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.
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
Yes, absolutely I agree. I think that's a positive development, and it should be implemented.
Liberal
Liberal
Mark Holland Liberal Ajax—Pickering, ON
Thank you, Madam Chair, and thank you as well to Mr. DeBeer for appearing today.
There are a couple of things. The first thing I want to come to is the comments you made with respect to us relying on the judiciary to decide these matters when somebody is to be removed. In your words, that's a time-consuming, expensive, and often, you said, unsatisfactory process. You could imagine that we would want to try to find something better.
I know sometimes there aren't ideal solutions and you're left with things that are difficult, but you don't want to leave it at a solution that is described in the words that I just repeated that you said.
I want to take the example specifically of Linda Keen, without asking you about it, just to illustrate the point I'm trying to make.
We have a situation where Linda Keen, as you know, was removed, and there's a great deal of debate as to the appropriateness of that. Obviously, that's going to play out in the judiciary. If you take the position that we do, that the appointment was inappropriate and it was interfering in an arm's-length agency, then the problem there is that if you're leaving it up to the judiciary, you have somebody who is a nuclear watchdog who is removed from her position, a position that obviously is extremely important for national safety, and you potentially don't have a resolution to that for a very long period of time.
I don't want you to comment at all on Linda Keen, but I'm wondering what your feelings would be as an alternative, because I agree there are downsides to what I'm about to talk about, but I think it would certainly be faster, and given the fact that witnesses before parliamentary committees are required to represent themselves, as opposed to having lawyers....
In the United States we see confirmation hearings. We would also see hearings sort of in reverse if somebody is going to be removed. What would your feeling be around that type of process where, if there is a dispute, they would have the opportunity to come before a parliamentary committee to have an airing of what's going on and for Parliament to be able to play a role similar to what we see Congress playing in the United States?
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
Thank you very much for the question.
In leaving it to the judiciary to establish the principles that govern the appointment and removal of public office-holders, the hope is that as case law develops, the Governor in Council follows the law. Not every case will lead to litigation, but litigation will set the parameters that ought to govern behaviour in the future.
It's an organic process, where the courts will decide procedures required in particular circumstances. And if the executive branch of the government is acting legally, it will comply with those obligations so there won't be a need for litigation. Though many cases are time-consuming, expensive, and lead to an unsatisfactory result, the hope is that the very existence of the legal principles created by the courts will prevent abuses from arising and lead to greater compliance.
To pose a counter-hypothetical, you could imagine a very important agency like a nuclear safety watchdog and suppose there is cause for removal. In such a situation it may impede the executive branch's ability to deal with the problem quickly and satisfactorily if there were a big public hearing and a major consultative process, approval from a parliamentary committee, or a vote in the House of Commons or something like that. So it works both ways.
Liberal
Mark Holland Liberal Ajax—Pickering, ON
Well, I don't know. Maybe I'll use the example again, without asking you to specifically comment on Linda Keen.
Parliament did have a very difficult decision to make--and it had to make it almost immediately--as to whether to restart the reactors. It had to have an emergency debate. It had to weigh that information and make that decision in a very quick fashion. I think Parliament has demonstrated that it has the capacity to deal with major issues that are put before it.
I understand your comment about the establishment of case law, jurisprudence, but the problem--and you would be aware of this--is that this doesn't stop these processes from going to the courts. Just because there's well-established case law does not mean that people decide they're not going to go to court. Cases happen all the time as a result of this.
Even if there is well-established case law, I don't see that if somebody is in the type of situation we've seen that they wouldn't take it there for perhaps other purposes. That's a process that can take months and months, if not years. A parliamentary process could be very targeted, particularly if there were an urgency associated with it. Parliament could deal with it in a very timely fashion, in the same way it dealt with the very difficult decision with Chalk River.
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
It's possible. Absolutely.
I have one more quick response to the comment you made...I think it was in respect of the appointment process of judges in the United States.
It's not necessarily the case that providing a parliamentary committee with authority to consider removals from public office would lead to more objective or justifiable decisions, and in some cases it may equally compromise the independence of the agency. You're just shifting the supervisory function from the executive branch to the legislative branch, and there is a risk that that could also compromise the independence of the agency.
