Evidence of meeting #17 for Government Operations and Estimates in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was role.
A recording is available from Parliament.
Liberal
The Chair Liberal Diane Marleau
I'm going to call the meeting to order. This morning we have a witness to speak to us about order in council appointments: Mr. Jeremy DeBeer.
I'm sorry we're late starting, but there have been delays with the green buses and delays just about everywhere else, and as you were telling us, you were delayed yourself.
What we normally do here is we hear from the witness. You can speak for five to ten minutes--it's up to you--and then we open it up to questions.
So perhaps you will proceed.
Jeremy DeBeer Assistant Professor, Common Law Section, University of Ottawa, As an Individual
Thank you very much, Madam Chairperson.
Good morning, Madam Chairperson and committee members. My name is Jeremy DeBeer and I'm an assistant professor at the University of Ottawa Faculty of Law. I'm also a former legal counsel to the Copyright Board of Canada--an independent administrative tribunal--and a co-author of a treatise on administrative law addressing the standards of review of federal decision-makers.
Thank you for the invitation to present my views on the general legal principles that govern the relationship among various public office-holders in various branches of the Canadian government.
Please accept my apology in advance for the inability to provide written copies of my remarks, but I'll be pleased to leave my comments with the committee clerk for subsequent distribution.
I understand the committee is particularly interested in exploring the principles applicable to the removal of public office-holders appointed by the Governor in Council. I also understand the committee's interest in this topic has been triggered by recent circumstances surrounding a position at the Canadian Nuclear Safety Commission. I should emphasize at the outset that I'm not in a position to comment specifically on those circumstances. However, it's my pleasure to offer you an abstracted overview of some of the potentially applicable legal principles.
During the next few moments I will describe a basic framework that might be useful for consideration of such matters.
I believe there are at least two broad issues that merit discussion. The first relates to the relationship between the legislative and executive branches of government in appointing persons to and removing persons from public offices. The second relates to the relationship between the executive branch of government and public office-holders themselves.
Let me first speak briefly to the relationship between the legislative and executive branches of government. What is the appropriate role of Parliament in the appointment and removal process? Well, in brief, Parliament's role is not only significant, it's fundamental. Without a delegation of authority from Parliament, the Governor in Council has no power to take any action in respect of a public office. The Governor in Council may only appoint or remove public office-holders pursuant to authority granted by applicable legislation. By legislation, Parliament instructs the Governor in Council as to the conditions for appointment to or removal from public office. For example, legislation might specify who is eligible to hold a public office, for how long, and on what terms or tenure. Regarding tenure, as you know, an appointment may be during pleasure or during good behaviour, and that distinction is important for reasons I'll discuss in a moment.
Though the Governor in Council has no power in respect of public office-holders other than as specified by legislation, Parliament likewise cannot exercise power or control over the actions of the Governor in Council except as provided for in the applicable legislation; that is to say, Parliament's role is limited to empowering the Governor in Council through legislation. Once legislation has been enacted, the scope of the Governor in Council's powers is then determined. At that point, in many, perhaps most, or perhaps even in all cases, Parliament ceases to play a role in the appointment and removal process.
That brings me to the second broad issue for consideration, which is what principles apply to the relationship between the Governor in Council and the public office-holder. Here again there are two topics to discuss. One concerns procedure and the other concerns substance.
Whatever tenure of appointment is specified in the applicable legislation, it is clear that the Governor in Council owes to the office-holder a duty of procedural fairness when dealing with that person. Recent case law has confirmed that this duty applies, whether the person holds office during pleasure or during good behaviour.
The tenure of appointment will, however, affect the scope of the duty. The concept of procedural fairness exists on a continuum, covering a range of obligations that might be owed in different circumstances. Precisely which procedures are required to be followed in a particular situation will depend on a variety of factors. As well as the tenure of appointment specified in the applicable legislation, the nature of the decision being made is one such factor. For example, administrative decisions of the Governor in Council attract fewer procedural requirements than an adjudicative decision of a court of law.
Yet another factor is the consequence of the decision to the person affected. Removal from public office is a serious matter, though perhaps less serious than a change of title or position within an administrative agency.
Office-holders' expectations regarding requisite procedures might also influence the scope of the duty of procedural fairness. Depending on these factors, procedural fairness might require, at minimum, notice of the action to be taken--removal, for instance--an opportunity to be heard, and reasons for the decision. The manner in which such procedures might be implemented is highly variable and often a matter within the discretion of the decision-maker.
In terms of the substance of decisions concerning the appointment to or removal from public office, the law is somewhat less settled. One factor, if not the most significant, affecting the power to remove persons from public office is the tenure of the appointment. Where appointment is during pleasure, the Governor in Council has very broad discretion. Where the appointment is during good behaviour, removal requires cause.
