Benjamin Bergen, Council of Canadian Innovators

March 2020

Table of contents

• Executive summary
• Introduction
• Background
• Process
• Issues
• Findings
  • Mr. Bergen’s political activities
  • OCL advice regarding Mr. Bergen’s past political activities
  • Council of Canadian Innovators (CCI)
  • Mr. Bergen’s role with CCI
  • The Registry of Lobbyists - CCI
  • Communications reported in the Registry of Lobbyists
• Analysis
  • Rule 9 Political activities
  • Rule 6 - Conflict of interest
• Conclusion
• Observations

Executive summary

This report follows an investigation conducted by the Office of the Commissioner of Lobbying (OCL) pursuant to section 10.4 of the Lobbying Act (Act) to determine whether Mr. Benjamin Bergen, a registered in-house organization lobbyist employed by the Council of Canadian Innovators (CCI), contravened the Lobbyists’ Code of Conduct (Code). The investigation focused on whether Mr. Bergen contravened Rule 6 (Conflict of Interest) or Rule 9 (Political Activities) of the Code by lobbying the Honourable Chrystia Freeland or members of her ministerial staff after undertaking political activities on behalf of Ms. Freeland.

The investigation found no evidence that Mr. Bergen ever lobbied Ms. Freeland. However, on December 7, 2016, while Ms. Freeland was Minister of International Trade, Mr. Bergen attended a meeting with the Honourable David Lametti, in his former capacity as Parliamentary Secretary to the Minister of International Trade, and with a member of his constituency (MP) staff. CCI reported this communication in the Registry of Lobbyists.

Rule 9 prohibits lobbyists from lobbying elected officials (or members of their staff) on whose behalf they have undertaken political activities. As the subject matter of this investigation relates to Rule 9, which is identified as a more specific formulation of the general conflict of interest prohibition set out in Rule 6, the analysis began with the specific rule of conduct set out in Rule 9.

Rule 9

To determine whether Mr. Bergen contravened Rule 9, I needed to consider whether Mr. Bergen engaged in political activities on behalf of Ms. Freeland when he was a lobbyist that could be reasonably seen to create a sense of obligation and, if so, whether he lobbied Ms. Freeland or members of her staff.

Mr. Bergen undertook two types of political activities on behalf of Ms. Freeland. The first, volunteering for Ms. Freeland’s by-election campaign in 2013 and acting as co-campaign manager of her re-election campaign in 2015, predated Mr. Bergen’s employment as an in-house lobbyist for CCI. The second, sitting on the executive of Ms. Freeland’s electoral district association, overlapped with almost 17 months of his employment as an in-house lobbyist for CCI (i.e., May 22, 2016 to October 12, 2017).

I found that Mr. Bergen’s campaign-related activities and his activities on the Executive of Ms. Freeland’s Electoral District Association could each be reasonably seen to create a sense of obligation on the part of Ms. Freeland.

Having made this determination, I then had to determine whether Mr. Bergen lobbied “staff in [Ms. Freeland’s] office” in relation to the December meeting he attended with Mr. Lametti and a member of Mr. Lametti’s constituency (MP) staff. I found that neither Mr. Lametti, in his former capacity as Parliamentary Secretary, nor the member of his constituency staff qualify as “staff” in Ms. Freeland’s office for the purposes of Rule 9. I therefore found that Mr. Bergen did not contravene Rule 9 in relation to the one communication in which he participated.

Rule 6

With respect to Rule 6, I found no basis to conclude that Mr. Bergen placed Ms. Freeland in a real conflict of interest. There is no indication, based on the information collected in this investigation, that Ms. Freeland made any decisions or exercised any official powers, duties or functions in her capacity as Minister of International Trade in respect of any programs, policies or services within her ministerial portfolio that related to the subject matter of CCI’s lobbying activities. There is also no indication that Ms. Freeland had any knowledge about any of CCI’s lobbying activities.

I also found no basis to conclude that Mr. Bergen placed Ms. Freeland in an apparent conflict of interest. In my view, a reasonable observer, informed of the relevant factual circumstances, could not reasonably conclude that Mr. Bergen’s actions – in co-signing a letter seeking to set up regular meetings with Mr. Lametti that never materialized and in attending a meeting that was reported in the Registry of Lobbyists – must have affected Ms. Freeland’s ability to exercise her official powers, duties and functions.

Observations

Although I determined that Rule 6 had not been contravened in the factual circumstances at issue in this investigation, I observed that the analysis required by Rule 6 raises concerns about the manner in which this provision is currently drafted.

My jurisdiction as Commissioner of Lobbying is confined to regulating the conduct of lobbyists. However, by prohibiting lobbyists from placing federal public office holders in real and apparent conflicts of interest, Rule 6 requires the Commissioner of Lobbying to make conclusions that implicate the conduct of public office holders who may be subject to separate ethical regimes, including those overseen by the Senate Ethics Officer and the Conflict of Interest and Ethics Commissioner. These concerns with Rule 6 should be addressed as part of any future amendments to the Code, which will require stakeholder consultations as contemplated by the Lobbying Act. In doing so, it will be necessary to consider amending the rules of conduct to focus exclusively on the specific behaviours of lobbyists without importing the regime governing the ethical conduct of public office holders by implied reference.

In determining that Rule 9 had not been contravened in the circumstances of this investigation, I found that parliamentary secretaries do not qualify as “staff” in a minister’s office for the purposes of Rule 9. However, parliamentary secretaries share the same political commitments as the minister they are appointed to assist.

For this reason, I am of the view that the scope of application of Rule 9 should be expanded to include individuals, such as parliamentary secretaries, who do not qualify as political staff in the office of an elected official, but who share the same political commitments as the elected official under whose purview they operate. This issue should also be addressed as part of any future stakeholder consultations aimed at revising the Code.

Introduction

This Report follows an investigation conducted by the Office of the Commissioner of Lobbying (OCL) pursuant to section 10.4 of the Lobbying Act (Act) to determine whether Mr. Benjamin Bergen, a registered in-house organization lobbyist employed by the Council of Canadian Innovators (CCI), contravened the Lobbyists’ Code of Conduct (Code). The investigation focused on whether Mr. Bergen contravened Rule 6 (Conflict of Interest) or Rule 9 (Political Activities) of the Code by lobbying the Honourable Chrystia Freeland or members of her ministerial staff after undertaking political activities on behalf of Ms. Freeland.

As set out in greater detail below, there is no evidence that any in-house lobbyists employed by CCI, including Mr. Bergen, have ever lobbied Ms. Freeland. However, between October and December 2016, while Ms. Freeland was Minister of International Trade,^{Footnote 1} CCI reported four communications with the Honourable David Lametti, then-Parliamentary Secretary to the Minister of International Trade,^{Footnote 2} and/or with members of Mr. Lametti’s political staff.

In addition to determining whether Mr. Bergen engaged in political activities for Ms. Freeland that could reasonably be seen to create a sense of obligation, this investigation sought to understand the circumstances in which the communications that CCI reported having with Mr. Lametti and/or with members of Mr. Lametti’s political staff took place, including whether Mr. Bergen was present for any of these communications.

The investigation also focused on whether Mr. Bergen’s actions as a lobbyist placed Ms. Freeland in a real or apparent conflict of interest. This determination required the OCL to ascertain whether Ms. Freeland was ever debriefed about these communications as well as whether she ever made any decisions or exercised any official powers, duties or functions in her capacity as Minister of International Trade in relation to the substance of the communications that CCI had with Mr. Lametti and/or with members of his political staff during this period.

Background

On July 11, 2017, The Globe and Mail reported^{Footnote 3} that CCI, a national business council made up of CEOs from Canadian technology companies, had employed as in house-lobbyists three full-time staff members who had worked for Liberal politicians at either the federal or provincial level. In particular, this report noted that Mr. Bergen, Executive Director of CCI, had worked as an executive assistant to Ms. Freeland when she was an opposition MP and that he had acted as Ms. Freeland’s co-campaign manager during the 2015 federal election. The report also noted that Ms. Dana O’Born, identified as CCI’s Director of Policy, had acted as Ms. Freeland’s official campaign manager during the 2015 election and that Mr. Patrick Searle, CCI’s Director of Communications, had been a spokesperson for Liberal cabinet ministers in Ontario between 2012 and January 2017.

On the basis of this and other related media reports, which indicated that Mr. Bergen had held a position as a public office holder in Ms. Freeland’s constituency office, the Registration and Client Services Directorate at the OCL contacted Mr. Bergen to confirm this information and to advise him to disclose his former position as executive assistant in updating the registration filed on behalf of CCI in the Registry of Lobbyists. On July 12, 2017, Mr. Bergen amended his profile in the Registry to list this position.

On this same day, then-Commissioner of Lobbying, Karen Shepherd, received a letter requesting that she investigate whether Mr. Bergen contravened the Code by lobbying Global Affairs Canada, which encompasses the ministries of International Trade, Foreign Affairs and International Development, after having played a senior management role in Ms. Freeland’s federal election campaign in 2015.