Liberal
Bloc
Meili Faille Bloc Vaudreuil—Soulanges, QC
Thank you, Madam Chair.
Thank you for your presentation. I am a new member of this committee; however, I did sit on the Citizenship and Immigration Committee. Last year that committee dealt with problems related to the slow pace of governor in council appointments.
The IRB, which is a quasi-judicial board, is currently lacking one-third of the commissioners that are required for it to operate properly. This causes delays and administrative problems, for the government as well as for the people who are involved with immigration services. Although complaints were laid by the Bar Association, there was a mass resignation of the selection committee members who were to report to the minister. The IRB chair resigned. The complaints seemed to be related to the fact that—in this case, the chair is appointed by the governor in council—that the government cuts off the funding when it doesn't want a program or an act to be implemented.
You seemed to be saying, earlier, that Parliament should not play a supervisory role. However, in some cases, the services that are expected or the operation of the judicial, quasi-judicial or administrative apparatus can be affected. How would you deal with that?
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
I think early in your question you really hit the dilemma on the head, and that's the idea that Parliament empowers the Governor in Council to act in a certain way because it's recognized that that is the most efficient way to implement social programs or the will of Parliament. To the extent that Parliament does have a role to play, I think the efficiency of the processes is one of the most important considerations. For example, if a process were to be designed to play a supervisory role in the appointment and removal process, if procedures were established to that end, my advice would be to design them in such a way that efficiency concerns are paramount.
Bloc
Meili Faille Bloc Vaudreuil—Soulanges, QC
I ask the question because in this case, the chair could no longer operate within the mandate that he had been given. The pressure was so great that he had to resign. He clearly stated in this letter that he did not have the resources that he needed to deliver the goods.
Now let's take the example of Ms. Keen. There can also be interference or intrusion in day-to-day activities or in the carrying out of an appointee's decision-making or management mandate to operate the agency or organization. When we talk about a supervisory role, there are indirect means that can influence the carrying out of a mandate.
Ms. Keen did not resign: she was fired. I am not asking you to comment directly on her case. The committee heard the concern expressed by the IRB chair who appeared before it. I believe that the committee also heard from Ms. Keen. However, it seems to me that, without drawing any conclusions, if a person who is caught in this type of situation is without the means or does not want to undertake legal proceedings, then the whole thing might simply be dropped and forgotten.
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
If Parliament has concerns about the resources allocated by the Governor in Council to a particular tribunal or the degree to which the Governor in Council is interfering in the administration of an agency or tribunal, I think it's a point that's easily overlooked that Parliament can do something about it, but they do it through legislation.
If Parliament wishes to specify that the IRB needs more resources to operate, Parliament can enact legislation instructing the Governor in Council to provide those resources. If Parliament feels that the Governor in Council is interfering with the mandate of a particular tribunal and that there is a lack of independence, it's open to Parliament to amend the legislation to provide measures to ensure greater independence.
I guess if you take nothing away from my testimony other than this, let it be that the role for Parliament in the current system is always on the front end; it's prospective. Parliament provides the instructions, the Governor in Council executes the instructions, and the judiciary supervises that execution.
Parliament does have a role to play, but it's in providing the instructions and empowering the Governor in Council.
Liberal
The Chair Liberal Diane Marleau
Merci, Madame.
I would like to ask you a question. I want to take a different tack and look at a different part of this. It has more to do with the independence of the quasi-judicial body that is formed and its relationship with a minister.
I wonder to what extent a minister has the right or the obligation to intervene in the work of a quasi-judicial body. We've seen in the past ministers resign for writing a letter to the Immigration and Refugee Board about a case. We've seen other ministers resign for having called a judge.
What happens in a case of an independent, quasi-judicial body and its relationship? Who has the right to order that body to do something that is perhaps not within its jurisdiction or that it disagrees with?
This is the question that I think is crucial in this point, because obviously Parliament was the one that had to order the judicial body to do something. I don't think the government had the right to do it, but I don't know.
Perhaps you can answer me on that particular aspect--of the Keen case and of any other case, for that matter.
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
That's an excellent question.
