010, the defendant contacted Ms. Doyle and expressed an interest in meeting with other Deputy Ministers at a planning meeting scheduled for May 6 and 7, 2010 in Quebec. Ms. Doyle was Co-Chair of this meeting and had an ability to put items on the agenda. The defendant wished to discuss EPIC's work and the idea of a National Clean Energy Strategy. Ms. Doyle suggested he contact Provincial DMs to try and get support to get on the agenda. In the end, EPIC was not put on the agenda at this meeting. Upon receiving this recommendation from Ms. Doyle, the defendant forwarded this recommendation to another member of the EPIC Executive, Mr. Daniel Gagnier. Ms. Doyle provided the defendant with the date of the meeting as well as information as to how to proceed to get on the Agenda at the Conference and whom to contact. Ms. Doyle states:

"The DM's meeting is May6/7. What I think would be best is for one of the provincial DM's to recommend EPIC for the agenda to the co-chairs, Quebec DM and me. That way it's clear that there's a provincial sponsor which will make it more possible to actually get on the agenda. Given who our co-chair is this year, it will be sensitive."

54Ms. Doyle provides advice as to how to proceed and whom he should contact:

"It may be useful to get the support of more than one DM for bringing EPIC to DM's (I've been burnt on this before) just to ensure that there's some receptive faces around the table. Reimer in BC and Kent Campbell in Sask perhaps. The kiss of death on this will be that it's seen as being promoted by NRCan."

55The complete email chain begins on March 23, 2010 with the defendant emailing Ms. Doyle:

"Cassie – Len Waverman – who is the Dean of the Haskayne School of Business here at U of C will be in Ottawa next month on April 21st and I suggested he meet with you to discuss the newest venture at the School – an Executive MBA dealing with Energy as explained to me it sounds like a great complement to the scientific work that will be done by Carbon Management Canada – the proposal is to partner with the Cambridge Energy folks – so it could be quite exciting for the University and for Canada as we embark on our journey to put in place a National Clean Energy Strategy – so hope you can find the time to meet with him on another note I have relayed our discussion to the EPIC members and I would love the opportunity – if possible – to meet with Deputies at your planning meeting in May to discuss EPIC and our work moving towards a National Clean Energy Strategy if that works – can you let me know the time and location of the Deputies meeting – thxs – bc"

Ms. Doyle replies on March 23, 2010:

"Hi Bruce, I'd be happy to meet with Len Waverman if the timing works. Please ask him to work with my office to organize a time. Monique Faucher is the contact. On the committee of DM's of Energy, as we discussed, I'm a co-chair of this forum (this year with Quebec) so it would be good for you to line up one or two provincial DM's like Peter Watson to ask them about getting on the agenda. Cheers. C"

Other Meetings with Governmental Officials – Summer of 2010

56During the EPIC Executive Committee Meeting on Friday, June 11, 2010, the defendant updated EPIC Executive members about various planned meetings with Public Office Holders, stating:

1. Commencing early August, a series of meetings will be scheduled with key energy Deputy Ministers;

2. Minister Paradis (Minister of Natural Resources) is expected in Calgary during Stampede Week and EPIC would attempt to meet with him;

3. There was a "mid-September presentation" planned to the First Energy Ministers meeting.

57Concerning the meeting in Calgary with Minister Paradis, the defendant had earlier, May 31, 2010, sent an email to Mr. Marc Vallieres, Chief of Staff for Minister Paradis, stating: "Further to our meeting of yesterday-- I could arrange a breakfast or dinner for the Minister when he is in Calgary – would be a great opportunity for him to meet CEOs".

58On July 16, 2010, the defendant sent an email to the EPIC Executive Committee, including Mr. Doug Black, Mr. David Emerson, and Mr. Gerry Protti, providing an update on an EPIC "policy piece" and meetings held with various government officials, including the Chief of Staff for Minister Paradis, Mr. Marc Vallieres, and the Deputy Premier of Alberta. Mr. Black, on July 17, 2010, stated, "We could do nothing of this without you". The email from the defendant to the Executive Committee states:

"I have reworked the policy piece as per our meeting in June and subsequent comments received from our members. I have reduced or combined the key elements down to 8 – but the principles remain at 5 – I think International one is necessary given recent events and the Deputy Premier of Alberta really likes it – so it stays. This is still in bullet form – but I have reworked them so that there is little repetition and all sentences start with action verbs – look forward to comments. When I get the Margolick paper and after our next policy meeting I will rewrite this and plug in the necessary foundation stones from Margolick. On Tuesday of this week I met with Minister Paradis Chief of Staff who went through – at a high level – recent polling results – Canadians get it – they now realize energy drives the economy – and are supportive of a Canadian Energy Strategy – especially in Quebec. So the Minister really wants the stuff we have been working on – and I committed to getting something to him after August 10 – he has our earlier drafts. Looking forward to our conference call next week – bc"

59The minutes from the July 22, 2010, EPIC Executive Committee meeting highlight that:

"Between August 15-31, materials would be presented to "select provincial figures"; Bruce Carson would attend the "World Energy Congress(WEC)/First Energy Ministers" symposium in Montreal September 12-17; Mr. Carson updated the EPIC Executive about his 'various conversations with government' including an upcoming meeting with the Chief of Staff of the Minister of Natural Resources. Version two of a Canadian Energy Strategy was reviewed and it was suggested that it would be posted on the Membernet now and committee members be alerted that it is available and their comments sought prior to the August 10th meeting. The calendar was reviewed and revised with specific actions noted:

August 6 Review research and integrate research by EC members that are available

August 10 Policy Work Group – Calgary

August 15-31 Visit and/or present materials to select public figures. It was noted that Tom Syer of Plutonic would be helpful with the BC government and we will seek assistance from others as required.

August 23 Presentation to the Institute of Public Administrators (AGM)

August 30 Work Policy Group – Ottawa – to finalize document

September 10 CEO Conference call for document input

September 12-17 World Energy Congress/First Energy Ministers

Delegates to attend: Bruce, Elyse, Dan and Doug

September 27 Chamber of Commerce Dinner

Panel with Chamber. David Emerson leading off and we have members on the panel. Half day session in Gatineau, QC

September 28 Policy Work Group – Ottawa - afternoon

Under Government Relations – TAB 24, pg 2

"Government Relations: Bruce updated everyone on his various conversations with government and noted there exists a sincere interest for our work. It was decided that distribution of our current report could be made to selected political contacts. Bruce also noted that he had a meeting with Minister Paradis' Chief of Staff (Mr. M. Vallieres). Doug is meeting Helen Ryan of the Department of the Environment."

60In an EPIC "August 2010 Update" document signed by EPIC President Doug Black, members are notified that "Initial private talks with very selective political and government figures have been very encouraging. Key decision makers are awaiting our results. To that end, we will begin to update governments across Canada on our work and current findings".

The Montreal Meeting – September 2010

61Mr. Protti and the EPIC Executive were aware that the defendant was making efforts, on behalf of EPIC, to arrange an exclusive meeting as between EPIC Executive Members and various Federal and Provincial Energy Ministers in Montreal on September 17, 2010. In an email the defendant writes, "I am working through Charests (sic) office and Paradis to arrange briefing – looks positive—bc"

62Further to the July 22, 2010 Minutes mention of the "First Energy Ministers" meeting in Montreal, the defendant engaged in communications with various Public Office Holders with the intention of having various Ministers and Deputy Ministers meet with EPIC:

1. On August 25, 2010, the defendant wrote to Mr. Marc Vallieres, Chief of Staff to the Minister of Natural Resources, "I and others involved with EPIC would like to meet privately – maybe over a breakfast we would host – to brief Energy Ministers on our Canadian Energy Strategy work at WEC(World Engergy Congress/Conference) meeting in Mtl – can you guys help with that – thxs – bc";

2. On September 2, 2010, the defendant sent an email to Mr. Mario Lavoie, a staff member at the Quebec Ministere de L'Energie et des Ressources naturelles, also stating that "a couple of us from EPIC would like to meet with Energy Ministers probably on the Thursday to discuss briefly the work of EPIC". The same day the defendant notified EPIC Executive Members, Mr. Protti, Mr. Black and Mr. Clausen about these efforts;

3. The defendant contacted Ms. Doyle, still Deputy Minister at Natural Resources Canada, asking that she assist EPIC to set up an exclusive meeting with the Energy Ministers. Ms. Doyle delegated the task of arranging such a meeting to Mr. Stephen Lucas, an Assistant Deputy Minister at Natural Resources Canada;

4. On September 10, 2010, the defendant sent an email to Mr. Richard Brosseau, also with the office of the Quebec Ministere de L'Energie et des Ressources naturelles, summarizing his intention to set up a meeting between members of EPIC and Energy Ministers:

"It was great to speak with you yesterday. The Energy Policy Institute of Canada (EPIC) was formed about a year ago – it is composed of over 30 corporations representing all forms of energy production and use – Our work was discussed at the recent Council of the Federation meeting in Winnipeg – our objective is to develop a Canadian Energy Strategy – which can be endorsed/adopted by prov/terr/fed govts. We want to meet with Ministers for about half an hour on Thursday or Friday next week to brief them on our work to date and our future plans. At the meeting will be our Chair David Emerson PC, Doug Black, Pres of EPIC – Gerry Protti – retired Energy executive, Dan Gagnier and myself – Really appreciate you help in this – bc"

63In the fall of 2010, Mr. Stephen Lucas was the Assistant Deputy Minister of Science and Policy Integration at Natural Resources Canada and had been since 2009. He had a broad responsibility for supporting Federal, Provincial and Territorial Ministerial Conferences on Energy and Mining. In that capacity he had an important role in planning and delivering the Energy and Mines Ministers' Conference in Montreal in September 2010. Ultimately, Ms. Doyle, following the defendant's request, asked Mr. Lucas to work with the defendant to arrange an informal breakfast meeting.

64Before the defendant contacted Natural Resources Canada, through Ms. Doyle, there was no intention to schedule a meeting between EPIC and the Ministers attending the Montreal conference. Once the idea of the meeting surfaced, the intent was to have an exclusive meeting, around the existing Conference agenda with EPIC.

65Mr. Lucas sent an email to the defendant on September 16, 2010 confirming that the meeting would take place at 07:30 hours at the Omni Hotel in Montreal. Minister Paradis supported the notion of having the defendant and EPIC meet with the various Provincial and Federal Ministers in Montreal.

66This meeting took place in the early morning of September 17, 2010. It was an informal breakfast and exclusive between the various Provincial and Federal Energy and Mining Ministers attending the Montreal Conference, and the defendant and two other members of the EPIC Executive, Mr. Protti and Mr. Gagnier. The defendant, Mr. Protti and Mr. Gagnier briefed Ministers on the work EPIC was doing and their work relating to a document articulating a National Energy Strategy. They stated that they represented a coalition of interested industry people and associations and were putting forward their perspectives.

67In a September 2010 "Update", signed by Mr. Black, reference is made to the meeting between members of EPIC and the Canadian Energy Ministers:

"EPIC presented to the Canadian Energy Ministers an overview of our framework entitled "A Canadian Energy Strategy (version 2) on September 17, 2010. Energy Ministers from across Canada carefully listened to our position and concluded our work would be most helpful. As a result, EPIC will work with all of the Deputy Ministers and assigned department members to create goals and objectives to be reviewed by the next meeting of Canadian Energy Ministers to be held in Alberta in 2011. Our Policy Work Group have just nearly finalized version 3 of our framework for an energy strategy and now work towards completing a strategy document for the first quarter of 2011. It is now very important that we accomplish this work and share our results with government in a timely fashion. I would like to acknowledge our three Vice Chairs that presented our work to the Energy Ministers – Bruce Carson, Gerry Protti and Daniel Gagnier. This is a major step toward our end goal. Signed Doug Black, Q.C., President, Energy Policy Institute of Canada."

Finalizing the EPIC Paper

68After the Montreal meetings, the defendant continued making arrangements to meet with Public Office Holders later in the fall of 2010.

69On September 23, 2010, the defendant contacted Ms. Doyle stating that he would be meeting with Mr. Marc Vallieres and asked to meet with Ms. Doyle "to begin to put a workplan in place – for the Energy Strategy initiative".

70In an email sent on October 15, 2010 to EPIC Executive Members Mr. Clausen, Mr. Emerson, Mr. Black and Mr. Protti, the defendant updated EPIC about what he had been doing with "Deputies and Ministers, moving along our Canadian Energy Strategy" since the Montreal meetings including:

1. Meetings with Ms. Doyle, Minister Paradis, and Mr. Mark Corey (Associate Deputy Minister) at Natural Resources Canada; and

2. An intention to meet with Mr. Wayne Wouters, Clerk of the Privy Council Office the next Monday and the new Deputy Minister at National Resources Canada on October 28.

The defendant states in the email, "There is a lot of goodwill and support for EPICs initiative- but we will have to keep driving this so that we have a positive outcome at the fed-prov-terr meeting next July—bc"

71Additional communications to discuss EPIC's initiative included:

1. October 12, 2010 – The defendant contacted the new Deputy Minister of Natural Resources, Mr. Serge Dupont, to "discuss my work on the Canadian Energy Strategy";

2. October 15, 2010 – The defendant writes to Mr. Wayne Wouters, Clerk of the Privy Council Office;

3. November 8, 2010 – The defendant tries to set a meeting with Minister Paradis in Calgary;

4. November 13, 2010 – The defendant writes to EPIC Executive Committee, stating that he had met with Mr. Vallieres about potentially circulating draft EPIC materials in preparation for upcoming Federal, Provincial and Territorial Energy Minister meetings.

72The defendant provided an update to EPIC President Mr. Doug Black regarding the advancement of the energy agenda in 2011. In that email, the defendant writes: "I really do believe we will advance our energy agenda in 2011 farther than we ever thought possible—Again, thxs for this opportunity and your support—bc"

73In 2006, Mr. Dupont was Associate Deputy Minister at Natural Resources Canada, before being appointed Deputy Minister at Intergovernmental Affairs and being a Special Advisor to the Minister of Natural Resources. While the defendant was at the PMO, Mr. Dupont advised on a Natural Resources Canada file in 2006 and through this met the defendant who also advised on the file.

74In October 2010, Mr. Dupont succeeded Ms. Doyle as Deputy Minister of Natural Resources Canada. After being appointed to the position, he had several dealings with the defendant in the fall of 2010 and the winter of 2011.

75The defendant met with Mr. Dupont several times to discuss the need for a national energy strategy and EPIC's work. An initial meeting was held with Mr. Dupont on October 28, 2010 in Ottawa.

EPIC Energy Strategy Document Circulation

76Mr. Protti and other EPIC Executive Members were aware that the defendant intended and did eventually circulate, on behalf of EPIC, "A Strategy for Canada's Global Energy Leadership" Framework Document. It was released in January of 2011 as detailed in communications dated November 13, 2010, and January 20, 2011.

77In a statement that Mr. Protti gave to the RCMP, it was his view that the defendant's actions did not constitute "lobbying". He stated:

1. "If he were to receive a document like the framework document, he would have gathered that there are a bunch of companies and business interests in the country that want some thinking and some discussion and some debate to occur;

2. Mr. Protti, a former Assistant Deputy Minister in Alberta, is familiar with lobbying. He would not see the document as anything approaching lobbying. It was far too premature for that".

78The defendant contacted Mr. Dupont on January 6, 2011 stating that he would be in Ottawa, that the first major EPIC document would soon be completed and that he wished to deliver it to the Deputy Minister and spend a "couple of mins going through it with you".