Process

On July 25, 2017, former Commissioner Shepherd initiated an administrative review to determine whether Mr. Bergen had contravened any of his obligations under the Code, including whether he had contravened Rules 6 or 9 in light of his alleged political activities on behalf of Ms. Freeland.

On July 31, 2017, the OCL contacted Mr. Bergen to inform him that it had commenced an administrative review of this matter.

On August 2, 2017, the OCL conducted an in-person interview with Mr. Bergen. At this time, Mr. Bergen provided written submissions detailing, among other things, his role as executive assistant to Ms. Freeland and manager of her constituency office as well as his role as co-campaign manager of Ms. Freeland’s successful re-election campaign in 2015. Mr. Bergen also provided documentation in support of his written submissions, including letters and email exchanges.

Between September 20 and October 4, 2017, the OCL interviewed the following witnesses:

• Mr. David Lametti, Member of Parliament for LaSalle-Émard-Verdun and Parliamentary Secretary to Minister Freeland in her capacity as Minister of International Trade from December 2015 until January 2017.
• Ms. Megan Buttle, Special Assistant to Mr. Lametti in his capacity as Parliamentary Secretary to the Minister of International Trade from August 2016 until January 2017; and
• Ms. Gillian Nycum, Special Assistant in Mr. Lametti’s Parliamentary office from January 2016 through January 2017.

On March 21, 2018, I commenced an investigation on the basis that the information gathered to that point provided reason to believe that an investigation was necessary to ensure compliance with the Code. Mr. Bergen was subsequently notified that an investigation had been initiated to determine whether he had contravened Rules 6 or 9 of the Code by lobbying Ms. Freeland or staff in Ms. Freeland’s office after engaging in political activities on behalf of Ms. Freeland.

On June 15, 2018, the OCL interviewed Ms. Freeland.

On July 25, 2019, I wrote to Ms. Freeland and Emily Yorke, a former policy advisor in Ms. Freeland’s ministerial office when she was Minister of International Trade, to request that they each respond in writing by way of a sworn affidavit to a set of questions.

On August 17, 2019, Ms. Yorke responded to the OCL’s questions by email. As her response was not in the form of a sworn affidavit, the OCL subsequently arranged to interview Ms. Yorke under oath. During this interview, which took place on September 30, 2019, the OCL confirmed Ms. Yorke’s initial written answers.

On September 8, 2019, the OCL received Ms. Freeland’s sworn affidavit.

On October 23, 2019, the OCL wrote to Susan Bincoletto, Canada’s Ambassador to Switzerland, to request that she provide information about a communication CCI reported in the Registry of Lobbyists during the period covered by this investigation. Ms. Bincoletto had participated in this communication in her former capacity as Assistant Deputy Minister, International Business Development, Global Affairs Canada.

On December 5, 2019, Ms. Bincoletto responded to the OCL’s request.

On December 20, 2019, after receiving undertakings of confidentiality from Mr. Bergen and his counsel, the OCL provided Mr. Bergen with a draft copy of the investigation report (without the observations) in order to obtain his views.

On January 30, 2020, Mr. Bergen responded and requested that the OCL correct his official title of “co-campaign manager” of Ms. Freeland’s re-election campaign in 2015. This corrected title is reflected in this report.

Issues

This investigation focused on whether Mr. Bergen contravened Rule 6 (Conflict of Interest) or Rule 9 (Political Activities) of the Code by lobbying Ms. Freeland or members of her ministerial staff after undertaking political activities on behalf of Ms. Freeland.

Findings

Mr. Bergen's political activities

Campaign-related positions

In his interview, Mr. Bergen stated that he volunteered for Ms. Freeland’s campaign to become the Member of Parliament for Toronto Centre in the federal by-election that was held on November 25, 2013.

Mr. Bergen further stated that, following Ms. Freeland’s successful campaign, he accepted a position managing her constituency office.

Mr. Bergen also noted that, with the exception of an unpaid leave of absence he took to co-chair Ms. Freeland’s successful re-election campaign in the re-organized riding of University-Rosedale in 2015, he occupied his position managing Ms. Freeland’s constituency office from January 2014 until March 2016, when he left to become the Executive Director of CCI.

Mr. Bergen stated that, in his role as campaign co-chair, he organized Ms. Freeland’s daily schedule and travel, accompanied her to events and attended to any number of other tasks that arose during the course of the campaign.

Mr. Bergen stated that he had not had any official dealings with Ms. Freeland since leaving her constituency office and accepting his current position with CCI.

For her part, Ms. Freeland stated that she had first gotten to know Mr. Bergen when he worked as a volunteer on her initial election campaign. She stated that she thought he had done a good job in this role and that she hired him to work in her constituency office on the strength of this appraisal. Ms. Freeland further stated that she chose Mr. Bergen to act as co-campaign manager of her re-election campaign on the basis of the work that he had done for her in these two previous roles.

In relation to his role as co-campaign manager, more particularly, Ms. Freeland stated that she worked extremely closely with Mr. Bergen through the long hours and hard work that went into her campaign, an experience that Ms. Freeland characterized as “intense.” She noted that Mr. Bergen did “everything” that was required of him, including knocking on constituents’ doors.

I would note that Mr. Bergen’s political activities in respect of Ms. Freeland’s election campaigns in 2013 and 2015 as well as his work managing her constituency office predated his registration as the responsible officer for and as a lobbyist employed by CCI in the Registry of Lobbyists.

The University-Rosedale Federal Liberal Association

In his interview, Mr. Bergen stated that he served as a Director on the Executive of the University-Rosedale Federal Liberal Association (FLA), the electoral district association for the riding represented in the House of Commons by Ms. Freeland.

Mr. Bergen stated that he played a limited role in his position as Director of the University-Rosedale FLA, noting that he was acclaimed to fill this position in the absence of other candidates on the basis of the roles he had played in Ms. Freeland’s two previous successful election campaigns. He further noted that he was one of 15 total directors of the FLA, that he had never attended a meeting of the FLA and that fundraising was not a part of his responsibilities in this capacity.

As set out in Ms. Freeland’s sworn affidavit provided in response to the OCL’s request for additional information, she confirmed that, as reflected in the minutes of the FLA’s meetings,^{Footnote 4} there is no reference to Mr. Bergen having ever attended a meeting of the FLA Executive.

Ms. Freeland also confirmed that Mr. Bergen assumed his position as Director on the Executive of the University-Rosedale FLA on May 22, 2016 and that he held this position until October 12, 2017, when a new Executive was elected.

This response is consistent with screen captures of the University-Rosedale FLA website saved by the OCL on July 31 and October 11, 2017. As reflected in these screen captures, whereas Mr. Bergen was listed as a Director on the FLA Executive as of July 31, 2017, he was not listed among the candidates vying for positions on the FLA Executive in the election notice captured on October 11, 2017.

Taken together, Mr. Bergen’s political activities in serving as a Director on the Executive of the University-Rosedale FLA overlapped with his employment as responsible officer and in-house lobbyist for CCI for a period of almost 17 months (i.e., from May 22, 2016 to October 12 , 2017). As such, Mr. Bergen was publicly identified as a Director on the Executive of the FLA for the riding represented by Ms. Freeland when, as set out in greater detail below, CCI reported communications with Mr. Lametti, Ms. Buttle and Ms. Nycum that took place in October 2016 and with Mr. Lametti and Ms. Nycum in December 2016.

OCL advice regarding Mr. Bergen's past political activities

In his interview, Mr. Bergen indicated that, when he joined CCI in March 2016, he sought advice from both the Conflict of Interest and Ethics Commissioner and the Human Resources Division of the House of Commons for guidance about restrictions on his lobbying activities as an outgoing staff member in Ms. Freeland’s constituency office. Mr. Bergen stated that, because of his senior role on Ms. Freeland’s successful re-election campaign in 2015, he was advised that he was precluded from lobbying Ms. Freeland and her staff for a period of five years.^{Footnote 5}

As set out in his written submissions and as he confirmed during his interview, Mr. Bergen contacted the OCL on June 30, 2016 on behalf of Ms. O’Born, before she joined CCI as Director of Policy, to “re-confirm the five-year restriction on lobbying by senior campaign officials”. Mr. Bergen indicated that, on July 8, 2016, the OCL confirmed that serving as a campaign manager is a political activity that risks creating a sense of obligation which could reasonably be seen to place a public office holder in a conflict of interest. Mr. Bergen also indicated that the OCL further advised him that a former campaign manager for a minister should not lobby that minister or staff in that minister’s office for a period of five years in accordance with the OCL’s guidance issued in relation to Rule 9 of the Code.^{Footnote 6}

In keeping with this advice, Mr. Bergen stated that he has not had any interactions with Ms. Freeland related to his employment with CCI. The written submissions filed on behalf of Mr. Bergen also note that:

When arranging the [lobby day] meeting with MP Lametti, CCI took steps to adhere to the five-year ban against lobbying Minister Freeland and her staff by working directly with MP Lametti’s assistants, Megan Buttle and Gillian Nycum.

