R. v. Carson, 2016 ONCJ 596

ONTARIO COURT OF JUSTICE CITATION: R. v. Carson , 2016 ONCJ 596 DATE: 2016 09 16 COURT FILE No.: 14-20004 BETWEEN: HER MAJESTY THE QUEEN — AND — BRUCE CARSON Before Justice Catherine Kehoe Heard on May 11, 2016 Reasons for Judgment released on September 16, 2016 Mr. R. Zsigo........................................................ counsel for the Federal Crown Mr. P. McCann.............................................. for the defendant, Bruce Carson KEHOE J.: [ 1 ] Mr.

Bruce Alexander Carson is charged that, as a former Designated Public Office Holder, between August 13, 2009 and March 17, 2011, at the City of Ottawa, the City of Calgary and elsewhere in Canada, he did, for payment, undertake to communicate with Public Office Holders on behalf of the Energy Policy Institute of Canada in respect of the development of any policy or program of the Government of Canada, during the five year period after the day on which he ceased to be a Designated Public Office Holder, contrary to

section 10.11(1) (

a) of the Lobbying Act , R.S.C. 1985, c.44 (4 th Supp.), as amended, thereby committing an offence contrary to s. 14(2) of the said Act. [ 2 ] He is also charged that, as a former Designated Public Office Holder, between August 25, 2010 and September 17, 2010, at the City of Ottawa, Ontario, the City of Calgary, Alberta, and elsewhere in Canada, he did, for payment, arrange a meeting between Public Office Holders and members of the Energy Policy Institute of Canada, during the five year period after the day on which he ceased to be a Designated Public Office Holder, contrary to s. 10.11(1) (

a) of the Lobbying Act , R.S.C. 1985, c. 44 (4 th Supp.), as amended, thereby committing an offence contrary to s. 14(2) of the said Act. [ 3 ] He is further charged that, between February 19, 2009 and March 3, 2010, at the City of Ottawa, Ontario, the City of Calgary, Alberta, and elsewhere in Canada, as a former Designated Public Office Holder, he did, as an employee of the Canada School of Energy and Environment, undertake to communicate with Public Office Holders in respect of the awarding of a grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada, contrary to s. 10.11(1) (

b) of the Lobbying Act , R.S.C. 1985, c.44 (4 th Supp.), as amended, thereby committing an offence contrary to s. 14(2) of the said Act.

[ 4 ] Initially, Counts 1 and 3 were amended on consent for the arraignment, adding the words “communicate with and”, subject to submissions on the application to amend the Information. Mr. McCann, on behalf of Mr. Carson opposes the amendments to Counts 1 and 3. Neither the Crown nor Defence presented any evidence or made submissions as to whether or not there was or would be any prejudice to Mr. Carson resulting from the amendments.

However, in applying to amend the Counts on the first day of trial, even though the trial proceeded on the basis of an Agreed Statement of Fact, Exhibit 1, I find there is the potential of surprise and prejudice if the amendments are allowed. Therefore the application to amend the Information is denied. [ 5 ] As stated, the trial proceeded on the basis of the Agreed Statement of Facts, see Exhibit 1, and Exhibit 2, the Book of Documents. [ 6 ] Identification and jurisdiction are admitted. It is also admitted that Mr. Carson fits the definition of “Designated Public Officer Holder” as defined in

section 2 of the Lobbying Act . It is also admitted that all government officials referred to in the Agreed Statement of Facts are “Public Office Holders” as defined in s. 2 of the Lobbying Act . ADMITTED FACTS AND FINDINGS: I have read the Agreed Statement of Facts as well as the Addendum, Exhibit 1, and all of the documents, Exhibit 2. I have combined the Agreed Statement of Facts, the Addendum, and the Documents in making the following findings of fact: [ 7 ] Mr. Carson was employed over the course of several years in senior advisory positions at various levels of government. From 2006 to 2009, Mr.

Carson served as Senior Advisor to the Prime Minister. Between 2004 and 2006, Mr. Carson served as Director of Policy for the Conservative Party when Prime Minister Harper was in Opposition. Mr. Carson ended his career as a Senior Advisor in the Prime Minister’s Office in February 2009. [ 8 ] Mr. Carson was planning to leave government employment in July 2008 and received a letter dated July 9, 2008 from the Office of the Conflict of Interest and Ethics Commissioner; see Tab 2, Exhibit 2. The Commissioner was advised that Mr. Carson would be leaving the Prime Minister’s office in July 2008.

Among other things, Mr. Carson was advised that pursuant to s. 35(2) of the Conflict of Interest Act , that he was: 1) Precluded from personally dealing with Ministers and the Departments of Environment, Industry and Natural Resources for a period of one year from the date he left office as he indicated that he had direct and significant official dealings with those entities during his last year in officer; 2) The prohibitions in

section 35 (of the Conflict of Interest Act ) apply for one year following his last day in office, the period ending on July 11, 2009. [ 9 ] In that letter, the Commissioner of Conflict of Interest and Ethics also advised Mr. Carson about the 5-year prohibition against “lobbying” and that he should consult with the Commissioner of Lobbying concerning the provisions of that Act. [ 10 ] However, Mr. Carson did not leave the Prime Minister’s office in July 2008.

While he originally left the Prime Minister’s office in October 2008, he returned for a one-month period from January 5, 2009 to February 4, 2009. [ 11 ] Mr. Carson was subject to a five-year prohibition against activities enumerated in s. 5(1) and s. 7(1) of the Lobbying Act . The prohibition commenced on February 4, 2009, ending on February 4, 2014. [ 12 ] Mr. Carson did not apply for or receive any exemption under the Lobbying Act during the material time period. [ 13 ] During the material times Mr.

Carson was employed first by The Canada School of Energy and Environment (CSEE) beginning in August 2008 with the hiatus from January 5 to February 4, 2009. As of August 13, 2009, he was subsequently and concurrently a member of the Executive Committee and Vice-Chair of the Energy Policy Institute of Canada (EPIC).

The Canada School of Energy and Environment [ 14 ] On July 24, 2008, Mr. Carson accepted an offer of employment from the Canada School of Energy and Environment (CSEE), as Executive Director. Mr. Carson’s remuneration package included a base salary of $258,000 per annum, a $900 per month car allowance and other financial benefits; see Tab 5, Exhibit 2.

According to Tab 4, Exhibit 2, The CSEE 2009-2010 Corporate Plan, the CSEE was created in 2007 as a joint initiative between the Universities of Calgary, Lethbridge and Alberta to promote collaboration among researchers addressing major energy and environmental issues and to support research that accelerates the progress of ideas towards commercialization. A component of the CSEE was to work with partners to develop a National Energy Strategy. [ 15 ] It is admitted that as a non-share capital corporation governed by the Canada Corporation Act –

Part II, the CSEE constitutes an “organization” as defined in

section 2 of the Lobbying Act . [ 16 ] The Executive Director job description, see Tab 4, Exhibit 2, included: 1) Stimulate discussion regionally, nationally and internationally among researchers and decision-makers to guide and inform public policy on energy and environmental issues; 2) Manage our (CSEE) relationship with the Federal government, including the reporting required by the CSEE contract with the Federal government; 3) Help secure additional significant funds for CSEE activities, especially incremental funding from the Federal government and Provincial governments; 4) Serve as an information resource for policy and industry leaders in their decision-making processes.

The CSEE Original Funding Agreement: [18] In the 2007 Federal government budget, funds were assigned for investment in 7 “Centres of Excellence” in science and technologies: The CSEE was one of the chosen Centres of Excellence. [19] On March 7, 2007, a Funding Agreement was formalized between Industry Canada and the CSEE and a $15 million grant was awarded; see Tab 7, Exhibit 2. At the time, Mr. Carson was still a Senior Advisor in Prime Minister Stephen Harper’s office and not involved in obtaining the grant.

The funds would only be released upon certain objectives being accomplished by the CSEE, such as providing Industry Canada with a Corporate Plan. The first Corporate Plan was provided by the CSEE in 2008. The first release of funds was made to the CSEE on March 27, 2008. [20] In 2009, Ms. Karen Corkery, the Director General of the Program Coordination Branch at Industry Canada, was involved with several government related funding agreements including the oversight of the funding agreement with the CSEE. [21] In 2009, Ms.