79In January 2011, EPIC completed the document entitled, "A Strategy for Canada's Global Energy Leadership". On January 10, 2011, the defendant contacted EPIC Executive Members, Mr. Black and Mr. Emerson, stating he would deliver a copy to the Deputy Minister, Mr. Dupont.

80On January 14, 2011, the defendant emailed Mr. Wayne Wouters, Clerk of the Privy Council Office "FW: EPIC Paper, Attachments: A Strategy for Canada's Global Energy Leadership(5).doc, with a note, 'wayne – this is the policy paper I have been working on with emerson etc—bc'".

81In an email from the defendant to Mr. Bruce Winchester at Natural Resources Canada, concerning the EPIC Paper, the defendant states, "can you share this with Marc please—bc".

82The defendant communicates with Mr. Paul Boothe at Natural Resources Canada concerning the EPIC Paper: "paul—this is the Energy Policy paper I have been working on with Emerson etc—bc." Mr. Boothe replies: "Thx. Cheers. P." The defendant replies: "glad it got to you—I will be in Ottawa on wed afternoon next week—any chance of a short meeting—bc". Mr. Boothe's Assistant, Ms. Thompson-Caron replies: "Sir, would 5 to 5:45 this Wednesday, January 19 work for you?" The defendant replies: "Yes—bc". Ms. Tompkins-Caron replies: "Thank you. See you tomorrow, 27th floor, 10 Wellington, Cheers, Debra."

83Mr. Serge Dupont, Deputy Minister at Natural Resources Canada, replies to the defendant's email regarding "the entire EPIC paper and suggesting that he circulate the ex summary" stating: "Thank you Bruce. Stephen will follow up on my behalf". Mr. Dupont emails the defendant, Mr. Mark Corey and Mr. Stephen Lucas. He copies Ms. Angele Delisle.

84Mr. Stephen Lucas, Assistant Deputy Minister, Science and Policy Integration, Natural Resources Canada, distributes the EPIC Exec Summary (January 2011).doc to several provincial and territorial government personnel. The title of the email is "Re: Documents for Federal, Provincial, and Territorial Energy Deputy Ministers Meeting on January 16-17, 2011". The message states, "Please find attached the Executive Summary from the Energy Policy Institute of Canada's "A Strategy for Canada's Global Energy Leadership", which Bruce Carson will speak to on Sunday night."

85The defendant reports to David Emerson on January 17, 2011 at 2:43 AM, "Subject: Deputies meeting…It went well—all deputies were present and seem to be engaged in a positive way—they asked good questions—they have read our report—I will report more fully when we meet on Tuesday. On Thursday I will meet with Peter Watson back in Calgary—to get a complete debrief on the meeting deputies are having tomorrow…The thought would be that whatever themes Deputies coalesce around should inform the future work of EPIC—and the agenda of the Winnipeg Energy Dialogue—bc"

86The defendant sends the EPIC Executive members an email, dated January 20, 2011, Subject: Env Can, stating, "met this evening for an hour with Paul Booth (sic) fed DM Env – he has read the version of the report I sent to him late last week and also discussed it with Peter Kent. They are ready to support our report provided we add a sentence to the Env section-probably just before we get into the recommendations saying something like – EPIC recognizes that pursuant to the Copenhagen Accord that Canada has committed to reducing GHGs by 17 percent off 2005 or 6 – can't remember-levels by 2020 and the recommendations in this Report will help Canada attain that goal – Given the CEOs discussion and their concerns about the env community and their potential comments I believe this is a worthwhile and necessary change – bc"

87On February 6, 2011, the defendant sent the EPIC Executive Committee an email update entitled "Re: Nigel Wright – EPIC", highlighting that he had met with Nigel Wright and that Nigel Wright had read the EPIC document. In that email chain, the defendant writes: "Just finished briefing him (Nigel Wright) on what we are up to with EPIC – he has read our doc. We talked about Env as a subset of energy-and he generally wanted to know what the benefits would be as we continue with this. Briefed him on the March 31st conf and the road to Kakanaski-and generally what outcome could be – 4 or 5 areas of general agreement and a workplan. Told him we would keep him up to date by email – he seemed generally supportive – and now at least he has been briefed – I meet tomorrow morning with Peter Kent."

Mr. Doug Black replies: "Excellent. Need Nigel on side." The defendant replies: "He will be – just a case of keeping him up to date on what we are doing – bc."

88The defendant did not receive any additional payment in return for his communications with Public Office Holders beyond his salary from CSEE and his honorarium from EPIC.

Positions of the Parties

Crown's Position

89Mr. R. Zsigo, Counsel for the Federal Crown, submits concerning Count #3, that the defendant, as Executive Director of the CSEE, is an employee of an organization and therefore subject to the section 10.11(b) prohibition in the Lobbying Act, a five year prohibition on activities set out in section 7(1)(a) of the Act. He submits that the defendant was communicating with Public Office Holders at Industry Canada to secure additional funds from the Federal Government. Mr. Zsigo refers to the defendant's job description at the CSEE: "Helping secure additional funds and manage our relationship with the Federal government" as proof. Mr. Zsigo submits that the defendant was communicating with Industry Canada to amend the 2007 Funding Agreement.

90Concerning Ms. Corkery's evidence, Mr. Zsigo submits that it was the defendant who kept answering Ms. Corkery's emails and phone calls. He submits that it was the defendant who acknowledged that the CSEE was not going to be able to invest their funds over 2 years and it was the defendant who proposed the extension of the Funding Agreement to 4 years.

91The issue, Mr. Zsigo submits is whether the communications constitute lobbying under the Lobbying Act, when a Public Office Holder (Ms. Corkery, Industry Canada) initiates the communication. Is further communication lobbying?

92In support of his submission that further communication is lobbying in the circumstances, Mr. Zsigo refers to previous versions of the Lobbying Act and compares it to section 4(2)(c) of the current Lobbying Act. Section 4(2)(c) states:

"This Act does not apply in respect of any oral or written submission made to POH by an individual on behalf of any person or organization in direct response to a written request from a POH for advice or comment in respect of…(c) oral or written communications made to a POH by an individual on behalf of any person or organization if the communication is restricted to a request for information".

93Mr. Zsigo submits that the new section 4(2)(c) is a substantial change. He submits that reliance on communication initiated by a POH negating the obligation to report has been removed in the current version of the Lobbying Act.

94Mr. Zsigo submits that what is at issue is communication to amend the terms of the Funding Agreement which if left as they were would have resulted in the CSEE forfeiting the remainder of the financial grant (approximately 12.2 million) back to Industry Canada. He submits the communications also concerned the revisiting and revising of the core activities of CSEE as agreed to in the original Funding Agreement. He submits that the communications the defendant had with Public Office Holders at Industry Canada in respect of amending the original Funding Agreement were not in response or as a result of a request for information.

95Mr. Zsigo submits that it is clear that Parliament sought to remove this "loophole". He refers to the Legislative Summary – Bill C-15: An Act to Amend The Lobbyists Registration Act, which states:

"Clause 3(2) amends section 4(2)(c) of the Act. That section currently exempts a lobbyist from the obligation to register if the lobbyist is responding to 'a written request from a public office holder, for advice or comment'. The purpose of the exemption is to permit public office holders a degree of freedom in discussing government business with lobbyists (who are, for many public office holders, a valuable source of information and analysis) without triggering the Act's registration requirements. However, some critics of the registry system suggest that this constitutes a 'loophole': the public office holder and the lobbyist could keep their discussions 'off the radar' simply by having the public office holder write a letter 'requesting advice or comment'. The letter would suggest that it was the public office holder who initiated the contact even if it were, in fact, the lobbyist who initiated the contact. The effect of the exemption is that a public office holder may solicit 'advice' or 'comment' from lobbyists without the public becoming aware of it. Critics say that this undermines the principle of transparency, i.e., the public should be able to find out what information public office holders are receiving from lobbyists, since this will affect the public decision-making process.

The Committee recommended that section 4(2)(c) be deleted altogether, and Bill C-15 proposes to do so. A new section 4(2)(c) replaces the current section and, although the wording appears similar, the intent of the new section 4(2)(c) is quite different. The new section exempts lobbyists from registering where the only purpose of the communication is to request information from the public office holder. Without the exemption, any 'communication' on any public business would trigger the registration requirement."

96Mr. Zsigo submits that the fact that Ms. Corkery and Industry Canada may have initiated discussions with the CSEE does not exempt the defendant from the Lobbying Act.

97Mr. Zsigo submits, concerning the wording in section 7 of the Lobbying Act, that "communication in respect of" and not in the former versions of the Act "in an attempt to influence" intends to cover a broad range of activity.

98Mr. Zsigo submits that in this case, on March 31, 2007, Treasury Board allocated 15,000,000.00 to the CSEE. The release of the funds was contingent on the CSEE achieving certain objectives during the course of the contract, the Funding Agreement. So while the terms of awarding the contract were set out they were not fulfilled at the time that the defendant became Executive Director at the CSEE.

99Mr. Zsigo submits that the issue in 2009 is what is the status of the CSEE funding? The total spent in the first 2 years of operations was $2,393,735 and the original agreement was set to expire on March 31, 2010. Mr. Zsigo refers to Ms. Corkery's evidence in the Agreed Statement of Fact is that the CSEE was not on track to fulfill its vision as reflected in the 2007 agreement and if nothing was done, i.e. new terms of the agreement, there remained the possibility that the funds would be forfeited to the Crown.

100Mr. Zsigo submits that the 12.2 million remaining was in jeopardy for the CSEE in 2009 subject to the signing of the amended agreement and therefore discussions between the defendant and Public Office Holders at Industry Canada who met the criteria of Public Office Holders under the Lobbying Act, is captured by the Act.

101Mr. Zsigo submits that the activity at issue is the communication in respect of the awarding of a grant, contribution, or other financial benefit, section 7, and on that basis, the Crown submits that Count #3 has been made out.

102Concerning Count #1 and Count #2, regarding EPIC, Mr. Zsigo refers to the membership and mandate of EPIC. Mr. Zsigo submits that although the membership list is not complete as this document is from the early stages of EPIC, it is of note that it is composed of various corporate entities, primarily oil and other large scale energy producers and consumers. He submits that the mandate is important because it put the defendant's role and his communications into context.

103Mr. Zsigo refers to the opening paragraph of EPIC's mission:

"EPIC's Mission: EPIC's mission and sole purpose is to develop a comprehensive pan-Canadian energy strategy which will provide the foundation for recommendations to federal, provincial and territorial governments responsible for energy policy and regulation".

He refers to the "Guiding Principles": "As we develop realistic policy options for consideration by government policy makers, EPIC will be guided by the following principles…"

104Mr. Zsigo refers to page 2 of the document:

"We are unique, however, in one key respect. No other organization in Canada is solely committed to drafting a comprehensive Canadian energy strategy. Similar to a constituent assembly, the creation of this strategy and policy recommendations is our only raison d'etre. Once they have been presented to government, the organization will disband."

105Mr. Zsigo submits that these statements and principles speak for themselves, i.e. EPIC exists for one reason, to draft, create and present energy policy to governments.

106Mr. Zsigo refers to the Launch document: "Our mission is straight forward, to marshal the most impressive Canadian business talent in the building of a common sense energy strategy that will deliver economic prosperity and a clean environment and position our country as a global leader in energy innovation".

107Mr. Zsigo refers to the key points concerning EPIC's mandate. He submits that the section speaks to specifics such as: a) Canada and US energy relationship, b) enhancing openness of world energy markets, and c) helping to design regulatory processes.

108Mr. Zsigo refers to the Draft 2 Work Plan Document under "Our Work": "The private sector voice is shaping strategic aspects of energy policy for made in Canada strategy. The prime attributes: 1) Policy maker influencer and 2) Leader and advocate for business." He refers to page 2 where under "Policy Development Programs" it states: "Communication Plan: Primary Federal Government and under subheadings, Prime Minister, Federal Cabinet Ministers, Senior Staff and MPs".

109Mr. Zsigo refers to the "Final Framework Document – January 20, 2011". He submits that the document was eventually circulated to Public Office Holders and contains a strategy for Canada's Global Energy Leadership Framework. This document conforms with the earlier documents concerning the areas EPIC intended to focus on, i.e. energy pricing and Canada/US energy relations. It talks about energy pricing, security of and supply relations with the US. He submits that the earlier documents lead to the 40-page Framework Document created by EPIC, which details these themes.

110Mr. Zsigo submits that these communications are "in respect of" the development of policy of the Federal government, which is captured by the Lobbying Act.

111Mr. Zsigo refers to pages 6 and 7 of the Framework Document, which is essentially a summary of the various areas that EPIC intended to focus on in its discussions with government:

1. Intergovernmental relations about creating a single regulatory window;

2. Creating a framework with Aboriginal peoples;

3. Diversification in international markets;

4. Mention of building a pipeline infrastructure to the West Coast;

5. Expanding a reserve base;

6. International relationships with the US re the development and commercialization of energy technology such as reciprocal rights.

112Mr. Zsigo refers to paragraph 77 of the Agreed Statement of Facts where the Deputy Minister of Natural Resources, Mr. Serge Dupont, says the document (EPIC Framework Document) touched upon areas of federal regulation such as energy security, diversification of markets on oil and gas, nuclear power and federal investment in technology.

113Mr. Zsigo submits that there is a lot that EPIC is recommending to federal and provincial governments and the only reason EPIC exists is to develop policy recommendations. He submits the only thing that the defendant has to talk about with governmental officials is national energy strategy. He submits that the use of the words "in respect of" is extremely broad wording. It does not have to be "trying to influence" and the policy need not exist – i.e. it can be developed. Mr. Zsigo submits that it would be bizarre if it only became lobbying if the government actually implemented or acted on the policy being recommended.

114Mr. Zsigo submits that it is not about criminal behaviour or whether these are good ideas. He submits that, looking at the purpose of the Lobbying Act and considering there were vested interests here, i.e. energy companies with one of their key elements being to recognize and enhance the value of all significant sources of energy, it is the business voice trying to shape energy policy for Canada. He submits that just as Canadians would want to have transparent communication respecting 12.2 million dollars so too would Canadians want to have transparent communications respecting energy policy particularly when they are being advocated by the private sector. He submits that this is consistent with the intent of the legislation.

115Concerning Count #1, Mr. Zsigo submits that the focus is on the communications that the defendant had with federal officials and whether he was paid to do this and by implication that he undertook to do this.

116Mr. Zsigo urges the Court not to read into the term "undertaking". He submits that the undertaking need not be put into a contract or be in writing. He submits that there is a valid public policy component as to why that should be the case, i.e. If people can simply structure their contract whether it be employment contracts or as a consultant to avoid Lobbying Act activities, the legislation is easily circumvented.

117Mr. Zsigo submits that the defendant was retained to create a policy document. Mr. Zsigo submits that the Court should look at the substance of the defendant's dealings on behalf of EPIC and then characterize his role and assess whether or not there was a silent or implicit undertaking to engage in these communications.

118Mr. Zsigo submits that in 2009, EPIC's mandate is to develop a policy document on behalf of the private sector and to communicate with the federal government. The defendant was brought in and, as stated in the Agreed Statement of Facts, he had no industry contacts and according to Mr. Protti, no technical background. The defendant had recently left the Prime Minister's Office. He was paid $160,000.00 over the course of his tenure at EPIC and part of his duties was to write a policy paper but not on his own. This was supposed to be with the input of the members of the industry and he was to be assisted by Gerry Protti.

