INST Committee Meeting

STANDING COMMITTEE ON INDUSTRY, SCIENCE AND TECHNOLOGY

COMITÉ PERMANENT DE L'INDUSTRIE, DES SCIENCES ET DE LA TECHNOLOGIE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 8, 2001

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[English]

The Chair (Ms. Susan Whelan (Essex, Lib.)): We're going to call the meeting to order. Pursuant to Standing Order 108(2), the committee will proceed with its statutory review of the Lobbyists Registration Act.

We're very pleased to have before us today witnesses from the Canadian Bar Association. We have Mr. Simon Potter, second vice-president, and Ms. Tamra Thomson, director, legislation and law reform.

Everyone should have a copy of the submission.

We'll turn it over for opening comments to Ms. Thomson and Mr. Potter.

Ms. Tamra L. Thomson (Director, Legislation and Law Reform, Canadian Bar Association): Thank you, Madam Chair. The Canadian Bar Association is very pleased to participate in the committee's statutory review of the Lobbyists Registration Act.

The CBA is a national organization representing over 36,000 jurists across Canada. One of our primary objectives is working toward improvements in law and in the administration of justice. It is in that optic that we make our comments to the committee today.

I'm pleased to be joined by Mr. Simon Potter, second vice-president of the CBA. I will ask Mr. Potter to make our substantive remarks based on the submission you have before you.

Mr. Simon V. Potter (Second Vice-President, Canadian Bar Association): Thank you, Madam Chair, ladies and gentlemen. I'm very pleased, of course, to appear before your committee and to help in whatever small way we can in your parliamentary review of a statute that, I think it's fair to say, has proved its importance over the years.

[Translation]

Most of my comments will be in English but, of course, you can ask me questions in French or in English.

[English]

I don't propose to go through word for word what is in our written submission, which you have, but I do want to draw some things to your attention, particularly the single recommendation that the CBA is making.

One of the major points we make in our prepared statement is that if one looks backwards over the life of this statute, one is forced to the conclusion that it has had a number of beneficial effects. It has produced, I think, a lobbying industry in Washington that is more professional, more mature, more reliable, and more efficient than prior to the enactment of this statute.

The Canadian Bar Association has appeared before parliamentary committees on other occasions to talk about lobbyist registration statutes. We've done it twice, and made the same recommendation on both occasions. It is a recommendation that has not been accepted so far. It is a recommendation that we are here to repeat.

The recommendation appears in a section that starts on page 5 and ends on page 7 in the English version. The text of the recommendation itself

[Translation]

is at page 7 of the French version.

[English]

It has to do with the issue of solicitor-client confidentiality.

The CBA has twice recommended that measures must be taken to avoid any potential conflict between the disclosure requirements under the act and a lawyer's duty of confidentiality. Solicitor-client privilege is a fundamental principle in Canada, and it is the foundation on which rests a number of human rights now enshrined in the Canadian charter but recognized and enforced long before that charter.

We are not here to recommend an exemption of lawyers from the act. We've never recommended that, and we're not recommending that now. In fact, we are convinced that lawyers who do perform lobbying activities ought to comply with all the obligations of lobbyists. However, we believe there must be recognition in the statute of situations in which lawyers, acting as lobbyists, face the dilemma of required disclosure on the one hand and professional obligations of confidentiality on the other.

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We recommend that the act be amended to make clear that a lawyer's obligation of non-disclosure must be paramount over general requirements to disclose if conflicts do arise.

On that, I want to put in a parenthesis that comes from my personal experience. I myself have registered as a lobbyist on various occasions, and I myself have not seen the conflict arise. I expect this conflict to arise very infrequently, but it is rapidly imaginable and plausible that there are situations in which the dilemma occurs to lawyers. When it does, I think lawyers must know from the statute that their paramount obligation is to protect the privilege, which their oath is to protect.

Our recommendation is a very simple one. We recommend making a paragraph addition to subsection 4(2) of the Lobbyists Registration Act. To the subsection, which now reads in part

(2) The Act does not apply in respect of

we would add

(c) any oral or written submission made to a public office holder by an individual on behalf of any person or organization where confidentiality is required by law.

Now, that law will be provincial law. Provincial law and provincial law societies dictate the extent of lawyers' ethical responsibilities and responsibilities regarding confidentiality. A lawyer would turn to that law to find out if the confidentiality is required.

We submit that there can be no real or serious objection to this change to the statute. It is a change based on principles that are quite fundamental to our system of law throughout Canada.

[Translation]

In our brief, we refer to several other suggestions made over the years or in the last few months concerning possible changes to the Act. We have reviewed them briefly and the general conclusion is that the Act seems to work. It seems to have had the desired effect since its enactment, several years ago. In general, we do not see the need for changes listed starting at page 7 of the brief.

