On November 24, the Commission of Inquiry on Awarding and Managing Public Contracts in the Construction Industry (the "Charbonneau Commission") published its final report [1] (the "Report")(French-only PDF). It contains 60 recommendations intended to clean up the awarding of contracts in the public sector. Some of these recommendations apply to lobbying and therefore could have an impact on how lobbying activities are regulated and on Bill 56: Lobbying Transparency Act [2] ("Bill 56"). We have previously summarized the primary significant impacts of Bill 56 changes in our bulletin entitled "Bill 56 - Lobbying Transparency and Ethics Act becomes the Lobbying Transparency Act".
On lobbying, the Charbonneau Commission proposes to:
- extend applicable limitation periods;
- merge the duties of the Québec Lobbyists Commissioner (the "Lobbyists Commissioner") and the National Assembly Commissioner of Ethics and Professional Conduct (the "Ethics Commissioner");
- make it compulsory for certain public office holders to disclose their activities to the Lobbyists Commissioner,
- tighten post-employment rules for public office holders.
Extend limitation periods
The Lobbyists Commissioner has regularly expressed disappointment that the short limitation periods under the Lobbying Transparency and Ethics Act[3] (the "Current Act") does not allow him to successfully complete his inquiries within the statutory time frame. Consequently, a large number of offences or breaches are never sanctioned. In his testimony before the Charbonneau Commission, the Lobbyists Commissioner stated: [translation] "This short period of time explains why only 41% of the breaches noted by the [Lobbyists Commissioner] can be the subject matter of a right to prosecute that is not prescribed"[4]. Both Bill 56 and the Charbonneau Commission propose extending the applicable limitation periods to enable the Lobbyists Commissioner to file more notices of offence. However, the Charbonneau Commission proposes periods of time longer than those provided in Bill 56.
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Current Act |
Bill 56 |
Charbonneau Commission recommendations |
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1 year from the date of the offence[5] |
3 years after the date on which the offence was committed[6] |
3 years after knowledge of the offence by the prosecutor, without exceeding 7 years since it was committed[7] |
Merge the duties of the Lobbyists Commissioner and the Ethics Commissioner
The Charbonneau Commission criticizes the fragmentation of the different bodies responsible for monitoring and applying rules on ethics and lobbying. According to it, this situation does not let key players take a holistic view of compliance with the rules within different institutions or to coordinate their involvement:
The [Ethics Commissioner] and the [Lobbyists Commissioner] each has the power to trigger inquiries on their own initiative. However, in municipal matters, the [Québec Municipal Commission] can only act where a complaint has been filed with the [Ministry of Municipal Affairs and Land Occupancy] and this complaint was transferred to it. […] Moreover, the complaint process does not allow for anonymity or confidentiality and the compliant must be "in writing, given under oath, justified and accompanied, if need be, by some supporting document". Furthermore, where it receives the complaint, the [Québec Municipal Commission] forwards the complainant's identity to the person referred to in the complaint, which might discourage several potential whistleblowers[8].
To facilitate the communication of information and allow for an overall view of activities, the Charbonneau Commission therefore recommends:
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Recommendation 54 – Merge the duties of the Lobbyists Commissioner and the Ethics Commissioner and form a panel that would have all the powers currently vested in the Lobbyists Commissioner and Ethics Commissioner as well as in the [Québec Municipal Commission] and in the [Ministry of Municipal Affairs and Land Occupancy] (with regard to the receipt of complaints, inquiries and sanctions)[9] |
Require public office holders to disclose their activities to the Lobbyists Commissioner
The Current Act obliges lobbyists to register their activities in the Québec Lobbyists Register (the "Register"). Public office holders, on the other hand, are not obliged to ensure that lobbyists are listed in the Register. Bill 56 proposes imposing new obligations on public office holders, in particular, the obligation to ensure that lobbyists who lobby them are duly listed in the Register[10].
The Charbonneau Commission goes further:
Ministers and deputy ministers, as well as members of their staffs, persons appointed to governmental bodies within the meaning of the Attorney General Act must be required to file all information regarding their professional activities listed in their schedules with the Ethics Commissioner and Lobbyists Commissioner on a quarterly basis[11].