During her interview, Ms. Freeland noted that she discussed CCI in general terms with Mr. Bergen prior to his departure from her constituency office and that she recalled wishing him well when she learned that he had accepted his position with CCI. Ms. Freeland stated that she did not discuss with Mr. Bergen any implications his position with CCI might have for any future dealings with either the government or her ministerial office. She also stated that she has had little contact with Mr. Bergen since he began working at CCI, noting that she has had a few chance encounters with him at public events in Toronto and that they once travelled on the same flight. Ms. Freeland confirmed that she has not met with Mr. Bergen in an official capacity since he began working with CCI.

Council of Canadian Innovators (CCI)

As set out on its website, the Council of Canadian Innovators describes itself as a “21st century business council uniquely made up of CEOs from Canada’s fastest growing technology companies and is exclusively focused on helping high-growth Canadian technology firms scale-up globally.” Founded in September 2015, CCI characterizes its mandate as seeking to “optimize the growth of Canada’s innovation-based sector by ensuring Canadian tech leaders and public-policy leaders are working together to shape Canada’s innovation agenda.” In particular, CCI indicates that it “advocate[s] for policy that spurs innovation and helps domestic tech companies gain greater access to talent, capital and customers.”

At present, CCI is comprised of 118 member CEOs from a diverse cross-section of Canadian technology companies.

CCI’s Board of Directors consists of five members, including Jim Balsillie, Chair of CCI and John Ruffolo, Vice-Chair of CCI.^{Footnote 7}

CCI’s website identifies six staff members, including Mr. Bergen (Executive Director) and Ms. O’Born (Director, Strategic Initiatives).

Mr. Bergen's role with CCI

In his interview, Mr. Bergen indicated that he has been the Executive Director of CCI since March 2016. He stated that he is responsible for engaging with CCI’s member CEOs in order to understand their various challenges in scaling-up their businesses so that CCI can establish and develop common advocacy themes in respect of CCI’s main objective of advocating for greater access to talent, capital and customers in the technology sector. Mr. Bergen further testified that his lobbying activities derive from this consultative process of identifying common advocacy themes. Mr. Bergen estimated that, in his role as Executive Director, he spends approximately 30 per cent of his time lobbying for the priorities collectively identified by CCI’s member CEOs.

The Registry of Lobbyists - CCI

CCI has maintained an active registration in the Registry of Lobbyists since April 4, 2016, when it first registered as an organization employing in-house lobbyists.

In the versions of the registrations it filed between September 15, 2016^{Footnote 8} and January 15, 2017,^{Footnote 9} CCI listed Mr. Bergen not only as the officer responsible for filing returns on behalf of CCI pursuant to section 7 of the Lobbying Act, but also as an in-house lobbyist. Ms. O’Born and Mr. Christopher Salloum (Assistant Director) were also listed as in-house lobbyists employed by CCI.

In these same two versions of its registration, CCI listed Global Affairs Canada (GAC) among the federal government institutions that it lobbies. GAC encompasses the Ministries of International Trade, Foreign Affairs and International Development. Ms. Freeland served as Minister of International Trade from November 4, 2015 until January 10, 2017, when she was named Minister of Foreign Affairs.

In each of these two versions of its registration, CCI is registered to lobby the federal government with respect to the following subject matters:

• Changes to Industrial Research Assistance Program (IRAP) to make the process easier for Medium and Small Business (SMEs) to apply and report on the current program, to increase the maximum amount a SME can apply for;
• Finance – Changes to Scientific Research and Experimental Development (SR&ED) tax incentive program to make the process easier for Medium and Small Business (SMEs) to apply and report on the current program, to further increase the maximum a SME can apply for;
• Small Business and Tourism, Changes to Canadian Export Program (CanExport)^{Footnote 10} so it allows more technology companies to apply;
• Citizenship and immigration – Change the current work visa time lines, seek changes to the Labour Market Impact Assessment for expatiating [sic] and a faster process; and
• Procurement – Changes to Request for Proposal (RFP) process to break down large bundles into smaller amounts for Medium and Small Business (SMEs) can apply.

Communications reported in the Registry of Lobbyists

Between March 1, 2016, when Mr. Bergen first joined CCI, and January 10, 2017, when Ms. Freeland ceased to be Minister of International Trade, CCI reported four communications with members of Mr. Lametti’s political staff, two of which also involved Mr. Lametti, himself:

• On October 13, 2016, CCI communicated with Gillian Nycum, identified as Special Assistant, Global Affairs Canada^{Footnote 11} to discuss “Internal Trade.”
• On October 17, 2016, CCI communicated with Megan Buttle, Special Assistant, Global Affairs Canada to discuss “International Trade.”
• On October 20, 2016, CCI communicated with Ms. Buttle and Mr. David Lametti, identified as Parliamentary Secretary to the Minister of International Trade, to discuss “International Trade.”
• On December 7, 2016, CCI communicated with Ms. Nycum, identified as “Member’s Assistant, House of Commons”, and Mr. Lametti to discuss “Intellectual Property and Internal Trade.”

During this period of time, Mr. Lametti was Parliamentary Secretary to Ms. Freeland in her capacity as Minister of International Trade.

Whereas Ms. O’Born was involved in or present for the three communications that took place in October 2016, Mr. Bergen was only present for the meeting with Mr. Lametti and Ms. Nycum in December 2016. As detailed below, Mr. Bergen also co-signed a letter in his capacity as Executive Director of CCI with both Mr. Balsillie, Chair of CCI, and Mr. Ruffolo, Vice-Chair of CCI, following the meeting that Ms. O’Born attended with Mr. Lametti and Ms. Buttle on October 20, 2016. This letter to Mr. Lametti followed up on the subject matter of the October 20 meeting.

Public office holders involved in communications with CCI

Mr. Lametti

As noted, Mr. Lametti was Parliamentary Secretary to Minister Freeland when the communications reported by CCI took place in October and December 2016.

Ms. Buttle

For her part, Ms. Buttle was Special Assistant to Mr. Lametti in his capacity as Parliamentary Secretary to the Minister of International Trade when the communications reported by CCI took place in October 2016.

Ms Nycum

Although Ms. Nycum is identified as “Special Assistant, Global Affairs Canada” in the report filed by CCI in respect of the communication that took place on October 13, 2016, she is identified as a “Member’s Assistant, House of Commons” in the report filed with respect to the meeting that took place on December 7, 2016. In her interview, Ms. Nycum stated that she was not a Special Assistant at Global Affairs Canada, but rather a Senior Advisor/Special Advisor in Mr. Lametti’s parliamentary office between January 2016 and January 2017. Mr. Lametti confirmed Ms. Nycum’s statements in this regard, characterizing her as the Chief of Staff of his office on Parliament Hill. In his interview, Mr. Bergen acknowledged that he understood Ms. Nycum to have worked in Mr. Lametti’s Hill (MP) Office and that she had been identified in the Registry of Lobbyists as a Special Assistant with Global Affairs Canada in error.

Taken together, I am of the view that Ms. Nycum’s position involved supporting Mr. Lametti in his capacity as a Member of Parliament.

Communication with Ms. Nycum on October 13, 2016

In his interview, Mr. Bergen stated that this communication had been between Ms. Nycum and Ms. O’Born and related to the logistics of the lobby day meeting with Mr. Lametti that took place on October 20. This October 20 meeting is described in greater detail below.

Ms. O’Born separately corroborated Mr. Bergen’s characterization of this communication, noting that it was administrative in nature and involved making arrangements for what became CCI’s lobby day meeting with Mr. Lametti.

In her interview, Ms. Nycum stated that the purpose of her communication with Ms. O’Born on October 13, 2016 was to discuss logistical arrangements for what became CCI’s lobby day meeting with Mr. Lametti on October 20, 2016. Ms. Nycum further stated that she did not attend the lobby day meeting.

Taken together, I am of the view that Ms. O’Born’s communication with Ms. Nycum was logistical in nature and, consequently, did not involve a communication that qualifies as lobbying for in-house lobbyists under the Act.

More importantly, Mr. Bergen was not involved in this communication and, as a result, it cannot form the basis of a contravention of Rule 9 by Mr. Bergen.

Communications with Ms. Buttle on October 17, 2016

In his interview, Mr. Bergen stated that the communication with Ms. Buttle on October 17, 2016 consisted of a telephone conversation between Ms. Buttle and Ms. O’Born, which focused on confirming who would be attending the meeting on October 20 and sharing details of CCI’s proposed agenda. In her interview, Ms. Buttle stated that the communication on October 17 was a call to make arrangements for the meeting on October 20. For her part, Ms. O’Born confirmed that her communication with Ms. Buttle on October 17 was entirely logistical in nature. A copy of Ms. O’Born’s email exchange with Ms. Buttle, which attests to the administrative nature of this communication, was included in the supporting documentation provided to the OCL.

The written submissions provided on behalf of Mr. Bergen also noted that: “When arranging the meeting with MP Lametti, CCI took steps to adhere to the five-year ban against lobbying Minister Freeland and her staff by working directly with MP Lametti’s assistants, Megan Buttle and Gillian Nycum.”

Taken together, I am of the view that Ms. O’Born’s October 17 communication with Ms. Buttle was logistical in nature and, consequently, did not involve a communication that qualifies as lobbying for in-house lobbyists under the Act.