In determining whether cause for removal exists, questions to consider include whether the person's conduct is consistent with the terms of the office and whether the standard of integrity necessary to maintain public confidence in the institution and appointment process has been met. Some exercise of discretion by the Governor in Council is necessary in determining to what extent an office-holder's actions conform to these benchmarks.
Regarding appointments both during pleasure and during good behaviour, the discretion of the Governor in Council is not unfettered. Every discretionary decision is subject to certain parameters--for example, decision-makers shall act in good faith, they may not consider irrelevant factors, and they must be impartial. As with procedural requirements, the precise nature of these substantive obligations will depend greatly on the circumstances of the case.
In summary, Parliament's role is to empower the Governor in Council through legislation to appoint or remove persons from public office. In executing the powers granted by Parliament, the Governor in Council must comply with requirements of procedural fairness and exercise reasonable discretion in reaching a substantive decision. The precise nature of the Governor in Council's procedural and substantive obligations will of course vary greatly depending on the circumstances.
With that, I thank you for your attention to my remarks, and I would be pleased to respond to any questions the committee may have.
Liberal
The Chair Liberal Diane Marleau
Thank you very much, Mr. DeBeer.
We will start with seven minutes for the Liberals.
Madame Folco.
Liberal
Raymonde Folco Liberal Laval—Les Îles, QC
Thank you, Madam Chair.
Welcome to our committee meeting, Mr. DeBeer.
From what you have said, I understand that you have no intention of commenting on Mrs. Keen's case. Is that correct? Thank you.
In that case, I will ask you a more general question, and your response will help to enlighten us so that we might move from a general discussion to something more specific, namely, federal organizations that are at arm's length from Parliament or from the government.
Are you happy with the current legislation whereby it is the governor in council who makes and revokes appointments? If the answer is no—since nothing in life is ever perfect—what would you add to improve the legislation for the benefit of the person who will be given the responsibility to head the organization, as well as for the benefit of the governor in council?
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
Thank you very much for the question; it is a good one.
I think there are two issues to consider. One is in terms of specific legislation applicable to each office-holder, whether that be the Canadian Nuclear Safety Commission, the Copyright Board of Canada, the Privacy Commissioner, or the chairman of the board of VIA Rail, so there is specific legislation governing the appointment and terms of the appointment for office-holders in each of these contexts. Another approach would be legislation that would empower Parliament to play some general role in appointments and/or removals more broadly, which is not in the specific context of a particular officer-holder, but legislation that might apply to all office-holders.
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
For example, there is currently legislation governing, empowering, or establishing procedures for the appointment of office-holders by the Governor in Council, providing a broader role so the decision is not purely discretionary. That legislation, however, does not apply to the removal of persons from public offices.
So that might be an issue worthy of consideration, whether to expand that process to input into both the appointment and the removal process. There are advantages and disadvantages of doing that, of course.
Inevitably there is a balance between the need to confer authority on the executive branch of government to carry out business and the need to ensure that authority is not completely untrammelled.
Whether the supervisory function ought to be performed by Parliament or the judiciary remains an open question. Sorry, if I understand your—
Liberal
Raymonde Folco Liberal Laval—Les Îles, QC
I can understand, Mr. DeBeer, that you're presenting a point of view, yes, but from the legislators' point of view, and from my point of view without a law degree—although I do have some experience with executive councils and so on—I would really like it if you could give me an example. It need not be a realistic example in the sense that it is somebody who is named and who actually holds office today. That doesn't matter. But I would like to see the pros and cons in concrete terms, if you like, rather than in abstract.
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
Let me speak from my own personal experience, which is as a former legal counsel to the Copyright Board of Canada, without speaking about any individual office-holder.
Parliament enacts the Copyright Act, and the Copyright Act contains provisions constituting the Copyright Board. It empowers the board to do certain things and indicates who may hold office as a Copyright Board member to carry out those functions.
Once Parliament has specified what the role of that board would be, how members are to be appointed, and on what terms, there is no longer a role for Parliament to play in supervising how the executive implements those instructions contained in the legislation.
So at that point the relationship concerns solely the Governor in Council or the executive branch of government and the office-holder him or herself.
I believe what you're asking is whether there might be a role for Parliament to play after that point, should Parliament wish to supervise what the executive branch of government is doing.
Liberal
Raymonde Folco Liberal Laval—Les Îles, QC
I am not talking about day-to-day operations, obviously, but in a supervisory role, yes, and at the very end in the removal role particularly. Obviously that is what is interesting to us.
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
Yes. So my inclination would be to say no, because Parliament is empowered or able to provide all the instructions it wishes to in the legislation proactively or prospectively. So Parliament speaks and then the executive branch carries out those instructions.