Corkery conducted a review of all 7 grants to the various “Centres of Excellence”, including the CSEE. Ms. Corkery determined that the CSEE was not going to be able to spend the $15 million they had been granted in a prudent way in the 2-

year window left on the agreement. If no amendment to the original agreement could be reached the $15 million would potentially have been forfeited back to the Crown. [23] In the original agreement (the Funding Agreement, March 7, 2007), Tab 7, Exhibit 2,

Article II, 2.1 states that the CSEE is in good standing under the laws of the jurisdiction in which it is to be registered and has the requisite power (corporate and other) to own its assets and to carry on its activities as contemplated by the Agreement…etc. At 2.1(

j) the Funding Agreement states: “(

j) in regards to CSEE’s compliance with Lobbyist Legislation, and the rules respecting Fees & No Gifts, Inducements or Commissions, (

i) it has not, nor has any person on its behalf, paid or provided or agreed to pay or provide, to any person, directly or indirectly, a commission, contingency fee or any other consideration (whether monetary or otherwise) that is dependent upon the execution of the Agreement or the person arranging a meeting with any Public Office Holder; (ii) it will not, during the term of this Agreement, pay or provide or agree to pay or provide to any person, directly or indirectly, a commission, contingency fee or any other consideration (whether monetary or otherwise) that is dependent upon the person arranging a meeting with any Public Office Holder; (iii) any person who, for consideration, directly or indirectly, communicated with or arranged a meeting with any Public Office Holder, in respect of any aspect of this Agreement, prior to the execution of the Agreement, was in compliance with all requirements of the Act ; (iv) any person who, for consideration, directly or indirectly, during the term of this Agreement and in respect of any aspect of this Agreement, communicates with or arranges a meeting with any Public Office Holder will be in compliance with all requirements of the Act ; and (

v) at all relevant time CSEE has been, is and will remain in compliance with the Act .”

Section 20.5 states: “ Relationship of the Parties Nothing contained in this Agreement shall be construed to place the Parties in the relationship of partners, join ventures or create an agency relationship and neither Party shall have any right to obligate or bind the other Party in any manner.”

Section 20.11 states: “ Uncommitted Amount If no agreement has been reached regarding the unspent portion of the Amount by March 31, 2010, then any uncommitted Amount shall be returned to the Minister.”

Section 20.12 “ Compliance with Laws In implementing this Agreement CSEE will comply with all applicable federal, provincial, municipal laws, including but not limited to, statutes, regulations, by-laws, ordinances and decrees.” [24] At Tab 8, the Amending Agreement, signed by Mr. Bruce Carson on January 13, 2010, on behalf of the CSEE, states at para. 2, page 1, “CSEE restates and confirms its representations and warranties stated in

Article II of the Funding Agreement, as amended by this Amending Agreement, as they apply to the Funding Agreement and this Amending Agreement.” At paragraph 3, page 1, the Amending Agreement states: “Section 2.1(

j) of the Funding Agreement is hereby deleted and replaced by the following: ‘(

j) CSEE undertakes to comply with the Lobbying Act, R.S. 1985 c.44 (4 th Supplement) (herein referred to as the ‘ Act ’) and, in particular, that: (

i) it has not, nor has any person on its behalf, paid or provided or agreed to pay or provided or agreed to pay or provide, to any person, directly or indirectly, a commission, contingency fee or any other consideration (whether monetary or otherwise) that is dependent upon the execution of the Agreement to communicate with a Public Office Holder or to arrange a meeting with any Public Office Holder and any other person; (ii) it will not, during the term of this Agreement, pay or provide or agree to pay or provide to any person, directly or indirectly, a commission, contingency fee or any other consideration (whether monetary or otherwise) that is dependent upon the person communicating or arranging a meeting with any Public Office Holder and any other person; (iii) any person who, for payment, directly or indirectly, communicated with or arranged a meeting with any Public Office Holder and any other person, in respect of any aspect of this Agreement, prior to the execution of the Agreement, was in compliance with all requirements of the Act by filing a return with the Commissioner of Lobbying; (iv) any person who, for payment, directly or indirectly, during the term of this Agreement and in respect of any aspect of this Agreement, communicates with or arranges a meeting with any Public Office Holder and any other person will be in compliance with all

requirements of the Act by filing a return with the Commissioner of Lobbying; and (

v) at all relevant times CSEE has been, is and will remain in compliance with the Act .’”

Section 8 states:

Section 20.9 of the Funding Agreement is hereby deleted and replaced with the following: “20.9 Lobbying Act . CSEE declares that any person who has lobbied on its behalf to obtain the funding that is the subject of this Agreement and who is required to be registered pursuant to the Lobbying Act R.S. 1985 c. 44 (4 th Supplement), was registered pursuant to that Act at the time the lobbying occurred.” [25] In early 2009, Ms. Corkery initiated contact with Mr. Carson, Executive Director of the CSEE, regarding whether or not the grant agreement needed to be changed. Ms. Corkery predominantly dealt with Mr.

Carson for the amendment throughout 2009 leading to the final amendments in 2010. Mr. Carson responded to the issues raised by Industry Canada officials. [26] It is admitted that Mr. Carson, as Executive Director of the CSEE, engaged in communications concerning the amendments with various Public Office Holders in the months leading up to the formalized amended agreement. [27] On April 20, 2009, Mr. Carson met with Mr. Richard Dicerni, Deputy Minister of Industry Canada, regarding the possibility of amending the original Funding Agreement between the CSEE and Industry Canada. The meeting took place in Ottawa.

In particular Mr. Carson sought to extend the time in which the allotted $15 million could be spent as well as to amend the parameters of the Funding Agreement in accordance with the revised Corporate Plan and mandate of the CSEE, see Tab 9, Exhibit 2. [28] On May 8, 2009, Mr. Carson had a conference call with Mr. Matthew King, then Associate Deputy Minister of Science and Innovation at Industry Canada regarding the proposed extension of the original Funding Agreement. In the Memorandum, dated May 8, 2009, Mr.

Carson wrote that during the call, they agreed that the original agreement would be extended to 2013-2014, see Tab11, Exhibit 2. [29] On August 10, 2009, Mr. Carson emailed Mr. Robert Dunlop, the new Associate Deputy Minister of Science and Innovation at Industry Canada, seeking a meeting regarding the revised mandate of the CSEE including the extension of years of operation, see Tab 12, Exhibit 2. [30] It is agreed, that Mr. Carson did not initiate all of these communications. As Executive Director of the CSEE, Mr.

Carson was the contact person for Industry Canada with respect to the Amending Agreement. [31] It is admitted that Ms. Corkery stated that it was Mr. Carson who kept

answering her emails and phone calls; that it was Mr. Carson who would have led conversations with the three Universities regarding governance issues; that it would have been Mr. Carson who acknowledged that the CSEE was not going to be able to invest their funds prudently over the original Funding Agreement period of 2 years; and that it was Mr. Carson who proposed the 4-year Funding Agreement extension from 2010 to 2014. [32] It is admitted that in a statement provided to the RCMP, Ms. Zoe Addington, Deputy Director of the CSEE, it was her view that Mr.

Carson’s actions did not constitute “lobbying” as the CSEE reported to Industry Canada. [33] On January 13, 2010, Ms. Corkery, on behalf of Industry Canada and Mr. Carson, on behalf of the CSEE signed an “Amending Agreement” changing the original agreement. The changes included an amendment to s. 5.1 extending the date of the agreement from March 31, 2010 to March 31, 2014; see Tab 8, Exhibit 2. [34] Additional changes to the original Funding Agreement (March 7, 2007), put emphasis on certain core activities/functions while less emphasis on other activities/functions.

It is admitted in the Agreed Statement of Facts that the Amending Agreement did not require Treasury Board approval. However, at

Article 20.1 of the Funding Agreement, Tab 7, it states: “20.1 Amendment (

a) This Agreement may only be amended, modified or supplemented by a written agreement signed by both Parties. (

b) No material change to this Agreement will be made without the prior written approval of the Minister, and the consent of the Treasury Board of Canada. The fact that the consent of Treasury Board was not sought has not been considered in my reasons for judgment. The Energy Policy Institute of Canada (EPIC) [35] In August 2009, at the same time that he was employed as Executive Director of the CSEE, Mr. Carson participated in the founding of the Energy Policy Institute of Canada. It is admitted that EPIC also constitutes an “organization” as defined in s. 2 of the Lobbying Act .

EPIC was established to develop a comprehensive National Energy Strategy. Also present at the Founding Meeting with Mr. Carson, were Mr. Thomas d’Aquino, Mr. Doug Black, Ms. Beth Diamond, and Mr. Larry Clausen. These individuals constituted the first Executive Directors for EPIC. In 2009, the Board was eventually reconstituted to include Mr. Gerry Protti and Mr. David Emerson, a former Federal Minister of International Trade, and Minister of Foreign Affairs in the Federal Government. At EPIC’s Founding Meeting on August 13, 2009, Mr. Carson was named Co-Chair. [36] As Co-Chair, Mr.

Carson was to be paid an honorarium of $60,000.00 annually by EPIC. As his workload increased, due to his leadership role in drafting the various policy documents, the honorarium was at times supplemented or increased by further remuneration. As demonstrated in the EPIC Custom Transaction Detail Report, Tab 14, Exhibit 2, Mr. Carson was paid $160,000.00 in honorarium by 16 cheques over the course of his tenure. [37] Because Mr. Carson was not an employee of EPIC, he was subject to the

“Consultant Lobbyist” provisions of the Lobbying Act . Consequently, the prohibition against communicating with Public Office Holders is governed by s. 10.11(

a) in relation to EPIC. Whereas s. 10.11(

b) prohibits communications set out in s. 7(1) , s. 10.11(

a) prohibits communications set out in s. 5(1) . Section 5(1) prohibits all of the same kinds of communications captured by s. 7(1) and adds an additional prohibition against arranging meetings with Public Office Holders. The EPIC Membership and Mandate [38] The membership was composed of private sector members; see Tab 20, Exhibit 2.