More importantly, Mr. Bergen was not involved in this communication and, as a result, it cannot form the basis of a contravention of Rule 9 by Mr. Bergen.

Communications with Mr. Lametti and Ms. Buttle on October 20, 2016

The written submissions provided on behalf of Mr. Bergen characterized this meeting with Mr. Lametti as forming part of the lobby day that CCI organized in Ottawa in which CCI member CEOs participated in meetings with an array of public office holders. As reflected in the communication reports filed by CCI in the Registry of Lobbyists, CCI reported 24 meetings with public office holders as part of the lobby day that it organized in Ottawa on October 20, 2016.

In his interview, Mr. Lametti stated that he met with approximately 10 CCI member CEOs in his parliamentary office as part of CCI’s lobby day for the clean technology industry. Mr. Lametti stated that the discussion centred on the Canada Export Program, innovation, export, global trade, trade commissioners as well as CCI members’ ongoing strategic relationship with government. Mr. Lametti further stated that he could not definitively say whether Mr. Bergen or Ms. O’Born were present for this meeting. He noted that Ms. O’Born was on the list of attendees scheduled to attend this meeting.

For her part, Ms. Buttle stated that she attended the October 20, 2016 meeting in Mr. Lametti’s parliamentary office, which she characterized as a roundtable discussion that lasted for approximately 30 minutes about issues related to the clean technology industry. Ms. Buttle stated that Ms. O’Born was present, but that Mr. Bergen was not in attendance and observed that CCI staff were not active at the meeting. She stated that Mr. Lametti mostly listened to the CCI member CEOs discussing the corporate profiles of their respective companies. She also recalled that she had been provided with an information package about each company.

In her interview, Ms. O’Born stated that the meeting between the CCI member CEOs and Mr. Lametti lasted for approximately half an hour. She stated that the CEOs introduced themselves and talked about their respective businesses and that Mr. Lametti spoke about his role as Parliamentary Secretary and provided a high-level overview of the government initiatives with which he was involved, including, for example, the Canada Export Program.

Ms. O’Born noted that she did not speak during the meeting, but rather “took notes in the background”. She explained that member CEOs do most of the talking in these types meetings and that CCI provides support before and afterward. She also observed that Ms. Buttle played a similarly “passive role” during the meeting.

Given that Mr. Bergen was not involved in this communication, I am of the view that it cannot form the basis of a contravention of Rule 9 by Mr. Bergen. However, as described immediately below, Mr. Bergen was involved in drafting a subsequent letter to Mr. Lametti that followed up on some of the items that were discussed during the October 20 meeting.

Letter to Mr. Lametti

The supporting documents provided to the OCL included an email that Ms. O’Born sent to Mr. Lametti on November 16, 2016 attaching a letter signed by Mr. Bergen (CCI Executive Director), Mr. Ruffolo (CCI Vice Chair) and Mr. Balsillie (CCI Chair).

In her email, Ms. O’Born wrote: “Thank you kindly for your time on the 20th of October. We are hoping to keep the conversation going and have outlined proposed next steps in the letter attached.”

The attached letter reads in part:

During our meeting CCI’s CEOs proposed establishing a working group to regularly meet with you and the ministry on issues including the CanExport program, ensuring that the services offered by Export Development Canada encourage international growth of Canadian scale-ups and working with international trade offices to ensure information sharing and training to better inform them about what services Canadian technology companies have to offer the global economy.

During its interview of Mr. Lametti, the OCL presented Mr. Lametti with CCI’s letter. Mr. Lametti stated that he agreed to regular meetings, but noted that this represented the full extent of his commitment.

On November 23, 2016, Ms. O’Born emailed Ms. Buttle as follows:

[I] was hoping I could get some more information about the CanExport review you mentioned during our meeting. We’ve touched base with some of the trade offices in France and the UK and wanted to make sure we were on the same track. We have a series of member companies who would certainly like to provide feedback.

On November 24, 2016, Ms. Buttle sent Ms. O’Born the following response:

[I] have cc’d Emily Yorke in [Minister Freeland’s] office who has been working on the CanExport file and can provide more insight into the feedback from stakeholders and how some of your members can get more involved in that.

Beyond forwarding Ms. Buttle’s email response to Mr. Bergen with the note “FYI”, Ms. O’Born did not engage in any additional follow-up with Ms. Buttle.

In her interview with the OCL, Ms. Buttle noted that the Canada Export program was managed out of Ms. Freeland’s ministerial office and that this was the reason she forwarded Ms. O’Born’s email to Ms. Yorke, who was the policy advisor in Ms. Freeland’s office responsible for responding to inquiries about the Canada Export Program. Ms. Buttle indicated that, after forwarding Ms. O’Born’s email to Ms. Yorke, she did not recall any further follow up with CCI.

The written submissions provided on behalf of Mr. Bergen noted that, in arranging meetings with Mr. Lametti, CCI took steps to adhere to the five-year ban against lobbying Ms. Freeland by working directly with Mr. Lametti’s assistants, Ms. Buttle and Ms. Nycum. The submissions also noted that “CCI did not reply to [the] chain of emails [to Ms. Buttle and forwarded to Ms. Yorke referred to immediately above] nor pursue a follow-up on ‘The CanExport Review’ file”.

Mr. Bergen’s statement in this regard is consistent with the written responses that Ms. Yorke provided to the OCL to the effect that she did not recall any follow-up by CCI in relation to the email that Ms. Buttle forwarded to her on November 24, 2016. In her written responses, Ms. Yorke stated that she did not recall any calls, meetings, emails or other interactions resulting from this forwarded email. She stated that there was no formal review of the Canada Export Program. She also stated that she did not believe that she spoke with Ms. Freeland or anyone else in her ministerial office about this email. In her subsequent interview with the OCL on September 30, 2019, Ms. Yorke confirmed her written responses under oath. She further stated that she had never met or interacted with anyone from CCI.

In her interview with the OCL, Ms. Freeland stated that she did not have any interaction with CCI in her capacity as Minister of International Trade and that she did not recall any such interaction between CCI and her office. Ms. Freeland further stated that she did not recall being briefed by Mr. Lametti on any meetings that he may have had with CCI, Mr. Bergen or Ms. O’Born.

In her sworn affidavit, Ms. Freeland confirmed that she was not briefed at any time by anyone, including Mr. Lametti, about CCI’s lobbying activities between October 2016 and January 2017. She further confirmed that she was unaware, at the time of CCI’s lobby day meeting with Mr. Lametti on October 20, 2016 or at any time up to and including the moment she became Minister of Foreign Affairs on January 10, 2017, that CCI had sought to establish a working group to meet with Mr. Lametti on a regular basis to discuss the items referred to in CCI’s follow-up letter dated November 16, 2016.

In her sworn affidavit, Ms. Freeland further confirmed that she did not make any decisions or exercise any official powers, duties or functions with respect to any of items referred to in CCI’s follow-up letter co-signed by Mr. Bergen, Mr. Balsillie and Mr. Ruffolo. Ms. Freeland also stated that she did not retain any responsibility for any of the items referred to in CCI’S follow-up letter after January 10, 2017 when she became Minister of Foreign Affairs.

Communications with Mr. Lametti and Ms. Nycum in December 2016

In his interview, Mr. Lametti stated that Mr. Bergen organized a meeting with Mr. Balsillie, Chair of CCI, that took place on December 7, 2016 and that this discussion would have involved a high-level discussion of intellectual property strategy and, in particular, the need for Canada to have a national strategy to collectively protect intellectual property. Mr. Lametti stated that, although his notes from this meeting indicate that Mr. Bergen was scheduled to have been in attendance, he could not say with certainty that Mr. Bergen did, in fact, participate.

In her interview, Ms. Nycum stated that she attended the December 7, 2016 meeting with Mr. Lametti and that both Mr. Balsillie and Mr. Bergen attended. Ms. Nycum recalled that Mr. Balsillie spoke with Mr. Lametti about intellectual property strategy, the Digital Caucus (a thematic-based Liberal caucus group co-chaired by Mr. Lametti) and the need for Canada to be a leader on innovation policy. Ms. Nycum also stated that Mr. Balsillie spoke of the need for Canada to support innovation and discussed the approach to technology innovation adopted by other countries, such as Israel, which has created an independent public entity with the mandate to encourage innovation. Ms. Nycum further stated that CCI did not make any specific requests of or proposals to Mr. Lametti during this meeting.

Analysis

This investigation focused on whether Mr. Bergen contravened Rule 6 (Conflict of Interest) or Rule 9 (Political Activities) of the Code by lobbying Ms. Freeland or members of her ministerial staff after undertaking political activities on behalf of Ms. Freeland.

As the subject matter of this investigation relates to Rule 9, which is explicitly identified as a more specific formulation of the general conflict of interest prohibition set out in Rule 6, the analysis begins by first determining whether Mr. Bergen contravened the specific rule of conduct set out in Rule 9.

Rule 9 - Political activities

Rule 9 provides as follows:

When a lobbyist undertakes political activities on behalf of a person which could reasonably be seen to create a sense of obligation, they may not lobby that person for a specified period if that person is or becomes a public office holder. If that person is an elected official, the lobbyist shall also not lobby staff in their office(s).