119Mr. Zsigo submits that, in those circumstances, someone who just leaves the PMO and joins EPIC whose "raison d'etre" is to generate a policy document to be recommended to the federal and provincial governments, inferences can be drawn. Mr. Zsigo submits that part of the circumstances is who the defendant is in addition to his background. Mr. Zsigo submits that Cassie Doyle gives some background in the Agreed Statement of Facts concerning her professional dealings with the defendant, i.e. that she came to know the defendant in a professional capacity while she was an Associate Deputy Minister at Environment Canada and dealt very closely with him when he was Senior Advisor to the Prime Minister and she was Deputy Minister at Natural Resources Canada.

120Mr. Zsigo submits that given the defendant's position for a 3-year period as Senior Advisor in the PMO, he would have extensive connections with the federal public service, including the Clerk of the Privy Council Office and various Deputy Ministers.

121Mr. Zsigo submits that Mr. Protti articulated the defendant's attributes to include "someone who understood the Ottawa scene very well; someone who knew how to navigate the federal process; and someone having a tremendous set of contacts".

122Mr. Zsigo refers to the letter from the Office of the Conflict of Interests and Ethics Commissioner in July 2008. He refers to paragraph 3 of page 2, where there is mention that the defendant, under the Conflict of Interests Act, would be precluded from dealing with the Ministries and Departments of Environment, Industry and Natural Resources given his significant official dealings with these entities in the last year of his office, that being as Senior Advisor in the PMO. Mr. Zsigo submits that this speaks to his attributes, i.e. he obviously had extensive contacts at Natural Resources Canada and at Industry Canada, which is relevant to Count #3, the CSEE charge.

123Mr. Zsigo refers to the Agreed Statement of Facts that establishes that the defendant was the primary point of contact for EPIC in its dealings with Public Office Holders. There are examples of this in the materials, i.e. under "Government Relations": "Bruce updated everyone on his various communications with government and noted there exists a sincere interest for our work"; there is mention of communication and meetings with Minister Paradis and his Chief-of-Staff; the defendant is updating the EPIC Executive about the communications he is having with Public Office Holders. Mr. Zsigo submits that this shows that EPIC Executives clearly know what the defendant is doing.

124He submits that if we add that aspect to who the defendant was, his history and what he brought to EPIC, clearly there is an undertaking or an understanding that the defendant is doing this work, using his strengths or what he could bring to the table on behalf of EPIC and EPIC knows this.

125Looking at the communication, Mr. Zsigo refers to an email to the EPIC Executive where the defendant is providing updates about meetings, i.e. he had met with Minister Paradis and with his Chief-of-Staff. Mr. Zsigo submits that not only is the EPIC Executive given notice of what is going on but Mr. Doug Black, the President of EPIC, says, "We can do nothing without you". Mr. Zsigo submits that it is clear that a member of the EPIC Executive values the defendant's efforts.

126He refers to an email to EPIC Executives in which the defendant is providing updates and mentions the people he is dealing with.

127In terms of Cassie Doyle, Mr. Zsigo submits that the defendant is talking about the need for "a small Deputies group to drive this". Mr. Zsigo submits that that this is important language: i.e. mention of Minister Paradis, Minister of Natural Resources; Mark Corey, ADM of Natural Resources; briefing the Clerk of the Privy Council Office etc. Mr. Zsigo submits that the defendant stated, "There is a lot of goodwill and support for EPIC's initiatives but we will have to keep driving this". Mr. Zsigo submits that this is not language used by an individual who is merely retained to write a 40-page report.

128Mr. Zsigo refers to another example where the defendant mentions meeting with Marc Vallieres. Similarly he refers to another communication which is very similar to the communication where Doug Black wrote, "We could do nothing without you". In another email, the defendant writes Doug Black, "I really do believe we will advance our energy agenda in 2011 farther than we ever thought possible" and Mr. Black writes back, "We are making progress and you are the secret sauce". He refers to the document EPIC generates that is shared with various members in the federal government, i.e. Wayne Wouters, Clerk of the Privy Council Office; Bruce Winchester and Paul Boothe at Environment Canada; Serge Dupont, Deputy Minister of Natural Resources. Mr. Zsigo submits that the defendant, who was from the PMO, and had extensive and significant dealings with Environment Canada officials, and Natural Resources officials, circulated the EPIC Framework Document. He submits that this is clearly laid out in the Agreed Statement of Fact.

129Mr. Zsigo refers to an email in which the defendant is updating EPIC Executives about the circulation of the EPIC Framework document. The defendant writes to David Emerson, copying Larry Clausen and all members of the EPIC Executive, stating, "The edits are done and he will deliver a copy to Serge Dupont", the Deputy Minister at Natural Resources Canada. At another email dated January 20, 2011, where the defendant confirms that he is sharing the EPIC Framework document with Paul Boothe, a Deputy Minister at Environment Canada, stating, "They (referring to Environment Canada Public Office Holders) are ready to support our report provided we add a sentence to the environmental section".

130Mr. Zsigo submits that the issue is whether the defendant was getting paid and can the Court infer that there was an undertaking there. He refers to the list of payments received by the defendant. At another email to Nigel Wright, who at this time was a Senior Advisor in the PMO. It states: "Nigel, I don't think we have met, but we have a few mutual friends. So firstly good luck with this great adventure you have taken on and secondly…and then there is mention of the EPIC report." He refers to an email where the defendant updates Doug Black about his dealings with Nigel Wright in the PMO and Mr. Black's response is, "Excellent. Need Nigel onside".

131Mr. Zsigo submits this is a great example of someone who is obviously well connected with various levels of government who used that attribute to disseminate a policy paper, which EPIC Executives were fully aware of and paid the defendant accordingly.

132Mr. Zsigo submits that this is what the defendant brought to the table. He submits that, when considering who the defendant was, in terms of his resume in the years before joining the CSEE and EPIC, when EPIC's mandate is considered, i.e. advocating a national energy strategy to federal and provincial governments and when the defendant's actions are considered, i.e. the defendant was the primary point of contact who took advantage of his connections in government. The defendant contacted Deputy Ministers, Ministers, the Clerk of the Privy Council Office and Advisors in the PMO. He submits that EPIC was aware of what the defendant was doing and gave him positive feedback and were excited that the defendant was making progress.

133Mr. Zsigo submits that when the payment to the defendant is considered, there is no legislative requirement that the undertaking be in writing. He submits that the evidence, Exhibits 1 and 2, establish an implied undertaking that the defendant, for payment, had communicated with governmental officials in respect of energy policy.

134Concerning Count #2, EPIC and arranging a meeting, Mr. Zsigo submits that the term undertaking is not found in the charge. He submits that the Crown has to prove the existence of a paid arrangement as between the individual or an organization and a Consultant Lobbyist. Mr. Zsigo submits that when you are paid to do a specific thing, you obviously undertake to do it, i.e. payment for the arrangement of a meeting. He submits that there is an implied undertaking. Mr. Zsigo submits that Count #2 captures the essence of the circumstances in section 5(1) of the Lobbying Act.

135Mr. Zsigo submits that everything said concerning the implied undertaking in respect of Count 1 applies to Count 2. Mr. Zsigo refers to an email as proof of the defendant initiating contact with Environment Canada and arranging a meeting to brief energy ministers on EPIC's Canadian energy strategy at the World Energy Conference (WEC) and asking whether Environment Canada officials "can help with that".

136Mr. Zsigo refers to the Agreed Statement of Facts and the interview of Cassie Doyle by the RCMP. Ms. Doyle, now Deputy Minister at Natural Resources, was one of the defendant's former professional colleagues whom he had contacted and asked to assist EPIC to set up an exclusive meeting with energy ministers. This eventually led to the task being assigned to Stephen Lucas, the Associate Deputy Minister at Natural Resources. It is also admitted that prior to these communications, there was no intention for these Ministers to meet with EPIC. This was the defendant's initiative.

137Mr. Zsigo refers to an email which he submits corroborates the Agreed Statement of Fact and to another email where EPIC's Executive is notified about his efforts to set up the meeting: "I am working through Charest's office and Paradis' office to arrange briefing. Looks positive". The subject of the email is "WEC, possible EPIC meeting with energy ministers". Mr. Zsigo refers to an email from the defendant to Richard Brosseau who is with the Quebec Ministry. It states: "Our work was discussed at the recent Council of Federation meeting in Winnipeg. Our objective is to develop a Canadian energy strategy which can be endorsed/adopted by provincial, territorial, federal governments."

138Mr. Zsigo submits that this email hints at 4 elements:

1. Advocating for a policy for adoption by the federal government;

2. A desire to brief ministers about their work;

3. EPIC wants a meeting with ministers;

4. Daniel Gagnier, a member of EPIC Executive, is copied on the email.

139Mr. Zsigo submits that these facts establish an implied undertaking and these efforts are a subset of the defendant's overall role, which is to make use of his government contacts to advocate the work of EPIC.

140Mr. Zsigo seeks a conviction on all three counts.

Defence Position

141Mr. P. McCann, on behalf of the defendant, submits that this is a legislative interpretation case. Mr. McCann submits that three principles or rules of statutory interpretation are involved:

1. Where a penal statute is ambiguous, the ambiguity must be resolved in favour of the accused; see R. v. McCraw, [1991] 3 S.C.R. 72; R. v. McIntosh, [1995] 1 S.C.R. 86; and R. v. MacDonald, [1998] O.J. No. 2990 (ONCA). Mr. McCann submits that this principle is relevant to the interpretation of section 5(1) (Lobbyist Act) as it relates to Consultant Lobbyists. Mr. McCann submits that R. v. McIntosh will come into play with section 5(1)(iv) and 5(1)(v) of the Lobbyist Act.

2. That anomalous results should be avoided, Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, 2005 SCC 70. Mr. McCann submits that this is relevant to the issue in section 10.11(1)(b) and (c) of the Lobbyist Act.

3. That words are to be given their ordinary meaning, R. v. McCraw, supra.

142Mr. McCann relies on paragraph 25 of R. v. McIntosh, concerning the identification of Parliament's intention being implied from the legislative actions. He submits that where Parliament could have expressed their intention overtly and did not, a different intention cannot be read in by the Courts. Mr. McCann submits that R. v. McIntosh applies with respect to the Crown's argument in this case, i.e. that Parliament, by making certain changes to the Lobbying Act, one must assume that Parliament meant certain things.

143Mr. McCann submits, referring to section 10.11(a) and (b), that in amending that section, Parliament made a distinction between corporations and organizations but left the word corporation in. Mr. McCann submits that therefore although "organization" includes a "not-for-profit" corporation the word "corporation" is not included in the section. He submits that, as a corporation, the CSEE, a not-for-profit corporation fits within the definition of "organization" but that does not stop it from being a "corporation". He submits that the CSEE is a corporation and therefore fits with 10.11(1)(c) and the Crown is therefore required to establish that any lobbying that the defendant did was a significant part of the defendant's activities, which the Crown has not done.

144Mr. McCann submits that Parliament could have made that clear but did not and therefore one can assume that the CSEE fits within 10.11(1)(a), (b) or (c).

145Mr. McCann relies on R. v. McIntosh, para. 26, concerning the contextual interpretation approach:

"Second the contextual approach allows the Courts to depart from the common grammatical meaning of words where this is required by a particular context, but it does not generally mandate the Courts to read words into a statutory provision. It is only when words are 'reasonably capable of bearing' a particular meaning that they may be interpreted contextually. Since the judge's task is to interpret the statute, not to create it, as a general rule, interpretation should not add to terms of law. Legislation is deemed to be well drafted and to express completely what the legislator wanted to say…"

146Mr. McCann submits the Crown's argument is that Parliament, by doing away with the exception where the Public Office Holder initiates the communication, Parliament must have intended communications initiated by Public Office Holders are included in section 5.

147Mr. McCann submits, referring back to para. 25 of McIntosh, it follows that Parliament could have said so but did not and therefore the Court cannot read that inference into the legislation.

148Mr. McCann submits that a straight reading of the words "communicate with Public Office Holders" suggests that communication must be initiated by the Designated Public Office Holder.

Mr. McCann refers to the remainder of para. 26 in McIntosh:

"The Crown is asking the Court to read words into s. 34(2) which are simply not there. In my view, to do so would be tantamount to amending s. 34(2), which is a legislative and not a judicial function. The contextual approach provides no basis for the Courts to engage in legislative amendment."

149Mr. McCann submits that we cannot lose sight of the overriding principle governing the interpretation of penal provisions. He refers to Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108, where Dickson J. states:

"Even if I were to find that the relevant statutory provisions were ambiguous, I would have to find for the appellant. It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced."

150Mr. McCann relies on para. 36:

"Thus, only where a statutory provision is ambiguous, and therefore reasonably open to two interpretations, will the absurd results flowing from one of the available interpretations justify rejecting it in favour of the other. Absurdity is a factor to consider in the interpretation of ambiguous statutory provisions, but there is no distinct "absurdity approach"."

151Mr. McCann relies on para. 38 of R. v. McIntosh:

"As stated above, the overriding principle governing the interpretation of penal provisions is that ambiguity should be resolved in a manner most favourable to accused persons. Moreover, in choosing between two possible interpretations, a compelling consideration must be to give effect to the interpretation most consistent with the terms of the provisions. As Justice Dickson noted in Marcotte, supra, when freedom is at stake, at page 115:

'If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication.

Under s. 19 of the Criminal Code, ignorance of the law is no excuse to criminal liability. Our criminal justice system presumes that everyone knows the law. Yet we can hardly sustain such a presumption if Courts adopt interpretations of penal provisions which rely on the reading-in of words that do not appear on the face of the provisions. How can a citizen possibly know the law in such a circumstance?'"

152Mr. McCann submits that those comments apply to the interpretation of all of these statutory provisions. He submits that the Crown is suggesting that the word "communicate" with Public Office Holders should be expanded to include receiving communications and responding to communications from Public Office Holders.

153Mr. McCann submits that the Crown is also suggesting that the words in section 5(1)(a)(v), "the awarding of any grant, contributions or other financial benefit…" ought to be expanded to include expanding or extending a funding arrangement or agreement. Mr. McCann submits that where an accused stands to lose the benefit but for the communications to re-negotiate the end of the contract as well as the activities in the original agreement, which culminates in a new agreement, is that a financial benefit to the CSEE? Mr. McCann submits that those are not the words in the section.

154Mr. McCann submits that the Court would have to read that in, i.e. adding words to the section in order to justify what the Crown is suggesting. He submits that the authorities are clear that the Court cannot do that.

155Mr. McCann submits that a literal interpretation is to be applied and if there is an ambiguity, the benefit goes to the accused. He refers to R. v. MacDonald, supra, at para. 21 to reinforce the principles in R. v. McIntosh:

"Where a penal statute is ambiguous, this ambiguity must be resolved in favour of the accused. A recent reaffirmation of this fundamental rule of interpretation can be found in the decision of Chief Justice Lamer in R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 S.C.R. 686. In that case, at p. 701, he referred to the 'overriding principle governing the interpretation of penal provisions' as stated by Dickson J. in Marcotte v. Deputy Attorney-General for Canada, 1974 CanLII 1 (SCC), [1976] 1 S.C.R. 108 at 115:

'Even if I were to conclude that the relevant statutory provisions were ambiguous and equivocal…I would have to find for the appellant in this case. It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced. [Emphasis added.]'

And at page 702 of McIntosh, Lamer C.J.C. restated the principle in his own words in these terms:

"It is a principle of statutory interpretation that where two interpretations of a provision which affect the liberty of a subject are available, one of which is more favourable to an accused, then the court should adopt this favourable interpretation. By the same reasoning, where such a provision is, on its face, favourable to an accused, then I do not think that a court should engage in the interpretative process advocated by the Crown for the sole purpose of narrowing the provision and making it less favourable to the accused. [Emphasis added.]""