The members were primarily private sector oil companies and later grew to include other entities involved in energy consumption and electricity production including Accenture, Aecon Corporation, Altalink Management Ltd., ATCO Group, Canadian Natural Resources Limited, Canadian Pacific Railway, Capital Power Corporation, Cenovus Energy Inc., E.I. du Pont Canada Company, Emera Inc., Enbridge Inc., Encana Corporation, Finning International Inc., General Electric Canada, Irving Oil, Petrobank Energy, Plutonic Power Corporation, Shell Canada Limited, Suncor Energy Inc., Terasen Inc., TransAlta Corporation, TransCanada Corporation, Vestas Americas. [39] EPIC was a private sector voice, advocating for business with the intention of shaping strategic aspects of energy policy and influencing the direction of policy with the federal, provincial and territorial governments. [40] EPIC’s mandate is reflected in several documents including Tab 20, Exhibit 2, where it is states that the “mission and sole purpose is to develop a comprehensive pan-Canadian energy strategy which will provide the foundation for recommendation to the federal, provincial and territorial governments responsible for energy policy and regulation”. [41] A “launch document” was circulated among members of the EPIC Executive on September 10, 2009; see Tab 19, Exhibit 2, which set out the mission: “To marshal the most impressive Canadian business talent in the building of a common sense energy strategy that will deliver economic prosperity and a clean environment, and position our country as a global leader in energy innovation.” [42] At Tab 23, Exhibit 2, Executive Committee Minutes, June 11, 2010, the Minutes state: “Bruce provided an update on the Policy Work Group’s progress.

The Vancouver meeting was very successful and has resulted in a variety of members contributing additional input to the process. The research work by Michael Margolick will see a detailed outline reviewed by Bruce and Gerry the week of June 14 th and this would also be presented at the June 23 rd meeting in Calgary. Bruce and Gerry have produced a working document for June 23 rd to be adjusted over the weekend and posted June 14 th for members on the Membernet. A notice will be sent by Larry of the meeting and to let members know they can retrieve the document.

A series of meetings are planned as the initial A Canadian Energy Strategy document is finalized. Bruce will insert research findings and write a more detailed narrative in July. Commencing in early August a series of meetings will be scheduled with key energy Deputy Ministers…Minister Paradis is expected in Calgary during Stampede Week and EPIC will attempt to meet with him… Members have expressed concern about “clean energy” and “green energy” and how EPIC would handle these terms.

They will fit into our documentation but the focus will be on “energy”… Membership Update … A variety of industry associations have expressed an interest to join. After discussion, it was concluded that an association may join in one of two ways:

1. Pay the annual fee of $50,000 but be represented by one of its member companies; 2. Pay an increased annual fee of $100,000 to directly participate.” [43] EPIC’s intended audience was primarily the Federal government including the Prime Minister, Federal Cabinet Ministers and Senior Staff. The intent was to help design regulatory processes and make recommendations on regulatory reform.

As reflected in the EPIC Minutes, dated February 3, 2010, Tab 22 of Exhibit 2, the methodology to develop and shape EPIC’s policy for eventual referral to governments was to ask its private sector member base “to create a list of issues impacting their company and sector that will benefit from defined policy structure”. The Roles and Responsibilities of EPIC: [44] Mr. Gerry Protti, given his extensive background in energy policy both in the private and public sectors, was to head a Policy Group with Mr. Carson and eventually develop the policy document for EPIC. [45] While Mr.

Protti was to work with representatives of EPIC’s membership to get some sense of consistency on broad themes, Mr. Carson’s role was to draft the strategic energy paper. As set out in the Founding Meeting Minutes, Tab 16, Exhibit 2, Mr. Carson was to prepare initial drafts of policy materials for circulation the week of August 17, 2010. The Communications with Federal Government Representatives (Public Office Holders – POH) [46] On February 3, 2010, in a meeting attended by Mr. Carson, the EPIC Executive Committee, including Mr. Gerry Protti and Mr.

David Emerson now members of the Executive Committee, it was agreed that Mr. David Emerson and Mr. Carson would “not lobby the Federal Government on behalf of EPIC”, see Tab 22, Exhibit 2. At the meeting February 3, 2010, under Government Relations, the Minutes state: “A review of the lobbyist legislation has been conducted. Legal counsel has informed us that it will not be required to register all directors and members of EPIC, only the delegated lobbyists for the organization need be registered. With this resolved, the letters to government will be sent this week under the signature of Doug.

Moved by Doug Black and seconded by Larry Clausen that David Emerson and Bruce Carson will not lobby the federal government on behalf of EPIC.” [47] Mr. Protti described Mr.

Carson’s role and background as follows: “Bruce Carson did not have actual technical background in the areas in terms of recommendations; did not have industry contacts; was a good policy head and a good writer; was seen as somebody who really understood the Ottawa scene very well; was one of the most knowledgeable people in the country on how to navigate the Federal process; and had good knowledge of the Federal system and a tremendous set of contacts.” [48] Mr. Carson was the primary point of contact for EPIC as it related to communications with the Federal Government. Mr. Protti

and the EPIC Executive were aware that Mr. Caron communicated regularly on behalf of EPIC with POHs, see for example, Tabs 21, 23, 24, 25, 27, 28, 30, and 31, Exhibit 2. Mr. Carson regularly updated EPIC Executive members about discussions he had with various Federal Ministers, Associate Deputy Ministers and their Chiefs of Staff. [49] On January 19, 2010, Mr. Carson sent an email to Mr. Doug Black and Mr. David Emerson, both members of the EPIC Executive Committee, about a meeting he had with the Minister of Natural Resources, Mr. Christian Paradis, and his Chief of Staff, Mr. Marc Vallieres, informing Mr.

Black and Mr. Emerson that he had an upcoming meeting with them in Ottawa to brief Minister Paradis and Mr. Vallieres on EPIC’s initiative, see Tab 21, Exhibit 2. [50] On February 11, 2010, Mr. Carson sent an email regarding EPIC, stating that “all of these pieces can be pulled together – and working with Deputy Ministers and eventually with Ministers develop the elements of a National Clean Energy Strategy for Canada”, see Tab 26, Exhibit 2. [51] On February 15, 2010, Mr. Carson was in communication with Mr. Bruce Winchester Senior Policy Advisor to the Minister of Natural Resources, Mr.

Christian Paradis, regarding a “Ministers’ Dinner”, see Tab 27, Exhibit 2. Mr. Winchester invited Mr. Carson to this dinner. On February 17, 2010, at the Palliser Hotel in Calgary, Mr. Carson attended the dinner in his capacity as a representative of EPIC. This meeting was attended by EPIC stakeholders mostly oil industry players and public officials, including Minister Paradis and Mr. Winchester. [52] Ms. Cassie Doyle, the Deputy Minister (DM) of Natural Resources from July 2006 to October 2010, was an Associate Deputy Minister (ADM) at Environment Canada prior to July 2006. Ms. Doyle knew Mr.

Carson in a professional capacity before he left the Prime Minister’s Office (PMO) in 2009 when she was ADM at Environment Canada. At the time Mr. Carson was Chief of Staff with Ms. R. Ambrose, the Minister of the Environment. Ms. Doyle also worked with Mr. Carson while she was Deputy Minister at Natural Resources Canada and he was at the PMO as a Senior Advisor. Mr. Carson worked very closely with Ms. Doyle providing advice on a Natural Resources Canada file. Ms. Doyle knew that Mr.

Carson, as a result of his years with the PMO, had extensive connections with the Federal Public Service, including connections with the Clerk of the Privy Council Office and access to Deputy Ministers. [53] On March 23, 2010, Mr. Carson contacted Ms. Doyle; see Tab 28, Exhibit 2, and expressed an interest in meeting with other Deputy Ministers at a planning meeting scheduled for May 6 and 7, 2010 in Quebec. Ms. Doyle was Co-Chair of this meeting and had an ability to put items on the agenda. Mr. Carson wished to discuss EPIC’s work and the idea of a National Clean Energy Strategy. Ms.

Doyle suggested he contact Provincial DMs to try and get support to get on the agenda. In the end, EPIC was not put on the agenda at this meeting. Upon receiving this recommendation from Ms. Doyle, Mr. Carson forwarded this recommendation to another member of the EPIC Executive, Mr. Daniel Gagnier, see Tab 29, Exhibit 2. Ms. Doyle provided Mr. Carson with the date of the meeting as well as information as to how to proceed to get on the Agenda at the Conference and whom to contact. Ms. Doyle states: “The DM’s meeting is May6/7.

What I think would be best is for one of the provincial DM’s to recommend EPIC for the agenda to the co-chairs, Quebec DM and me. That way it’s clear that there’s a provincial sponsor which will make it more possible to actually get on the agenda. Given who our co-chair is this year, it will be sensitive.” [54] At Tab 28, Exhibit 2, Ms. Doyle provides advice as to how to proceed and whom he should contact: “It may be useful to get the support of more than one DM for bringing EPIC to DM’s (I’ve been burnt on this before) just to ensure that there’s some receptive faces around the table.

