Ottawa appeals court ruling that ordered fresh look at Aga Khan-Trudeau episode

In September 2017, then-commissioner Karen Shepherd said there was no basis to a complaint that the Aga Khan, a billionaire philanthropist, had violated the code for lobbyists by allowing Trudeau and his family to stay on his private island in the Caribbean the previous Christmas. (File Photo By DFID – UK Department for International Development – This file has been extracted from another file: His Highness the Aga Khan (15760993697).jpgHis Highness the Aga Khan, CC BY 2.0)

Ottawa is challenging a judge’s ruling that directed the lobbying commissioner to take another look at whether the Aga Khan broke rules by giving Prime Minister Justin Trudeau a vacation in the Bahamas.

In a new filing with the Federal Court of Appeal, the government says it’s up to Parliament, not the courts, to determine who should be covered by lobbying legislation.

In September 2017, then-commissioner Karen Shepherd said there was no basis to a complaint that the Aga Khan, a billionaire philanthropist, had violated the code for lobbyists by allowing Trudeau and his family to stay on his private island in the Caribbean the previous Christmas.

Shepherd’s office found no evidence the Aga Khan was “remunerated for his work” as a director of a foundation registered to lobby the federal government, and therefore concluded the code did not apply to his interactions with Trudeau.

Ottawa-based Democracy Watch challenged the ruling in Federal Court. The group argued Shepherd should have considered that as a board member of the Aga Khan Foundation Canada, the spiritual leader of the world’s Ismaili Muslims was directly and legally connected to the organization bearing his name and was acting as its representative in giving a gift to the prime minister.

In a decision earlier this month, Federal Court Justice Patrick Gleeson noted the commissioner concluded there was no evidence the Aga Khan was “remunerated” for his work with the foundation. However, he said, the Lobbying Act sets out obligations that lobbyists incur when they undertake activities “for payment” – a term defined in the act as including “anything of value.”

The commissioner’s analysis does not consider whether the Aga Khan might have received anything of value, but begins and ends with the simple question of monetary payment, Gleeson said. Restricting the analysis to this narrow question was inconsistent with both the wording of the act and the objects and purposes of the code, he added.

In addition, the analysis excluded any consideration of possible compliance issues relating to the foundation, its senior officer or its other registered lobbyists.

The commissioner was required to take a broad view of the circumstances in addressing the complaint, Gleeson said. Instead, she performed a narrow, technical and targeted analysis lacking in transparency, justification and intelligibility.

Gleeson directed the current commissioner, Nancy Belanger, to re-examine the matter.

In its notice of appeal, the government says Gleeson disregarded “several core tenets and principles” related to judicial review of administrative decisions.

The judge should have simply been looking to see whether Shepherd’s reasons revealed how she arrived at her decision and if her ruling fell within a range of acceptable outcomes – a threshold she “amply meets,” the government argues.

In addition, Gleeson’s decision amounts to an “unwarranted expansion” of the lobbying commissioner’s jurisdiction under the law, something that should be left for Parliament to decide, the notice of appeal says.

Democracy Watch co-founder Duff Conacher said Friday it was “very disturbing” to see the government “waste taxpayers’ money and the court’s time by appealing a good ruling that closed a huge secret, unethical lobbying loophole.”

In December 2017, Mary Dawson, federal ethics commissioner at the time, found Trudeau contravened four sections of the Conflict of Interest Act in relation to the island vacation. She said the holiday could reasonably be seen as a gift designed to influence the prime minister.