156Mr. McCann also relies on Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, supra, for the principle of "avoiding anomalous results".

157Mr. McCann submits that it would be an odd situation if the CSEE does not fit within the section 10.11(1)(c) provision. He refers to para. 27 of Merk:

"The argument that an employer can dismiss without fear of prosecution an employee for bringing serious wrongdoing to its attention internally, but cannot do so as soon as the employee goes to outside authorities, invite rejection on the basis of irrationality, as described in R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 246:

A variation on irrational distinction occurs when an interpretation leads to an outcome in which persons deserving of better treatment receive worse treatment or vice versa.

See also P.-A. Cote, The Interpretation of Legislation in Canada (3rd ed. 200), at pp. 451-52. In R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, our Court declined to accept the interpretation of a sentencing provision which 'would reward the worst offender and penalize the least offender' (para. 42). A comparable anomaly would arise here if a narrow view of 'lawful authority' were adopted."

158Mr. McCann submits that this principle applies on the section 10.11(1)(b) and (c) issue. He submits that the anomaly is that if the CSEE only fits into the definition of "organization" in 10.11(1)(b), then the CSEE does not get the advantage of the "significant part of the person's activities" exemption. He submits that it is only if the CSEE is defined or included under "corporation" under section 10.11(1)(c), would they be entitled to the exemption.

159Mr. McCann submits that if you are lobbying on behalf of a charitable organization such as the Red Cross, you will not get the benefit of the exemption but if you lobby on behalf of Imperial Oil as a significant part of your activities you will get it.

160Mr. McCann submits that the anomaly is avoided as the CSEE is a corporation albeit a non-profit corporation, so it fits into the definition of both organization and corporation. He submits that section 10.11(1)(c) is clear that if it is a corporation that is your employer, then the Crown must establish that the Lobbying Act activities you were involved with consisted of a significant part of the duties of the person lobbying. He submits that in the defendant's case, there is no evidence of that in this case and no way the Crown could establish that.

161Concerning Count #3, the CSEE, Mr. McCann submits that there are 3 issues:

1. Whether responding to communication from a Public Office Holder is lobbying in the circumstances of this case;

2. Whether extending an agreement meets the definition of "awarding a grant, contribution or financial benefit";

3. Whether the communications the defendant had, as an employee of Industry Canada, constitute lobbying.

162Mr. McCann submits the Court must look at how the CSEE was created, how it was funded and who would have answered to it. Mr. McCann submits that the Government of Canada created the school, and the sole source of funding for the school was the Government of Canada. Mr. McCann submits that the school was required to report to the Government of Canada and the CSEE was totally dependent on the Government of Canada for funding and directions on how to conduct itself.

163Mr. McCann refers to the Funding Agreement:

1. The agreement is dated March 7, 2007;

2. It is for a 4-year period – March 7, 2007 to March 31, 2011;

3. The defendant begins his work at the CSEE in February 2009;

4. When the defendant takes over as Executive Director of the CSEE there is only 2 years left in the agreement;

At Article 3.1 in the agreement, it says:

"The CSEE will expend the amount only for the purpose outlined in the grant. The grant will aid the best efforts of the CSEE in achieving the activities, which are listed; "establishing a Canada based interactive website; enhancing international collaboration by way of conferences, seminars, etc.; facilitating technology transfer and commercialization in the area of natural resources, energy development and environmental sustainability..."

5. The next item in the Agreement

"Expected Results": "Most of the funding will be channeled into supporting operating costs to attract world-renowned lecturers, policy makers, and industry representatives and to promote research funding. As a result of these activities, the following results are expected. CSEE's success in doing so will be evaluated…"

164Mr. McCann submits that through those items (in the Funding Agreement) there is a clear direction from the government that this is what you have to do, this is what we expect, and these are the results we are looking for.

165Mr. McCann refers to Article 4 in the March 7th, 2007 Funding Agreement, which goes into great detail as to how the funds are to be invested and the restrictions on the investment of the funds. He refers to Article 4.8 as an example. Article 4.8 lists the quantitative limits on investment holdings and Article 4.9 deals with limits of funding investments in foreign currencies.

166He submits that Article 5 stipulates how the CSEE shall disburse funds only to pay for (listed) activities and reasonable expenses related to the investment and management of the funds to fulfill the requirements of Article 4. The Agreement states: "It shall commit the funds received under this agreement by no later than March 31, 2010." It also states: "CSEE may, subject to Article 20.11 and in consultation with the Minister, determine the best use of funds, the income earned that are not committed by March 31st."

167Mr. McCann submits that the CSEE is a branch of Industry Canada. He relies on the "comments" of Zoe Addington in the Agreed Statement of Fact, that CSEE was reporting to Industry Canada and therefore not lobbying.

168Mr. McCann submits that to suggest when Industry Canada calls the CSEE and asks for something, that the defendant could not respond or engage in dialogue with Industry Canada concerning the agreement after he joined the CSEE in 2009, would be to expand the definition of communication because Industry Canada initiated it.

169Mr. McCann submits that the relationship between the CSEE and Industry Canada is so tight that the communications are part of the normal course of business and do not relate to the awarding of any grant, contribution or other financial benefit. Mr. McCann submits that since no new funds are awarded the subparagraph does not apply.

170Concerning the third issue, Mr. McCann submits that communicating with Industry Canada is not lobbying because of the requirement to report which necessitates communication and the Lobbying Act therefore does not apply to alleged lobbyists who are effectively on the government payroll which is what the defendant and his colleagues at the CSEE were.

171Mr. McCann submits that the CSEE could be viewed as government employees. He refers to the Zoe Addington RCMP interview in the Agreed Statement of Facts:

"Officer: "…Do you know if anyone ever registered say as lobbyists for Canada School?

ZA: No, they did not, nobody did. Officer: And do you know why – why not?

ZA: 'Cause nobody was lobbying for Canada School. Like, there was no, like I said, our relationship with Industry Canada was we report to them – Uhm, so I think, uh, th-, certainly for Industry Canada perspective it would have never crossed our mind that we were lobbying. We answered to them and reported to them. Uh, in terms of, and again, Bruce had this role with Environment Canada where he, uh, he worked for them. So, again, it was not in a lobbying role. And then, certainly, when it came to energy strategy stuff related to the energy strategy: "I don't know. I don't think – I don't – I, I think the sense of going to the government for something, I don't think we would have ever considered that or the Canada School never really considered that we were going to the government to ask for something. So back to your point about, you know, the act of trying to, ask for change, legislation, policy, registration, certainly if, there was times the government came to Bruce, not the other way around. So, but other than that, I, I don't know, but certainly, yeah, no."

172Mr. McCann submits that Zoe Addington, a former senior staff member for one of the Ministers in the Conservative Government before taking on this position is very much like Mr. Protti who was a former Minister in the Alberta or Deputy Minister in the Alberta Government and Mr. Wouters who was Clerk at the Privy Council and none of them saw this sort of thing as being lobbying.

173Mr. McCann submits that all of the Public Office Holders concerning either the CSEE or EPIC are senior public office holders and all of the EPIC people were senior executives, experienced in the energy industry, and none of them thought the two communications the defendant had with the government concerning the CSEE were really lobbying.

174Mr. McCann submits, concerning the last issue concerning Count #3, is that there is no evidence that the lobbying was a significant part of the defendant's job and that relates to the section 10.11(1)(b) and (c) issue. Mr. McCann submits that the definition of "organization" is inclusive not exclusive. He submits that as a non-profit corporation, the CSEE is included in the definition of organization but that does not mean that it ceases to be a corporation for the purposes of subparagraph (c). He submits that under subparagraph (c) the onus is on the Crown to establish that it was a significant part of his duties and there is no evidence of that.

175Concerning Counts 1 and 2, EPIC, the Consultant Lobbying allegations, Mr. McCann submits that the first issue is the proper interpretation of section 5(1) (of the Lobbying Act). Mr. McCann submits that a plain reading of the section leads to the inescapable conclusion that it refers to a professional lobbyist who holds himself out for hire by clients.

176Mr. McCann submits that the terms, particularly "Consultant Lobbyist", "for payment" and "on behalf of a client" all lead to the conclusion that the section is referring to a "quid pro quo" scenario where the lobbyist is paid a fee for specified lobbying services to the client. He submits that the Oxford Dictionary defines client as, "is a person or an organization using the services of a lawyer or other professional person or company". He submits that there is no way that the ordinary meaning and proper interpretation of the words "client" and "for payment" can constitute what the defendant was doing on behalf of EPIC, while receiving a regular honorarium. He submits that the honorarium varied over time, but it was a regular monthly payment that he received for the work he did for EPIC. Mr. McCann submits that it is also clear that the work he was doing for EPIC was primarily drafting policy, writing policy documents. Mr. McCann submits that the communication he had with Public Office Holders was not for payment.

177Mr. McCann submits that the defendant did not receive a fee for talking to or communicating with the Public Office Holders. He submits that EPIC was not his client as he was part of EPIC, a senior executive for that organization. Mr. McCann submits that the honorarium was not contingent on his communicating with the Public Office Holders. Mr. McCann submits that he would have received the same honorarium had he never communicated with any Public Office Holder. He submits that the clear wording of the section excludes the defendant as a Consultant Lobbyist in this situation.

178Mr. McCann submits that the honorarium was not a "quid pro quo", that it was not a fee for service, which is the only way that Section 5 can be properly interpreted. When asked by the Court why every corporation would not set up in a similar way, i.e. pay honorariums so that no one would ever have to register or report under the Lobbying Act, Mr. McCann he stated, "I think the answer to that is they would…I can point to the section in the Act that I think probably covers that, although we've agreed that he was not an employee, but there is a section in the Act that covers that situation, suggest that a person in that situation would be an employee and therefore would have to register if a significant part of his duties were this (lobbying)…" Mr. McCann then referred the Court to Section 7(6) of the Lobbying Act.

Section 7(6) contains the definitions for section 7:

"(6) In this section,

employee includes an officer who is compensated for the performance of their duties

senior officer, in respect of a corporation, means

a. a chief executive officer, chief operating officer or president of the corporation, or any other officer who reports directly to the chief executive officer, chief operating officer or president of the corporation."

179Mr. McCann denies that he is saying that the defendant was an employee of EPIC because he agreed for the purposes of the Agreed Statement of Fact that the defendant was not an employee of EPIC. He confirmed that he agreed that the defendant was a Consultant Lobbyist and that section 7(6) did not apply to the defendant.

180Mr. McCann submits that section 5, the Consultant Lobbyist section, is designed to cover the classic "fee-for-service" lobbyist, who for a fee, agrees and undertakes to communicate with a Public Office Holder. He relies on R. v. Carroll, 2016 ONCJ 214, paras. 48 and 49:

"Although 'undertaking' is not defined in the Act, this term has a common and well-understood meaning. I find that the letter of agreement, drafted and signed by the accused, constituted Mr. Carroll's undertaking to communicate with public office holders on behalf of La Vie. Specifically, I find that Mr. Carroll provided his undertaking to either personally communicate with public office holders or arrange to have it done. Although the agreement was on Tactrix letterhead, I find that Mr. Carroll intended to take the lead and did take the lead in advancing La Vie's interests as he wrote in the letter to 'sell the plan; sell the product'. In the event, it is the agreement to undertake to communicate with public office holders which gives rise to the obligation to file the return."

181Mr. McCann submits that the situation in R. v. Carroll is the "classic" situation where the accused was an employee of a firm that lobbied on behalf of the client. He was retained by the client and undertook to communicate with public office holders to advance the client's interests in selling its product to the government. Mr. McCann submits that although he was a salaried employee of the company, there was nevertheless a fee charged to the client for the services that were provided. Mr. McCann submits that that is the proper way to look at section 5(1), i.e. that it is a fee-for-service situation and to expand it beyond that requires a re-writing of the section.

182Mr. McCann submits that the defendant was not a Consultant Lobbyist as he did not have a client. He submits that "whatever he was doing was on behalf of EPIC, an organization of which he was Co-Chair, a senior member of that organization, and it was not done for hire.

183Mr. McCann submits that the defendant was not set up as a lobbyist offering his services to EPIC to lobby on their behalf for a fee, for payment, and as there is no evidence anywhere in the material of an undertaking, there is no evidence that the defendant at any point undertook with anybody to communicate with Public Office Holders. Mr. McCann submits that, in fact, the evidence throughout indicates that the defendant did that on his own and that does not constitute lobbying under section 5. He submits that it would be necessary for the defendant to have provided some sort of arrangement, agreement, or undertaking with EPIC to lobby on its behalf and there is no indication of that in the evidence.

184Mr. McCann submits that the Crown's submission of an implied undertaking has no place in criminal law. Mr. McCann concedes, "an undertaking could be inferred in circumstances without there being express or direct evidence that there was an undertaking. For example, if you had a situation where the lobbyist is hired by the client and then, for the purposes of advancing their client's interests and then proceeds to communicate with public office holders in connection with the client's interests, it could be inferred that the lobbyist had given the undertaking to the client to do that". However, he submits that that is not the situation here. He submits that the defendant was a very senior member of EPIC, Co-Chair and whatever communications he had with the Public Office Holders appear to have been entirely of his own accord.

185Mr. McCann submits that the evidence does not establish that the communications by the defendant were in respect of the development or amendment of any policy or program in the Government of Canada.

186Mr. McCann submits that the communications were "informational" only. He submits that when the materials are read, "You won't see anything other than Mr. Carson communicating with the Public Office Holders, basically offering to provide them information or to meet with them so that they would know what we are doing or in some cases public office holders, I think seeking to talk to him about setting up, networking so that public office holders would understand what EPIC was doing. But it was all informational…even the brochure that was produced at the end was informational…There is nothing in that that was advancing or suggesting to the government what they should do in terms of any policy or program that was in place. It was informational only. It was saying this is what we are studying, we're trying to see what we can do in terms of putting together some proposals, eventually, for some kind of a national energy policy. Most of his dealings appear to have been with the provincial energy ministers. The Natural Resources is clearly under the jurisdiction of the provinces, not under the federal government…You will read in the materials that the problem perceived was that the different provinces had different policies relating to their energy and the idea was to get them all in line so to speak and whatever lobbying would have been done or likely to have been done was most likely going to be done with the provinces as opposed to the federal government…The bottom line is that there is no evidence that there was any federal government policy or programs in effect that Mr. Carson was addressing in any of his communications."

187He refers to Mr. Wouters statement in the Agreed Statement of Fact when he is being asked about the EPIC Framework Document:

"If I have any view or whatsoever I may have. I don't recollect as well, but he's just informing me that this is something that the government may be interested in, and he's going to be talking to the Deputy Minister of Natural Resources Canada about the proposal. That's – that's how I read this and how I would – how I would look at this. That's not unusual what he would – what he would be doing, sending something to me as the clerk because he knows me. This is kind of a policy debate. Like, it's not like – I don't – I – I guess I don't consider this really as lobbying. This is sort of getting our interest."

188Mr. McCann submits that if you look through all of the material, all that was ever being done, was to provide information to the Public Office Holders as to what EPIC was doing, what their program was. He submits that clearly, down the line, they may have wanted to present some sort of proposal to the government, but that's not what was happening at this point. He submits that there was no government policy or program in place.

189Mr. McCann submits that it is the Federal government, asking EPIC to do something.

190When asked where it says in the Lobbying Act that the communications concerning policy have to be in respect of an existing governmental policy or program, Mr. McCann submits that that is the meaning of "in connection with the development or amendment of any policy or program in the Government of Canada" means there has to be a policy or program in place and there was no policy or program in place here.

