



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carson, 2019 ONCA 396

DATE: 20190515

DOCKET: C65423

Watt, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Bruce Carson

Respondent

Moray Welch, for the appellant

Bruce Carson, acting in person

Erin Dann, appearing as
amicus curiae

Heard: April 30, 2019

On appeal from order of Justice Calum MacLeod of the Superior
    Court of Justice, dated September 11, 2017, with reasons reported at 2017 ONSC
    5371, allowing an appeal in part from the convictions entered by Justice
    Catherine Kehoe of the Ontario Court of Justice, on September 16, 2017, with reasons
    reported at 2016 ONCJ 596 and the sentence imposed on November 4, 2016.

Nordheimer J.A.:

[1]

The Crown appeals, with leave, from the decision of the Summary
    Conviction Appeal Judge (SCAJ) that allowed the respondents 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
.
[1]

[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 s.
    5(1) and s. 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 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:

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 respondents
    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 ONSC 5371 (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
    respondents 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] 1 S.C.R. 27, 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 appellants comment, at the hearing, that
    the appellants 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.

Released: DW May 15, 2019

I.V.B.
    Nordheimer J.A.
I agree. David Watt J.A.
I agree. G. Pardu J.A.


Appendix
    A

Relevant
    Statutory Provisions



Lobbying Act
, R.S.C. 1985, c. 44
    (4th Supp.)

Definitions

Section 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). (
titulaire dune charge publique désignée
)



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; (
organisation
)



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; (
titulaire dune charge publique
)



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 individuals work
    on its behalf.





[1]

The relevant statutory provisions are reproduced at Appendix
    A.


