The International Cooperation Group

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IMPROPER USE OF PUBLIC OFFICE

Aline Baroud
Andrew Gibbs

INFLUENCE PEDDLING

Influence peddling is another example of improper use of office. Unlike bribery, which is aimed at buying a decision directly from the decision maker, the concept of influence peddling involves paying a third party to exert influence on the decision maker. In this situation, the buyer hopes that the influence of the person being paid will be sufficient to convince the decision maker to decide a matter in his or her favour.

The Criminal Code prohibits officials from demanding, accepting or offering or agreeing to accept a loan, reward, advantage or benefit of any kind for cooperation, assistance or exercise of influence in connection with any matter of business relating to the government[21]. Although Parliamentarians may not necessarily be in a position to make a particular decision, they might very well be able to influence the decision-making process. In fact, members of the House of Commons are expected to represent the interests of their constituents and to participate in the development of public policies. Thus, representing the interests of their constituents in influencing public policy is not in itself a crime. However, this activity becomes a crime when done in exchange for a benefit. The member would be taking advantage of his public office for private gain.

It is noteworthy that when a public official accepts a benefit in exchange for the exercise of his or her influence, it is not necessary that the official possess a corrupt state of mind. The test applied by the courts is : whether or not the individual is aware that he or she is an official ; whether or not the official intentionally demands or accepts the benefit in question, for himself or herself, or for another person ; and whether or not the official knows that the reward is in consideration for his or her influence in connection with the transaction of business with the government.

The Supreme Court of Canada clearly outlined these grounds for influence peddling in a case involving a member of the Senate of Canada, a lawyer who continued to represent his clients after he was appointed to the Senate[22]. As a lawyer, Michel Cogger represented clients before various government committees in relation to grants and other government business. After his appointment, he continued to lobby on behalf of his clients and received compensation for his activities, even though his clients did not receive a single grant[23]. As part of his defence, Cogger indicated that he had represented his clients openly and invoiced them for his services – nothing was done in secret. The lack of corrupt intent led the courts to acquit Cogger. The Supreme Court of Canada, however, overruled the lower courts and stated that government officials must not accept compensation for exercising their influence within government, whether or not they do so with corrupt intentions[24]. The Supreme Court annulled the acquittal and ordered a new trial based on a correct interpretation of the law. At the new trial, Cogger was convicted of influence peddling and received a $3,000 fine, 12 months probation and 120 hours of community service[25]. He appealed the sentence and was given an absolute discharge (a sentence by which the accused is discharged although the accusation is proven or a plea of guilty entered) by the Quebec Court of Appeal[26]. The decision means that Cogger has no criminal record. Cogger's client was convicted of buying influence and received a suspended sentence. He was also ordered to perform 240 hours of community work[27].

The Criminal Code prohibits influence peddling not only by government officials but also by anyone who has or pretends to have influence with the government or with a Minister[28]. The application of this provision is limited to those who have, or pretend to have, a significant enough connection to government so that they can affect a government decision, such as the awarding of a contract[29]. The key factor is that the individual offering his or her influence does so in exchange for a benefit, either for himself or for some other person, as consideration for the exercise of influence. Anyone convicted of influence peddling is liable to imprisonment for up to five years[30].

In one instance, an individual indicated to his nephews that he had a personal relationship with the Housing Minister in the province of Nova Scotia[31]. His nephews wanted to sell a piece of property to the government, and the accused indicated that he might be able to help. He suggested that money was required to get the deal through and told his nephews that he had given the Minister $2,000. The accused only pretended to have influence and in fact did not give the Minister any money. The nephews subsequently gave a series of money orders to their uncle, totalling $2,000. The accused was convicted of influence peddling, along with three offences for similar but unrelated conduct, and, despite his frail physical and mental health at the time of sentencing, was sentenced to one year in jail[32].

In addition to possible imprisonment, anyone convicted of influence peddling under the Criminal Code, whether claiming to have influence or buying influence, also faces administrative sanctions. These individuals are subsequently prohibited from contracting with the government or receiving any benefit under a contract between the government and any other person[33]. Furthermore, they are permanently banned from holding office in government[34]. These sanctions can be lifted only if the individual obtains a pardon or if the restoration of his or her contractual rights is found to be in the best interests of the public[35].

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