191Mr. McCann concedes that the Government of Canada may have been a party or had some international accord, i.e. the Copenhagen Accord, and the government is trying to get them (EPIC) to incorporate that into the report. However he submits that it is not EPIC attempting to influence or communicating for the purpose or relating to any policy. He submits that it appears that the Minister (Peter Kent Minister of Environment Canada) has read this paper and would like them to maybe make some changes to it. There's no communication there in connection with any policy from anybody in EPIC, or specifically from the defendant.

192Concerning Count #2, Mr. McCann submits that Count #2 also requires an undertaking and it is an undertaking to arrange a meeting between a Public Office Holder and any other persons. He concedes that the defendant participated in organizing the Meeting referred to as the September 17, 2010 breakfast meeting in Montreal with the various energy ministers from different provinces and the Federal Energy Minister (Paradis), but submits that it was "not for any other person". He submits that it was for the defendant and his organization, EPIC. He submits that the "any other person" fits with the lobbyist/client relationship and under the assumption that the lobbyist is arranging a meeting for his client to meet with the Public Office Holder and that was not the situation here. He submits that the situation was that the defendant assisted in arranging a meeting where he and his colleagues from EPIC could meet with the Energy Ministers and he submits that is not what is referred to in section 5(1)(b).

193In conclusion, Mr. McCann submits that EPIC was functioning largely as a "think-tank", putting forward ideas, proposals. There was clearly some interest in what they were doing on the part of some of the government people and others…And whether that went so far as to consist of communicating with respect to an existing policy, the development of existing policy or program of the federal government, is an issue for the Court to decide.

Crown's Reply

194In reply, Mr. Zsigo submits that the prohibition in section 5(1) is in respect of arranging a meeting between a Public Office Holder and any other person and does not mean between Public Office Holder and EPIC. He submits that "person" is defined in the Interpretation Act, which includes a corporation in that definition. He submits EPIC is a corporation and Mr. Protti, Daniel Gagnier and the defendant attended the Montreal meeting and that is in the Agreed Statement of Fact.

195Mr. Zsigo submits if Parliament meant to limit communication to a Designated Public Office Holder initiating communications only, they would have used that word.

196Concerning the personnel of the CSEE being employees of Industry Canada, Mr. Zsigo submits that it has not been made out on the facts before the Court and Exhibit 1 mentions that CSEE is an organization.

197Mr. Zsigo refers to Article 3.1 where the original CSEE Funding Agreement states: "The minister acknowledges that CSEE is eligible to a grant of 15 million dollars". Mr. Zsigo submits that being eligible for the grant does not mean that CSEE had the money in hand and CSEE is only eligible if it meets certain criteria. He submits that reinforces the submission that the later communications concerning amending the Agreement are in respect of the awarding of the grant, contribution or financial benefit.

198Mr. Zsigo submits concerning how the defendant could have handled an enquiry or a communication initiated by Industry Canada to CSEE. He submits that the defendant could have indicated that he could not speak to the Public Office Holder and would refer the Public Office Holder to another member of CSEE. Alternatively, the legislation provides for an exemption and he could have contacted the Commissioner of Lobbying's office and asked for an exemption and then been able to engage in the communications but he certainly could not continue the communications with respect to funding.

199Concerning the wording of section 5(1), Mr. Zsigo submits that Mr. McCann is unduly narrowing the provision based on the ordinary words that are there when he relies on the word "client". He submits that the term "client" in section 5(1) is shorthand for person or organization and there is no additional meaning to the word. He submits there is no need to refer to dictionary meanings of the word client.

200Concerning the use of the term "implied" in respect of undertaking Mr. Zsigo submits that he is not asking the Court to include additional words in section 5(1) but only to focus on the ordinary meaning of the terms and how the section is crafted.

The Issues

Count 3: The Canada School of Energy and Environment (The CSEE)

201The following issues arise:

1. Does the CSEE fit within the definition of "organization" as well as "corporation" which would require the Crown to prove beyond a reasonable doubt, as per section 10.11(1)(c), that the communication the defendant engaged in with Public Office Holders in respect of the awarding of any grant, contribution or financial benefit to the CSEE was a significant part of the defendant's work on behalf of the CSEE?

2. Is the defendant, as an employee of the CSEE, an employee of Industry Canada and therefore not subject to the Lobbying Act?

3. Does communication initiated by Industry Canada in respect of amending the Funding Agreement, exempt the defendant from the provisions of the Lobbying Act?

4. Was the communication by the defendant in respect of amending the March 7, 2007 Funding Agreement communication in respect of the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada?

5. Has the Crown proved beyond a reasonable doubt that the defendant, a designated public office holder (Designated Public Office Holder) and an employee of the CSEE, an organization, undertook to communicate with Public Office Holders in respect of the awarding of a grant, contribution or other financial benefit by or on behalf of her Majesty in right of Canada, contrary to section 10.11(1)(b) of the Lobbying Act, thereby committing an offence contrary to section 14(2) of the said Act?

202There is no dispute that the defendant was a Designated Public Office Holder, that he was employed and paid as Executive Director by CSEE and subject to the 5-year prohibition under section 10.11(1)(b) at the material time concerning his activities at the CSEE.

Court's Findings and Reasoning

Issue 1: Classification of CSEE

203The Court has considered the evidence and the submissions of counsel, and while much has been said about the proper statutory interpretation principles that apply in this case, about the principles set out in R. v. McIntosh, "the literal or plain meaning of the words of the provision", and those in Rizzo & Rizzo Shoes Ltd. v. Zittrer, Siblin & Associates, Inc., [1998] 1 S.C.R. 27, "the words of the Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament", the Court finds that in applying either or both principles, the legislation is clear and there is no ambiguity or absurd result that arises when the words of the provisions of the Lobbying Act, including section 2, the definitions section, section 10.11, the prohibition section, and 7 are read.

It is clear that Parliament intended and expressed clearly in the definition section that a "not-for-profit" corporation is included in the definition of organization and that a corporation and any "subsidiary" of such a corporation is distinct and expressly provided for. Section 2(f) provides that "a corporation without share capital incorporated to pursue, without financial gain to its members, objects of a national, provincial, patriotic, religious, philanthropic, charitable, scientific, artistic, social, professional or sporting character or other similar objects" is included in the definition of "organization". Section 10.11(1)(b) provides for individuals employed by an organization while section 10.11(1)(c) provides for individuals employed by corporations. Section 7(1) distinguishes between a corporation and an organization by the inclusion of the word "or": "The officer responsible for filing returns for a corporation or organization shall file with the Commissioner, in the prescribed form and manner, a return setting out the information referred to in subsection (3) if…(a) the corporation or organization employs one or more individuals…"

Therefore the literal and plain meaning of the words and the context establishes that the distinction between "corporation" and "organization" is express. Therefore, while the CSEE is a corporation, it meets the specific and express definition of "organization" under section 2 as it is a "not-for-profit" corporation. It would be superfluous to specifically define it under "organization" if Parliament also intended to fit within the definition of "corporation". As stated in para. 26 in R. v. McIntosh, supra, "Legislation is deemed to be well drafted and to express completely what the legislator wanted to say". The Court rejects the submission that the CSEE fits both under organization and corporation or that there is anything ambiguous in either section 10.11 and/or section 7.

204In addition, the Court disagrees that there is an anomalous situation created by section 10.11. There is no "exemption" created in section 10.11(1)(c) as it is a prohibition on Designated Public Office Holders employed by a corporation carrying on the activities referred to in section 7(1)(a) on behalf of a corporation if those activities constitute a significant part of the Designated Public Office Holder's work on behalf of the corporation. Section 10.11(1)(a) prohibits Designated Public Office Holders from carrying on any of the activities referred to in section 5(1)(a) or (b) for payment on behalf of any person or organization. Section 10.11(1)(b) prohibits Designated Public Office Holders employed by organizations from carrying on any of the activities referred to in paragraph 7(1)(a) on behalf of that organization. What Mr. McCann calls an exemption is a situation where there is a charge under the Lobbying Act, for a Designated Public Office Holder "employed" by a "corporation", as distinct from an "organization" where the Crown will have to prove that the activities of the defendant on behalf of the corporation, formed a significant part of the individual's work. However, as stated above, section 10.11 and section 7 expressly distinguish between "organization" and "corporation". Not for profit corporations are expressly included in the definition of organization, section 2, and therefore distinct from a corporation or subsidiary with securities. There is no anomaly or ambiguity in the terms or definitions. Therefore section 10.11(1)(c) does not apply to the defendant and his work at the CSEE and there is no need for the Crown to prove that the communication with Industry Canada formed a significant part of his duties on behalf of CSEE under section 10.11(1)(c).

Issue 2: CSEE as Part of Industry Canada

205Concerning Issue #2, whether the defendant, as an employee of CSEE, is an employee of Industry Canada and therefore not subject to the provisions of the Lobbying Act:

206Under Article II of the March 7, 2007 Funding Agreement, it is clear that the CSEE is a separate entity from government and specifically Industry Canada. Under Article 2.1 Representations and Warranties, CSEE represents and warrants to the Minister that:

(a) CSEE is in good standing under the laws of the jurisdiction in which it is required to be registered;

(b) CSEE has the requisite power (corporate and other) to own its assets and to carry on its Activities as contemplated by the Agreement;

(c) The execution and delivery of this Agreement by CSEE, and the carrying out by it of all of the Activities contemplated hereby by CSEE, have been duly authorized by all required corporate action;

(d) CSEE has full power to execute and deliver this Agreement and to perform its obligations hereunder;

(e) Etc.

207Under Article 20.5, the Funding Agreement states:

"Relationship of the Parties Nothing contained in this Agreement shall be construed to place the Parties in the relationship of partners, joint ventures or create an agency relationship and neither Party shall have any right to obligate or bind the other Party in any manner."

208The Amending Agreement, signed January 13, 2011, at para. 2, states, "CSEE restates and confirms its representations and warranties stated in Article II of the Funding Agreement, as amended by this Amending Agreement, as they apply to the Funding Agreement and this Amending Agreement. Paragraph 10 of the Amending Agreement states, "All other provisions of the Funding Agreement remain in full force and effect, unchanged". This would include Article 20.5.

209It is therefore clear that CSEE is not a partner, or involved in a joint venture and there is no agency or employer/employee relationship with Industry Canada. The defendant is not an employee of Industry Canada. It is admitted that the defendant is a Designated Public Office Holder and is therefore subject to the Lobbying Act. At an email from Donna Mastel, University of Calgary, dated February 2, 2009, to the defendant, speaks specifically to registration under the Lobbying Act and monthly reporting. It is unknown whether the defendant responded to that email where Ms. Mastel sought a meeting with him for a ½ hour to discuss the federal lobbying registration and monthly reporting. The defendant had also been given notice in the letter from the Commissioner of Conflict of Interest and Ethics date July 9, 2008 that "…pursuant to the Lobbying Act, you are subject to the 5 year lobbying prohibition…and to Please contact the Office of the Commissioner of Lobbying at 613-957-2760 for advice with regard to lobbying". It is clear that the defendant was not an employee of Industry Canada and that he was subject to the provisions of the Lobbying Act when employed by CSEE.

Issue 3: Communications Initiated by Industry Canada

210Does communication initiated by Industry Canada in respect of amending the Funding Agreement, exempt the defendant from the provisions of the Lobbying Act?

211The Court finds that there is no exemption from the prohibition or from the requirement register and report under the Lobbying Act because the original communication concerning the situation the CSEE found itself in, i.e. not being on track to prudently spend the remaining $12.2 million left in the Agreement, came from Ms. Corkery at Industry Canada.

212The Court finds that the current Lobbying Act was amended to address what was seen as a "loophole":

"Clause 3(2) amends section 4(2)(c) of the Act. That section currently exempts a lobbyist from the obligation to register if the lobbyist is responding to 'a written request from a public office holder, for advice or comment'. The purpose of the exemption is to permit public office holders a degree of freedom in discussing government business with lobbyists (who are, for many public office holders, a valuable source of information and analysis) without triggering the Act's registration requirements. However, some critics of the registry system suggest that this constitutes a 'loophole': the public office holder and the lobbyist could keep their discussions 'off the radar' simply by having the public office holder write a letter 'requesting advice or comment'. The letter would suggest that it was the public office holder who initiated the contact even if it were, in fact, the lobbyist who initiated contact. The effect of the exemption is that a public office holder may solicit 'advice' or 'comment' from the lobbyists without the public becoming aware of it. Critics say that this undermines the principle of transparency, i.e. the public should be able to find out what information public office holders are receiving from lobbyists, since this will effect the public decision-making process.

The Committee recommended that section 4(2)(c) be deleted altogether, and Bill C-15 proposes to do so. A new section 4(2)(c) replaces the current section and, although the wording appears similar, the intent of the new section 4(2)(c) is quite different. The new section exempts lobbyists from registering where the only purpose of the communication is to request information from the public office holder. Without this exemption, any 'communication' on any public business would trigger the registration requirement."

Legislative Summary, Bill C-15: An Act to Amend the Lobbyist Registration Act; Geoffrey P. Kieley, Law and Government Division, 13 November 2002 revised 19 March 2003, Parliamentary Research Branch, Library of Parliament LS-443E, at pages 5-6.

213Even without the background or history (above), the current section 4(2)(c) of the Lobbying Act is clear. It states,

"(2) This Act does not apply in respect of

(a), (b), or

(c) any oral or written communication made to a public office holder by an individual on behalf of any person or organization if the communication is restricted to a request for information."

214The communications the defendant had with Public Office Holders at Industry Canada were not requests for information and therefore do no meet the terms of section 4(2)(c).

215The Court has not placed any weight on the evidence of Ms. Karen Corkery and Ms. Zoe Addington, that the communications between the defendant and the Public Office Holders at Industry Canada did not constitute lobbying as neither were qualified to provide an expert opinion. In addition, concerning Ms. Addington, a former Deputy Minister at Industry Canada when she joined CSEE after the defendant became the Executive Director, her prior relationship as a Senior Public Servant and colleague of the defendant in his various roles in the Public Service, raises a credibility issue concerning the opinion Ms. Addington provided in support of the defendant that no one considered that their communications to amend the Funding Agreement constituted lobbying. It is also non-expert evidence related directly to the ultimate issue to be decided by the Court. The same comments apply to Mr. Gerri Protti and Mr. Wayne Wouters regarding their opinion that the defendant was not lobbying.

216The Court finds that there is no "exemption" from the prohibition, or registering and reporting under the Lobbying Act because the original communication concerning the situation the CSEE found itself in, i.e. not being on track to prudently spend the remaining 12.2 million dollars outstanding, was initiated by Ms. Corkery at Industry Canada. The current Lobbying Act was amended to address that specific "loophole". The defendant had alternatives other than initiating further communications and meetings, i.e. with Richard Dicerni with respect to extending the time limits of the Agreement from March 2010 to March 2014 as well as changing the focus of CSEE's activities. The defendant could have assigned the communication and re-negotiation to others in CSEE who were not Designated Public Office Holder designated. He was made aware of his status as a Designated Public Office Holder and the Lobbying Act in the letter of July 9, 2008 and in the email from Ms. Mastel in February 2009. Section 10.11 is a specific prohibition to Designated Public Office Holders for a period of 5 years. Section 10.11(1)(b) applies to section 7(1)(a) activities.