[English]

On a final note, I would like to draw your attention to the fact that we now are in an age, with the Internet and electronic access to information, that is quite different from the age that was in force at the time this statute came into being. The public has access, rapid and easy access, to hundreds of thousands of pages of information and electronic means to easily sort out that information and to sort the wheat from the chaff.

I think this is a fact that your committee, Madam Chair, must bear in mind in its parliamentary review. The fact is, the technological context is simply different from what it used to be, which, in my submission, makes the act an even more powerful protector of public knowledge about what is going on than it used to be and has proven to be over the past ten years.

Those are the submissions of the Canadian Bar. We believe the amendment we propose is simply done, but its importance vastly outweighs that simplicity, and it ought to be incorporated into the statute.

Thank you.

The Chair: Thank you.

[Translation]

Mr. Brien, if you please.

Mr. Pierre Brien (Témiscamingue, BQ): Thank you for your submission.

Since you are asking for only one amendment, your brief has the merit of being extremely clear and very direct. However, I would like you to give me a theoretical example of a conflict between those two objectives, that is between that of the Lobbyist Registration Act and that of other acts requiring solicitor-client confidentiality. This will help me to better understand the desirability of your recommendation.

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Mr. Simon Potter: Certainly, Mr. Brien. Examples easily come to mind, but I would like to clarify that cases in point are out of the question. I do not wish to disclose anything about cases in which I or other lawyers have been involved. However, one can easily understand that lawyers are hired to get an act, a regulation, a policy, an approach or a governmental practice changed and that these changes can be relevant to a client, for example in a criminal or liability context or on a personal reputation level where the fact of discussing this client, his needs or his worries can alert authorities.

This would have the effect of placing the lawyer in the situation where he would have to recommend to his client not to hire him, to hire another lawyer or another lobbyist. The client would then not have the representative of his choice even if it is this one he prefers, even if the right to the lawyer of one's choice is entrenched in the Charter, for fear that the lawyer will have to, in a given situation, disclose information he has promised to keep confidential. This type of situation can easily happen. The one who will suffer be the client, who has the right to have the representative of his choice.

Mr. Pierre Brien: I do not see where there is any obligation to disclose information concerning the client. Your registration at the Department of Justice as a lobbyist for a particular subject, for example concerning amendments to the Criminal Code, while you are simultaneously dealing with a case or a company affected by the same articles of the Criminal Code would not require you to disclose information on your relationship with your client or particular facts concerning him.

Mr. Simon Potter: Mr. Brien, I respectfully disagree. I can easily conceive of a situation where I would be pleading before a judge that an act has this meaning, but where, to gain more certainty as to my client's future, I must do some lobbying for the act to be changed and made clearer. The name of my client would then be known and the court, the adversary or the enemies of my client would conclude that I have just admitted that the act does not have that same meaning. This is a situation which can easily happen. In the criminal, taxation and matrimonial areas, consequences can be quite serious.

Mr. Pierre Brien: But shouldn't there be a barrier between this influence activity and the defence of a citizen, for example? Would you be at ease playing both roles at the same time?

Mr. Simon Potter: Yes, I would be very much at ease representing a client who has two problems, i.e. an actual problem that is before the court and maybe a longer term problem according to the interpretation made of the act. The client has the right to be represented efficiently for both problems, and why could it not be me? I do not see where the problem is. I do not see either the necessity to put up such a barrier. I do not see where I am in conflict or in a perilous situation with anyone. My main obligation would be to my client and would concern the service, the representation and the advice required by the circumstances.

Mr. Pierre Brien: Your main concern would be your client's well-being.

Mr. Simon Potter: Absolutely.

Mr. Pierre Brien: Very well. Here is my last point. In relation to the part concerning requirements made of civil servants, you seem to say that it would not be necessarily appropriate to give out more information because this could discourage civil servants from helping citizens who would like to gain access to the civil service.

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Is there not a difference between different types of civil servants, between the deputy minister or the one responsible for a policy and the civil servant ensuring public access? Different people play different roles in the civil service. The decision makers are those who define and elaborate policies. They could be subjected to rules that are different from those that apply to the rest of civil servants.

Mr. Simon Potter: For sure, in the public service, civil servants from different levels play different roles. It is also a given that decision makers make decisions and get advice from other civil servants.

However, the principle seems to apply across the board. The Canadian Bar Association is not the only one to make this recommendation. While reading transcripts, I saw that Mr. Brian Grainger, from Grainger and Associates, and Linda Gervais, from Bell, recently said the same thing, that is that it would be dangerous to tell civil servants that each time they get a phone call or a visitor, their name will be made public somewhere.

It seems to me that the act's purpose is served when the public can know which organization is represented by so and so, that this person is making representations to a given department on a precise subject. If you want to know more, you can ask the department what was done exactly. But to say that there is a public registry giving out the names for each meeting, comes down to, it seems to me, running the risk of destroying a necessary process that is functioning well.