In order to determine whether Mr. Bergen contravened Rule 9 of the Code, I must consider whether Mr. Bergen engaged in political activities on behalf of Ms. Freeland when he was a lobbyist that could be reasonably seen to create a sense of obligation and, if so, whether he lobbied Ms. Freeland or members of her staff.

First element: Political activities that could be seen to create a sense of obligation

As set out in the findings section above, Mr. Bergen undertook two different sorts of political activities on behalf of Ms. Freeland. The first, volunteering for Ms. Freeland’s by-election campaign in 2013 and acting as co-campaign manager of her re-election campaign in 2015, predated Mr. Bergen’s employment as an in-house lobbyist for CCI. The second, sitting on the executive of Ms. Freeland’s electoral district association, overlapped with almost 17 months of his employment as responsible officer and in-house lobbyist for CCI (i.e., May 22, 2016 to October 12, 2017).

In keeping with OCL guidance on Rule 9,^{Footnote 12} serving as a campaign chair or in another strategic role on a campaign team and serving on the Executive or Board of Directors of a candidate’s electoral district association are each considered to be political activities capable of creating a sense of obligation on the part of the public office holder who benefits from these activities.

Given the intensity of the close working relationship that Ms. Freeland attested to developing with Mr. Bergen during her election campaigns in 2013 and 2015 and given the significance of these roles in helping Ms. Freeland to secure and retain public office as a Member of Parliament, I am of the view that Mr. Bergen’s campaign-related political activities on behalf of Ms. Freeland could reasonably be seen to create a strong sense of obligation on the part of Ms. Freeland.

That said, however, I am also of the view that Mr. Bergen’s activities in relation to Ms. Freeland’s 2013 and 2015 campaigns are not covered by Rule 9 of the Code, which applies to political activities undertaken by lobbyists.

In particular, Rule 9 explicitly applies “[w]hen a lobbyist undertakes political activities” on behalf of any person who is or becomes a public office holder that “could reasonably be seen to create a sense of obligation.” Mr. Bergen was not a lobbyist when he engaged in campaign-related political activities on behalf of Ms. Freeland.

Moreover, whereas Rule 9 contemplates that a person on whose behalf the political activities were performed may subsequently become a public office holder (“is or becomes a public office holder”), it does not purport to apply to the political activities of lobbyists before they become lobbyists (i.e., the rule does not similarly provide that it applies to ”a person who is or becomes a lobbyist”).

In keeping with principles of interpretation, I am of the view that this choice of language must be presumed to have been intentional. In other words, if the rule was intended to apply to the past activities of lobbyists before they became lobbyists, the rule would have explicitly said so as it does for individuals who subsequently become public office holders. In my view, the fact that it does not do so should, a contrario, be interpreted to have been by design.

I am also of the view not only that the OCL is bound to apply the Lobbyists’ Code of Conduct as written, but also that lobbyists subject to the Code are entitled to rely on the letter of the Code as currently formulated in carrying out their activities.

Seen in this light, Rule 9 cannot be understood to apply to any political activities that Mr. Bergen engaged in on behalf of Ms. Freeland before March 2016, when he first became an in-house lobbyist for CCI. As such, Mr. Bergen’s campaign-related political activities on behalf of Ms. Freeland are not captured by Rule 9.

That said, it would be artificial and lack an air of reality not to acknowledge this pre-existing political relationship between Ms. O’Born and Ms. Freeland. In my view, this reality is relevant to the analysis under Rule 6 of the Code, below.

It is also important to acknowledge that Mr. Bergen appears to have recognized the significance of his campaign-related political activities on behalf of Ms. Freeland as reflected by the fact that he sought advice from the Office of the Conflict of Interest and Ethics Commissioner as well as the Human Resources Division of the House of Commons about any restrictions to which he was subject on the basis of his past political associations with Ms. Freeland. It is also significant that Mr. Bergen followed up with the OCL in late June 2016 to confirm his understanding of these restrictions when Ms. O’Born joined CCI. Insofar as there is no evidence that Mr. Bergen lobbied Ms. Freeland or any members of her ministerial staff, it appears that he followed the advice he received from the OCL.

With respect to Mr. Bergen’s role as a Director on the Executive of Ms. Freeland’s electoral district association, the information collected during this investigation demonstrates that this role was less significant than his campaign-related roles in 2013 and 2015, both in terms of his level of involvement and in terms of the level of obligation it could reasonably be seen to create on the part of Ms. Freeland. As noted in the findings section, above, Mr. Bergen stated that he played a limited role in his position as Director of the University-Rosedale FLA, noting that he was acclaimed to fill this position in the absence of other candidates, that he was one of 15 total directors on the FLA, that fundraising was not a part of his responsibilities in this capacity and that he had never attended a meeting of the FLA. As noted in the findings section above, Ms. Freeland separately confirmed that, in the minutes of the FLA’s meetings, there is no reference to Mr. Bergen having ever attended a meeting of the FLA Executive.

Taken together, the information collected during this investigation establishes that Mr. Bergen’s political activities in serving as a Director on the Executive of the University-Rosedale FLA overlapped with his employment as responsible officer and in-house lobbyist for CCI for a period of almost 17 months (i.e., from May 22, 2016 to October 12 , 2017).

Despite being less relatively significant than his campaign-related activities, by acting as a Director on the Executive of the University-Rosedale FLA, Mr. Bergen engaged in political activities on behalf of Ms. Freeland when he was lobbyist that could nonetheless reasonably be seen to create a sense of obligation on the part of Ms. Freeland within the meaning of Rule 9.

Second element: Lobbying directed to Ms. Freeland or a member of her staff

Mr. Lametti, Ms. Buttle and Ms. Nycum

Based on the information collected in this investigation, there is no evidence that anyone from CCI, including Mr. Bergen, ever attempted to lobby Ms. Freeland.

As set out above, Mr. Bergen was involved in only one of the four communications with Mr. Lametti and/or members of Mr. Lametti’s political staff that CCI reported in the Registry of Lobbyists between October and December 2016. This communication, a meeting that took place on December 7, 2016, was attended by Mr. Lametti and Ms. Nycum.

In order for this meeting to provide a basis for finding that Mr. Bergen contravened Rule 9, I would need to determine that, having engaged in political activities on behalf of Ms. Freeland that could reasonably be seen to create a sense of obligation, Mr. Bergen lobbied “staff in [Ms. Freeland’s] office”.

I am of the view that Mr. Lametti, in his former capacity as Parliamentary Secretary, does not qualify as “staff” in Ms. Freeland’s office for the purposes of Rule 9.

First, Rule 9 distinguishes between “elected officials” and “staff” (“if that person [on whose behalf political activities were undertaken] is an elected official, the lobbyist shall also not lobby staff in their office(s)”). As a Member of Parliament, Mr. Lametti is an elected official in his own right with staff of his own, both in his parliamentary and constituency offices in connection with his role as a Member of Parliament as well as in support of his former role as Parliamentary Secretary. Mr. Lametti’s status as an elected public office holder in his own right militates against the view that he can be understood to be staff in Minister Freeland’s office within the meaning of Rule 9.

Second, although the role of the parliamentary secretary is to assist a minister as directed by the minister, the minister does not have authority over the terms and conditions of the Parliamentary Secretary’s appointment, which is governed by the Parliament of Canada Act. Mr. Lametti was appointed Parliamentary Secretary to the Minister of International Trade by Order of the Governor in Council on the recommendation of the Prime Minister pursuant to section 46 of the Parliament Canada Act. Subsection 46(3) provides that parliamentary secretaries hold their office for a term of up to 12 months from the date of their appointment. As set out in the Privy Council Office’s Guide for Parliamentary Secretaries, this appointment may be renewed for more than one term.^{Footnote 13} The legislative regime governing the appointment of parliamentary secretaries reinforces the view that they do not qualify as “staff” in the office of a minister.

With respect to Ms. Nycum, the information collected in this investigation demonstrates that she was Senior Advisor/Special Advisor to Mr. Lametti in his capacity as Member of Parliament. I am of the view that she cannot, therefore, be understood to qualify as staff in Ms. Freeland’s office for the purposes of Rule 9.^{Footnote 14}

For these reasons, I am of the view that Mr. Bergen did not contravene Rule 9 in relation to the one reported communication in which he participated.

Communications with public servants

Between October 2016 and January 2017, during the same period of time in which CCI reported communications with Mr. Lametti and/or Mr. Lametti’s political staff and in which Ms. Freeland continued to be Minister of International Trade, CCI reported communications with four officials from Global Affairs Canada (GAC):

• On October 20, 2016, the day of its lobby day meetings in Ottawa, CCI reported a communication with Susan Bincoletto, then-Assistant Deputy Minister, International Business Development, GAC,^{Footnote 15} on the topic of “International Trade.”^{Footnote 16}
• On October 21, 2016, CCI reported a communication with Jennifer Beckermann, then-Head of Visits—Political Officer, GAC,^{Footnote 17} on the topic of “Internal Trade.”^{Footnote 18}
• On November 2, 2016, CCI reported a communication with “François Gauthe, Délégué Innovation, Science and Technology, GAC,”^{Footnote 19} on the topic of “Internal Trade.”^{Footnote 20}
• On November 4, 2016, CCI reported a communication with Ms. Beckermann and Sanjay Purohit, Trade Commissioner (London, U.K.), GAC,^{Footnote 21} on the topic of “Internal Trade.”^{Footnote 22}

I am of the view that Rule 9 applies to the political staff of elected public office holders, in this case ministerial staff in Ms. Freeland’s ministerial office, as they could most reasonably be seen to be potentially influenced by political considerations in their interactions with lobbyists, including any past political activities undertaken by such lobbyists on behalf of the minister.

