Date:
20101213
Docket:
A-98-10
Citation:
2010 FCA 342
CORAM: LÉTOURNEAU
J.A.
NADON
J.A.
TRUDEL
J.A.
BETWEEN:
NEELAM
MAKHIJA
Appellant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Montréal, Quebec, on December 13, 2010)
LÉTOURNEAU
J.A.
[1]
This
is an appeal against a decision of Martineau J. (judge) of the Federal Court
whereby he affirmed a decision of the Registrar of Lobbyists
(Registrar) that the appellant breached Rules 2 and 3 of the
Lobbyists’ Code of Conduct (Code) enacted to complement the Lobbyists
Registration Act, R.S.C. 1985 (4th Supp.), c. 44 (Act) in force
between May 11, 2000 and July 1, 2003.
[2]
Notwithstanding
the able arguments of counsel for the appellant, we are satisfied, as the judge
was, that there was sufficient evidence before the Registrar to support his
conclusions that the appellant, for payment, engaged in communications with
public office holders in an attempt to influence the awarding of a financial
contribution by Technology Partnerships Canada, failed to inform the four
companies he had an agreement with of his obligations under the Act and the
Code, and signed with Infowave statements that he did not engage in lobbying,
knowing that these statements would be relied on.
[3]
When
reviewing the decision of the Registrar with respect to the breach of Rule 3 of
the Code, the judge understood that the Registrar had made a violation of Rule
3 one of “absolute liability, in which a breach can occur without a requisite
mental element.” He, himself, would have preferred an interpretation that made
the violation one of strict liability, requiring evidence of either negligence
or of a conscious failure to disclose obligations before a breach could be
found. Here is how he put his views in paragraphs 70 and 71 of his reasons for
judgment:
70 The Registrar therefore
found, reasonably, that the Applicant, in violation of Rule 3, had not
disclosed his obligations under the Code. He accepted that the Applicant did
not believe he was subject to the Code but did not consider this to be a
defence. In other words, he interpreted Rule 3 of the Code as providing
something akin to absolute liability, in which a breach can occur without a
requisite mental element. This interpretation is clearly implicit in the
Registrar's reasoning and as such it is transparent and intelligible, as
required by Dunsmuir, above.
71 It seems unfair that
the applicant would be reported for failing to disclose obligations that he did
not know or believe he had in the first place. If I were deciding the case at
first instance, I may have preferred an interpretation that required evidence
either of negligence or of a conscious failure to disclose obligations before a
breach could be found. Such requirements would better accord with the purpose of
the Code, namely, to ensure that lobbying is conducted ethically.
[4]
Not
surprisingly, counsel for the appellant builds an argument on these two
paragraphs that the Registrar erred in implementing an absolute liability
regime. The appellant submits that he made an honest and reasonable mistake of
fact as regards his obligation to disclose under the Code and the judge erred
in not accepting the appellant’s defence.
[5]
With
due respect, we believe the judge misinterpreted the ruling of the Registrar on
this issue and mischaracterized the appellant’s argument.
[6]
What
the appellant raised before the Registrar, the judge and us is not a mistake of
fact, but an error of law. His submission is twofold: he did not know that the
Act applied to him and he did not know that his acts were an attempt to
influence the awarding of a grant, contribution of other financial benefit by
or on behalf of Her Majesty in right of Canada. In fact,
the appellant is mistaken as to the scope of the Act and the meaning or
definition of “attempt to influence”. It is an error of law in both cases and
an error of law is no excuse unless it is an officially induced error or one
that is invincible such as when the law is not published: see R. v Jorgensen,
[1995] 4 S.C.R. 55, Lévis (City) v Tétreault, 2006 SCC 12.
[7]
The
judge’s analogy with the penal regime is unfortunate and misleading since
breaches of the Code are not sanctioned by charges and penalties and, in any
event, the defence of error of law is no excuse whether the offence is one of mens
rea, strict liability or absolute liability: see under the heading Offences
and Punishment subsection 14(1) of the Act which excludes from the scheme of
contraventions to the Act and Regulations subsection 10.3(1) of the Act which
contains the obligations to comply with the Code; see also subsection 10.3(2)
of the Act which excludes breaches of the Code from the application of section
126 of the Criminal Code which creates an indictable offence for
contravening an Act of Parliament.
[8]
Moreover,
to put it in terms of mental state as suggested by counsel for the appellant,
the evidence shows that at best the appellant was negligent in not enquiring,
and at worst wilfully blind, as to the scope of the Code and his obligations
under it.
[9]
For
these reasons, the appeal will be dismissed with costs.
“Gilles Létourneau”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-98-10
STYLE OF CAUSE: Neelam
Makhija v. Attorney
General
of Canada
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: December 13, 2010
REASONS FOR JUDGMENT LÉTOURNEAU J.A.
OF THE COURT BY: NADON J.A.
TRUDEL J.A.
DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A.
APPEARANCES:
|
Michael N. Bergman
|
FOR
THE APPELLANT
|
|
Alexander Pless
Arlo
Litman
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Bergman & Assoc.
Montréal,
Quebec
|
FOR THE APPELLANT
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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