I would add that such a measure would result in a flooding of information. I know that, in five or six lobbying files on which I have worked, I had to communicate with a lot of civil servants from all levels. Had it been necessary to make a disclosure each time I phoned them, the general public member who would have liked to know what was going on would have been flooded with information.

So, in weighing the good and the bad, the Canadian Bar Association has concluded, as have the two other organizations I mentioned earlier, that it is not necessary.

[English]

The Chair: Thank you, Mr. Potter.

Mr. Alcock, please.

Mr. Reg Alcock (Winnipeg South, Lib.): Thank you, Mr. Potter.

You make the case for concern about solicitor-client privilege. You say you've made this same point twice before in reviews of this act. Each time, obviously, your advice has not been followed; the change has not been made.

Could you speak a little about why this is?

Mr. Simon Potter: Frankly, we don't know, Mr. Alcock. We just don't know why it was not accepted.

I expect from reading the transcripts of those days and the commentary around those hearings that some people wondered if this was not merely a kind of a preferential arrangement being sought for lawyers. That is why I wanted to make the point that this is not what is being sought. All we are seeking is an appropriate recognition of a professional, statutory, legal, and binding obligation that does apply to lawyers.

Mr. Reg Alcock: I am not a lawyer. I had understood that solicitor-client privilege existed to allow accused persons to speak freely with their solicitor, up to and including exposing whether they had committed a crime or not. It was to allow such conversation to take place with their lawyer. I speculate it would also exist for certain kinds of commercial information that might be held by the lawyer.

Is it on all communication with the client?

Mr. Simon Potter: No, it is not all communication with the client, but it's all communication meant to lead to or obtain legal advice from a lawyer, or legal representation by the lawyer.

Mr. Reg Alcock: Is that both commercial and criminal?

Mr. Simon Potter: Yes. What I learn from my client I must disclose only as my client instructs. Even if a law tells me to disclose it, I must not disclose it.

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Mr. Reg Alcock: But your client could allow you to disclose it in the context of your lobbying activities. Your client could in fact free you, or sign an agreement freeing you, to do it.

Mr. Simon Potter: This would put the client to the choice of losing the privilege in order to have the lawyer continue to do the lobbying, or go and hire someone else and go through the learning curve with that someone else, learn all the facts, the legal ramifications, what's going on, and perhaps have to hire someone who cannot give what the law recognizes as a fundamental right, the right to have that kind of information privileged.

Mr. Reg Alcock: Well, there are protections also within federal legislation around the disclosure of certain kinds of information. So there is a protection, for example, if you were meeting with the public service on patentable items or commercial information that would be protected in other forms.

Mr. Simon Potter: You're quite right, and all we are suggesting is that in this form too it should be protected.

We're suggesting that in this statute, as in many other statutes, recognition should be made for the fact that sometimes the lobbyists are lawyers, and sometimes—and I have no idea how often or how frequent this is—that lawyer will face a dilemma. In some situations the simple identity of the client—the fact that I have been hired by someone—can be privileged.

I can't, off the top of my head, answer Mr. Brien's question as to how this applies here. All we are saying—it's a very simple and non-frightening proposition—is that the law must recognize that, in the case of the dilemma, in the case of the choice, the lawyer ought to know his first obligation is to protect that privilege.

Mr. Reg Alcock: Thank you.

The Chair: Thank you, Mr. Alcock.

Mr. Lastewka, please.

Mr. Walt Lastewka (St. Catharines, Lib.): Yes. I apologize for going back to Mr. Brien's statement, but I'm trying to understand the example.

The way I read it, you're recommending that any lawyer now be able to hide behind this article and continue to lobby. Is this accurate?

Mr. Simon Potter: I wouldn't put it that way, Mr. Lastewka, with respect, no. It's not to hide behind the article; it's to do the lawyer's duty to that privilege. You will have read, perhaps, in our written submissions, that we're not suggesting the lawyer be able to hide at all, simply that the lawyer indicate that the obligation of privilege and protecting confidentiality is an obstacle to disclosing piece of information X out of a lengthy list of pieces of information needing to be disclosed.

Mr. Walt Lastewka: Okay. I'm not understanding because I need you to give me an example where this would apply.

Mr. Simon Potter: I'll go back to the example I gave to Mr. Brien.

The Chair: Mr. Potter, I think that's the problem; your example was that you couldn't give us an example, and I think we're all—

Mr. Simon Potter: Well, I did.

The Chair: But what you said was, “I can't really give you a concrete example without disclosing clients”. A hypothetical example would probably be better.

Mr. Simon Potter: I think that's exactly what I did with Mr. Brien, with respect.

The Chair: Try again.

Mr. Simon Potter: I'll repeat that hypothetical example.