217Additional proof that the defendant was aware of his obligations under the Lobbying Act is provided by Article 2 in the Funding Agreement, which is duplicated in the Amending Agreement:

In the Funding Agreement, March 7, 2007, under Article II, 2.1 (j), it states:

"2.1 Representations of CSEE. CSEE represents and warrants to the Minister that:

(j) in regards to CSEE's compliance with Lobbyist Legislation, and the rules respecting Fees and No Gifts, Inducements or Commissions,

(i) it has not, nor has any person on its behalf, paid or provided or agreed to pay or provide, to any person, directly or indirectly, a commission, contingency fee or any other consideration (whether monetary or otherwise) that is dependent upon the execution of the Agreement or the person arranging a meeting with any Public Office Holder;

(ii) it will not, during the term of this Agreement, pay or provide or agree to pay or provide to any person, directly or indirectly, a commission, contingency fee or any other consideration (whether monetary or otherwise) that is dependent upon the person arranging a meeting with any Public Office Holder;

(iii) any person who, for consideration, directly or indirectly, communicated with or arranged a meeting with any Public Office Holder, in respect of any aspect of this Agreement, prior to the execution of the Agreement, was in compliance with all requirements of the Act;

(iv) any person who, for consideration, directly or indirectly, during the term of this Agreement and in respect of any aspect of this Agreement, communicates with or arranges a meeting with any Public Office Holder will be in compliance with all requirements of the Act; and

(v) at all relevant time CSEE has been, is and will remain in compliance with the Act."

Article 20.9 addresses the Lobbying Act requirements:

"Lobbyist Registration Act: CSEE declares that any person who has lobbied on its behalf to obtain the funding that is the subject of this Agreement and who is required to be registered pursuant to the Lobbyists Registration Act R.S. 1985 c.44 (4th Supplement), was registered pursuant to that Act at the time the lobbying occurred.

Section 20.11 states: Uncommitted Amount. If no agreement has been reached regarding the unspent portion of the Amount by March 31, 2010, then any uncommitted Amount shall be returned to the Minister".

218The Amending Agreement, dated January 13, 2011, signed by Industry Canada and the defendant on behalf of CSEE, amends the March 7, 2007 Funding Agreement (although the Amending Agreement document states the Funding Agreement was entered into on March 7, 2008). The activities of CSEE are set out in the pre-amble:

"AND WHEREAS the Parties entered the Funding Agreement to advance the implementation of the Minister's federal Science & Technology Strategy, which encourages an entrepreneurial advantage by facilitating collaborations between the academic and the private sectors; a knowledge advantage to ensure Canadian research institutions sustain their world-class research excellence, and a people advantage so that Canada has access to highly-skilled researchers and innovators it needs;

AND WHEREAS the Parties desire to further advance the implementation of the federal Science & Technology Strategy and therefore desire to amend the Funding Agreement…

The Parties agree as follows: At Number 2 on the first page of the Amending Agreement, "CSEE restates and confirms its representations and warranties stated in Article II of the Funding Agreement, as amended by this Amending Agreement, as they apply to the Funding Agreement and this Amending Agreement, i.e. that CSEE is separate from Industry Canada.

Number 3 of the Amending Agreement states:

"Section 2.1 (j) of the Funding Agreement is hereby deleted and replaced by the following:

'(j) CSEE undertakes to comply with the Lobbying Act, R.S. 1985, c 44 (4th Supplement) (herein referred to as the 'Act') and, in particular, that:

(i)it has not, nor has any person on its behalf, paid or provided or agreed to pay or provide, to any person, directly or indirectly, a commission, contingency fee or any other consideration (whether monetary or otherwise) that is dependent upon the execution of the Agreement to communicate with a Public Office Holder or to arrange a meeting with any Public Office Holder or any other person;

(ii) it will not, during the term of this Agreement, pay or provide or agree to pay or provide to any person, directly or indirectly, a commission, contingency fee or any other consideration (whether monetary or otherwise) that is dependent upon the person communicating or arranging a meeting with any Public Office Holder and any other persons;

(iii) any person who, for payment, directly or indirectly, communicated with or arranged a meeting with any Public Office Holder and any other person, in respect of any aspect of this Agreement, prior to the execution of the Agreement, was in compliance with all requirements of the Act by filing a return with the Commissioner of Lobbying;

(iv) any person who, for payment, directly or indirectly, during the term of this Agreement and in respect of any aspect of this Agreement, communicates with or arranges a meeting with any Public Office Holder and any other person will be in compliance with all requirements of the Act by filing a return with the Commissioner of Lobbying; and

(v) at all relevant times CSEE has been, is and will remain in compliance with the Act "."

Paragraph 8 states: "Section 20.9 of the Funding Agreement is hereby deleted and replaced with the following:

""20.9 Lobbying Act. CSEE declares that any person who has lobbied on its behalf to obtain the funding that is the subject of this Agreement and who is required to be registered pursuant to the Lobbying Act, R.S. 1985 c.44 (4th Supplement), was registered pursuant to that Act at the time the lobbying occurred."

Paragraph 9 states: "Section 20.11 of the Funding Agreement is hereby deleted and replaced with the following:

""20.11 Uncommitted Amount. If no agreement has been reached regarding the unspent portion of the Amount by March 31, 2014, then any uncommitted Amount shall be returned to the Minister."

Paragraph 10 states that "All other provisions of the Funding Agreement remain in full force and effect, unchanged."

219The Court rejects Mr. McCann's submission that CSEE is an employee, agent or otherwise part of Industry Canada. Both the Funding and the Amending Agreements make plain and certain that CSEE is a separate entity. It is also clear in both the Funding and Amending Agreements that the requirements of the Lobbying Act are to be complied with and CSEE, in both Agreements declared, by signing the Agreements, that CSEE was in compliance and would remain in compliance with the Lobbying Act. The sections setting out who might be required to register and report lobbying are clear. The sections also emphasize and make clear that any person who communicates with or arranges a meeting with Public Office Holders, for payment, directly or indirectly, prior to the execution of either Agreement, in respect of any aspect of either Agreement, including in respect of obtaining funding, during the term of either Agreement must be in and are in compliance with the Lobbying Act.

220Those sections in the original Funding Agreement applied to the defendant when he signed his contract with CSEE and he declared by signing the Amending Agreement on January 13, 2011 that he and the CSEE were and would remain in compliance with the Lobbying Act even with respect to the communications he had with Public Office Holders concerning his communications "in respect of any aspect of the Amending Agreement", which from all the evidence before the Court he had not taken any steps to do. It can be inferred from his communications and meetings with Public Office Holders at Industry Canada in respect of amending the 2007 Funding Agreement he would have had knowledge of the 2007 Funding Agreement and therefore the representations and warranties made by CSEE concerning full compliance with the Lobbying Act. In signing the Amending Agreement, January 13, 2011, he specifically declared that he was in compliance with the Lobbying Act despite knowledge that he was a Designated Public Office Holder communicating with Public Office Holders about amending the Funding Agreement. He also had been cautioned about the 5-year prohibition applying to him as a Designated Public Office Holder in the July 9, 2008 letter advising him to seek advice from the Commissioner of Lobbying. He was provided the telephone number for the office of the Commissioner of Lobbying in that letter. Ms. Donna Mastel also contacted the defendant, in February 2009. Ms. Mastel was requesting a half hour meeting to discuss the federal lobbying registration and monthly reporting with him upon his return to Calgary. There is no response and no evidence before the Court that the defendant followed up. It is admitted that the defendant was at the time a "Designated Public Office Holder" and that the persons he communicated and met with concerning the Amending Agreement were "Public Office Holders". He was an employee with CSEE and communicated with Public Office Holders in respect of amending the original Funding Agreement for payment, i.e. as part of his salaried duties and responsibilities and yet declared by signing the Amending Agreement that he was in compliance with the Lobbying Act in respect of the communications and meetings he had in respect of amending the Agreement when he was not because he was prohibited at the time.

Issue 4: Communications Regarding Financial Benefit

221Was the communication and meetings by the defendant with Public Office Holders at Industry Canada, in respect of amending the March 7, 2007 Agreement, communication in respect of the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada?

222Black's Law Dictionary (8th ed 2014) West, A Thompson Business, St. Paul, MN, at p. 166, defines benefit as follows:

"benefit n. 1. Advantage, privilege – the benefit of owning a car – 2. Profit or gain, esp., the consideration that moves to the promise – a benefit received from the sale – also termed legal benefit; legal value.

Pecuniary benefit – A benefit capable of monetary valuation."

223The Court finds that had Ms. Corkery not initiated the communication indicating that it did not look like CSEE was on track to spending the remaining 12.2 million dollars CSEE was eligible to receive under the Funding Agreement, it would have, by virtue of Article 20.11, been "returned to the Minister". The Amending Agreement was the only means to prevent the return or forfeiture of the remaining 12.2 million dollars. Therefore, the communication and meetings by the defendant with Public Office Holders at Industry Canada was to prevent that happening and was a gain, advantage or "benefit capable of monetary advantage". It is of note that both the Funding and Amending Agreements specifically address the issue; see Article 2.1 (j)(iii) and (iv) in the Funding Agreement and 3 (j)(iii) and (iv) in the Amending Agreement. Under Article 2.1(j) of the Funding Agreement it states:

"(iii) any person who, for consideration, directly or indirectly, communicated with or arranged a meeting with any Public Office Holder, in respect of any aspect of this Agreement, prior to the execution of the Agreement, was in compliance with all requirements of the Act (referring to the Lobbyist Legislation);

(iv) any person who, for consideration, directly or indirectly, during the term of this Agreement and in respect of any aspect of this Agreement, communicates or arranges a meeting with any Public Office Holder will be in compliance with all requirements of the Act …"

Under 3 (j) (iii) and (iv) of the Amending Agreement it states:

"(iii) any person, who, for payment, directly or indirectly, communicated with or arranged a meeting with any Public Office Holder and any other person, in respect of any aspect of this Agreement, prior to the execution of the Agreement, was in compliance with all requirements of the Act by filing a return with the Commissioner of Lobbying;

(iv) any person, who, for payment, directly or indirectly, during the term of this Agreement and in respect of any aspect of this Agreement, communicates or arranges a meeting with any Public Office Holder and any other person will be in compliance with all requirements of the Act by filing a return with the Commissioner of Lobbying; and

(v) at all relevant times CSEE has been, is and will remain in compliance with the Act ."

224While the language of the Lobbying Act, section 7(1)(a)(v) is clear and broad, "the awarding of any grant, contribution, or other financial benefit", both funding agreements are even more broad in the language as to when the Lobbying Act applies, i.e. "for consideration, for payment, in respect of any aspect of this Agreement communicates or arranges a meeting with any Public Office Holder and any other person will be in compliance with all requirements of the Act by filing a return…" Although not proof of the definition of "the awarding of any grant, contribution or other financial benefit" in section 7(1)(a)(v), it reinforces the requirement to inquire into the Lobbying Act requirements and to be in compliance with the Act. The Court finds that given the broad language, "the awarding of any grant, contribution or other financial benefit", that the Amending Agreement did award a financial benefit to CSEE because had there not been an amendment to the Funding Agreement, the 12.2 million dollars would ("shall be returned") to the Minister.

225The evidence of Ms. Karen Corkery, the Director General of the Program Coordination Branch at Industry Canada who initiated communication concerning the problem, that "the CSEE was not going to be able to spend the $15 million in a prudent way in the 2 years left on the Agreement and if there was no agreement between Industry Canada and the CSEE respecting new terms amending the Agreement the $12.2 million originally allocated to the CSEE in the 2007 budget could have been forfeited to the Crown", proves that the grant or financial benefit that CSEE was eligible to receive and/or spend within the confines of the Funding Agreement, would have been forfeited had the communications and meetings between the defendant and the Public Office Holders at Industry Canada not taken place.

226The Court has dealt with the issue of the meaning of "undertook/undertakes" in the next section of this decision and those findings apply to the term concerning Count 3. Concerning the final issue, with respect to Count #3, the Court finds that the Crown has proved beyond a reasonable doubt, for all of the reasons stated above, that the defendant, a Designated Public Office Holder, and an employee of CSEE, an organization, undertook to communicate with Public Office Holders in respect of the awarding of a grant, contribution or other financial benefit by or on behalf of her Majesty in right of Canada, contrary to section 10.11(1)(b) of the Lobbying Act, thereby committing an offence contrary to section 14(2) of the Act.

The defendant will be convicted of Count #3.

Counts 1 and 2: The Energy Policy Institute of Canada (EPIC)

The Issues

227Concerning Counts #1 and #2, the Energy Policy Institute of Canada (EPIC), the Court will address the overlapping issues and evidence first.

The following issues arise:

(1) Does the term "Consultant Lobbyist" in section 5 require a "quid pro quo" or written undertaking to fit the definition of "Consultant Lobbyist" and "undertakes to communicate with a Public Office Holder"?

(2) Does the honorarium paid by EPIC to the defendant meet the definition of "for payment"?

(3) Did the defendant communicate with Public Office Holders in respect of the development of any policy or program of the Government of Canada on his own and therefore the activity did not constitute lobbying under the Act?

(4) Were the communications the defendant had with Public Office Holders while receiving the honorarium from EPIC in respect of the development of any policy or program of the Government of Canada, i.e. does the communication have to be in respect of an existing Government policy or program?

(5) Has the Crown proved beyond a reasonable doubt that the defendant, for payment, undertook to communicate with Public Office Holders, on behalf of EPIC to communicate with Public Office Holders in respect of (Count #1- s.5(1)(a)(iv)), "the development of any policy or program of the Government of Canada", during the five year period after the day on which he ceased to be a Designated Public Office Holder, contrary to section 10.11(1)(a) of the Lobbying Act, thereby committing an offence contrary to section 14(2) of the Act; and (Count #2-s.5(1)(b)), that the defendant, for payment "arranged a meeting between Public Office Holders and members of EPIC" during the five year period after the day on which he ceased to be a Designated Public Office Holder, contrary to section 10.11(1)(a) of the Lobbying Act, thereby committing an offence contrary to section 14(2) of the Act?

Statutory Interpretation

228As stated above, the Court finds on both principles of statutory Interpretation, i.e. the literal or plain meaning as well as the contextual approach, the Lobbying Act, R.S.C. 1985, c.44 (4th Supp.) as amended, is clear and there is no ambiguity in the provisions or the terms, or anomalous result that arises.

229The preamble of the Lobbying Act states:

"WHEREAS free and open access to government is an important matter of public interest;

AND WHEREAS lobbying public office holders is a legitimate activity;

AND WHEREAS it is desirable that public office holders and the public be able to know who is engaged in lobbying activities;

AND WHEREAS a system of registration of paid lobbyists should not impede free and open access to government;

NOW THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enact as follows…"

Payment is defined in section 2, as:

"Payment means money or anything of value and includes a contract, promise or agreement to pay money or anything of value."

Section 10.11(1)(a) states:

"10.11(1) No individual shall, during a period of five years after the day on which the individual ceases to be a designated public office holder,

carry on any of the activities referred to in paragraph 5(1)(a)or(b) in the circumstances referred to in subsection 5(1)"

Section 5, "Consultant Lobbyists", states:

"5(1) An individual shall file with the Commissioner, in the prescribed form and manner, a return setting out the information referred to in subsection (2), if the individual, for payment, on behalf of any person or organization (in this section referred to as the 'client'), undertakes to communicate with a public office holder in respect of

(iv) the development or amendment of any policy or program of the Government of Canada

Or

(b) arrange a meeting between a public office holder and any other person."

