Her Majesty the Queen v. Carson
[Indexed as: R. v. Carson]
Ontario Reports
Court of Appeal for Ontario
Watt, Pardu and Nordheimer JJ.A.
May 15, 2019
146 O.R. (3d) 269 | 2019 ONCA 396
Case Summary
Statutes — Interpretation — Lobby Act — Accused becoming executive director of Canada School of Energy and Environment ("CSEE") the day after leaving public office in 2009 — Accused's position as senior advisor to prime minister meaning he was subject to five-year ban against lobbying from time left job — Contract between government and CSEE if it and government didn't agree what to do with any funds not committed by 2010 would be returned to minister — Accused contacted by Industry Canada regarding uncommitted amount in 2009 and accused communicating with public office holders at Industry Canada for purpose of ensuring that CSEE did not have to forfeit uncommitted portion of grant that it received before accused became executive director — Agreement reached between CSEE and Industry Canada — Accused convicted of offence under Lobbying Act of undertaking to communicate with public office holder in respect of awarding of grant, contribution or other financial benefit by or on behalf of federal government — Summary conviction appeal judge erring in overturning conviction — Act not ambiguous — Non-forfeiture of part of grant constituting financial benefit to CSEE — Appeal judge improperly relying on irrelevant facts that accused did not initiate communications and that Industry Canada officials did not consider his conduct to be lobbying — Conviction being reinstated — Lobbying Act, R.S.C. 1985, c. 44 (4th Supp.).
Facts
The accused served as senior adviser to the prime minister of Canada, and was therefore a "designated public office holder" for the purposes of the Lobbying Act. He left that employment in February 2009, and the same day became executive director of the Canada School of Energy and Environment ("CSEE"). Pursuant to s. 10.11(1) of the Act, he became subject to a five-year prohibition from carrying on any of the prescribed activities set out in ss. 5(1) and 7(1) of the Act when he left the prime minister's employ. The accused was not involved in making the original $15 million grant to the CSEE when he was in the prime minister's office. The contract provided a deadline in 2010 by which time any funds that hadn't yet been committed to projects would have to be refunded to Industry Canada unless CSEE, Industry Canada and the Treasury Board agreed otherwise. Senior staff from Industry Canada contacted the accused in early 2009 about whether the original agreement needed to be altered so that CSEE could achieve its objectives. At that time, $12 million of the $15 million grant was not committed and it was unlikely that it would be before the 2010 deadline. Over the next several months, within the five-year period in which he was barred from lobbying, he communicated with public office holders at Industry Canada to ensure that the CSEE did not have to forfeit the uncommitted portion of the grant. The accused and Industry Canada reached an agreement in January 2010 which gave CSEE an extension until 2014 to commit the funds before the issue of having any of the grant reverting to Industry Canada would arise. The accused was convicted of the Lobbying Act offence of undertaking, as an employee of the CSEE, 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. The summary conviction appeal judge ("SCAJ") allowed the accused's appeal and quashed the conviction. The Crown appealed.
Cases Referred To
- R. v. Carson, [2016] O.J. No. 5150, 2016 ONCJ 596
- R. v. Carson, [2017] O.J. No. 4646, 2017 ONSC 5371 (S.C.J.)
- Rizzo & Rizzo Shoes Ltd (Re) (1998), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC 210-006, 76 A.C.W.S. (3d) 894, D.T.E. 98T-154
Statutes Referred To
Authorities Referred To
- Driedger, Elmer, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)
Procedural History
APPEAL by the Crown from an order of C. MacLeod J., [2017] O.J. No. 4646, 2017 ONSC 5371 (S.C.J.) allowing an appeal in part from the convictions entered by Kehoe J., [2016] O.J. No. 5150, 2016 ONCJ 596 and the sentence imposed on November 4, 2016.
Counsel:
- Moray Welch, for appellant
- Bruce Carson, acting in person
- Erin Dann, appearing as amicus curiae
Judgment
The judgment of the court was delivered by NORDHEIMER J.A.
[1] Introduction
[1] The Crown appeals, with leave, from the decision of the Summary Conviction Appeal Judge ("SCAJ") that allowed the respondent's appeal from one conviction, out of three, of offences under the Lobbying Act, R.S.C. 1985, c. 44 (4th Supp.).
