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NEWS RELEASE · 19th April 2010
Office of the Registrar
Acting Registrar of Lobbyists Paul Fraser has declined to investigate the complaint filed by Spencer Chandra Herbert on behalf of the Official Opposition alleging that Richard Turner engaged in activities that constituted lobbying but did not register as required by the previous Lobbyists Registration Act. The decision was contained in a letter to Mr. Herbert released today.

The complaint concerned telephone conversations between Mr. Turner and then- Minister of Community Development Kevin Krueger and meetings he arranged between representatives of the BC Pavilion Corporation and Paragon Developments.

The allegations concern activities that occurred before April 1, 2010, and therefore would fall under the previous Lobbyists Registration Act. In the letter, the registrar declines to investigate as he has no legal jurisdiction under the previous Act to conduct any investigation into the complaint.

The entire letter can be read below;

The registrar will provide no further comment on this matter.

April 16, 2010
Spencer Herbert, MLA
Vancouver-West End
Parliament Buildings
Victoria, B.C.
V8V 1X4
Dear Mr. Herbert:

This is a response to your April 7, 2010 letter addressed to me as Registrar of Lobbyists under the Lobbyists Registration Act, S.B.C. 2001, c. 42. Your letter requests that I “investigate the conduct of T. Richard Turner, Chair of the Board of Directors, Insurance Corporation of BC, regarding communications with Minister Krueger and BC Pavillion Corporation.” You have asked that I investigate and determine whether Mr. Turner has violated the Act.

Since receiving your letter, I have also received letters from Minister Krueger, and from legal counsel for Mr. Turner. Minister Krueger has pledged his full cooperation with any investigation conducted by this office. His counsel advised that Mr. Turner is willing to voluntarily attend an interview or answer written questions if he could obtain some assurance that a report of findings could be completed relatively soon.

I have given this matter the most serious consideration. I have read the materials you have provided, and reviewed the governing legislation. I have also familiarized myself with the past practices of this office.

Your letter refers to events that took place before to April 1, 2010. As a result, my jurisdiction is defined by the former Lobbyists Registration Act. This is made clear in s. 20 of the amending statute, the Lobbyists Registration Amendment Act, 2009, S.B.C. 2009, c. 31:

Transitions – investigating and reporting
20 In relation to conduct that occurred before April 1, 2010,

(a) the powers and duties of the registrar as set out in sections 7.1 to 7.93 of the Lobbyists Registration Act as enacted by section 11 of this Act do not apply, and

(b) the Lobbyists Registration Act, as it read immediately before the date section 11 of this Act came into force, applies.

The Lobbyists Registration Act as it read before April 1, 2010 conferred no jurisdiction on the Registrar to investigate and to make findings about whether a person had failed to comply with the obligation to file a return under the Act. The Registrar’s role under the former Act was limited to reviewing and verifying filings that were received under the Act. Investigation and enforcement of the failure to file a return was addressed in the offence and penalty provisions of the former Act, which were the exclusive responsibility of the police, the Crown and the Courts.

As you know, the Registrar’s extremely limited role under the former statute caused my predecessor to suggest statutory amendments to enable to the Registrar to conduct investigations, to make legally binding findings and to issue administrative penalties. Comprehensive amendments were enacted effective April 1, 2010, and I am legally bound to respect the Legislature’s clear and unequivocal direction that the new legislation does not apply to events occurring before to April 1, 2010.

I have carefully considered whether I might undertake the investigation you request by “consent”, despite my lack of legal authority (1). For the reasons that follow, I have concluded that it would be inappropriate to do so.

A “consent investigation” would, in this case, require clear terms of reference, consented to by all persons taking part in the investigation. It would require fully informed and unequivocal cooperation (including testimony and documents) from not just Mr. Turner and Minister Krueger, but also one Crown Corporation (B.C. Pavillion Corporation) and at least one private corporation (Paragon Development). The issue on such an investigation would not be the general question of whether Mr. Turner attempted to influence a matter of public interest. The issue would be whether, contrary to the Lobbyists Registration Act of the day, Mr. Turner satisfied the definition of being a “consultant lobbyist” (2) or an “in house lobbyist” (3) and if so, whether his actions satisfied one or more of the activities that are specifically defined under the definition of “lobby” (4). Based on the materials you have provided, it is my view that such an assessment would raise potentially complex questions of fact and law.

Perhaps more importantly, my findings would at the end of the day have no legal effect, as consent does not confer jurisdiction. I have no mandate akin to that of a court in an enforcement proceeding, or even a public inquiry commissioner who is empowered to make findings. At best, my findings would be legally unenforceable. At worst, they could inadvertently compromise proceedings undertaken pursuant to the lawful enforcement mechanisms that do exist under the former Act.

As a statutory officer whose first duty is to the rule of law, I find that it would not be desirable or appropriate to devote the resources of this office to such an undertaking.

This response should not be taken as a criticism of your April 7 letter. I have provided this rationale because I understand the difficulties that arose given the legal and other realities attending the former legislation. Having addressed what I find to be the proper exercise of my duty as a statutory officer, I make no comment on the significance of your complaint, either legally or as a matter of public interest. The very point of this letter is to emphasize that those are matters are outside the scope of my mandate.

For the reasons outlined in this letter, I will be closing our file in this matter.

Sincerely,

ORIGINAL SIGNED BY

Paul Fraser, Q.C.
Information and Privacy Commissioner and
Registrar of Lobbyists

cc. Richard Turner, c/o G. Macintosh, Q.C.
cc. Hon. K. Krueger

1 As I understand it, this was done in a few cases by my predecessor, in cases where there was a fully informed consent and where obtaining relevant information was relatively straightforward. However, that approach soon gave way to the position that the Registrar would no longer investigate complaints under the Act unless and until a mandate to do so, and the necessary tools, were granted by the Legislature. I wish to make it clear that while I have carefully considered the past practices of this office, I have not considered myself bound by them, and have exercised my independent judgment as to the appropriate approach to the exercise of my mandate in this matter.
2 “Consultant lobbyist” was defined to mean “an individual who, for payment, undertakes to lobby on behalf of a client”.
3 “In-house lobbyist” was defined to mean “an individual who is employed by a person or organization and a significant part of whose duties as an employee is to lobby on behalf of (a) the employer, or (b) if the employer is a corporation, on behalf of any subsidiary of the employer or any corporation of which the employer is a subsidiary.”
4 The word “lobby”, for an in-house or consultant lobbyist, was defined to include five activities, including “to communicate with a public office holder in an attempt to influence the awarding of any contract or financial benefit.