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Did Duffy Break Rules by Contacting Enbridge?

The Tyee offers a lobby primer from a federal lawyer.

Jeremy Nuttall 1 May 2015TheTyee.ca

Jeremy J. Nuttall is The Tyee's Parliament Hill reporter in Ottawa. Find his previous stories here.

This coverage of Canadian national issues is made possible because of generous financial support from our Tyee Builders.

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The New Democrats are calling for a probe into Mike Duffy's dealings with Enbridge. Photo: Wikimedia. Creative Commons licensed.

The Harper government has spent much of the week fending opposition questions in the House of Commons about whether Mike Duffy's apparent discussions with pipeline company Enbridge breached federal lobbying rules. The questions began after the National Observer published a story that said notes contained in Duffy's diary suggest he was communicating regularly with Enbridge in 2012. The oil and gas company wants to build a pipeline to the West Coast and reverse an existing pipeline to Quebec.

The suspended senator's journal shows he had several conversations with senior officials from Enbridge and the Prime Minister's Office. The contacts occurred between January and June of 2012, the same time the National Energy Board started its hearings on the Enbridge Northern Gateway pipeline proposal.

Duffy is standing trial on fraud, breach of trust and bribery charges. The diaries were entered as evidence at the trial.

One of the diary entries appears to indicate that Duffy spoke to Harper about a proposed Enbridge project. "PM asks 'Send me a note' on Enbridge Line #9 problems,' says a Feb. 17, 2012 diary entry.

Enbridge has a pipeline running through southern Ontario designated Line 9.

This week in the House of Commons, the New Democrats have asked the Conservatives why the prime minister was apparently asking for Enbridge pipeline information from Duffy. The opposition party has demanded a probe into the matter.

The Observer and critics have suggested Duffy was serving as a backdoor for Enbridge to communicate with the prime minister.

In published reports this week, Enbridge said Duffy's contact with the company was "unsolicited" and the company said it told the PMO it hadn't asked the suspended senator to call. The reports said Duffy was calling Enbridge to inquire about a job for a friend. The company later issued a statement insisting it follows the law.

The issues raised in the Duffy diaries have focused attention on the lobby rules that dictate conduct between private corporations and public officials.

Ask a lobby expert

To clarify some of these issues, The Tyee spoke with Bruce Bergen, senior counsel at the Office of the Commissioner of Lobbying.

Bergen said the lobbying office is looking into the Duffy issue but would not confirm if it has launched an investigation, citing privacy. Nor would Bergen speak about the Duffy case directly, also citing privacy.

But he said public office holders (including MPs and senators) may contact anyone they wish. The communication between the two parties only has to be reported to the lobby registry when it relates to topics outlined in the Lobbying Act. Those topics include grants, programs, regulations, financial benefits and legislation.

Oral and arranged communications initiated by a lobbyist to designated office holders must be reported to the registry by the company, according to regulations, he said.

The onus to report the communications is always on the company, but there is no requirement for public officer holders to do so, he added.

The Tyee posed a few questions to Bergen about the rules of lobbying.

The Tyee: Would it be against the act for one public office holder to have another public office holder speak to a company (that stands to gain from government decisions)?

Bergen: The act is really about capturing lobbying activity of people who are paid to lobby by companies and organizations... or what are called consultant lobbyists that is the professional government relations people or lawyers who are also lobbying. That's what it's designed to capture.

If some public office holder asks another public office holder to contact a company or enterprise or organization about one thing or another I don't think that's lobbying activity (that requires registration). The lobbying act is not designed to capture that.

Tyee: How are the lobby rules enforced? Are there any spot investigations to ensure that what is being talked about -- and the reported contacts -- are truthful?

Bergen: We have an investigations directorate and they do enforcement. Information that's contained in monthly communication reports is reported by the lobbyist and then the commissioner has the authority to ask public office holders to verify the information in the monthly communications report. The average number is about 1,000 every month and we verify randomly five per cent of them by sending an email to a public office holder saying "this monthly communication report was filed... can you verify that or correct it if it's wrong."

Tyee: If you find a breach, how big of a deal is it?

Bergen: They're not criminal offenses, they're what I call quasi-criminal, that there are fines or potential jail terms that are available if you breach the act. So, for instance, if someone is lobbying without being registered, that's a breach of the act (because) you're required to register your lobbying activities. You could be found guilty on summary conviction and fined or, in a worse case scenario, jailed.  [Tyee]

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