Reimer in BC and Kent Campbell in Sask perhaps. The kiss of death on this will be that it’s seen as being promoted by NRCan.” [55] The complete email chain begins on March 23, 2010 with Mr. Carson emailing Ms.

Doyle: “Cassie – Len Waverman – who is the Dean of the Haskayne School of Business here at U of C will be in Ottawa next month on April 21 st and I suggested he meet with you to discuss the newest venture at the School – an Executive MBA dealing with Energy as explained to me it sounds like a great complement to the scientific work that will be done by Carbon Management Canada – the proposal is to partner with the Cambridge Energy folks –

so it could be quite exciting for the University and for Canada as we embark on our journey to put in place a National Clean Energy Strategy – so hope you can find the time to meet with him on another note I have relayed our discussion to the EPIC members and I would love the opportunity – if possible – to meet with Deputies at your planning meeting in May to discuss EPIC and our work moving towards a National Clean Energy Strategy if that works – can you let me know the time and location of the Deputies meeting – thxs – bc” Ms.

Doyle replies on March 23, 2010: “Hi Bruce, I’d be happy to meet with Len Waverman if the timing works. Please ask him to work with my office to organize a time. Monique Faucher is the contact. On the committee of DM’s of Energy, as we discussed, I’m a co-chair of this forum (this year with Quebec) so it would be good for you to line up one or two provincial DM’s like Peter Watson to ask them about getting on the agenda. Cheers. C” Other Meetings with Governmental Officials – Summer of 2010 [56] During the EPIC Executive Committee Meeting on Friday, June 11, 2010, Mr.

Carson updated EPIC Executive members about various planned meetings with POHs, see Tab 23, Exhibit 2, stating: 1) Commencing early August, a series of meetings will be scheduled with key energy Deputy Ministers; 2) Minister Paradis (Minister of Natural Resources) is expected in Calgary during Stampede Week and EPIC would attempt to meet with him; 3) There was a “mid-September presentation” planned to the First Energy Ministers meeting. [57] Concerning the meeting in Calgary with Minister Paradis, Mr. Carson had earlier, May 31, 2010, sent an email to Mr.

Marc Vallieres, Chief of Staff for Minister Paradis, stating: “Further to our meeting of yesterday-- I could arrange a breakfast or dinner for the Minister when he is in Calgary – would be a great opportunity for him to meet CEOs”, see Tab 30, Exhibit 2. [58] On July 16, 2010, Mr. Carson sent an email to the EPIC Executive Committee, including Mr. Doug Black, Mr. David Emerson, and Mr. Gerry Protti, providing an update on an EPIC “policy piece” and meetings held with various government officials, including the Chief of Staff for Minister Paradis, Mr. Marc Vallieres, and the Deputy Premier of Alberta. Mr.

Black, on July 17, 2010, stated, “We could do nothing of this without you”, see Tab 31, Exhibit 2. The email from Mr. Carson to the Executive Committee states: “I have reworked the policy piece as per our meeting in June and subsequent comments received from our members.

I have reduced or combined the key elements down to 8 – but the principles remain at 5 – I think International one is necessary given recent events and the Deputy Premier of Alberta really likes it – so it stays This is still in bullet form – but I have reworked them so that there is little repetition and all sentences start with action verbs – look forward to comments When I get the Margolick paper and after our next policy meeting I will rewrite this and plug in the necessary foundation stones from Margolick On Tuesday of this week I met with Minister Paradis Chief of Staff who went through – at a high level – recent polling results – Canadians get it – they now realize energy drives the economy – and are supportive of a Canadian Energy Strategy – especially in Quebec So the Minister really wants the stuff we have been working on – and I committed to getting something to him after August 10 – he has our earlier drafts Looking forward to our conference call next week – bc”

[59] The minutes from the July 22, 2010, see Tab 24, Exhibit 2, EPIC Executive Committee meeting highlight that: “Between August 15-31, materials would be presented to “select provincial figures”; Bruce Carson would attend the “World Energy Congress(WEC)/First Energy Ministers” symposium in Montreal September 12-17; Mr.

Carson updated the EPIC Executive about his ‘various conversations with government’ including an upcoming meeting with the Chief of Staff of the Minister of Natural Resources.” Version two of a Canadian Energy Strategy was reviewed and it was suggested that it would be posted on the Membernet now and committee members be alerted that it is available and their comments sought prior to the August 10 th meeting.

The calendar was reviewed and revised with specific actions noted: August 6 Review research and integrate research by EC members that are available August 10 Policy Work Group – Calgary August 15-31 Visit and/or present materials to select public figures. It was noted that Tom Syer of Plutonic would be helpful with the BC government and we will seek assistance from others as required.

August 23 Presentation to the Institute of Public Administrators (AGM) August 30 Work Policy Group – Ottawa – to finalize document September 10 CEO Conference call for document input September 12-17 World Energy Congress/First Energy Ministers Delegates to attend: Bruce, Elyse, Dan and Doug September 27 Chamber of Commerce Dinner Panel with Chamber. David Emerson leading off and we have members on the panel.

Half day session in Gatineau, QC September 28 Policy Work Group – Ottawa - afternoon Under Government Relations – TAB 24, pg 2 “Government Relations: Bruce updated everyone on his various conversations with government and noted there exists a sincere interest for our work. It was decided that distribution of our current report could be made to selected political contacts. Bruce also noted that he had a meeting with Minister Paradis’ Chief of Staff (Mr. M. Vallieres).

Doug is meeting Helen Ryan of the Department of the Environment.” [60] In an EPIC “August 2010 Update” document signed by EPIC President Doug Black, members are notified that “Initial private talks with very selective political and government figures have been very encouraging. Key decision makers are awaiting our results. To that end, we will begin to update governments across Canada on our work and current findings”, see Tab 25, Exhibit 2. The Montreal Meeting – September 2010 [61] Mr. Protti and the EPIC Executive were aware that Mr. Carson was making efforts, on behalf of EPIC, to arrange an exclusive

meeting as between EPIC Executive Members and various Federal and Provincial Energy Ministers in Montreal on September 17, 2010, see Tab 33, Exhibit 2. In an email Mr. Carson writes, “I am working through Charests (sic) office and Paradis to arrange briefing – looks positive—bc” [62] Further to the July 22, 2010 Minutes mention of the “First Energy Ministers” meeting in Montreal, Mr. Carson engaged in communications with various POHs with the intention of having various Ministers and Deputy Ministers meet with EPIC: 1) On August 25, 2010, Mr. Carson wrote to Mr.

Marc Vallieres, Chief of Staff to the Minister of Natural Resources, “I and others involved with EPIC would like to meet privately – maybe over a breakfast we would host – to brief Energy Ministers on our Canadian Energy Strategy work at WEC(World Engergy Congress/Conference) meeting in Mtl – can you guys help with that – thxs – bc”, see Tab 32, Exhibit 2; 2) On September 2, 2010, Mr. Carson sent an email to Mr.

Mario Lavoie, a staff member at the Quebec Ministere de L’Energie et des Ressources naturelles, also stating that “a couple of us from EPIC would like to meet with Energy Ministers probably on the Thursday to discuss briefly the work of EPIC”. The same day Mr. Carson notified EIPC Executive Members, Mr. Protti, Mr. Black and Mr. Clausen about these efforts, see Tab 33, Exhibit 2; 3) Mr. Carson contacted Ms. Doyle, still Deputy Minister at Natural Resources Canada, asking that she assist EPIC to set up an exclusive meeting with the Energy Ministers. Ms. Doyle delegated the task of arranging such a meeting to Mr.

Stephen Lucas, an Assistant Deputy Minister at Natural Resources Canada. See the Agreed Statement of Facts, para 59, and Tabs 28, 29, 36, Exhibit 2; 4) On September 10, 2010, Mr. Carson sent an email to Mr. Richard Brosseau, also with the office of the Quebec Ministere de L’Energie et des Ressources naturelles, summarizing his intention to set up a meeting between members of EPIC and Energy Ministers, see Tab 35, Exhibit 2: “It was great to speak with you yesterday.

The Energy Policy Institute of Canada (EPIC) was formed about a year ago – it is composed of over 30 corporations representing all forms of energy production and use – Our work was discussed at the recent Council of the Federation meeting in Winnipeg – our objective is to develop a Canadian Energy Strategy – which can be endorsed/adopted by prov/terr/fed govts.

We want to meet with Ministers for about half an hour on Thursday or Friday next week to brief them on our work to date and our future plans At the meeting will be our Chair David Emerson PC, Doug Black, Pres of EPIC – Gerry Protti – retired Energy executive, Dan Gagnier and myself – Really appreciate you help in this – bc” [63] In the fall of 2010, Mr. Stephen Lucas was the Assistant Deputy Minister of Science and Policy Integration at Natural Resources Canada and had been since 2009. He had a broad responsibility for supporting Federal, Provincial and Territorial Ministerial Conferences on Energy and Mining.