Issue 1: Meaning of "Undertakes"

230Concerning Issue #1, does the term "Consultant Lobbyist" in section 5 require a "quid pro quo" or written undertaking to fit the definition of "Consultant Lobbyist" and "undertakes to communicate with a Public Office Holder", the word "undertaking" is not used in Section 5 or anywhere in the Lobbying Act. The word used in section 5(1) is "undertakes". Undertakes and undertaking are defined in the Canadian Oxford Dictionary (2ed) Oxford University Press 2004, as:

"undertake 1 take on (an obligation, responsibility, task, etc.); commit oneself to perform. 2 accept an obligation, promise."

"undertaking 1 work etc. undertaken; an enterprise (a serious undertaking). 2 a pledge or promise. 3 the management of funerals as a profession."

Black's Law Dictionary defines "undertakes" and "undertaking" as follows:

"undertakes, vb. 1. To take on an obligation or task – he has undertaken to chair the committee on legal aid for the homeless. 2. To give a formal promise; guarantee – the merchant undertook that the goods were waterproof. 3. To act as surety for (another); to make oneself responsible for (a person), fact, or the like – her husband undertook for her appearance in court."

"undertaking, n. 1. A promise, pledge or engagement. 2. A bail bond."

231In accordance with either the literal or contextual approach to legislative interpretation, the words are clear and if Parliament intended to recognize "undertakes" only by way of a written undertaking, it could have said so expressly. Parliament did not use the word "undertaking" or the words "fee for service" or "written undertaking", but instead chose to use the word "undertakes" which, as stated above in ordinary terms, has a broad definition. Even the definition of "undertaking" does not require a written promise or contract. Mr. McCann's own example of when an undertaking can be implied fits the facts of this case:

"It could be – an undertaking could be inferred in circumstances without there being an express – express evidence, direct evidence that there was an undertaking. For example, if you had a situation where the lobbyist is hired by the client and then for the purposes of advancing their client's interests and then proceeds to communicate with public office holders in connection with the client's interests, it could be inferred that the lobbyist had given the undertaking to the client to do that. But that's not the situation here…Whatever communication Mr. Carson had with the public office holder appear to have been entirely of his own accord."

232The Court finds therefore that there is no requirement for a formal, written or verbal "undertaking". While R. v. Carroll addressed similar issues, the distinction on the facts is that the accused in that case was an employee of the corporation, Tactrix, and Lahaie J. found that the Agreement letter, dated July 9, 2012 signed by the accused and the client, La Vie, was an undertaking to communicate with public office holders on behalf of La Vie for payment, a fee of $10,000.00 month payable to Tactrix. However, the decision does not stand for the principle that the Lobbying Act or section 5 would only apply if there exists a written undertaking and the definition of undertakes was not otherwise dealt with.

233In the circumstances of this case, the defendant is not an employee of EPIC, but is a Senior officer of the organization (a not-for-profit corporation defined in section 2 of the Act as an "organization") whose "sole purpose" was to bring together major private oil, gas and energy producers and later consumers, who paid membership fees into EPIC of a minimum 50,000.00 to 100,000.00 per year. These companies or "members" are part of EPIC's Strategic Advisory Board and by EPIC's By-laws, "Members of the Corporation". EPIC's sole purpose and mandate is set out in the Founding Document, the emails and ultimately the Framework Document (January 2011), "A Strategy for Canada's Global Energy Leadership".

234EPIC was composed of an Executive Committee, and the Strategic Advisory Board. The defendant was a Co-Chair. By-Law No. 1 is the General By-Law of EPIC. Under Section 1 of the By-Law, paragraph (i) states: "Strategic Advisory Board" means the Founding Members, their successors, and additional members, as determined in accordance with and pursuant to section 45, represented by the Chief Executive Officers of such members, with more or less equal representation from energy producing companies, energy consuming companies, and neutral companies. The members of the Strategic Advisory Board will for all purposes be considered "members" of the Corporation pursuant to and in accordance with the Act (Act meaning the Canadian Corporations Act, R.S.C. 1970, c. C-32). Under "Executives and Committees", "Duties and Numbers" (#5), it states, "The affairs of the Corporation shall be managed by the Executive Committee, the members of which shall be known and referred to as "executives". The Executive Committee shall consist of a minimum of three executives. The precise number of executives of the Corporation shall be determined from time to time by resolution of the Board of Directors. Under #7 and #8, "First Executives" and "Appointment and Term", "The Co-Chairpersons and the President" are the first executives of the Corporation and are the individuals listed in Schedule A, Douglas Black, President; Thomas d'Aquino, Co-Chairperson; and Bruce Carson, Co-Chairperson. At paragraph 13, the "Board of Directors", it is stated, "shall be responsible for providing governance, counsel and strategic direction to the President".

235Under "Powers of Executives", #30, "Powers Generally", it states: "It is the intention of the Corporation that, subject to the express restrictions contained in the Act and these By-laws, the Executive Committee, on behalf of the Corporation, shall have all the power and authority that is necessary or convenient to pursue the objects specified in the Application". At paragraph #31, "Administer Affairs", it states: "The Executive Committee shall administer the affairs of the Corporation in all things and make or cause to be made for the Corporation, in its name, any kind of contract which the Corporation may lawfully enter into and, save as hereinafter provided, generally, may exercise all such other powers and do all such other acts and things as the Corporation is by its Letters Patent or otherwise authorized to exercise and do."

236At paragraph #37, "Remuneration of Officers" it states: "The remuneration, if any, of all officers appointed by the Board of Directors shall be determined from time to time by resolution of the Board of Directors. All officers shall be entitled to be reimbursed for reasonable expenses incurred in the performance of the officer's duties."

237Under paragraph #40, "Power and Duties": "All officers shall sign such contracts, documents or instruments in writing as require their respective signatures and shall respectively have and perform all powers and duties and such other powers and duties respectively as may from time to time be assigned to them by the Executive Committee. The duties of the President and Co-Chairpersons shall include:

• President: The President, shall be responsible for the day-to-day operations of the Corporation, including the establishment of the Corporation's brand, launch and growth of the Corporation's presence, maintaining relationship with the Strategic Advisory Board, and the Board of Directors, utilizing contracted services. The President shall be vested with and may exercise all powers and shall perform all duties of the Chairperson(s) if none be appointed or if the Chairperson(s) are absent or unable or refuse to act.

• Chairperson(s): The Chairperson(s), shall be an executive and when present preside at all meetings of the Executive Committee, Board of Directors, Strategic Advisory Board, and committees, if any. The Chairperson(s) shall provide strategic guidance to formally create the governance structure and mandate of the Corporation. The Chairperson(s) of the Corporation shall also be the Chairperson(s) of the Strategic Advisory Board.

238At paragraph 45, "Strategic Advisory Board" terms are set out:

"Entitlement. Membership in the Strategic Advisory Board shall be available to those entities:

• who are companies, partnerships, boards of trade, incorporated or unincorporated associations, and any other form of legal entity, however established;

• who have paid the membership fee determined in accordance with Section 49;

• who are interested in furthering the objects of the Corporation; and

• whose applications for admission as members have received approval of the Board of Directors. The Board of Directors may also pass membership rules. Each member shall be promptly informed, by the Board of Directors, or a committee appointed by the Board of Directors for such purpose, of their admission as a member.

• The Board of Directors may decline to admit as a member any person for any reason. Governments, government-funded organizations and Crown corporations shall not be admitted as members of the Corporation. There shall be no limit on the number of members."

239The Court finds therefore that there is no requirement that the undertaking be in writing and that it can be inferred from words, actions and the responsibilities "undertaken" or acted upon by an individual. The Court finds that the defendant, as Co-Chair of EPIC, by his regular and repeated communications with public office holders on behalf of EPIC, which included its paid membership, undertook by those actions to communicate with public office holders.

Issue 2: Definition of "For Payment"

240Concerning Issue #2: Does the honorarium paid by EPIC to the defendant meet the definition "for payment"?

Section 2 of the Lobbying Act defines payment as follows:

"payment means money or anything of value and includes a contract, promise or agreement to pay money or anything of value".

241Mr. Tom d'Aquino and the defendant were appointed as Co-Chairs and each were to be provided with an honorarium of $60,000.00 per year. Mr. Doug Black was appointed President for a term of two years and compensated $10,000.00 per month.

242It is admitted that the defendant was provided $160,000.00 over his tenure with EPIC. At an email from the defendant to Mr. Larry Clausen, dated November 2, 2010, requesting proof of income, the defendant writes, "i need a statement from you setting out my annual income from the Energy Policy Institute of Canada—based on the 10000 dollars per month I receive as gross remuneration—bc". On the next page a second email, dated November 2, 2010, from the defendant to Mr. Clausen asking again for the statement: "—can you send me a note on my monthly earnings from EPIC—thxs—bc". Mr. Clausen responds on November 2, 2010 attaching a letter addressed to "Dear Reader" on EPIC letterhead, dated November 2, 2010, stating:

"Bruce Carson serves as Vice-Chair of the Energy Policy Institute of Canada. He has been engaged by the Institute since August, 2009. His current compensation is $120,000.00 per year. If you have any further information, please contact me at xxxxxxx. Signed Larry Clausen, Secretary/Treasurer."

243It is noted that various terms are being used in the documents concerning the payment made to the defendant, i.e. honorarium, gross remuneration, monthly earnings and current compensation as well as varying amounts, $60,000.00 annually, $10,000.00 per month, $120,000 per year. The Court accepts the amount of $160,000.00 in total for the defendant's tenure. However, there is no question that the defendant received money from EPIC, and the documents in Exhibit 2, make clear that there is an agreement to pay money for the defendant's services as Co-Chairperson of EPIC, which meets the definition of "for payment" as it is broadly defined in Section 2 of the Lobbying Act. The defendant received an honorarium from EPIC for his work. As stated above, the honorarium meets the definition of "for payment". There is nothing in the evidence, i.e. the Agreed Statement of Facts or the documents that demonstrate that the honorarium was paid to the defendant solely for drafting policy documents. The Court finds that the defendant was paid the honorarium as Co-Chair of EPIC for all of the responsibilities and work he undertook to perform, including the drafting of policy documents, and communicating and meeting with Public Office Holders on behalf of EPIC.

Issues 3 and 4: Communications Regarding Policy Development

244The Court has combined Issues # 3 and #4: Did the defendant communicate with Public Office Holders in respect of the development of any policy or program of the Government of Canada on his own and therefore the activity did not constitute lobbying under the Act and Were the communications the defendant had with Public Office Holders while receiving the honorarium from EPIC in respect of the development of any policy or program of the Government of Canada, i.e. does the communication have to be in respect of an "existing" government policy or program?

245As stated by Lahaie J. in R. v. Carroll, [2016] O.J. No. 2008, when dealing with similar yet distinct circumstances, at para. 59,

"This legislation has as its purpose to create an open and transparent system, to provide the public with access to this type of information which in the past would easily have been kept secret."

This interpretation of the purpose of the Act is reinforced in the Legislative Summary, Library of Parliament, supra, at page 4:

'The intention of Parliament in enacting the Act was not to make lobbying a criminal activity, but rather only to ensure that lobbyists should register, so that the public would be able to see who is lobbying what department on what issue. In practice the Act has been interpreted to apply to a person who, for payment, communicates with a public office holder to discuss government business (i.e. legislation or awarding contracts). The new wording is thought to better reflect Parliament's original intent, and to resolve the enforcement difficulties with the Act. The change from 'attempt to influence' to 'communicate in respect of' is reflected in several other amendments.'"

246The evidence establishes that the defendant did more than simply write the policy documents for the stated mandate, i.e. to create and to get that policy to the federal, provincial and territorial governments in order to develop a "National Energy Strategy" representing the "membership" of EPIC. The defendant undertook early on in the life of EPIC and continued throughout his tenure to communicate with multiple Senior Public Office Holders, i.e. Ministers and Deputy Ministers in the federal departments of Natural Resources, Environment Canada, the Prime Minister's Office, the Clerk of the Privy Council Office as well as with Senior Public Office Holders in provincial and territorial governments. EPIC was aware of the Lobbying Act as was the defendant. EPIC's Executive sought legal advice as to how and to whom the Lobbying Act applied. At the Executive Meeting on February 3, 2010, after receiving advice from legal counsel a motion was carried that neither the defendant nor Mr. Emerson would lobby; see Tab 22, Exhibit 2. The defendant had been cautioned to speak to the Commissioner of Lobbying in July 2008 by the Commissioner of Conflicts of Interest Office concerning his activities with the CSEE.

247It is admitted that the defendant is a Designated Public Office Holder and that the persons he was communicating and meeting with were Public Office Holders. He was Co-Chairperson of EPIC, part of the Executive Committee as well as the Strategic Advisory Committee. The defendant was paid for the duties, responsibilities and the work he was doing for EPIC. The Executive Committee was apprised of all of his work including the extensive communications he was having by email, in-person meetings, and telephone communication as they were updated on a regular basis by email and at Executive Committee meetings of the communications and progress he was making with the various public office holders at Industry Canada, Environment Canada, Natural Resources Canada, Mr. Wayne Wouter, Clerk of the Privy Council Office and with Nigel Wright, Senior Advisor in the Prime Minister's Office as well as with public office holders in provincial Ministers' offices, i.e. Quebec and Alberta in particular.

248It is evident from the defendant's emails, the updates and the responses from the various members of the EPIC Executive Committee, all listed in the above Agreed Statement of Facts and Findings, who hold all the powers and authority for the Corporation, that part of the defendant's duties was to communicate with Public Office Holders about EPIC, its purpose and mandate, which was to develop a national energy strategy, on behalf of its members, for Canada through the development of energy policy and programs. The EPIC Backgrounder explains why EPIC is needed:

"As a world-leading producer and consumer, energy underpins the social and economic well-being of all Canadians. Despite this prominent role in our lives, the concept of a Canadian energy strategy is somewhat of a paradox given our Constitution grants ownership, legislative and regulatory authority of energy assets and policymaking to the provinces and territories. Yet the need for such a strategy has never been greater. In the past, there has been a strong societal consensus on the importance and benefits of energy in our daily lives, and this has mitigated the need for a national strategy. But that consensus is being strained in the face of growing concerns – at home and abroad – regarding the environmental impact of energy resource and infrastructure development. Other pressing issues include energy pricing (including the pricing of carbon), security of supply, reliability of delivery infrastructure, energy trade relations with the US and other customers, the need for human capital to meet tomorrow's energy challenges, and the need for Canada to be a world leader in the transformative technologies that will mitigate GHG emissions and other environmental impacts. Increasingly, their resolution is being impeded by the absence of a nation-wide mechanism to explore, research and develop strategies that will strengthen our common energy future and cement Canada's international status as a leading producer and exponent of open energy markets."

249Under "Guiding Principles", the document states:

"As we develop realistic policy options for consideration by government policy-makers, EPIC will be guided by the following principles: We will ensure that energy and environmental imperatives go hand-in-hand in ways that result in the most innovative and positive outcomes; We will advance the primacy of the Canada-United States energy relationship and ensure that mutual clean energy goals focus on co-operation in the development and implementation of ground-breaking technologies; We will contribute ideas and solutions that enhance the openness of the world energy markets and strengthen global rules relating to investment, carbon management and energy security; and We will promote certainty and predictability in energy policy which are vitally needed to support investment decisions."

250The document states at page 2,

"We are unique, however, in one key respect: no other organization is solely committed to drafting a comprehensive Canadian energy strategy. Similar to a constituent assembly, the creation of this strategy and policy recommendations is our only raison d'etre. Once they have been presented to government, the organization will disband."