I can imagine being in court arguing that a particular statute—let's say a taxing statute—means X rather than Y, and this is the debate in court. I'm representing someone who has a very large liability at stake, depending on whether it is X or Y that that statute means, and the statute is ambiguous. At the same time, I am lobbying to get legislative clarification to that statute.

It might be very harmful to my client in this litigation for it to come out that the client is actually looking for this legislative change on an ongoing basis; not to change the law for that case—because the law for that case will be the law for that case—but to get some kind of legislative change to make things clearer for the future. It may be interpreted as an admission that the law really does mean Y rather than X. I can imagine that really hurting my client. It might mean that my client is deprived of the right, as a citizen, to argue for that kind of legislative change. I think that's wrong. That's why privilege is there. It's to allow citizens to accomplish what it is they have to do to exercise their rights, without necessarily giving up other rights to accomplish them.

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Mr. Walt Lastewka: When you're in court and you're arguing your situation, that's one thing. When you're dealing with the public service or elected officials and being paid to make a change in the law, isn't that another? Those are two different situations.

Mr. Simon Potter: They are two different situations, but I think the example I have just given is one in which the second situation would have an impact on the first. They are different situations, but I think it's clear that the second situation would have an impact on the first.

To stretch the examples, you can imagine a family law situation in which there's a fight, for example, over custody. Someone might want to lobby for a legislative change or a policy change or a change to a regulation as to how alimentary pension is calculated, and that person is actually in court at the same time. It deprives that person of the right to go and lobby if it is going to expose that person to the information coming out that he really does think the law is ambiguous enough that it does not favour him in his ongoing position in court.

I'm not saying these things are going to come up a lot. In fact, I'm saying the opposite. I'm also saying, in answer to Madam Chair's question, that we're only able to give the hypotheticals, because when these dilemmas do come up, either the lawyers are not filing, not registering, or they are sending their clients away to someone else to accomplish the client's right of making representations to officeholders. We just think that in such a situation the lawyer should know that he or she can continue as a lobbyist as long as there's no conflict of interest, as long as there's nothing unethical about it, all the while protecting the privilege and disclosing, as we say at page 7 of our submission, that the dilemma has come up and that the lawyer has opted to respect the statutorily required privilege.

Mr. Walt Lastewka: The problem I have is that when there's lobbying going on to change policy or regulation or future legislation, I don't believe it is a time-sensitive item, because there are a lot of procedures before an act or regulation goes through. When you're in court with a situation such as you mentioned, it's very time-sensitive.

Mr. Simon Potter: Both can be time-sensitive. With respect, sometimes a regulation change can be made very quickly. The minute I call an officeholder, I have to register as a lobbyist within a very short time, otherwise I'm guilty of an infraction. So the time-sensitivity is there.

Take the example I gave of the change to the tax legislation. The lobbying might simply be as follows. “Parliament, you want to change the law to make it clear that you really did mean to say X and not Y in that particular subsection of the Income Tax Act. It would be very important, in my own particular case that's going on now, that it be rendered clear somehow, in Hansard or in the regulatory impact analysis statements, that this is not meant to be a change in the substance. It is only a clarification of the statute.” I can quite imagine my lobbying to get that clear, so that nobody in my ongoing case thinks that an actual change has been made. If I fail in my lobbying and don't get that, that will hurt my ongoing case. I would feel torn by the dilemma of having to either disclose my client's interest in this statutory change or send my client somewhere else.

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Mr. Walt Lastewka: What you're saying is, the reason you want this amendment is that lawyers are making the decision now not to participate as lobbyists when they could see there's a conflict.

Mr. Simon Potter: They're either not participating or sending their clients somewhere else at greater expense to the client, or they're making the call, but they're not registering. And I don't know which of those three they're doing, because these problems, naturally, when they come up, are not talked about widely—they certainly don't come to the Canadian Bar Association, which is not the policeman of lawyers' ethics. Lawyers might talk about this with other lawyers to get advice as to what to do, but that's in confidence too. So this is not something where we can give you statistical data as to how often the problem comes up or exactly what solution is chosen. All we can tell you is that it must come up sometimes, and it is a very simple legislative amendment to make it clear that the statute is not meant to force lawyers to breach their obligations of confidentiality.

Thank you, Madam Chair.

The Chair: Thank you, Mr. Lastewka.

Before I go over to Mr. Brien, I'm having great difficulty with this recommendation. You talk about where confidentiality is required by law, and one of the things that's required by law, according to the ethics code of conduct, is that you don't reveal the identity of your client. So in every case the lawyer could turn to this and say, I can't register my client's name every single time. I know you're talking about the extreme cases, but the way this is worded, that's the reality. You're not supposed to disclose your clients at any time to any one—that's what the code of conduct says.