In that capacity he had an important role in planning and delivering the Energy and Mines Ministers’ Conference in Montreal in September 2010. Ultimately, Ms. Doyle, following Mr. Carson’s request, asked Mr. Lucas to work with Mr. Carson to arrange an informal breakfast meeting. See Agreed Statement of Facts, para. 59. [64] Before Mr. Carson contacted Natural Resources Canada, through Ms. Doyle, there was no intention to

schedule a meeting between EPIC and the Ministers attending the Montreal conference. Once the idea of the meeting surfaced, the intent was to have an exclusive meeting, around the existing Conference agenda with EPIC. [65] Mr. Lucas sent an email to Mr. Carson on September 16, 2010 confirming that the meeting would take place at 07:30 hours at the Omni Hotel in Montreal, see Tab 36, Exhibit 2. Minister Paradis supported the notion of having Mr. Carson and EPIC meet with the various Provincial and Federal Ministers in Montreal. [66] This meeting took place in the early morning of September 17, 2010.

It was an informal breakfast and exclusive between the various Provincial and Federal Energy and Mining Ministers attending the Montreal Conference, and Mr. Carson and two other members

of the EPIC Executive, Mr. Protti and Mr. Gagnier. Mr. Carson, Mr. Protti and Mr. Gagnier briefed Ministers on the work EPIC was doing and their work relating to a document articulating a National Energy Strategy. They stated that they represented a coalition of interested industry people and associations and were putting forward their perspectives. [67] In a September 2010 “Update”, signed by Mr.

Black, reference is made to the meeting between members of EPIC and the Canadian Energy Ministers; see Tab 37, Exhibit 2. “EPIC presented to the Canadian Energy Ministers an overview of our framework entitled “A Canadian Energy Strategy (version 2) on September 17, 2010. Energy Ministers from across Canada carefully listened to our position and concluded our work would be most helpful. As a result, EPIC will work with all of the Deputy Ministers and assigned department members to create goals and objectives to be reviewed by the next meeting of Canadian Energy Ministers to be held in Alberta in 2011.

Our Policy Work Group have just nearly finalized version 3 of our framework for an energy strategy and now work towards completing a strategy document for the first quarter of 2011. It is now very important that we accomplish this work and share our results with government in a timely fashion. I would like to acknowledge our three Vice Chairs that presented our work to the Energy Ministers – Bruce Carson, Gerry Protti and Daniel Gagnier. This is a major step toward our end goal. Signed Doug Black, Q.C., President, Energy Policy Institute of Canada.” Finalizing the EPIC Paper [68] After the Montreal meetings, Mr.

Carson continued making arrangements to meet with POHs later in the fall of 2010, See Tab 38, 39, 40,41,42,43,44,46. [69] On September 23, 2010, Mr. Carson contacted Ms. Doyle stating that he would be meeting with Mr. Marc Vallieres and asked to meet with Ms. Doyle “to begin to put a workplan in place – for the Energy Strategy initiative”, see Tab 38, Exhibit 2. [70] In an email sent on October 15, 2010 to EPIC Executive Members Mr. Clausen, Mr. Emerson, Mr. Black and Mr. Protti, Mr.

Carson updated EPIC about what he had been doing with “Deputies and Ministers, moving along our Canadian Energy Strategy” since the Montreal meetings including: 1) Meetings with Ms. Doyle, Minister Paradis, and Mr. Mark Corey (Associate Deputy Minister) at Natural Resources Canada; and 2) An intention to meet with Mr. Wayne Wouters, Clerk of the Privy Council Office the next Monday and the new Deputy Minister at National Resources Canada on October 28. Mr.

Carson states in the email, “There is a lot of goodwill and support for EPICs initiative- but we will have to keep driving this so that we have a positive outcome at the fed-prov-terr meeting next July—bc” [71] Additional communications to discuss EPIC’s initiative included: 1) October 12, 2010 – Mr. Carson contacted the new Deputy Minister of Natural Resources, Mr. Serge Dupont, to “discuss my work on the Canadian Energy Strategy”, see Tab 39, Exhibit 2; 2) October 15, 2010 – Mr. Carson writes to Mr. Wayne Wouters, Clerk of the Privy Council Office, see Tab 40, Exhibit 2; 3) November 8, 2010 – Mr.

Carson tries to set a meeting with Minister Paradis in Calgary, see Tab 42, Exhibit 2; 4) November 13, 2010 – Mr. Carson writes to EPIC Executive Committee, stating that he had met with Mr. Vallieres about potentially circulating draft EPIC materials in preparation for upcoming Federal, Provincial and Territorial Energy Minister meetings, see Tab 44, Exhibit 2. [72] Mr. Carson provided an update to EPIC President Mr. Doug Black regarding the advancement of the energy agenda in 2011; see Tab 45, Exhibit 2.

In that email, Mr. Carson writes: “I really do believe we will advance our energy agenda in 2011 farther than we ever thought possible— Again, thxs for this opportunity and your support—bc” History with Mr. Serge Dupont [73] In 2006, Mr. Dupont was Associate Deputy Minister at Natural Resources Canada, before being appointed Deputy Minister at Intergovernmental Affairs and being a Special Advisor to the Minister of Natural Resources. While Mr. Carson was at the PMO, Mr. Dupont advised on a Natural Resources Canada file in 2006 and through this met Mr. Carson who also advised on the file. [74] In October 2010, Mr.

Dupont succeeded Ms. Doyle as Deputy Minister of Natural Resources Canada. After being appointed to the position, he had several dealings with Mr. Carson in the fall of 2010 and the winter of 2011. [75] Mr. Carson met with Mr. Dupont several times to discuss the need for a national energy strategy and EPIC’s work. An initial meeting was held with Mr. Dupont on October 28, 2010 in Ottawa. EPIC Energy Strategy Document Circulation [76] Mr. Protti and other EPIC Executive Members were aware that Mr.

Carson intended and did eventually circulate, on behalf of EPIC, “A Strategy for Canada’s Global Energy Leadership” Framework Document, see Tab 47, Exhibit 2. It was released in January of 2011 as detailed in communications dated November 13, 2010, see Tab 44, Exhibit 2, and January 20, 2011, see Tab 56, Exhibit 2. [77] In a statement that Mr. Protti gave to the RCMP, it was his view that Mr. Carson’s actions did not constitute “lobbying”.

He stated: 1) “If he were to receive a document like the framework document, he would have gathered that there are a bunch of companies and business interests in the country that want some thinking and some discussion and some debate to occur; 2) Mr. Protti, a former Assistant Deputy Minister in Alberta, is familiar with lobbying. He would not see the document as anything approaching lobbying. It was far too premature for that”. [78] Mr. Carson contacted Mr.

Dupont on January 6, 2011 stating that he would be in Ottawa, that the first major EPIC document would soon be completed and that he wished to deliver it to the Deputy Minister and spend a “couple of mins going through it with you”, see Tab 46, Exhibit 2. [79] In January 2011, EPIC completed the document entitled, “A Strategy for Canada’s Global Energy Leadership”, see Tab 47, Exhibit 2. On January 10, 2011, Mr. Carson contacted EPIC Executive Members, Mr. Black and Mr. Emerson, stating he would deliver a copy to the Deputy Minister, Mr. Dupont; see Tab 48, Exhibit 2. [80] On January 14, 2011, Mr.

Carson emailed Mr. Wayne Wouters, Clerk of the Privy Council Office “FW: EPIC Paper, Attachments: A Strategy for Canada’s Global Energy Leadership(5).doc, with a note, ‘wayne – this is the policy paper I have been working on with emerson etc—bc’”; see Tab 49. [81] At Tab 50, Exhibit 2, in an email from Mr. Carson to Mr. Bruce Winchester at Natural Resources Canada, concerning the EPIC Paper, Mr. Carson states, “can you share this with Marc please—bc”. [82] At Tab 51, Exhibit 2, Mr. Carson communicates with Mr.

Paul Boothe at Natural Resources Canada concerning the EPIC Paper: “paul—this is the Energy Policy paper I have been working on with Emerson etc—bc.” Mr. Boothe replies: “Thx. Cheers. P.” Mr.