[2] For the reasons that follow, I would allow the appeal and reinstate the conviction.
Background
[3] The respondent 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 of Canada, a position which qualified him as a "designated public office holder" for the purposes of the Lobbying Act.
[4] The respondent left the employ of the Prime Minister on February 4, 2009 and ceased to be a "designated public office holder". Pursuant to s. 10.11(1) of the Lobbying Act, he became subject to a five-year prohibition from carrying on any of the prescribed activities set out at ss. 5(1) and 7(1) of the Lobbying Act. This prohibition commenced on February 4, 2009 and extended to February 4, 2014.
[5] On July 24, 2008, the respondent accepted an offer of employment from the Canada School of Energy and Environment ("CSEE") to take on the position of executive director. He began working for the CSEE after February 4, 2009.
[6] The CSEE is an "organization" for the purposes of the Lobbying Act, and thus the restrictions on lobbying, as they relate to the respondent, under s. 10.11 of the Lobbying Act were engaged. Those restrictions include a prohibition on engaging in any of the activities set out at s. 7(1)(a) of the Lobbying Act, on behalf of the CSEE, which includes, at s. 7(1)(a)(v), a prohibition on communicating with public officer holders in respect of "the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada".
[7] On March 7, 2007, an agreement was formalized between Industry Canada and the CSEE, which provided for a $15 million grant to CSEE (the "funding agreement"). The respondent was still a senior advisor at the prime minister's office at that point, and was not involved in the initial award of the grant.
[8] The funding agreement provided that CSEE would commit the funds received by March 31, 2010 but that the CSEE could, in consultation with the minister, determine the best use of any funds not committed by that date. The funding agreement contemplated the possibility of amendments and modifications. Amendments were to be made in writing and signed by both parties. Material changes required the approval of the minister and the consent of the Treasury Board. Of importance is that article 20.11 of the funding agreement 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.
[9] In early 2009, Karen Corkery, then director general of the Program Coordination Branch of Industry Canada, contacted the respondent about the funding agreement. Ms. Corkery was a "public office holder" for the purposes of the Lobbying Act.
[10] Ms. Corkery initiated contact "regarding whether or not the [funding agreement] needed to be changed in order for CSEE to reach its objectives". The issue arose because CSEE had not committed approximately $12.2 million of the $15 million original grant and was unlikely to do so by the March 31, 2010 deadline.
[11] As the executive director of CSEE, the respondent was the contact person for Industry Canada with respect to the funding agreement. Over the next several months, the respondent communicated with various "public office holders" (as that term is defined in the Lobbying Act) about possible amendments to the funding agreement. Not all these communications were initiated by the respondent.
[12] On January 13, 2010, Ms. Corkery and the respondent signed an amending agreement. It provided that the CSEE would commit the remainder of the previously granted funds by March 31, 2014 and that the CSEE could, in consultation with the minister, determine the best use of those funds not committed by that date. It further provided that if no further agreement was reached regarding any unspent portion of the funds by March 31, 2014, those funds "shall" be returned to the minister.
The Charges
[13] On May 7, 2014, the respondent was charged with three offences under the Lobbying Act. The three charges were:
(1) that the respondent did, for payment, undertake to communicate with public officer 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;
(2) that the respondent 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; and
(3) that the respondent did, as an employee of CSEE, 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.
[14] On September 16, 2016, the respondent was convicted of all three charges by the trial judge: see R. v. Carson, [2016] O.J. No. 5150, 2016 ONCJ 596 ("ONCJ reasons"). The trial judge imposed a sentence of a fine of $35,000 on count #1; $10,000 on count #2; and $5,000 on count #3. Only count #3 is at issue in this appeal.
[15] With respect to count #3, the trial judge concluded that the communications in which the respondent engaged with Industry Canada -- with the ultimate result that the uncommitted of amount of $12.2 million did not have to be returned to the minister -- were captured by the words "the awarding of any grant, contribution or other financial benefit" in s. 7(1)(a)(v). Consequently, the conduct of the respondent breached the prohibition contained in s. 10.11(1)(b) of the Lobbying Act which reads:
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,
(b) if the individual is employed by an organization, carry on any of the activities referred to in paragraph 7(1)(a) on behalf of that organization[.]