Mr. Simon Potter: The code of conduct says the mere identity can be privileged information that should not be disclosed. However, I've had in my career probably 10,000 clients, and it has never been an issue of secrecy, the identity of my client. All my clients have been publicly my clients; it's been known. I've never had the situation in which the client wants to keep that information secret because it's going to hurt the client. This is not a problem that's going to come up every time a lawyer represents someone.

The Chair: Mr. Potter, with all due respect, you basically just agreed with me that this is in fact what the code of conduct says. Having practised law before I came to office, I actually took the opposite point of view. I never disclosed my clients' names; I never told people who I acted for or on what basis I acted on their behalf. I wouldn't discuss it with any individual. It was very clear to me that until they disclosed that I was their lawyer, it was not my place to disclose that they were my client. I think that's pretty clear.

We have had people here representing a large number of clients under the Lobbyists Registration Act, some of whom have been lawyers. If you're saying that you shouldn't have to disclose the name of your client, if you're saying that lawyers should have this special privilege, which is what I think it is, to allow them to lobby on behalf of someone, then maybe they shouldn't be lobbying.

Mr. Simon Potter: There is no doubt that if the client does not give to the lawyer the right to disclose the name, then the lawyer, under the current statute, should not be doing the lobbying. That is clear.

The Chair: But I'm—

Mr. Simon Potter: I'm sorry to interrupt, I just want finish my answer. In most cases the client is perfectly happy to have the identity disclosed, and therefore the obligation of that confidentiality dies away. In all the cases in which I have been involved the client is quite happy to have the name mentioned. Our suggestion is for the time when it would be harmful for the client to have the client's identity disclosed or piece of information X or Y and what's going on, while the client cannot bring himself or herself to wave that obligation of privilege. In that instance, should it be that the lawyer must send the client to someone else? Should it be that the lawyer must absolutely refuse to represent that client? And I think that brings up other ethical obligations of lawyers like you and me. A lawyer has an ethical obligation not to just drop a client.

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It can very well be that the obligation to make representations to Parliament is part and parcel of an overall mandate. All we are saying is that in the very rare cases in which a client cannot bring himself or herself to waive a privilege over any list of information that is normally disclosed, the lawyer should be able to continue to act as a lobbyist. Apart from the information he's bound to keep secret, he should be able to disclose the fact that he was in the dilemma, but that he did approach such and such a department, let's say.

The Chair: Mr. Potter, I'm trying to understand your case, but the reality is that you're faced with that dilemma every day when you're practising law and when a new client approaches your firm and someone in your firm is acting on the opposite side of the case.

So when I read this section I think of the absurdity that could happen under this proposal. You could be in court representing your client on a matter and you want this so you can protect his identity if you're lobbying on a different matter. By protecting his identity, is it not possible you could find yourself in a conflict within your own firm and with somebody lobbying on behalf of the other side because they don't know you're doing this?

Mr. Simon Potter: Within my own firm I do disclose the identities of all my clients, as all law firms do. They have registers precisely for that reason, to avoid the conflict.

In the vast majority of cases, clients will not hold lawyers to the confidentiality even as to the identity of the client. In some cases it can arise. And I can't point to a precise example because they're not spoken of. It will arise that lawyers will face the dilemma between a client who cannot bring himself or herself to waive the privilege over the identity, which is what happens in 99.9% of cases, and, on the other side, the dilemma of the obligation to disclose under this statute.

The Chair: Mr. Potter, I don't mean to interrupt you, but let's just be clear here. If I want to get a change made and we pass this recommendation the way it's worded, because it doesn't mention anything about harm in here, all I have to do, then, is get a lawyer to represent me, to do the lobbying on my behalf, and I say, “Don't disclose my name because I don't want it disclosed.” So now lawyers have the ability to lobby better than Joe Smith who is not a lawyer or Jane Doe who is not a lawyer, because she must disclose her clients because she or he is not a lawyer. So you're creating an inequity within the act itself.

Because of the way it's worded it doesn't say anything about harm. It says “where confidentiality is required by law”. You and I both agree that confidentiality is required by the code of conduct already, so everyone—

Mr. Simon Potter: Unless waived.

The Chair: It would fit within that so everybody could fall back on that over and over again.

I'm just trying to understand how you think this recommendation actually fits the circumstances you were talking about. I think this recommendation is very broad, and it would allow lawyers the privilege that you're saying you're not asking for. You're going to get into a situation where, if I have more information and I know that if I hire a lawyer to lobby on my behalf he doesn't have to disclose my identity.... If I hire somebody else they must.

You only have to register certain things. It's not like you have to register all their interests and everything else. It's very basic information that's required to be registered under the Lobbyists Registration Act.

Mr. Simon Potter: Madam Chair, a client who goes to ask a lawyer to undertake lobbying activities is not going to that lawyer for the purpose of seeking legal advice or representation before the courts. Therefore, probably the issue of confidentiality does not arise. It is not so that I am bound to confidentiality and privilege even when someone calls me up and asks me, as a lawyer, simply to deliver a package somewhere.