If there is something that Parliament has in mind, it is free to do that by enacting or amending legislation. Once that legislation is enacted, I believe it's necessary for effective and efficient implementation to give significant leeway to the executive branch, to the Governor in Council, in deciding how office-holders are appointed and removed.
I say that only because it's not the case that the Governor in Council has totally unfettered discretion or is unsupervised. The judiciary is there to intervene in cases where there are abuses of power.
Liberal
Bloc
Diane Bourgeois Bloc Terrebonne—Blainville, QC
Thank you, Madam Chair.
Good morning Mr. DeBeer. I am trying to find my way through your testimony. I hope that you will leave us a copy of your text so that we may refer to it.
If I understand what you are saying, Parliament simply delegates the power to the governor in council. Is that correct?
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
That is correct--through legislation.
Bloc
Diane Bourgeois Bloc Terrebonne—Blainville, QC
That is its only role at this time. However, to follow up on what my colleague Ms. Folco said, Parliament could play a greater role if the act were amended. Is that what you have just told us?
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
That's absolutely correct. The amendment to the legislation could be specific in terms of a particular agency or tribunal--for example, VIA Rail, the Privacy Commission, the Copyright Board, or the Nuclear Safety Commission--or such measures could be taken on a level that's more broadly applicable. That would apply to all public office-holders rather than the particular office-holder. If you decide that Parliament should play a more active monitoring or consultative role in the appointment and removal process, the question to decide is whether it ought to be specific to the particular office-holder or be in general to all office-holders.
Bloc
Diane Bourgeois Bloc Terrebonne—Blainville, QC
In that case, would the governor in council not say that Parliament has interfered in his duties, in what he is supposed to be doing? It is not easy, there is very little leeway.
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
Yes, I absolutely agree, and that is why I suggested that my intuition tells me that supervision of the relationship between the Governor in Council and the office-holder is best left to the judiciary. Parliament has an opportunity to provide input prospectively through legislation, but enacting legislation is different from playing some ongoing consultative or supervisory role, and I think there are downsides in enabling Parliament to intervene to too great an extent.
Bloc
Diane Bourgeois Bloc Terrebonne—Blainville, QC
Moreover, if I understand what you said earlier, the governor in council is given very broad authority when an appointee is removed from office. As long as the governor in council can demonstrate that the procedure was fair or appeared to be fair, as long as he can show that he acted in good faith or appeared to act in good faith, then he has the authority to remove from office any appointee whose tenure is during good behaviour or during pleasure. That means that he is given a great deal of authority by Parliament. Did I understand that correctly?
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
That's absolutely correct.
However, if Parliament wished to curtail the power of the Governor in Council, it is absolutely free to do so through legislation. There is nothing preventing Parliament from deciding to limit the powers of the Governor in Council, but what Parliament can't do is empower the Governor in Council to use discretion and then attempt to monitor the exercise of that discretion too closely.
Bloc
Diane Bourgeois Bloc Terrebonne—Blainville, QC
Would you now agree that in giving so much authority to the governor in council, the act is allowing parliamentarians to give him free reign? He can say and do just about anything, when an appointment is revoked. He can remove whomever he wants for whatever reason, as long as he appears to be acting fairly.
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
As long as the Governor in Council has acted fairly in terms of according necessary procedures to the office-holder and has not abused discretion by acting in bad faith, prejudging the issue from a biased perspective, or considering irrelevant factors, yes, the Governor in Council has very broad discretion.
Bloc
Diane Bourgeois Bloc Terrebonne—Blainville, QC
That brings me to my final question. If we want to prove that a governor in council has a particular bias, or acted unfairly, the regular legal process would apply and can be extremely time-consuming; that is why it is so important for us to have an act that clearly states the terms of reference for the governor in council. Is that what you are telling us?
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
This is absolutely true. One of the downsides of leaving it to the judiciary to supervise the relationship between the Governor in Council and an office-holder is that it is very time consuming. It is also very expensive, and often the results are unsatisfactory.
That is not to say that the procedures would be better if Parliament supervised the relationship between the executive branch with the Governor in Council and the office-holder. If the office-holder had to consult a committee or bring proposed action to the House of Commons for some sort of approval prior to removing an office-holder, that could also result in an expensive delay. So there are trade-offs.
Diane Bourgeois Bloc Terrebonne—Blainville, QC
In my opinion, when an official is appointed to serve during good behaviour or during pleasure, an effort has already been made to find the best candidate for the job. These people appear before selection committees. The unsuitable ones are weeded out. That means that there must be a very good reason to remove someone from office, unless it is a matter of conflicting ideologies, or unless the mandate was misunderstood from the outset.
In that case, removing an appointee would be a very serious matter. If we parliamentarians have no power and if all of this authority rests with the governor in council, then a removal from office could well be arbitrary and unfair.