[16] In particular, the trial judge found that the uncommitted amount under the funding agreement would have been forfeited had the communications and meetings between the respondent and the public officer holders at Industry Canada not taken place: ONCJ reasons, at para. 225.
[17] The respondent appealed the convictions and the sentences. The SCAJ dismissed the respondent's appeal on counts #1 and #2, but allowed the appeal with respect to count #3.
[18] In reaching his conclusion regarding count #3, the SCAJ found that there was an ambiguity in s. 10.11 and that, because the ambiguity involved the interpretation of a penal statute, the ambiguity had to be resolved in favour of the accused. In particular, the SCAJ said, at para. 24:
While I agree with the proposition that in certain circumstances, negotiating for extension of existing funding and for renewal of an agreement could become lobbying, I disagree that properly interpreted the Appellant was guilty of an offence in these circumstances. Responding to inquiries from government officials regarding a grant that had already been awarded and how and when it was to be spent is not clearly engaging in "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". The fact that the dialogue resulted in extension of the funding window and some minor changes to the purpose of the funding was to enable the deployment of funding the government had already committed and was not equivalent to awarding of a grant, contribution or financial benefit.
See R. v. Carson, [2017] O.J. No. 4646, 2017 ONSC 5371 (S.C.J.) ("SCAJ reasons"), at para. 24.
Analysis
[19] In reaching his conclusion, the SCAJ relied on two facts that he found were "significant" considerations. One was that the dialogue over the extension of time was instituted by Industry Canada and not by the respondent. The other was that the officials, with whom the respondent was speaking, did not consider his conduct to be lobbying. The SCAJ criticized the trial judge for not giving some weight to these two factors: SCAJ reasons, at para. 23.
[20] In my view, the SCAJ erred in considering these factors in his analysis, much less in finding them to be significant factors. There is nothing in the Lobbying Act that requires a person to be the instigator of communications in order to trigger a breach of the statute. Section 10.11(1)(b) simply requires that a person "carry on any of the activities" (emphasis added) referred to in s. 7(1)(a). This includes the prohibition on communications "in respect of . . . the awarding of any grant, contribution or other financial benefit by or on behalf of her Majesty in right of Canada". A person may carry on a communication whether the person is the instigator of the conversation or the recipient of it. I would note that any contrary conclusion would very seriously undermine the efficacy of the Lobbying Act.
[21] On the second factor, what the officials at Industry Canada thought about the respondent's activities is irrelevant to the issue. It is the trier of fact that determines whether a breach of the Lobbying Act has occurred. Indeed, it is not clear to me why the officials at Industry Canada were even permitted to offer their opinions on the issue. The trial judge was correct when she said that she was ignoring this evidence in reaching her conclusions: see ONCJ reasons, at para. 215.
[22] In terms of the finding of the SCAJ that there is an ambiguity in the Lobbying Act, the SCAJ did not specifically identify what the ambiguity was, and I do not see it. Rather, the SCAJ appears to have confused the concept of ambiguity in the statute with whether the Crown had established the offence to the required standard of proof of beyond a reasonable doubt. I would add that amicus does not suggest that there is any ambiguity in the statute.
[23] As the Supreme Court of Canada has said on numerous occasions, there is now only one approach to the interpretation of statutes. For example, in Rizzo & Rizzo Shoes Ltd. (Re) (1998), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, Iacobucci J. said, quoting Elmer Driedger in Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at para. 21:
Today there is only one principle or approach, namely, the words of an 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.
[24] One of the activities referred to in s. 7, and prohibited by s. 10.11(1), is the communication by a person employed by an organization "in respect of . . . the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada". It is clear on the evidence that the respondent engaged in communications with Industry Canada, the purpose of which was to ensure that the CSEE did not have to forfeit $12.2 million. It cannot be gainsaid that this effort was intended to achieve a financial benefit for the CSEE. If successful, the CSEE would have an additional four years to spend this amount for its own purposes. That result constituted the award of a financial benefit every bit as much as the initial award of the funds did.
