Appeal court nixes fresh lobby probe of Aga Khan in Trudeau vacation case

OTTAWA — There is no need for the federal lobbying commissioner to take another look at whether the Aga Khan broke the rules by giving Prime Minister Justin Trudeau a vacation in the Bahamas, an appeal court has decided.

In a newly released ruling, the Federal Court of Appeal says the commissioner’s original decision not to investigate a complaint about the matter is not subject to review by a judge, effectively making it final.

In September 2017, then-commissioner Karen Shepherd said there was no basis to a complaint that the Aga Khan, a billionaire philanthropist and religious leader, 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.

The advocacy group Democracy Watch challenged the ruling in Federal Court. It 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 an April 2019 decision, Federal Court Justice Patrick Gleeson said the commissioner was required to take a broad view of the circumstances in addressing the complaint. Instead, she performed a narrow, technical and targeted analysis lacking in transparency, justification and intelligibility.

Gleeson directed now-commissioner Nancy Belanger to re-examine the matter. The federal government then appealed Gleeson’s ruling.

A three-member Court of Appeal panel unanimously found the Lobbying Act does not create a right for a member of the public to have a complaint investigated.

“Parliament has established no process, procedures, mechanisms or obligations for disposing of complaints from the public,” Justice Donald Rennie wrote on behalf of the court.

As a result, the lobbying commissioner’s decision not to investigate a public complaint “is not a decision or order subject to judicial review,” he wrote. “It is therefore not necessary to consider the reasonableness of the decision.”

Democracy Watch co-founder Duff Conacher said the group will seek permission to appeal the decision to the Supreme Court of Canada.

“The ruling makes the commissioner into an unaccountable czar, which is very dangerous given the commissioner’s negligently weak past enforcement record,” Conacher said.

“Just as bad, likely dozens of watchdog agencies, boards, commissions and tribunals across Canada will be able to use this ruling to protect their decisions from review by the courts.”

In December 2017, Mary Dawson, the 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.

This report by The Canadian Press was first published April 2, 2020.

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Jim Bronskill , The Canadian Press