If my only mandate is to come and make representations to officeholders in Ottawa, I don't think the prohibition against disclosure of identity comes up in that case. It only comes up in the rare case in which there is an overlap of interests involving a multitude of different reasons for which the client goes to the lawyer and a harm arises.

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Even with this change, the vast majority of lawyers undertaking lobbying activities will do what they are doing right now: they will disclose all the information, as I have done, in every lobbying case. I have never felt bound to keep the name of my client secret. This dilemma would arise only in the very rare case of an overlap of mandates, involving either giving legal advice or representing a client before the courts, and also the client not waiving the privilege.

Our proposal aims at a very small percentage of cases when lawyers are retained as lobbyists. We simply want lawyers not to be put at a disadvantage compared to other people who do this kind of work. And clients must realize that they cannot use their lawyers, because the lawyers will face this dilemma: to comply with both obligations, the lawyer must withdraw.

I would submit that it's often in the interest of the client, as well as the interest of the decision-makers in Parliament, to have the information come to the MPs, the public servants, from the person who really knows what's going on. The client should not have to hire someone else, pay twice, and have another learning curve. Our proposal simply recognizes a fundamental principle, which creates a dilemma in a very small percentage of cases.

The Chair: I think now I see exactly what you're talking about, and I'm not sure I agree with it. I think what I'm hearing is that if I don't like the law—let's say it's a tax law—and I think it should be changed, I challenge it in court. But I'm going to continue doing what I am doing while I challenge this law. I want that tax law changed because I think it's wrong, and I want to be able to keep on with what I'm doing.

So I'm going to lobby—but I don't want anybody to know I'm lobbying, because I'm in court at the same time. I'm even going to use the same lawyer who's fighting for me in court, to fight to change the law. That way, I'll be protected.

I don't see any negative fallout for the client to us not knowing he's going to try to change the law. I think he'll make those same arguments in court that the law is not correct—and who knows, maybe the court will agree with him.

I understand you think your case may be prejudiced, but I think judges are above that. They don't look at what's in the Lobbyists Registration Act, and they don't spend time on the Internet seeing who's lobbying whom. I don't think that really comes into play when they make their decisions.

I see very clearly what you're suggesting, but I'm having great difficulty accepting it or agreeing with you. I'll continue to look at what has happened in the past, and we'll do some research. Right now, I'm going to let others ask questions.

Mr. Brien, did you have any further questions?

Mr. Simon Potter: Madam Chair, I wonder if you'll allow me to comment on something you've just said. Naturally we will take that point of view into account ourselves, and try to give you better examples.

But in the hypothetical situation I presented, it's not that the lawyer would be arguing—both through the lobbying and in the court—that the law is not correct and has to be changed. In the situation I gave, it was the lawyer recognizing that the law is ambiguous and asking for it to be changed to make it clear, while at the same time arguing in court that the court should determine what the law means.

I want to make that clear, because it seemed to me that I had perhaps explained my hypothetical situation badly.

The Chair: Thank you, Mr. Potter.

Mr. Brien.

[Translation]

Mr. Pierre Brien: It seems to me that your double role causes you to give two different messages. You're saying to the court that the act is clear and that it should be interpreted as such, but you tell us that it is not clear and that we should amend it.

It seems to me that, in one of the two cases, you are not telling being completely frank.

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Mr. Simon Potter: No, Mr. Brien. It is very easy to say that. Such things happen all the time. In fact, proceedings stem from the fact that there is a disagreement as to the interpretation of the act. Thus, the simple fact of having—

Mr. Pierre Brien: I am sorry to interrupt, but when the same person pleads two different points of view...

Mr. Simon Potter: They are not two different points of view. In the example I gave, the court is first informed that there is an ambiguity in the act and that it should be interpreted in such and such a way. The committee is then told, in quite a coherent fashion, that the act should be changed to avoid this ambiguity. But we also fear that some believe that we are asking for an amendment only in the interest of our client or that the judge will be under the impression that we accept what the act says, but that we wish to modify it. I think both points of view are quite coherent.

Mr. Pierre Brien: So you are concerned about causing harm to your client. I can be mistaken, for I am not a lawyer, but the proceedings must be very important. If I practiced law, I would take the elementary caution of asking someone else in my firm to do the lobbying, if lobbying must be done, in such a situation. I would tend, just to be on the safe side, to have representations made by someone else to avoid just such a situation as you have described. I would not ask to be protected by the law or exempted from it. I am convinced that clients in such a situation generally have means and you must not work by yourself on such cases very often. Anyway—

Mr. Simon Potter: You are right, Mr. Brien. In a firm as big as mine, we seldom work alone. However, by asking my associate to do the lobbying, I do not solve the problem. The problem applies to the whole firm, not only to me. I would have to give the whole file to another consultant, whether a lawyer or not, which would cost my client more and would force him to work with someone who is not familiar with the file and with whom he has not established a relationship of trust.