Carson replies: “glad it got to you—I will be in Ottawa on wed afternoon next week—any chance of a short meeting—bc”. Mr. Boothe’s Assistant, Ms. Thompson-Caron replies: “Sir, would 5 to 5:45 this Wednesday, January 19 work for you?” Mr. Carson replies: “Yes— bc”. Ms. Tompkins-Caron replies: “Thank you. See you tomorrow, 27 th floor, 10 Wellington, Cheers, Debra.” [83] At Tab 52, Exhibit 2, Mr. Serge Dupont, Deputy Minister at Natural Resources Canada, replies to Mr. Carson’s email regarding “the entire EPIC paper and suggesting that he circulate the ex

summary” stating: “Thank you Bruce. Stephen will follow up on my behalf”. Mr. Dupont emails Mr. Bruce Carson, Mr. Mark Corey and Mr. Stephen Lucas. He copies Ms. Angele Delisle. [84] At Tab 54, Exhibit 2, Mr. Stephen Lucas, Assistant Deputy Minister, Science and Policy Integration, Natural Resources Canada, distributes the EPIC Exec

Summary (January 2011).doc to several provincial and territorial government personnel. The title of the email is “Re: Documents for Federal, Provincial, and Territorial Energy Deputy Ministers Meeting on January 16-17, 2011”. The message states, “Please find attached the Executive

Summary from the Energy Policy Institute of Canada’s “A Strategy for Canada’s Global Energy Leadership”, which Bruce Carson will speak to on Sunday night.” [85] At Tab 55, Exhibit 2, Mr. Carson reports to David Emerson on January 17, 2011 at 2:43 AM, “Subject: Deputies meeting…It went well—all deputies were present and seem to be engaged in a positive way—they asked good questions—they have read our report—I will report more fully when we meet on Tuesday.

On Thursday I will meet with Peter Watson back in Calgary—to get a complete debrief on the meeting deputies are having tomorrow…The thought would be that whatever themes Deputies coalesce around should inform the future work of EPIC—and the agenda of the Winnipeg Energy Dialogue—bc” [86] At Tab 56, Exhibit 2, Mr. Carson sends the EPIC Executive members an email, dated January 20, 2011, Subject: Env Can, stating, “met this evening for an hour with Paul Booth (sic) fed DM Env—he has read the version of the report I sent to him late last week and also discussed it with Peter Kent.

They are ready to support our report provided we add a sentence to the Env section-probably just before we get into the recommendations saying something like—EPIC recognizes that pursuant to the Copenhagen Accord that Canada has committed to reducing GHGs by 17 percent off 2005 or 6—can’t remember-levels by 2020 and the recommendations in this Report will help Canada attain that goal—Given the CEOs discussion and their concerns about the env community and their potential comments I believe this is a worthwhile and necessary change—bc” [87] On February 6, 2011, Mr.

Carson sent the EPIC Executive Committee an email update entitled “Re: Nigel Wright – EPIC”, highlighting that he had met with Nigel Wright and that Nigel Wright had read the EPIC document. In that email chain, Mr. Carson writes: “Just finished briefing him (Nigel Wright) on what we are up to with EPIC—he has read our doc. We talked about Env as a subset of energy-and he generally wanted to know what the benefits would be as we continue with this. Briefed him on the March 31 st conf and the road to Kakanaski-and generally what outcome could be—4 or 5 areas of general agreement and a workplan.

Told him we would keep him up to date by email—he seemed generally supportive—and now at least he has been briefed—I meet tomorrow morning with Peter Kent.” Mr. Doug Black replies: “Excellent. Need Nigel on side.” Mr. Carson replies: “He will be—just a case of keeping him up to date on what we are doing—bc.” See Tab 59, Exhibit 2. [88] Mr. Carson did not receive any additional payment in return for his communications with Public Office Holders beyond his salary from CSEE and his honorarium from EPIC. Positions of the Parties [89] Mr. R. Zsigo, Counsel for the Federal Crown, submits concerning Count #3, that Mr.

Carson, as Executive Director of the CSEE, is an employee of an organization and therefore subject to the

section 10.11(

b) prohibition in the Lobbying Act , a five year prohibition on activities set out in section 7(1)(

a) of the Act . He submits that Mr. Carson was communicating with POHs at Industry Canada to secure additional funds from the Federal Government. Mr. Zsigo refers to Tab 4, Exhibit 2, Mr. Carson’s job description at the CSEE, page 2 of 2: “Helping secure additional funds and manage our relationship with the Federal government” as proof. Mr. Zsigo submits that Mr. Carson was communicating with Industry Canada to amend the 2007 Funding Agreement. [90] Concerning Ms. Corkery’s evidence, Mr. Zsigo submits that it was Mr. Carson who kept answering Ms. Corkery’s emails and phone calls. He submits that it was Mr.

Carson who acknowledged that the CSEE was not going to be able to invest their funds over 2 years and it was Mr. Carson who proposed the extension of the Funding Agreement to 4 years; see Tab 11, Exhibit 2. Tab 11, Exhibit 2

shows the various communications Mr. Carson had with Industry Canada; i.e. a meeting with Richard Dicerni on April 22, 2009; a meeting with Associate Deputy Minister Matthew King on May 8, 2009; at page 2, the mandate of the CSEE be extended through to 2013-14 and revisiting the core activities of the CSEE, i.e. different from the original Funding Agreement which is shown at Tab 2, Exhibit 2. [91] The issue, Mr. Zsigo submits is whether the communications constitute lobbying under the Lobbying Act , when a POH (Ms. Corkery, Industry Canada) initiates the communication.

Is further communication lobbying? [92] In support of his submission that further communication is lobbying in the circumstances, Mr. Zsigo refers to Exhibit A, the previous versions of the Lobbying Act and compares it to section 4(2)(

c) of the current Lobbying Act ; see Tab 1, Exhibit 2. Section 4(2) (

c) states: “This Act does not apply in respect of any oral or written submission made to POH by an individual on behalf of any person or organization in direct response to a written request from a POH for advice or comment in respect of…(

c) oral or written communications made to a POH by an individual on behalf of any person or organization if the communication is restricted to a request for information”. [93] Mr. Zsigo submits that the new section 4(2)(

c) is a substantial change. He submits that reliance on communication initiated by a POH negating the obligation to report has been removed in the current version of the Lobbying Act . [94] Mr. Zsigo submits that what is at issue is communication to amend the terms of the Funding Agreement which if left as they were would have resulted in the CSEE forfeiting the remainder of the financial grant (approximately 12.2 million) back to Industry Canada. He submits the communications also concerned the revisiting and revising of the core activities of CSEE as agreed to in the original Funding Agreement.

He submits that the communications Mr. Carson had with POHs at Industry Canada in respect of amending the original Funding Agreement were not in response or as a result of a request for information. [95] Mr. Zsigo submits that it is clear that Parliament sought to remove this “loophole”. At Tab 4, page 5 of Exhibit A, “Legislative

Summary – Bill C-15: An Act to Amend The Lobbyists Registration Act ”, Geoffrey P. Kieley, Law and Government Division, 13 November 2002, revised 19 March 2003, Parliamentary Research Branch, Library of Canada, LS-443E: “Clause 3(2) amends section 4(2)(

c) of the Act . That

section currently exempts a lobbyist from the obligation to register if the lobbyist is responding to ‘a written request from a public office holder, for advice or comment’. The purpose of the exemption is to permit public office holders a degree of freedom in discussing government business with lobbyists (who are, for many public office holders, a valuable source of information and analysis) without triggering the Act ’s registration requirements.

However, some critics of the registry system suggest that this constitutes a ‘loophole’: the public office holder and the lobbyist could keep their discussions ‘off the radar’ simply by having the public office holder write a letter ‘requesting advice or comment’. The letter would suggest that it was the public office holder who initiated the contact even if it were, in fact, the lobbyist who initiated the contact. The effect of the exemption is that a public office holder may solicit ‘advice’ or ‘comment’ from lobbyists without the public becoming aware of it.

Critics say that this undermines the principle of transparency, i.e., the public should be able to find out what information public office holders are receiving from lobbyists, since this will affect the public decision-making process. The Committee recommended that section 4(2)(

c) be deleted altogether, and Bill C-15 proposes to do so. A new section 4(2)(

c) replaces the current

section and, although the wording appears similar, the intent of the new section 4(2)(

c) is quite different. The new

section exempts lobbyists from registering where the only purpose of the communication is to request information from the public office holder. Without the exemption, any ‘communication’ on any public business would trigger the registration requirement.” [96] Mr. Zsigo submits that the fact that Ms. Corkery and Industry Canada may have initiated discussions with the CSEE does not exempt Mr. Carson from the Lobbying Act . [97] Mr. Zsigo submits, concerning the wording in

section 7 of the Lobbying Act , that “communication in respect of” and not in the former versions of the Act “in an attempt to influence” intends to cover a broad range of activity.

[98] Mr. Zsigo submits that in this case, on March 31, 2007, Treasury Board allocated 15,000,000.00 to the CSEE. The release of the funds was contingent on the CSEE achieving certain objectives during the course of the contract, the Funding Agreement. So while the terms of awarding the contract were set out they were not fulfilled at the time that Mr. Carson became Executive Direction at the CSEE; see Tab 3, Exhibit 2, page 24. [99] Mr. Zsigo submits that the issue in 2009 is what is the status of the CSEE funding?

As per Tab 3, Exhibit 2, the total spent in the first 2 years of operations was $2,393,735 and the original agreement was set to expire on March 31, 2010. Mr. Zsigo refers to Ms. Corkery’s evidence in the Agreed Statement of Fact is that the CSEE was not on track to fulfill its vision as reflected in the 2007 agreement and if nothing was done, i.e. new terms of the agreement, there remained the possibility that the funds would be forfeited to the Crown. [100] Mr.