The Charbonneau Commission therefore recommends:
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Recommendation 54.2 – Amend the Lobbying Transparency and Ethics Act to oblige ministers and deputy ministers, members of their staffs, as well as persons appointed to governmental bodies within the meaning of the Attorney General Act to file all information regarding their professional activities with the Ethics Commissioner and Lobbyists Commissioner[12]. |
In this respect, the Charbonneau Commission drew inspiration from the initiative entitled Pour un gouvernement transparent (For a Transparent Government) adopted by the Québec government, a website where cabinet ministers' schedules are posted. Since last January, ministers' public activities as well as their meetings with non-government stakeholders are published within three months of each meeting. You can learn more about the Pour un gouvernement transparent initiative by reading our overview of its practical effects. Not only does this initiative provide greater transparency in cabinet ministers' activities, it is also a relevant source of information for the Lobbyists Commissioner who can then verify that the lobbyists who were met are listed in the Register. Remember, however, that since this is not a statutory or regulatory measure, there is no penalty for non-compliance. In addition, the Pour un gouvernement transparent initiative only applies to cabinet members, and the Charbonneau Commission would significantly broaden the scope of this initiative.
Tighten post-employment rules for public office holders
The Charbonneau Commission is concerned about employees moving between the public and private sectors. Very often, the former public office holder possesses inside information and has developed privileged relationships with former colleagues. Consequently, the employee finds himself or herself in a privileged situation when the time comes to influence the decision-making of former civil servant colleagues.
Therefore, the Commission Charbonneau recommends as follows to the government:
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Recommendation 55 – Amend the laws and enact relevant regulations in order to prohibit an employee who is involved in the contractual management of a public works client from agreeing, in the year following the termination of his or her duties, to perform a duty or seek employment within a private sector entity with which he or she had official, direct and material relations during the year that preceded the termination of his or her duties, except with written consent from the public works client; oblige a civil servant, associated with the contractual management of a public works client, to inform his or her employer in writing of the talks he or she is having with a supplier or provider regarding his or her possible hiring by it.[13]. |
Bill 56 status report
The Report is most timely in the context of lobbying-law reform. The Current Act was passed in 2003, and Bill 56 was tabled in the National Assembly last June to thoroughly reform the current law. Moreover, public parliamentary committee hearings are expected in the next parliamentary session. Some of the Report's recommendations may affect the wording of the new version of Québec's lobbying law.
Furthermore, Mr. Jean-Marc Fournier, Minister responsible for Access to Information and the Reform of Democratic Institutions, asked Mr. Jean Dussault, Interim Commissioner, to conduct a comprehensive study on subjecting non-profit organizations to Bill 56. The Minister indicated that he would wait for this report before initiating public consultations. The study of Bill 56 will, therefore, have to wait for a while.
[1] France Charbonneau, Renaud Lachance, Final Report of the Inquiry Commission on awarding and managing public contracts in the construction industry, November 2015 (the "Report").
[2] Bill 56, Lobbying Transparency Act, 1st Session, 41st Legislature, 2015 (introduced on June 12, 2015) ("Bill 56").
[3] Lobbying Transparency and Ethics Act, CQLR c T-11.011.
[4] Report, supra note 1, Vol. 1 at p 151.
[5] Code of Penal Procedure, CQLR c C-25.1, art. 14.
[6] Bill 56, supra note 2, sec. 116.
[7] Report, supra note 1, Vol. 3 at p 150.
[8] Report, supra note 1, Vol. 3 at 178.
[9] Report, supra note 1, Vol. 3 at p 180 (excerpt from recommendation 54).
[10] Bill 56, supra note 2, sec. 37.
[11] Report, supra note 1, Vol. 3 at p 182.
[12] Report, supra note 1, Vol. 3 at p 182 (excerpt from recommendation 54.2).
[13] Report, supra note 1, Vol. 3 at p 185 (excerpt from recommendation 55).