Moreover, Mr. Brien, it is not fair to say that our clients who must simultaneously go before the courts and make representations to the government are always clients with means who can afford to pay two law firms to keep the problems separate. Very often, the client must pay from his own pocket and does not have the means to pay twice. You have just pointed out the reason of our presence here. In a case concerning support or child custody, it would be unfair to require that person to hire two law firms.

Mr. Pierre Brien: I do not think there are many cases like that. I doubt anyone going through a conflict over support would do lobbying. At any rate, if that person is so unsatisfied that he hires someone to lobby on his behalf to get the act changed, huge sums of money must be involved.

I would like to better understand something. You said that such a section would not exempt only you, but your entire firm.

Mr. Simon Potter: No. I said that asking my associate to take over the file would not solve the problem. I cannot solve the problem this way. The problem would apply to my whole firm.

Mr. Pierre Brien: What about the exemption? You say that, even if you gave the file to one of your colleagues, the solicitor- client confidentiality would no more be protected if your colleague had to register in order to lobby on the same subject.

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Mr. Simon Potter: The exemption being discussed would apply only to the lobbying file, whether the client is represented by me or by my associate. It would apply only in cases where there is a conflict between two professional obligations.

Mr. Brien, with your permission, I would like to get back to this issue. Are the clients who have these problems well-off? I think the solution that we are looking at is not necessary for well-off clients. Well-off clients, big companies for example, come to see me. If I tell them that there is a requirement for disclosure, they usually say yes immediately, because they are used to having everything public. But if there is a problem, they say that they have the means to hire another firm to get the second task done. There is no problem.

What we suggest as a solution concerns clients who are not as rich, because it is false to think that clients who are less well- off do not do any lobbying. They ask for changes to schedules, for instance, for support or changes to some taxation regulations. Individuals ask for changes and talk to civil servants in order to get, if possible, fair treatment and they hire lawyers to do it.

We think these clients should not be penalized by being required to change lawyers and to hire someone with whom they have no relationship of trust. It would be sufficient to include in the act situations where the conflict, dilemma exists. In such cases, let the dilemma be disclosed. It seems to me a rapid and simple solution to a problem arising from a rather basic situation.

[English]

The Chair: Mr. Potter, I'm trying to understand something here. If you're in court and you also want to lobby, you're not going to register at all, because the act won't apply to you in this situation. Is that correct?

Mr. Simon Potter: That is not correct. That is not what our statement said, Madam Chair, and it's not what I've said.

The Chair: I'm trying to simplify this hypothetical case. When you say the act does not apply, what do you mean by that? It would be my understanding that you don't have to register if the act doesn't apply.

Mr. Simon Potter: It does not apply where confidentiality is required by law. In the list of information given, it seems to me that only some parts of the information are required to be kept confidential.

The Chair: I'm trying to make a point here, and I'm trying to make sure I understand this. The whole idea is that you have this conflict because your client is in court, and you also want to lobby on behalf of the same client. I'm asking you whether you register with or without your client's name. It's a yes or a no.

Mr. Simon Potter: I propose that I would register, deleting only that information I am duty bound not to disclose.

The Chair: Which is, who your client is.

Mr. Simon Potter: It could be who my client is.

The Chair: But let's go back to the reality. Last time I checked, all court documents are public records. So anybody following tax court law could check that Mr. Potter is representing so-and-so, and Mr. Potter is also lobbying—I wonder if there's any connection there?

I don't see how this gets you around disclosing who your client is, even if we were to agree that you can delete that information. Court records are public records—you and I both know that. Court documents say who the lawyer is, who the client is; it's all there. I used to do tax court law, and my clients' names weren't withheld. They were in the public record, and the clients didn't get any special exemptions because they were in tax court.

If I was lobbying at the same time and I said I couldn't release that information because I might have to take it out—well, all somebody has to do is just check the tax court records and see what they're up to.

Mr. Simon Potter: I think there are two answers to that. First of all, it is one thing to be able to say that Lawyer X, who's lobbying here, also happens to have Client Y among his or her clients; therefore, we're going to assume that the lobbying is being done by Client Y. I don't think that link is necessarily justified. It may very well be that I'm in court for a client, but I have hundreds of clients. And to make the immediate leap that this client is behind my lobbying, I don't think is necessarily justified.

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The second answer is that the privilege does not arise only in the case of representation in the court. I may be giving my client legal advice in my client's contractual dispute, or a dispute with a spouse or a dispute regarding custody of children, and it may hurt my client. In that negotiation, or dispute or mediation, it may hurt my client that my client's identity or problem is discussed in a public way.