[25] In my view, the approach taken by the SCAJ resulted in an overly narrow interpretation of the prohibited activities under the Lobbying Act and one that is not harmonious with the spirit of the Lobbying Act.
Conclusion
[26] The appeal is allowed, the decision of the SCAJ is set aside and the conviction on count #3 is reinstated, together with the $5,000 fine that was imposed. On that latter point, we note counsel for the appellant's comment, at the hearing, that the appellant's interest in this matter was with the proper construction of the Lobbying Act, and not with the recovery of the fine. We trust that the appellant will keep that interest in mind in considering whether to pursue payment by the respondent.
Appeal allowed.
Appendix A: Relevant Statutory Provisions
[Lobbying Act, R.S.C. 1985, c. 44 (4th Supp.)](https://laws-lois.justice.gc.ca/eng/acts/L-12.4/)
Definitions
2(1) In this act,
designated public office holder means
(a) a minister of the Crown or a minister of state and any person employed in his or her office who is appointed under subsection 128(1) of the Public Service Employment Act,
(b) any other public office holder who, in a department within the meaning of paragraph (a), (a.1) or (d) of the definition department in section 2 of the Financial Administration Act,
(i) occupies the senior executive position, whether by the title of deputy minister, chief executive officer or by some other title, or
(ii) is an associate deputy minister or an assistant deputy minister or occupies a position of comparable rank, and
(c) any individual who occupies a position that has been designated by regulation under paragraph 12(c.1).
organization includes
(a) a business, trade, industry, professional or voluntary organization,
(b) a trade union or labour organization,
(c) a chamber of commerce or board of trade,
(d) a partnership, trust, association, charitable society, coalition or interest group,
(e) a government, other than the Government of Canada, and
(f) 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;
public office holder means any officer or employee of Her Majesty in right of Canada and includes
(a) a member of the Senate or the House of Commons and any person on the staff of such a member,
(b) a person who is appointed to any office or body by or with the approval of the Governor in Council or a minister of the Crown, other than a judge receiving a salary under the Judges Act or the lieutenant governor of a province,
(c) an officer, director or employee of any federal board, commission or other tribunal as defined in the Federal Courts Act,
(d) a member of the Canadian Armed Forces, and
(e) a member of the Royal Canadian Mounted Police[.]
Requirement to File Return
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
(i) the development of any legislative proposal by the Government of Canada or by a member of the Senate or the House of Commons,
(ii) the introduction of any Bill or resolution in either House of Parliament or the passage, defeat or amendment of any Bill or resolution that is before either House of Parliament,
(iii) the making or amendment of any regulation as defined in subsection 2(1) of the Statutory Instruments Act,
(iv) the development or amendment of any policy or program of the Government of Canada,
(v) the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada, or
(vi) the awarding of any contract by or on behalf of Her Majesty in right of Canada; or
(b) arrange a meeting between a public office holder and any other person.
Requirement to File Return
7(1) 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 any part of whose duties is to communicate with public office holders on behalf of the employer or, if the employer is a corporation, on behalf of any subsidiary of the employer or any corporation of which the employer is a subsidiary, in respect of
(i) the development of any legislative proposal by the Government of Canada or by a member of the Senate or the House of Commons,
(ii) the introduction of any Bill or resolution in either House of Parliament or the passage, defeat or amendment of any Bill or resolution that is before either House of Parliament,
(iii) the making or amendment of any regulation as defined in subsection 2(1) of the Statutory Instruments Act,
(iv) the development or amendment of any policy or program of the Government of Canada, or
(v) the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada; and
(b) those duties constitute a significant part of the duties of one employee or would constitute a significant part of the duties of one employee if they were performed by only one employee.
Five-Year Prohibition -- Lobbying
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,
(a) carry on any of the activities referred to in paragraph 5(1)(a) or (b) in the circumstances referred to in subsection 5(1);
(b) if the individual is employed by an organization, carry on any of the activities referred to in paragraph 7(1)(a) on behalf of that organization; and
(c) if the individual is employed by a corporation, carry on any of the activities referred to in paragraph 7(1)(a) on behalf of that corporation if carrying on those activities would constitute a significant part of the individual's work on its behalf.
Notes
1 The relevant statutory provisions are reproduced at Appendix A.
End of Document