Zsigo submits that the 12.2 million remaining was in jeopardy for the CSEE in 2009 subject to the signing of the amended agreement and therefore discussions between Mr. Carson and POHs at Industry Canada who met the criteria of POHs under the Lobbying Act , is captured by the Act . [101] Mr. Zsigo submits that the activity at issue is the communication in respect of the awarding of a grant, contribution, or other financial benefit,

section 7 , and on that basis, the Crown submits that Count #3 has been made out. [102] Concerning Count #1 and Count #2, regarding EPIC, Mr. Zsigo refers to the membership (Tab 20, Exhibit 2) and mandate (Tab 17, Exhibit 2) of EPIC. Mr. Zsigo submits that although Tab 20 is not the full list of private members as this document is from the early stages of EPIC, it is of note that it is composed of various corporate entities, primarily oil and other large scale energy producers and consumers. He submits that the mandate is important because it put Mr. Carson’s role and his communications into context. [103] Mr.

Zsigo refers to Tab 17, Exhibit 2, the opening paragraph: “EPIC’s Mission: EPIC’s mission and sole purpose is to develop a comprehensive pan-Canadian energy strategy which will provide the foundation for recommendations to federal, provincial and territorial governments responsible for energy policy and regulation”. He refers to the “Guiding Principles”: “As we develop realistic policy options for consideration by government policy makers, EPIC will be guided by the following principles…” [104] Mr. Zsigo refers to page 2 of the (Tab 17) document: “We are unique, however, in one key respect.

No other organization in Canada is solely committed to drafting a comprehensive Canadian energy strategy. Similar to a constituent assembly, the creation of this strategy and policy recommendations is our only raison d’etre. Once they have been presented to government, the organization will disband.” [105] Mr. Zsigo submits that these statements and principles speak for themselves, i.e. EPIC exists for one reason, to draft, create and present energy policy to governments. [106] Mr.

Zsigo refers to page 1, Tab 19, Exhibit 2: “Our mission is straight forward, to marshal the most impressive Canadian business talent in the building of a common sense energy strategy that will deliver economic prosperity and a clean environment and position our country as a global leader in energy innovation”. [107] Mr. Zsigo refers to page 2, Tab 19, Exhibit 2, the second bullet under “Key Points: What are the Elements of the Institute’s Mandate: “To recognize and enhance the value of all significant sources of energy in Canada”.

He refers to the next page concerning EPIC’s principal policy role and mission are set out. He submits that the

section speaks to specifics such as:

a) Canada and US energy

relationship,

b) enhancing openness of world energy markets, and

c) helping to design regulatory processes. [108] Mr. Zsigo refers to Tab 34, Tab 2, the Draft 2 Work Plan Document under “Our Work”: “The private sector voice is shaping strategic aspects of energy policy for made in Canada strategy. The prime attributes: 1) Policy maker influencer and 2) Leader and advocate for business.” He refers to page 2 of Tab 34 where under “Policy Development Programs” it states: “Communication Plan: Primary Federal Government and under subheadings, Prime Minister, Federal Cabinet Ministers, Senior Staff and MPs”. [109] Mr.

Zsigo refers to Tab 47, Exhibit 2, “Final Framework Document – January 20, 2011”. He submits that the document was eventually circulated to POHs and contains a strategy for Canada’s Global Energy Leadership Framework. This document conforms with Tab 17, Exhibit 2 concerning the areas EPIC intended to focus on, i.e. energy pricing and Canada/US energy relations. It talks about energy pricing, security of and supply relations with the US. He submits that Tab 17 leads to Tab 47, Exhibit 2, a 40-page Framework Document created by EPIC, which details these themes. [110] Mr.

Zsigo submits that these communications are “in respect of” the development of policy of the Federal government, which is captured by the Lobbying Act . [111] Mr. Zsigo refers to pages 6 and 7 of Tab 47, Exhibit 2, which is essentially a

summary of the various areas that EPIC intended to focus on in its discussions with government: 1) Intergovernmental relations about creating a single regulatory window; 2) Creating a framework with Aboriginal peoples; 3) Diversification in international markets; 4) Mention of building a pipeline infrastructure to the West Coast; 5) Expanding a reserve base; 6) International relationships with the US re the development and commercialization of energy technology such as reciprocal rights. [112] Mr.

Zsigo refers to paragraph 77 of Exhibit 1 (Agreed Statement of Facts) where the Deputy Minister of Natural Resources, Mr. Serge Dupont, says the document (EPIC Framework Document) touched upon areas of federal regulation such as energy security, diversification of markets on oil and gas, nuclear power and federal investment in technology. [113] Mr. Zsigo submits that there is a lot that EPIC is recommending to federal and provincial governments and the only reason EPIC exists is to develop policy recommendations. He submits the only thing that Mr.

Carson has to talk about with governmental officials is national energy strategy. He submits that the use of the words “in respect of” is extremely broad wording. It does not have to be “trying to influence” and the policy need not exist – i.e. it can be developed. Mr. Zsigo submits that it would be bizarre if it only became lobbying if the government actually implemented or acted on the policy being recommended. [114] Mr. Zsigo submits that it is not about criminal behaviour or whether these are good ideas.

He submits that, looking at the purpose of the Lobbying Act and considering there were vested interests here, i.e. energy companies with one of their key elements being to recognize and enhance the value of all significant sources of energy, it is the business voice trying to shape energy policy for Canada. He submits that just as Canadians would want to have transparent communication respecting 12.2 million dollars so too would Canadians want to have transparent communications respecting energy policy particularly when they are being advocated by the private sector.

He submits that this is consistent with the intent of the legislation. [115] Concerning Count #1, Mr. Zsigo submits that the focus is on the communications that Mr. Carson had with federal officials and whether he was paid to do this and by implication that he undertook to do this. [116] Mr. Zsigo urges the Court not to read into the term “undertaking”. He submits that the undertaking need not be put into a contract or be in writing. He submits that there is a valid public policy component as to why that should be the case, i.e.

If people can simply structure their contract whether it be employment contracts or as a consultant to avoid Lobbying Act ivities, the legislation is easily circumvented.

[117] Mr. Zsigo submits that Mr. Carson was retained to create a policy document. Mr. Zsigo submits that the Court should look at the substance of Mr. Carson’s dealings on behalf of EPIC and then characterize his role and assess whether or not there was a silent or implicit undertaking to engage in these communications. [118] Mr. Zsigo submits that in 2009, EPIC’s mandate is to develop a policy document on behalf of the private sector and to communicate with the federal government. Mr. Carson was brought in and, as stated in the Agreed Statement of Facts, he had no industry contacts and according to Mr.

Protti, no technical background. Mr. Carson had recently left the Prime Minister’s Office. He was paid $160,000.00 over the course of his tenure at EPIC and part of his duties was to write a policy paper but not on his own. This was supposed to be with the input of the members of the industry and he was to be assisted by Gerry Protti. [119] Mr. Zsigo submits that, in those circumstances, someone who just leaves the PMO and joins EPIC whose “raison d’etre” is to generate a policy document to be recommended to the federal and provincial governments, inferences can be drawn. Mr.

Zsigo submits that part of the circumstances is who Mr. Carson is in addition to his background. Mr. Zsigo submits that Cassie Doyle gives some background in the Agreed Statement of Facts concerning her professional dealings with Mr. Carson, i.e. that she came to know Mr. Carson in a professional capacity while she was an Associate Deputy Minister at Environment Canada and dealt very closely with him when he was Senior Advisor to the Prime Minister and she was Deputy Minister at Natural Resources Canada. [120] Mr. Zsigo submits that given Mr.

Carson’s position for a 3-year period as Senior Advisor in the PMO, he would have extensive connections with the federal public service, including the Clerk of the Privy Council Office and various Deputy Ministers. [121] Mr. Zsigo submits that Mr. Protti articulated Mr. Carson’s attributes to include “someone who understood the Ottawa scene very well; someone who knew how to navigate the federal process; and someone having a tremendous set of contacts”. [122] Mr. Zsigo refers to Tab 2, Exhibit 2: the letter from the Office of the Conflict of Interests and Ethics Commissioner in July 2008.

He refers to paragraph 3 of page 2, where there is mention that Mr. Carson, under the Conflict of Interests Act , would be precluded from dealing with the Ministries and Departments of Environment, Industry and Natural Resources given his significant official dealings with these entities in the last year of his office, that being as Senior Advisor in the PMO. Mr. Zsigo submits that this speaks to his attributes, i.e. he obviously had extensive contacts at Natural Resources Canada and at Industry Canada, which is relevant to Count #3, the CSEE charge. [123] Mr.

Zsigo refers to Exhibit 1, the Agreed Statement of Facts that establishes that Mr. Carson was the primary point of contact for EPIC in its dealings with POHs. There are examples of this in the materials, i.e. Tab 24, Exhibit 2, page 2, under “Government Relations”: “Bruce updated everyone on his various communications with government and noted there exists a sincere interest for our work”; there is mention of communication and meetings with Minister Paradis and his Chief-of-Staff; at Tab 31, Exhibit 2, Mr. Carson is updating the EPIC Executive about the communications he is having with POHs. Mr.