So I believe this solution we are proposing...and if there's a need to tailor it down so that it is more clearly only the particular pieces of information that must be held confidential, that ought not to be disclosed, it would be just fine with the Canadian Bar Association, Madam Chair. In fact, we tried to make it very clear that what we want is not to get an exemption for lawyers. We don't want that. What we do want is lawyers to register as lobbyists when they are lobbying, but in the situations where there is this dilemma caused by a double obligation, we want the obligation of confidentiality to be paramount.

We have said at page 7 of our submission that the situation can easily be overcome by a requirement that lawyers not disclosing particular information on ethical grounds would instead indicate their non-disclosure on those grounds. The register would say such-and-such a lawyer is showing up, but the lawyer might not be giving all the information that is required by the act.

The Chair: I think, Mr. Potter, that we'd be opening a can of worms here that is beyond imagination for this committee. I think the way it's worded is very broad. I think that one hypothetical leads to a number of other hypotheticals.

Mr. Simon Potter: Yes.

The Chair: As you said, you may be giving your client advice on custodial matters or access matters that could be detrimental, but he could afford to hire you to lobby on his behalf. I don't know too many single mothers or fathers who have lost their cases who actually can afford to hire somebody to lobby on their behalf. So we're creating a disparity here as well.

These are things we have to take into consideration when we make changes to legislation. Somehow we have to look at this from all angles and all sides and at all the ramifications.

I would like to come to some type of solution here to what you're suggesting, if indeed there is a conflict. I still haven't been convinced there is a problem here, that your client is being harmed in any way. But I'm trying to understand that. If there is a harm, how do we prevent that harm without extending it to a multitude of others? That's something I don't think your recommendations does—the way I read it. Maybe it's just me being simple in the way I'm reading it here, but that's our job, to read it the way the average person would read it, because it's going to be interpreted by numerous courts.

Mr. Simon Potter: Yes. I think all the concerns you raise are perfectly valid. Of course, you have to look at those. And it may be that in your committee's deliberations you conclude that the wording we had proposed, which I think is appropriate, is not the appropriate way to deal with this problem. We will have succeeded before you if we have brought to your attention a problem, something that does not arise in every case—far from it—but which does arise sometimes and does arise, yes, indeed, with clients who are not huge corporations and not wealthy. It can arise.

In that situation, some recognition must be made in this statute, as there is in other statutes, that in the event of a conflict between the requirements of this statute and the requirements of the lawyer's ethical duty, the lawyer's ethical duty will be paramount. The lawyer should, nevertheless, disclose that because of the ethical obligations, there has not been disclosure of piece of information X. That's all we're suggesting. If there's a better way to word it, we'd be very happy to work with anyone to accomplish that.

The Chair: Can you tell me if there have been any situations similar to the hypothetical situation we were discussing earlier that have been brought to the registrar's attention? Has this been raised as an issue with the registrar for the Lobbyists Registration Act?

As chair of this committee for the last four years, and knowing this review has been going on since July, no one has raised it. No one has written to me in four years; no one has sent me a letter as chair of the committee. I don't know what is the case for other members, but no one's raised this issue with me.

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So I'm asking you, has this ever been raised with the registrar of the Lobbyists Registration Act, to know if this is a potential problem?

Mr. Simon Potter: I think the appropriate person to answer that question would be the registrar. I don't know the answer to that question. I'm not aware that there's any—

The Chair: Has the Canadian Bar Association, since the last review, brought other matters to their attention, or...?

Mr. Simon Potter: No, but that is not surprising, Madam Chair. We are not the repository of matters like that. Ethical counsellors at law societies might receive that information, but they receive it in absolute confidence. They would not be allowed to disclose questions like that. We are addressing a problem that we know must exist, but we are unable to give you the size or importance or frequency of it. All we are saying—I don't want our position to be overstated—is that the law ought to recognize that when this situation does arise, if it does arise, the lawyer has an overriding paramount obligation. If it does arise and the lawyer responds to that obligation rather than one in this statute, the lawyer ought to disclose it. It may be that a simple disclosure like that will bring lawyers to refer the lobbying case to someone else.

All we are saying is that this is a statute that does not even recognize there are situations in which lawyers will face this ethical dilemma, and we're saying it should recognize it.

The Chair: We appreciate your bringing it to our attention, and you've given our researcher some more research to do. We appreciate your taking the time to be with us and for rearranging your schedule to do this.

We're now going to adjourn for the day. There is no meeting tomorrow; will meet again Thursday morning. At 9 a.m. we will be doing estimates. Ministers Thibault and Normand will be on estimates on Thursday morning, one hour each.

An hon. member: Have they been instructed very clearly on the amount of time allowed for their opening remarks?

The Chair: Their opening remarks will be no more than ten minutes each. That will be for the first hour, and then we'll have questions.

An hon. member: The clerk has informed them of that?

The Chair: The clerk will make sure. We'll tell them they have seven minutes now.

The meeting is now adjourned.