One important corollary of this view is that “staff in [the] office(s)” of an “elected official” should not be understood to include public servants, who have a professional obligation to maintain their impartiality in carrying out their duties. This obligation of impartiality, which is embodied in the Values and Ethics Code for the Public Sector,^{Footnote 23} extends to senior public servants, including those appointed by order of Governor-in-Council, such as Deputy Ministers and Assistant Deputy Ministers.^{Footnote 24}

This view is reinforced by the guidance set out in Open and Accountable Government (2015), which clearly distinguishes between public servants and “political” or “exempt” staff in a minister’s office as two categories of officials with distinct but complementary roles. In particular, whereas departmental public servants carry out their duties in a non-partisan manner and report in a clear chain of command to a deputy minister, ministerial political or exempt staff share the Minister’s political commitments and contribute a particular expertise or point of view that the public service cannot provide. It is worth noting that this guidance document also refers to such political or exempt staff as a minister’s “own office staff”.^{Footnote 25}

Beyond the fact that public servants are not employed in or by the political offices of elected officials, an interpretation of Rule 9 that would include public servants as part of the staff in an elected official’s office would be incompatible with the professional ethos of the federal public service as non-partisan and impartial.

From this perspective, the four meetings that CCI reported having with Susan Bincoletto, then-Assistant Deputy Minister, International Business Development, GAC,^{Footnote 26} with Jennifer Beckermann, then-Head of Visits, GAC, with François Gauthe, Trade Commissioner (Paris), GAC and with Ms. Beckermann and Sanjay Purohit, Trade Commissioner (London), GAC, do not satisfy the elements of Rule 9 as none of these public servants and officials who worked for the Department of Global Affairs, qualify as staff in Ms. Freeland’s office.

In light of the foregoing analysis, I am of the view that Mr. Bergen did not contravene Rule 9 in relation to any of the communications that CCI reported having with any of these public servants.

Rule 6 - Conflict of interest

In light of my conclusion that Mr. Bergen did not contravene Rule 9 of the Code, I must determine whether he contravened the more general conflict of interest prohibition set out in Rule 6.

Rule 6 of the Code reads as follows:

A lobbyist shall not propose or undertake any action that would place a public office holder in a real or apparent conflict of interest.

In order to determine whether Mr. Bergen contravened Rule 6, I must evaluate whether any of his actions as an in-house lobbyist employed by CCI placed Ms. Freeland in either a real or apparent conflict of interest.

Significantly, the Code does not define what constitutes either a real or an apparent conflict of interest and neither does the Lobbying Act.

In the absence of definitions of these concepts in the Act and Code and given that Rule 6 prohibits lobbyists from placing public office holders in real or apparent conflicts of interest, I reviewed related federal and provincial legislation, including both the federal Conflict of Interest Act and British Columbia’s Members’ Conflict of Interest Act in order to understand how these concepts were defined in other jurisdictions. I also reviewed the reports of two commissions of public inquiry, namely the Commission of Inquiry into the Facts and Allegations of Conflict of Interest Concerning the Honourable Sinclair M. Stevens (Parker Commission) and the Commission of Inquiry into Certain Allegations Respecting Business and Financial Dealings Between Karlheinz Schreiber and the Right Honourable Brian Mulroney (Oliphant Commission), each of which synthesized existing sources of authority in setting out definitions of these concepts.

Definitions of real and apparent conflicts of interest

Section 4 of the Conflict of Interest Act defines what constitutes a conflict of interest in the following terms:

4. For the purposes of this Act, a public office holder is in a conflict of interest when he or she exercises an official power, duty or function that provides an opportunity to further his or her private interests or those of his or her relatives or friends or to improperly further another person’s private interests.

It is important to note, however, that the Conflict of Interest Act regulates the conduct of public office holders, including ministers and parliamentary secretaries, rather than lobbyists. It is also important to note that the definition of conflict of interest set out in the Conflict of Interest Act does not extend to or encompass apparent conflicts of interest.^{Footnote 27} As such, this definition of conflict of interest is of limited utility in understanding the circumstances in which a lobbyist can be understood to place a public office holder in an apparent conflict of interest for the purposes of Rule 6 of the Code.

British Columbia is the only jurisdiction in Canada that prohibits public office holders and, more specifically, Members of its Legislative Assembly, from exercising their official powers, duties or functions if they have either a conflict of interest or an apparent conflict of interest.^{Footnote 28} In particular, section 3 of the British Columbia Members’ Conflict of Interest Act (B.C. Act) sets out this prohibition in the following terms:

A member must not exercise an official power or perform an official duty or function if the member has a conflict of interest or an apparent conflict of interest.

Before turning to the manner in which the B.C. Act defines conflict of interest and apparent conflict of interest, it is important to note that, like its federal counterpart, this provincial legislation does not purport to regulate the conduct of lobbyists.

Subsection 2(1) of the B.C. Act defines “conflict of interest” in the following terms (emphasis added):

For the purposes of this Act, a member has a conflict of interest when the member exercises an official power or performs an official duty or function in the execution of his or her office and at the same time knows that in the performance of the duty or function or in the exercise of the power there is the opportunity to further his or her private interest.^{Footnote 29}

Subsection 2(2) defines “apparent conflict of interest” as follows (emphasis added):

For the purposes of this Act, a member has an apparent conflict of interest if there is a reasonable perception, which a reasonably well informed person could properly have, that the member's ability to exercise an official power or perform an official duty or function must have been affected by his or her private interest.^{Footnote 30}

In the Oliphant Commission Report, Justice Oliphant recommended that the Conflict of Interest Act be amended to include apparent conflicts of interest. In doing so, he concluded that such an amendment could be modelled on the definition set out in subsection 2(2) of the B.C. Act, modified as necessary to accommodate the context of the federal ethics regime and to ensure that such apparent conflicts capture prospective and not only past conduct.^{Footnote 31} In making this recommendation, Justice Oliphant proposed defining apparent conflicts of interest in the following terms:

The definition of “conflict of interest” in the Conflict of Interest Act should be revised to include “apparent conflicts of interest,” understood to exist if there is a reasonable perception, which a reasonably well-informed person could properly have, that a public office holder’s ability to exercise an official power or perform an official duty or function will be, or must have been, affected by his or her private interest or that of a relative or friend.^{Footnote 32}

Several important features of both real and apparent conflicts of interest emerge from these definitions. I will address the significant features of each concept in turn.

Real conflicts of interest

First, in order to have a real conflict of interest, a public office holder, which at the federal level includes a minister, must be in a situation in which he or she is engaged in the exercise or performance of his or her official powers, duties or functions.^{Footnote 33}

This requirement is consistent with the understanding of real conflicts of interest articulated by Justice Parker in the Report of the Parker Commission:

I am thus satisfied that the proper interpretation of [real] conflict of interest is one that is concerned with any situation in which the public office holder is exercising or discharging any duty or responsibility of public office, not just that of decision making.

[…]

It should be noted that a real conflict of interest does not materialize until the public office holder is in a situation in which he or she is exercising a duty or responsibility of public office.^{Footnote 34}

The implication of this requirement is that public office holders cannot be understood to be in a situation of real conflict of interest if they are not engaged in exercising or performing their official powers, duties or functions.

Second, in order to have a real conflict of interest, public office holders must know that they have an opportunity to further their own private interests when they exercise their official powers, duties or functions.^{Footnote 35}

This knowledge requirement is reflected in the definition of real conflicts of interest set out in the Report of the Parker Commission (emphasis added):

In my view, the 1973 Green Paper definition can be paraphrased for the purposes of this Inquiry as follows: a real conflict of interest denotes “a situation in which a minister of the Crown has knowledge of a private economic interest that is sufficient to influence the exercise of his or her public duties and responsibilities.” This is the definition of real conflict of interest that I will employ throughout the balance of this report.^{Footnote 36}

The implication of this knowledge requirement is that public office holders cannot be understood to be in a situation of real conflict of interest if they do not know that the exercise of their official powers, duties and functions provides them with an opportunity to further their private interests.

Third, real conflicts of interest involve situations in which public office holders, in exercising their official powers, duties and functions, have opportunities to further their private interests. Although private interests have traditionally been understood to consist of public office holders’ private economic or pecuniary interests,^{Footnote 37} this concept has come to be understood to include non-pecuniary interests as well.^{Footnote 38}

It is also worth noting that private interests are not limited to the direct interests of the public office holder, but can also include the interests of others with whom a public office holder shares close proximate relationships, including relatives or friends (i.e., those with whom the public office holder shares close bonds of personal affection or loyalty).^{Footnote 39}

These types of indirect interests are reflected in the definition of conflict of interest set out in section 4 of the Conflict of Interest Act, which applies to situations in which a public office holder exercises an official power, duty or function that provides an opportunity to further the public office holder’s private interests, those of his or her relatives or friends or that provides an opportunity to improperly further another person’s private interests.