The short answer is that it depends entirely on the provisions of the governing legislation. So if the legislation includes provisions that enable the Governor in Council to make regulations or prescribe certain behaviours or dictate actions that must be taken or must not be taken, then the Governor in Council is free to do that.
If, on the other hand, the legislation does not provide those powers, then there is no authority to intervene.
That's the technically legal question.
The separate issue is essentially more of a political question, which is to what extent—
Liberal
The Chair Liberal Diane Marleau
If the Governor in Council is called, it's really the government and the cabinet--the whole cabinet, not an individual minister. Is that correct?
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
Well, yes, although I'm not aware of circumstances where an individual minister is empowered to instruct an administrative—
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
I would not want to say that categorically, but I would be surprised if I could find an example of where that were the case.
NDP
Paul Dewar NDP Ottawa Centre, ON
Thank you, Chair.
To build on your question to our witness, I think your examples of people calling judges and interfering with the process is exactly why we need something at the front end and some oversight.
Going back to the purpose of the PAC, it's to prevent those kinds of things from happening and make sure that appointments indeed are merit based. The adage is that it's who you know in the PMO that determines whether or not you get an appointment. The way it works in our process now, there's not really that much hindering that process and procedure from continuing--in other words, not looking at merit and what experience this person has in any given area. The refugee file was riddled with problems. There was a report in January 2007 that talked about that.
So when you look at the public appointments commission, we pushed to have it in the Accountability Act because unless you deal with merit-based appointments and have some oversight other than the Prime Minister's office, with all due respect to Parliament, its hands are tied if all of the powers are given to one level of government. That's what we saw before. Then when a scandal breaks out--witness Gomery--they say, “Okay, we'll try to do better”.
My frustration and our party's frustration is that we worked hard to put in a preventive policy tool here called the public appointments commission. The chair just gave us examples, and we've seen in the past where interference.... And they weren't people who I believe were up to mischief in the cases she referred to. They thought, “It's fine, I'll help out”. They didn't understand the boundaries.
If you look at the legislation, it talks about having not only merit-based appointments. Any Canadian could look at the appointment and say, “You know what? I should be able to apply for that”. That's not how it's going now with the way this government is operating, because there's no oversight. If it does, it's only because they put ads out.
So I come back to you on the issue of the public appointments commission. Do you agree it should be put in place? Do you agree it would actually prevent the concerns we've had about withdrawing people, because at the front end you would put people in place based on merit, and you would have some oversight other than just the political oversight that exists presently?
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
I agree that the public appointments commission is a very good idea, in principle. To add some conceptual clarity here, we should separate three different issues. One is the independence of the Governor in Council in making appointments. The second is the independence of the Governor in Council in removing appointments. The third is the ongoing operations of the particular agency or the functions of the office-holder.
On the removal question, we have judicial oversight according to the principles I've explained. On the operational front, what we want in most cases is independence, particularly where quasi-judicial functions are being performed by the agency. So we don't necessarily want oversight from Parliament or the executive branch, but again there is judicial oversight in terms of standards of judicial review that apply to operational decisions taken by administrative agencies.
But the judicial oversight that exists in the removal process, procedural fairness, substantive obligations, and operational functions doesn't exist in the context of appointments. So the judiciary doesn't play a role in appointing office-holders, and that's why I think it's so important that we have a parliamentary process in that context, whereas it's less important in the removal and the operational context. In fact, there may be negative consequences of parliamentary involvement in the removal and operational context.
Liberal
The Chair Liberal Diane Marleau
I want to thank you for coming before us. These are always very difficult topics. I've been a member of Parliament for very many years, and obviously patronage is in the eye of the beholder. I recall, shortly after we formed the government in the mid-nineties, when by order in council Kim Campbell was appointed honourary counsel in Los Angeles and we were accused of making a patronage appointment. So it depends on who's where, what, and at what time. It's always complicated.
But I thank you for coming. Hopefully you've given us all some insight into the process and the relationships.
Assistant Professor, Common Law Section, University of Ottawa, As an Individual
Thank you, again, for the invitation.
Liberal
The Chair Liberal Diane Marleau
Thank you.
We're going to take a short break, and then we'll come back and work on the motions.
Madame Bourgeois has a motion before us, which she'll be bringing forward, and then we'll look at future business.