251The Framework Document is the end product. The emails and EPIC Executive Committee Updates demonstrate the communications and meetings the defendant undertook to further getting EPIC's policy recommendations to federal, provincial and territorial 'policy-makers'. Under "Our Strategy for Canada's Global Energy Leadership", it states:

"Our Strategy for Canada's Global Energy Leadership will result in the sharing of knowledge with government that is straightforward, accurate, ambitious and insightful with an objective to motivate policy that will maximize the social and economic potential from Canada's energy wealth and Canada's leadership in the world."

252Every "Key Element" of the "Canadian Energy Strategy" carries a set of recommendations. At page 14 of the Framework Document, dealing with the first "Key Element": Intergovernmental Affairs, under "Recommendations" it states:

"Federal/Provincial/Territorial/Municipalities:

Design a Canadian energy strategy as a federal-provincial-territorial-municipal construct.

Ensure an effective framework for consultation combined with a consistent Engagement framework with Canada's Aboriginal Peoples.

Align energy policies at the federal, provincial and territorial levels to promote the growth of all aspects of the energy industry to ensure its continuation as a major driver of Canada's economy.

Drive long-term pan-Canadian economic growth though investment in economically and environmentally desirable energy infrastructure as a priority by federal, provincial and territorial governments.

Improve coordination between and within governments.

• The silos that occur among jurisdictions overseeing the same project, and between different regulatory agencies within a single jurisdiction, need to be addressed. For example, energy efficiency is a field within which federal-provincial-territorial coordination is essential.

Municipal

Ensure that municipalities are actively engaged in discussions that affect the demand side of the energy strategy as they play a crucial role in educating consumers and reducing demand.

• Municipalities have significant impact on end-use energy demand through their conservation programs as well as urban design, planning, infrastructure, transportation and enforcing energy-efficient building codes for housing, office and industrial buildings.

Regulatory Process:

Provide a regulatory environment that during the pre-permitting, data gathering phase protects the public interest, yet is flexible enough to provide expedient approval and permitting of energy projects.

Streamline Canada's regulatory processes to end overlap, duplication and delays which can negatively impact Canada's competitiveness and productivity. This could be accomplished by implementing a one-project, one-process review to end duplication in regulatory regimes within one level of government and between governments but does not necessarily hand over regulatory control to the federal government.

Design regulatory processes that enable, rather than impede, responsible energy development and innovation. Explore accepting technical certification/regulatory approvals achieved through other comparable national/sub-national regulators.

Rigorously review regulatory process timelines and effectiveness, and establish benchmarks or targets for those parameters that are under the control of the regulator, as part of an accountability framework for regulatory performance and ensure publication of transparent criteria for acceptance or rejection of projects.

Compare Canadian Energy regulatory processes with international energy regulatory systems in order to discern best practices.

Design the permitting process so that it focuses on project impacts which would cause unacceptable environmental results. If they do not exist, then commitments to codes, standards and practices should allow the project to proceed."

253The recommendations above are proposing regulations or changes to regulations and regulatory processes for federal, provincial, territorial and municipal government. EPIC was aware of and approved all of the documents (version 1 through to the final document). There is proof in the communications that EPIC was kept up to date and approved of the defendant's communications and meetings with Public Office Holders at all levels of government in the face of the statement that neither Mr. Emerson, former Federal Minister of International Trade, and Minister of Foreign Affairs, or the defendant would "lobby the federal government on behalf of EPIC". The Court rejects the submission that the defendant was acting on his own in his communications with Public Office Holders. The defendant was working on behalf of EPIC and its membership. From the outset the sole purpose and mandate of EPIC was to develop a national and/or global energy strategy for Canada, see the Founding Document for EPIC, Draft #2, and the Framework Document. The Launch document, re-iterates the policy goals of EPIC and who the primary targets of the proposed National Energy Strategy are, i.e. federal, provincial and territorial governments. Concerning the ultimate policy document, the defendant recommended the addition of a sentence concerning the environment proposed by Deputy Minister Paul Boothe, on behalf of Environment Minister Mr. Peter Kent; see Email from the defendant to EPIC Executive, dated January 20, 2011:

"I met this evening for an hour with Paul Booth (sic) fed DM Env – he has read the version of the report I sent to him late last week and also discussed it with Peter Kent. They are ready to support our report provided we add a sentence to the Env section – probably just before we get into the recommendations saying something like – EPIC recognizes that pursuant to the Copenhagen Accord that Canada has committed to reducing GHGs by 17 percent off 2005 or 6 –cant remember – levels by 2020 and the recommendations in this Report will help Canada attain that goal – Given the CEOs discussion and their concerns about the env community and their potential comments I believe this is a worthwhile and necessary change – bc".

254This discussion between the defendant and Mr. Paul Boothe is obviously about policy and Mr. Boothe telling the defendant that EPIC must include a sentence concerning the environment and how EPIC's recommendations will further Canada's ability to meet its obligations under the Copenhagen Accord in order for Minister Kent and the department to support the final Framework Report and its recommendations to the Government of Canada.

255Earlier on in the initial development stages of EPIC and their goals and objectives, the documents made mention of "clean" and "green" energy. When the membership raised concerns as to how EPIC would deal with the terms, EPIC wrote that the focus or emphasis would be on "energy", see EPIC Executive Committee Meeting June 11, 2010 Minutes, page 2, paragraph 1. Early on, the discussions were about creating a National Clean Energy Strategy, however, "clean" was dropped from the title through the different versions, which supports the declaration concerning the terms "clean and green" energy. EPIC was adapting its policy recommendations at the request of the membership, intending to "tailor" its policy to the "themes that came out of the First Ministers' private discussions, and making the changes recommended by Mr. Boothe. This demonstrates that the communications were for the development of policy and that EPIC was seeking the support of the Government in EPIC's recommendations in respect of Canadian energy policy.

256Development is defined in the Canadian Oxford Dictionary as:

"1 a the act or an instance of developing; the process of being developed. b Business the process of working up (an idea, product, etc.) for marketing etc. 2 a a stage of growth or advancement. B a full-grown state. 3 a significant change in a course of action, events, circumstances, etc. (the latest developments). 4 the process of developing a photograph. 5 the development of a tract of land, esp. a new housing area. 6 industrialization or economic advancement of a country or area. 7 Music the elaboration of a theme or themes, esp. in the middle section of a sonata movement. 8 Chess the developing of pieces from their own original position."

257Exist is defined as:

"1 be real or actual; have being…"

258Section 5(1)(a)(iv) of the Lobbying Act states, "…undertakes to communicate with a public office holder in respect of…(iv) the development or amendment of any policy or program of the Government of Canada." The section does not mention "the development of an 'existing' policy or program of the Government of Canada. Therefore development of policy, understood in its plain and ordinary meaning, does not require "existing policy" and to find that meaning the Court would have to read words into the legislation, which is not its role. In addition, the term "or amendment" of would be redundant if Parliament intended that development applied only to "existing" policy or programs. If Parliament intended to require reporting only where the communications resulted in changes to an existing policy or program it could have included the word "existing". Parliament did not. To interpret the legislation other than as it is would be reading in what is not stated. As in R. v. McIntosh, at para. 26, "…Legislation is deemed to be well drafted and to express completely what the legislator wanted to say…"

259The Court rejects that the communications were informational only. The defendant's several emails to the Executive Committee support the need to continue to communicate and meet with federal Deputy and Ministers as well as Senior Advisors to the Prime Minister and the Clerk of the Privy Council seeking their support for EPIC's policy recommendations, i.e. "We have to keep driving this", and "We need Nigel on side". The defendant made changes to the final document in order to gain/maintain the support at the recommendation of Environment Minister Kent. Mr. Serge Dupont, circulated the final "Framework Document" to federal and provincial Energy Ministers for their consideration at the next First Energy Minister's Conference. The defendant's communications and actions on behalf of EPIC as set out in the documents and emails prove that the "sole purpose" of EPIC was to create a National Energy Strategy and to develop government policy and regulations to meet its goals. Mr. Wouter's statement corroborates that the defendant's communications with him on behalf of EPIC concerned policy development.

260The Court's findings and conclusions are also supported by the fact that the defendant was made aware of the Lobbying Act as was the EPIC President and the Executive Committee. All were specifically made aware of the Lobbying Act and sought legal advice as to whom the provisions applied to. In fact, the Executive Committee voted on and passed a resolution that neither Mr. Emerson nor the defendant would lobby, i.e. communicate with Public Office Holders about the development of any policy or program with the Government of Canada; see Tab 22. This resolution was ignored by all when the defendant undertook and continued to communicate with Public Office Holders at Industry Canada, Environment Canada, Natural Resources Canada, Quebec and Alberta Public Office Holders, the Clerk of the Privy Council Office and Nigel Wright on behalf of EPIC and their mandate and to arrange the private meeting on behalf of EPIC, and its membership, with First Energy Ministers in Montreal on September 17, 2010. The emails prove that the Executive Committee knew who, why and how the defendant was communicating with Public Office Holders, that the Executive Committee was kept up-to date on the outcomes of the communications and meetings, and approved of the defendant's communications and the progress he was making moving EPIC's policy development agenda forward with the Federal, Provincial and Territorial governments.

261In fact the evidence shows that from the outset, the defendant was communicating with Public Office Holders and arranged the Deputies Meeting in Montreal to further EPIC's goal of "developing a Canadian Energy Strategy which can be "endorsed/adopted" by prov/terr/fed govts". An email from the defendant to Mr. Richard Brosseau, with the office of the Quebec Ministere de l'Energie et des Ressource naturelles, is one example of the defendant's communication with Public Office Holders, i.e. to arrange the Montreal Meeting. At another email, Mr. Black, in EPIC's September 2010 Update refers to the meeting between EPIC and the Canadian Energy Ministers stating that EPIC presented an overview of "our framework entitled 'A Canadian Energy Strategy' (version 2)". He states, "Energy Ministers from across Canada carefully listened to our position and concluded our work would be most helpful. As a result, EPIC will work with all of the Deputy Ministers and assigned department members to create goals and objectives to be reviewed at the next meeting of Canadian Energy Ministers to be held in Alberta in 2011. Our Policy Work Group have just nearly finished version 3 of our framework on an energy strategy and now work towards completing a strategy document for the first quarter of 2011. It is now very important that we accomplish this work and share our results with government in a timely fashion…This is a major step toward our end goal."

262The defendant made clear that although the draft Framework Document was well received and being distributed to government by Ministers, Mr. Wright and Mr. Wouters and others, "EPIC had to keep driving this" in order to bring the goal to fruition, i.e. government adopting EPIC's policy recommendations for a National Energy Strategy. That was EPIC's "sole purpose".

263The Court finds therefore that the Crown has proved beyond a reasonable doubt that the defendant, a Designated Public Office Holder, for payment, undertook to communicate, on behalf of EPIC, an organization, with Public Office Holders in respect of the development of any policy or program of the Government of Canada. The defendant will be convicted on Count #1.

Count 2: Arranging Meetings

264Concerning Count #2, whether the Crown has proved beyond a reasonable doubt that the defendant, for payment, undertook to arrange with Public Office Holders a meeting between Public Office Holders and members of EPIC, the same findings concerning the defendant's status with EPIC as Co-Chairperson, the payment for his services and the meaning of "undertook" apply to this Count. It is obvious that there is some overlap in the evidence and findings concerning Count 1 and 2. It is admitted that the defendant "assisted" in arranging the private meeting between EPIC and the First Ministers in Montreal on September 17, 2010. Mr. McCann submits that the meeting was not "for a client" and therefore the section does not apply, either to Count 1 or in Count 2. However, a plain reading of section 5(1), establishes that "client", in parenthesis, is referring to or qualifying "on behalf of any person or organization" as the client in section 5(1):

"5 (1) An individual shall file with the Commissioner, in the prescribed form and manner, a return setting out the information referred to in subsection (2), if the individual, for payment, on behalf of any person or organization (in this section referred to as the 'client'), undertakes to

(a) communicate with a public office holder in respect of

(iv) the development or amendment of any policy or program of the Government of Canada,

Or

(b) arrange a meeting between a public office holder and any other person."

265The multiple emails to Public Office Holders, Deputy Ministers, Associate Deputy Ministers, Provincial public office holders, as set out in the Findings, seeking assistance to arrange a meeting with Federal, Provincial and Territorial Ministers and Deputy Energy Ministers demonstrate beyond a reasonable doubt that the defendant initiated the idea of a private meeting with Ministers on behalf of EPIC and did more than "assist" to arrange the meeting. The evidence proves beyond a reasonable doubt that it was the defendant who initiated and continued the communications with Ms. Cassie Doyle, and other Public Office Holders, both federal and provincial, to arrange the meeting between EPIC and Public Office Holders in Montreal on September 17, 2010 for the purpose of furthering EPIC's purpose and mandate of developing a national energy strategy for Canada. The defendant initiated communication about his idea with Ms. Cassie Doyle, Deputy Minister at Natural Resources Canada. Ms. Doyle provided the defendant with advice and contacts to follow up with. The defendant communicated with several Public Office Holders, both Federal and Provincial to arrange the meeting on behalf of EPIC. An email from the defendant to Mr. Richard Brosseau, with the office of the Quebec Ministere de l'Energie et des Ressource naturelles, to arrange the Montreal Meeting states:

"It was great to speak with you yesterday – The Energy Policy Institute of Canada (EPIC) was formed about a year ago – it is composed of over 30 corporations representing all forms of energy production and use – Our work was discussed at the recent Council of the Federation meeting in Winnipeg – our objective is to develop a Canadian Energy Strategy – which can be endorsed/adopted by prov/terr/fed govts – We want to meet with Ministers for about half an hour on Thursday or Friday next week to brief them on our work to date and our future plans – At the meeting will be our Chair David Emerson PC, Doug Black, Pres of EPIC – Gerry Protti – retired Energy executive, Dan Gagnier and myself – Really appreciate your help in this – bc".

The private meeting between EPIC and the First Ministers, but for the defendant's efforts and communications with Cassie Doyle, Deputy Minister at Natural Resources Canada and thereafter with Assistant Deputy Minister, Natural Resources Canada, Stephen Lucas, who was directed to assist the defendant by Cassie Doyle and other senior Public Office Holders, both Federal and Provincial as the file moved forward, would not have come to fruition in Montreal on September 17, 2010. The defendant's email updating David Emerson and Doug Black and Doug Black's response "We could do none of this without you" and later "You are the secret sauce" demonstrates a recognition and approval, by EPIC, of the defendant's efforts, his contacts with Public Office Holders, as well as his communications with Public Office Holders on behalf of EPIC. The defendant undertook to arrange the meeting in pursuit of EPIC's ultimate goal of the development of a national energy policy for Canada.

266The Court finds, based on the above, that the Crown has proved beyond a reasonable doubt that, the defendant, for payment arranged the meeting with Public Office Holders on behalf of EPIC, between August 29, 2010 and September 17, 2010 during the 5 year period when he was prohibited from doing so under section 10.11(1)(a) of the Lobbying Act.

The defendant will be found guilty on Count #2.

Conclusion

The defendant, Bruce Carson, is found GUILTY on all three counts:

• Count 1: Undertaking to communicate with Public Office Holders on behalf of EPIC regarding the development of policy or programs of the Government of Canada, contrary to section 10.11(1)(a) of the Lobbying Act.

• Count 2: Arranging a meeting between Public Office Holders and members of EPIC, contrary to section 10.11(1)(a) of the Lobbying Act.

• Count 3: Undertaking to communicate with Public Office Holders regarding the awarding of a grant, contribution or other financial benefit to the CSEE, contrary to section 10.11(1)(b) of the Lobbying Act.

Released: September 16, 2016

Signed: Justice Catherine Kehoe