Apparent conflicts of interest

Whereas real conflicts of interest cover situations in which public office holders engage in official action knowing that they have opportunities to further their private interests, apparent conflicts of interest turn on reasonable perceptions that a conflict of interest exists.

As with real conflicts, it is worth underscoring a few significant features of apparent conflicts of interest.

First, apparent conflicts of interest are perceived conflicts; that is, they are reasonably perceived to exist, whether or not they do, in fact, actually exist.

Second, apparent conflicts of interest are judged on an objective standard, namely would a reasonable observer, informed of the relevant factual circumstances, reasonably conclude that a conflict of interest exists.

Justice Parker articulated this standard in the following terms (emphasis added):

An appearance of conflict could thus exist even where there is no real conflict in fact. Real conflict requires, inter alia, knowledge on the part of the public office holder of the private interest that could be affected by his or her actions or inactions. No such actual knowledge is necessary for an apparent conflict because appearance depends on perception. However, the perception must be reasonable, fair, and objective. An appearance of conflict should not be found unless a reasonably well-informed person could reasonably conclude as a result of the surrounding circumstances that the public official must have known about his or her private interest.^{Footnote 40}

Subsection 2(2) of the B.C. Act and the definition of apparent conflict of interest recommended by the Oliphant Commission each use the following variation of this formulation of the objective standard: “a reasonable perception, which a reasonably well-informed person could properly have”.

One important implication of the consensus that apparent conflicts of interest must be judged on an objective, impartial and fair standard, one grounded in a reasonable awareness and understanding of the applicable factual circumstances, is that apparent conflicts of interest cannot be determined to exist on the basis of mere suspicion or speculation.

This view was forcefully supported by former B.C. Conflict of Interest Commissioner Paul Fraser in the 2009 Campbell Opinion, which examined “whether then-Premier Gordon Campbell was in an apparent conflict of interest by signing an Order-in-Council that allegedly benefited a company in which the Premier held shares” (emphasis added):

To constitute a breach of the [B.C. Act], a perception of conflict of interest cannot simply exist in the air or in the abstract, it must be established against a test of reasonableness. While the simple perception of conflict of interest may raise a “red flag” or give rise to suspicion, that is clearly not sufficient to support a finding of an apparent conflict of interest until the objective test of reasonableness, which is mandated by section 2(2), is applied to the particular circumstances under review.^{Footnote 41}

Seen in this light, concerns are not enough, on their own, to sustain a reasonable perception that an apparent conflict of interest exists.

Relatedly, third, apparent conflicts of interest are situations of perceived actual conflict.^{Footnote 42} They are not hypothetical situations in which it is merely possible that public office holders were influenced by their private interests when they engaged in official action. Rather, apparent conflicts of interest are definite situations in which a reasonable observer, informed of the relevant factual circumstances, can reasonably conclude that the public office holder’s ability to exercise their official powers, duties and functions “must have been affected” by his or her private interests.^{Footnote 43}

These definitions of real and apparent conflicts of interest are instructive in identifying the essential characteristics of these concepts. That said, however, it is important to underscore that the Office of the Commissioner of Lobbying does not directly regulate federal public office holders.

As such, the focus of this analysis is on the actions of the lobbyist under investigation, Mr. Bergen, and whether any of his actions as a lobbyist placed Ms. Freeland in any situations of real or apparent conflict of interest contrary to Rule 6. Nothing in this analysis either purports to comment or should be interpreted as commenting on the propriety of the conduct of any public office holders subject to the Conflict of Interest Act.

Application to the facts at issue in this investigation

In order to determine whether Mr. Bergen contravened Rule 6 of the Code, I must evaluate whether any of his actions as an in-house lobbyist employed by CCI placed Ms. Freeland in either a real or apparent conflict of interest. Each of these possibilities is analyzed in turn.

Real conflict of interest

As noted above, real conflicts of interest arise in situations in which a public office holder exercises an official power, duty or function while knowing that, in doing so, there is an opportunity to further his or her private interest or those of others with whom a public office holder shares close proximate relationships.

In the context of this investigation, there is no basis for concluding that Mr. Bergen placed Ms. Freeland in a real conflict of interest.

First, there is no indication, based on the information collected in this investigation, that Ms. Freeland made any decisions or exercised any official powers, duties or functions in her capacity as Minister of International Trade in respect of any programs, policies or services within her ministerial portfolio that related to the subject matter of CCI’s lobbying activities, including any of the topics that CCI proposed to discuss with Mr. Lametti as part of the working group that it sought to establish following the initial lobby day meeting on October 20, 2016 or that CCI proposed to discuss with Mr. Lametti as part of the working group referred to in the follow up letter that Ms. O’Born transmitted by email to Ms. Buttle.

In her sworn affidavit, Ms. Freeland affirmed that she did not exercise any official powers, duties or functions as Minister of International Trade in respect of any of the programs or policies that CCI discussed with Mr. Lametti, including the Canada Export Program, between the lobby day meeting on October 20, 2016 and January 10, 2017, when she was appointed Minister of Foreign Affairs. Ms. Freeland further confirmed that she did not retain any responsibility for any of the programs or policies that CCI discussed with Mr. Lametti, including the Canada Export Program, in her capacity as Minister of Foreign Affairs.

Second, there is no indication that Ms. Freeland had any knowledge about any of CCI’s lobbying activities, including the suggestion that regular meetings with Mr. Lametti be established to discuss the Canada Export Program among other topics.

As noted, Mr. Bergen sought and received advice from the OCL to the effect that neither he nor Ms. O’Born should lobby Ms. Freeland or members of her ministerial staff for a period of five years in light of the roles they each played in co-managing her 2015 election campaign. The evidence gathered in this investigation demonstrates that neither Mr. Bergen nor Ms. O’Born ever met or communicated with Ms. Freeland in her official capacity.

In addition, there is no indication that Ms. Freeland was ever briefed about anything to do with CCI’s lobbying activities. In her sworn affidavit, Ms. Freeland affirmed that she was not briefed at any time by anyone, including Mr. Lametti, about CCI’s lobbying activities between October 2016 and January 2017. Ms. Freeland’s statements in this regard are consistent with Ms. Yorke’s sworn testimony to the effect that she did not inform Ms. Freeland or anyone else in Ms. Freeland’s ministerial office about CCI’s follow up email that Ms. Buttle forwarded to her on November 24, 2016 in which CCI requested additional information about the Canada Export Program.

In absence of any evidence that Ms. Freeland either knew about any of CCI’s lobbying activities or was engaged or even contemplated engaging in the exercise of any official powers, duties or functions with respect to the subject matter of CCI’s lobbying activities, there is no basis to conclude that any of Mr. Bergen’s actions placed Ms. Freeland in a real conflict of interest.^{Footnote 44}

Apparent conflict of interest

As described in detail above, apparent conflicts of interest involve situations of perceived actual conflict.

As noted, the existence of an apparent conflict of interest is judged on an objective standard, namely would a reasonable observer, informed of the relevant factual circumstances, reasonably conclude that a public office holder’s ability to exercise their official powers, duties or functions will be^{Footnote 45} or must have been affected by their own private interests or those of others with whom the public office holder shares close proximate relationships, including both relatives and friends.

As also noted, the focus of the Rule 6 analysis is on the conduct of lobbyists subject to the Code, in this case Mr. Bergen, in his capacity as an in-house lobbyist for CCI.

Based on the information gathered in this investigation, summarized in detail above, a reasonable observer, informed of the relevant factual circumstances, would have to base his or her determination as to whether Mr. Bergen, acting in his capacity as an in-house lobbyist for CCI, could be reasonably seen to have placed Ms. Freeland in an apparent conflict of interest on the following considerations:

• Mr. Bergen engaged in political activities on behalf of Ms. Freeland both before and after he became a lobbyist for CCI. In particular, he volunteered for Ms. Freeland’s first federal campaign in 2013 and acted as co-campaign manager of her successful re-election campaign in 2015. These activities pre-dated his tenure with CCI. For 17 months during his employment as an in-house lobbyist for CCI (i.e., between May 22, 2016 and October 12, 2017), Mr. Bergen was publicly identified as a Director on the Executive of Ms. Freeland’s riding association. These political activities can reasonably be seen to create a sense of obligation on the part of Ms. Freeland.
• Before joining CCI in March 2016, Mr. Bergen sought guidance from both the Office of the Conflict of Interest and Ethics Commissioner and the Human Resources Division of the House of Commons regarding any applicable restrictions on his lobbying activities as an outgoing staff member in Ms. Freeland’s constituency office. Mr. Bergen was advised that, because of his senior role on Ms. Freeland’s successful re-election campaign in 2015, he was precluded from lobbying Ms. Freeland and her staff for a period of five years. Mr. Bergen also sought advice from the OCL in late June 2016, when Ms. O’Born joined CCI as its Director of Policy. The OCL advised Mr. Bergen that, as co-campaign managers of Ms. Freeland’s 2015 re-election campaign, neither he nor Ms. O’Born should lobby Ms. Freeland or staff in Ms. Freeland’s ministerial office for a period of five years. Mr. Bergen followed this advice insofar as there is no evidence that he ever had official dealings with Ms. Freeland or members of her ministerial staff.
• As part of its inaugural lobby day in Ottawa on October 20, 2016, CCI organized an introductory meeting between Mr. Lametti, then Parliamentary Secretary to Ms. Freeland in her capacity as Minister of International Trade, and the CEOs of 10 CCI member companies. During this meeting, which lasted 30 minutes, the member CEOs introduced themselves and described their respective businesses. For his part, Mr. Lametti spoke about his role as Parliamentary Secretary and provided a general overview of the initiatives with which he was involved. Mr. Bergen did not personally attend this meeting, which was publicly reported in the Registry of Lobbyists.
• Mr. Bergen co-signed a letter to Mr. Lametti, dated November 16, 2016, thanking him for the meeting on October 20th and seeking to establish a working group that would regularly meet with Mr. Lametti to discuss issues including the Canada Export Program, ensuring that the services offered by Export Development Canada encourage the international growth of Canadian technology companies and ensuring that international trade offices are better informed about the services that Canadian technology companies can offer the global economy. Ms. O’Born emailed this letter to Megan Buttle, Special Assistant to Mr. Lametti in his capacity as Parliamentary Secretary, who immediately forwarded it to Emily Yorke, the Policy Advisor in Ms. Freeland’s ministerial office responsible for responding to general inquiries regarding the Canada Export Program. Ms. Yorke did not take any further action with respect to this email and no meetings, emails or other interactions resulted from this forwarded email. Ms. Yorke never met or otherwise interacted with anyone from CCI and she did not brief Ms. Freeland or anyone else in Ms. Freeland’s ministerial office about the letter that Mr. Bergen co-signed. There is also no evidence that any of the proposed working group meetings with Mr. Lametti ever took place.
• Mr. Bergen attended a meeting between Mr. Lametti and Mr. Balsillie, Chair and CEO of CCI, on December 7, 2016. During this meeting, Mr. Balsillie and Mr. Lametti had a high-level discussion of Canada’s intellectual property strategy and innovation policy. This meeting was reported in the Registry of Lobbyists.
• Ms. Freeland was not briefed at any time by anyone, including Mr. Lametti, about CCI’s lobbying activities between October 2016 and January 2017, when she ceased to be Minister of International Trade. Ms. Freeland was not aware that CCI had sought to establish a working group to meet with Mr. Lametti on a regular basis either at the time of CCI’s lobby day meeting with Mr. Lametti on October 20, 2016 or at any time up to and including the moment she was appointed Minister of Foreign Affairs on January 10, 2017.
• Ms. Freeland did not exercise any official powers, duties or functions in her capacity as Minister of International Trade in respect of any programs or policies within her ministerial portfolio that related to the subject matter of CCI’s lobbying activities, including any of the topics that CCI proposed to discuss with Mr. Lametti as part of the working group that it sought to establish following its initial lobby day meeting, between October 20, 2016 and January 10, 2017, when she was appointed Minister of Foreign Affairs.
• Ms. Freeland did not retain any responsibility for any of the programs or policies that CCI discussed with Mr. Lametti, including the Canada Export Program, in her capacity as Minister of Foreign Affairs.
• Mr. Lametti ceased to be Parliamentary Secretary to the Minister of Foreign Affairs on January 14, 2017, when he was appointed Parliamentary Secretary to the Minister of Innovation, Science and Economic Development.

Taken together, I am of the view that a reasonable observer, informed of these factual circumstances, could not reasonably conclude that Mr. Bergen’s actions – in co-signing a thank you letter seeking to set up regular meetings with Mr. Lametti that never materialized and attending a meeting that was reported in the Registry of Lobbyists, between Mr. Lametti and Mr. Balsillie – must have affected Ms. Freeland’s ability to exercise her official powers, duties and functions.

These actions on the part of Mr. Bergen cannot be reasonably perceived to have placed Ms. Freeland in a situation of apparent conflict of interest.

Any sense of obligation or loyalty that a reasonable observer may perceive Ms. Freeland to have felt toward Mr. Bergen does not give rise to a reasonable perception that any of Mr. Bergen’s actions in connection with CCI’s attempt to establish regular meetings with Mr. Lametti placed Ms. Freeland in a conflict of interest situation.

In reaching this conclusion, I would underscore that the question to be determined is not whether it is possible that such a sense of obligation or loyalty could in some abstract or hypothetical sense affect Ms. Freeland’s ability to exercise her official ministerial powers, duties or functions in such a way as to further the private interests of CCI or CCI member companies, but rather whether a reasonable observer could reasonably conclude that any such sense of obligation or loyalty must have had such an effect in this particular set of factual circumstances.

I am of the view that the answer to this latter question is clearly no and therefore that Mr. Bergen did not place Ms. Freeland in an apparent conflict of interest.^{Footnote 46}

Conclusion

For all of the foregoing reasons, I am of the view that Mr. Bergen did not contravene Rule 6 (Conflict of Interest) or Rule 9 (Political Activities) of the Code.

Observations

Rule 6

This investigation is the first during my tenure as Commissioner of Lobbying in which I was required to evaluate whether a lobbyist contravened Rule 6 of the Code by acting to place a public office holder in a real or apparent conflict of interest.

Although I determined that Rule 6 had not been contravened in the factual circumstances at issue in this investigation, the analysis required by Rule 6 raised concerns about the manner in which this provision is currently drafted.

My jurisdiction as Commissioner of Lobbying is confined to regulating the conduct of lobbyists. However, by prohibiting lobbyists from placing federal public office holders in real and apparent conflicts of interest, Rule 6 requires the Commissioner of Lobbying to make findings that implicate the conduct of public office holders who may be subject to separate ethical regimes, including those overseen by the Senate Ethics Officer and the Conflict of Interest and Ethics Commissioner.

For example, if I were to determine that a lobbyist placed a federal public office holder in a real conflict of interest, one implication of such a determination would be that the public office holder exercised his or her official public powers, duties and functions knowing that, in doing so, he or she had an opportunity to further his or her own private interests or those of his or her relatives or friends. To the extent that the public office holder was subject to the Ethics and Conflict of Interest Code for Senators, the Conflict of Interest Act or the Conflict of Interest Code for Members of the House of Commons,^{Footnote 47} such conduct would fall squarely within the mandate of either the Senate Ethics Officer or the Conflict of Interest and Ethics Commissioner.

There is also a risk that, in applying rules of conduct under these separate ethics regimes, the Senate Ethics Officer or the Conflict of Interest and Ethics Commissioner may not reach the same conclusion as I do with respect to whether the public office holder was in a situation of real conflict of interest.

In such an eventuality, I am concerned that I would exceed my jurisdiction, trench on the jurisdiction of the Senate Ethics Officer or the Conflict of Interest and Ethics Commissioner and produce conflicting decisions in respect of the same set of facts.

Although none of these outcomes materialized in the particular circumstances at issue in this investigation, they are a potential consequence of the manner in which Rule 6 is currently drafted.

For these reasons, I am of the view that these concerns with Rule 6 should be addressed as part of any future amendments to the Code, the process for which will require stakeholder consultations as contemplated by the Lobbying Act. In doing so, it will be necessary to consider amending the rules of conduct to focus exclusively on the specific behaviours of lobbyists without importing the regime governing the ethical conduct of public office holders by implied reference.

Rule 9

In determining that Rule 9 had not been contravened in the circumstances of this particular investigation, I found that parliamentary secretaries do not qualify as “staff” in a minister’s office for the purposes of Rule 9.

I found that parliamentary secretaries’ status as elected public office holders in their own right militates against the view that they can be understood to qualify as “staff” in a minister’s office within the meaning of Rule 9.

I also noted that, although the role of the parliamentary secretary is to assist a minister as directed by the minister, the minister does not have authority over the terms and conditions of the parliamentary secretary’s appointment, which is governed by the Parliament of Canada Act. Parliamentary secretaries are appointed by Order of the Governor in Council on the recommendation of the Prime Minister pursuant to section 46 of the Parliament of Canada Act. The legislative regime governing the appointment of parliamentary secretaries reinforces the view that they do not qualify as “staff” in the office of a minister.

Although parliamentary secretaries do not qualify as staff in a minister’s office for the purposes of Rule 9, they share the same political commitments as the minister they are appointed to assist. As such, the rationale for prohibiting lobbyists from lobbying the political staff of an elected official for whom they have undertaken political activities should also apply to parliamentary secretaries.

For this reason, I am of the view that the scope of application of Rule 9 should be expanded to include individuals, such as parliamentary secretaries, who do not qualify as political staff in the office of an elected official, but who share the same political commitments as the elected official under whose purview they operate. This issue should be addressed as part of any future consultations aimed at revising the Code in accordance with the Lobbying Act.