Zsigo submits that this shows that EPIC Executives clearly know what Mr. Carson is doing. [124] He submits that if we add that aspect to who Mr. Carson was, his history and what he brought to EPIC, clearly there is an undertaking or an understanding that Mr. Carson is doing this work, using his strengths or what he could bring to the table on behalf of EPIC and EPIC knows this. [125] Looking at the communication, Mr. Zsigo refers to Tab 31, Exhibit 2; an email to the EPIC Executive where Mr. Carson is providing updates about meetings, i.e. he had met with Minister Paradis and with his Chief-of-Staff. Mr.

Zsigo submits that not only is the EPIC Executive given notice of what is going on but Mr. Doug Black, the President of EPIC, says, “We can do nothing without you”. Mr. Zsigo submits that it is clear that a member of the EPIC Executive values Mr. Carson’s efforts. [126] He refers to Tab 41, Exhibit 2; an email to EPIC Executives in which Mr. Carson is providing updates and mentions the people he is dealing with. [127] In terms of Cassie Doyle, Mr. Zsigo submits that Mr. Carson is talking about the need for “a small Deputies group to drive this”. Mr.

Zsigo submits that that this is important language: i.e. mention of Minister Paradis, Minister of Natural Resources; Mark Corey, ADM of Natural Resources; briefing the Clerk of the Privy Council Office etc. Mr. Zsigo submits that Mr. Carson stated, “There is a lot of goodwill and support for EPIC’s initiatives but we will have to keep driving this”. Mr. Zsigo submits that this is not language used by an individual who is merely retained to write a 40-page report.

[128] Mr. Zsigo refers to Tab 44, Exhibit 2, which he submits is another example where Mr. Carson mentions meeting with Marc Vallieres. Similarly he refers to Tab 45, Exhibit 2, which is very similar to the communication in Tab 41 where Doug Black wrote, “We could do nothing without you”. In Tab 45, Mr. Carson writes Doug Black, “I really do believe we will advance our energy agenda in 2011 farther than we ever thought possible” and Mr. Black writes back, “We are making progress and you are the secret sauce”.

He refers to Tab 47, Exhibit 2, the document EPIC generates that is shared with various members in the federal government, i.e. Wayne Wouters, Clerk of the Privy Council Office; Bruce Winchester and Paul Boothe at Environment Canada; Serge Dupont, Deputy Minister of Natural Resources. Mr. Zsigo submits that Mr. Carson, who was from the PMO, and had extensive and significant dealings with Environment Canada officials, and Natural Resources officials, circulated the EPIC Framework Document. He submits that this is clearly laid out in the Agreed Statement of Fact, Exhibit 1. [129] Mr.

Zsigo refers to Tab 48, an email in which Mr. Carson is updating EPIC Executives about the circulation of the EPIC Framework document. Mr. Carson writes to David Emerson, copying Larry Clausen and all members of the EPIC Executive, stating, “The edits are done and he will deliver a copy to Serge Dupont”, the Deputy Minister at Natural Resources Canada. At Tab 56, an email dated January 20, 2011, where Mr.

Carson confirms that he is sharing the EPIC Framework document with Paul Boothe, a Deputy Minister at Environment Canada, stating, “They (referring to Environment Canada POHs) are ready to support our report provided we add a sentence to the environmental section”. [130] Mr. Zsigo submits that the issue is whether Mr. Carson was getting paid and can the Court infer that there was an undertaking there. He refers to Tab 14, Exhibit 2, for the list of payments received by Mr. Carson. At Tab 57, an email to Nigel Wright, who at this time was a Senior Advisor in the PMO.

It states: “Nigel, I don’t think we have met, but we have a few mutual friends. So firstly good luck with this great adventure you have taken on and secondly…and then there is mention of the EPIC report.” He refers to Tab 59, an email where Mr. Carson updates Doug Black about his dealings with Nigel Wright in the PMO and Mr. Black’s response is, “Excellent. Need Nigel onside”. [131] Mr. Zsigo submits this is a great example of someone who is obviously well connected with various levels of government who used that attribute to disseminate a policy paper, which EPIC Executives were fully aware of and paid Mr.

Carson accordingly. [132] Mr. Zsigo submits that this is what Mr. Carson brought to the table. He submits that, when considering who Mr. Carson was, in terms of his resume in the years before joining the CSEE and EPIC, when EPIC’s mandate is considered, i.e. advocating a national energy strategy to federal and provincial governments and when Mr. Carson’s actions are considered, i.e. Mr. Carson was the primary point of contact who took advantage of his connections in government. Mr. Carson contacted Deputy Ministers, Ministers, the Clerk of the Privy Council Office and Advisors in the PMO.

He submits that EPIC was aware of what Mr. Carson was doing and gave him positive feedback and were excited that Mr. Carson was making progress. [133] Mr. Zsigo submits that when the payment to Mr. Carson is considered, there is no legislative requirement that the undertaking be in writing. He submits that the evidence, Exhibits 1 and 2, establish an implied undertaking that Mr. Carson, for payment, had communicated with governmental officials in respect of energy policy. [134] Concerning Count #2, EPIC and arranging a meeting, Mr. Zsigo submits that the term undertaking is not found in the charge.

He submits that the Crown has to prove the existence of a paid arrangement as between the individual or an organization and a Consultant Lobbyist. Mr. Zsigo submits that when you are paid to do a specific thing, you obviously undertake to do it, i.e. payment for the arrangement of a meeting. He submits that there is an implied undertaking. Mr. Zsigo submits that Count #2 captures the essence of the circumstances in section 5(1) of the Lobbying Act . [135] Mr. Zsigo submits that everything said concerning the implied undertaking in respect of Count 1 applies to Count 2. Mr. Zsigo refers to Tab 32 as proof of Mr.

Carson initiating contact with Environment Canada and arranging a meeting to brief energy ministers on EPIC’s Canadian energy strategy at the World Energy Conference (WEC) and asking whether Environment Canada officials “can help with that”. [136] Mr. Zsigo refers to the Agreed Statement of Facts and the interview of Cassie Doyle by the RCMP. Ms. Doyle, now Deputy Minister at Natural Resources, was one of Mr. Carson’s former professional colleagues whom he had contacted and asked to assist EPIC to set up an exclusive meeting with energy ministers.

This eventually led to the task being assigned to Stephen Lucas, the Associate Deputy Minister at Natural Resources. It is also admitted that prior to these communications, there was no intention for these Ministers to meet with EPIC. This was Mr. Carson’s initiative. [137] Mr. Zsigo refers to Tab 36, Exhibit 2, which he submits corroborates the Agreed Statement of Fact and to Tab 33 where EPIC’s Executive is notified about his efforts to set up the meeting: “I am working through Charest’s office and Paradis’ office to arrange briefing. Looks positive”.

The subject of the email is “WEC, possible EPIC meeting with energy ministers”. Mr. Zsigo refers to Tab

35, an email from Mr. Carson to Richard Brosseau who is with the Quebec Ministry. It states: “Our work was discussed at the recentCouncil of Federation meeting in Winnipeg. Our objective is to develop a Canadian energy strategy which can be endorsed/adopted byprovincial, territorial, federal governments.” [138] Mr. Zsigo submits that this email (Tab 33) hints at 4 elements: 1) Advocating for a policy for adoption by the federal government; 2) A desire to brief ministers about their work; 3) EPIC wants a meeting with ministers; 4) Daniel Gagnier, a member of EPIC Executive, is copied on the email. [139] Mr.

Zsigo submits that these facts establish an implied undertaking and these efforts are a subset of Mr. Carson’s overall role,which is to make use of his government contacts to advocate the work of EPIC. [140] Mr. Zsigo seeks a conviction on all three counts. The Defence Position: [141] Mr. P. McCann, on behalf of Mr. Carson, submits that this is a legislative

interpretation case. Mr. McCann submits that threeprinciples or rules of statutory

interpretation are involved: 1) Where a penal statute is ambiguous, the ambiguity must be resolved in favour of the accused; see R. v. McCraw, (SCC), [1991] 3 S.C.R. 72 (S.C.C.); R. v. McIntosh, [1995] 1 S.C.R. 86 (S.C.C.); and R. v. MacDonald, (ON CA),[1998] O.J. No. 2990 (ONCA). Mr. McCann submits that this principle is relevant to the

interpretation of section 5(1) (Lobbyist Act) as itrelates to Consultant Lobbyists. Mr. McCann submits that R. v. McIntosh will come into play with section 5(1)(iv) and 5(1)(

v) of theLobbyist Act. 2) That anomalous results should be avoided, Merk v. International Association of Bridge, Structural, Ornamental and ReinforcingIron Workers, Local 771, 2005 SCC 70 , [2005] 3 S.C.R. 425 (S.C.C.). Mr. McCann submits that this is relevant to the issue ins. 10.11(1)(

b) and (

c) of the Lobbyist Act. 3) That wor

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