Inside Politics

UPDATED Former Tory aide fined $7,500 for unregistered lobbying

Heads up, Ottawa lobbyists: Keep those registrations up to date, or you could find yourself in court.

 Former Conservative aide turned advocate-for-hire Andrew Skaling has been slapped with a $7,500 fine after pleading guilty to having failed to file the necessary paperwork after he was brought on board to help a non-profit group seeking federal funding for its smoke cessation programme in 2010. 

Courtesy of the Public Prosecution Service of Canada, here's the statement of fact that the crown prosecutor read into the record during yesterday's hearing:

On May 24, 2012, RCMP Commercial Crime Branch received a referral from the Office of the Commissioner of Lobbying (OCL) regarding the investigation it had conducted into the alleged unregistered lobbying activities of Andrew Skaling and his firm, Skaling Knox et al. Incorporated. Under subsection 5(1) of the Lobbying Act, individuals must file a consultant lobbyist registration return if, for payment on behalf of a client, they undertake to communicate with, or arrange a meeting with, a federal public office holder.

The alleged lobbying activities were undertaken on behalf of a non-profit organization - the Canadian Network of Respiratory Care (CNRC), formerly known as the Canadian Network of Asthma Care (CNAC). The CNRC is non-profit organization and registered charity whose mandate is to certify health care professionals as asthma and respiratory care educators, who would then be able to assist patients with treatment for asthma, COPD and allergies, as well as to promote smoking cessation.

The CNRC was seeking funding from the Federal Government for its programs, notably with respect to its Smoking Cessation Program. The organisation believed that it was not on a "fair playing field" at the federal government level with other organisations which were seeking funding for similar programs and wanted help speaking to government.

Mr. Skaling was retained by the CNRC as of June 28, 2010 and was retained for payment through December 2010. He was engaged notably to use his past political experience, his connections and close relationship with federal government officials, to arrange meetings with the "right people" in order to expose CNRC at the federal minister level. In particular, he was to meet officials and political staff of Health Canada and the Public Health Agency of Canada from whom CNRC wanted to seek accreditation and federal funding for their Smoking Cessation Program.

The Director of the CNRC was told by Mr. Skaling on three occasions that he had registered in the Registry of Lobbyists operated by the OCL. In each instance it was Mr. Skaling who brought the subject matter up. However, at no time during the duration of their agreement did Mr. Skaling register in the prescribed manner as required by subsection 5(1) of the Lobbying Act.

In all, CNRC made five payments to Skaling Knox et al. Inc. from July to November 2010 totalling $33,900.00 as payment for Mr. Skaling's lobbying activities. These five payments were deposited into the business account of Skaling Knox et al. Inc.

UPDATE: According to Skaling's lawyers, the full agreed statement of fact also included the following submission, which was accepted by the crown: 

At the time Mr. Skaling was retained, the CNRC was in the process of completing a Request for Proposals (RFP) to receive funding from the Public Health Agency of Canada in relation to a pulmonary health framework.  

The CNAC had asked Mr Skaling to review the proposal which he did. The proposal was submitted for consideration in September 2010. At that time, Mr. Skaling believed that due to the pending RFP, it would be inappropriate to lobby the federal government and suggested alternative approaches to move their project in a different direction.

Despite this change in direction, Mr. Skaling had a duty to register under section 5(1) of the Lobbying Act when he undertook to lobby on behalf of the CNRC.

As former PMO chief of staff Guy Giorno points out on the Fasken Martineau website, Skaling now holds the dubious distinction of being the first person ever to be convicted under the Lobbying Act since it came into force in 1989, a "historic development" that, he suggests, "should be a wake-up call, not only to consultants who communicate with government, but also to corporations and organizations that hire consultants."

Consultants should note the continuing effort of the federal Commissioner of Lobbying, and her office, to crack down on alleged unregistered lobbying. Meanwhile, clients of consultants should pay attention to whether the consultants are complying with all relevant rules, including the Lobbying Act and the Lobbyists' Code of Conduct. A client should also ensure that its contract with a consultant insulates and protects the client in the event of an alleged breach. [...]

Standard government-relations consulting contracts do not contain explicit assurances that lobbying transparency/lobbying ethics laws will be honoured. A client should insist on such language, and on adequate protection in the event of an alleged breach.

Remember that what constitutes registrable lobbying may not always be clear. Therefore, a client who hires a consultant (or other third party) in any matter involving a provincial or federal government should ensure that the contract language addresses the potential application of lobbying law.

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