:
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.
:
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?
:
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.
:
Yes. I didn't intend to minimize the role of Parliament or parliamentarians. In fact, to the contrary, the role of Parliament is absolutely fundamental. Without authority delegated from Parliament, the Governor in Council can do nothing.
The limitation, however, is that Parliament's role in the current system is limited to the front end. So when Parliament decides that we need a privacy commissioner or a member of the Veterans Appeal Board, the process for deciding what the terms of the appointment will be is considered prospectively. There is consideration of whether the office should be during pleasure or during good behaviour, for how long, whether the office-holder should be, for example, a sitting or a retired judge, or full-time or part-time. Parliament specifies all of this in the legislation. Then it's for the Governor in Council to go and execute Parliament's instructions, and it's at that point where, metaphorically, the torch is passed.
So Parliament has an enormous role to play, but it's a front-end role under the current system. Essentially, that's for reasons of administrative efficiency. A government is elected to carry out the will of Parliament. Parliament, in a welfare state, enacts legislation to implement various different social programs, but it can't do so without delegating that authority to somebody. So the question is really whether, once you've delegated the authority, you want to continue to play a supervisory role. Under the current system the answer is typically no, but there's nothing stopping Parliament from changing its mind on that, either on a wholesale basis or on an individual basis.
Thank you to our guests, who provided a very succinct overview of the issue and the dilemma.
Speaking of dilemmas, listening to you reminded me of a bit of Canadian history, and you probably are somewhat versed in Canadian history. It was Lord Elgin's dilemma—you remember what that was about—at the point of responsible government. Lord Elgin's dilemma was whether or not he would sign off a bill that was provided to him from the legislative branch.
I'm giving that example for my friends in the Conservative Party because they have Lord Elgin's dilemma in front of them. Lord Elgin's dilemma for them is the Accountability Act, and in legislation we have the public appointments commission. At everything you said today, I kept on nodding and then looking to the legislation. That isn't something we have to contemplate; it's something we have at the front end.
I really appreciate your comments about how that might be used, maybe at the other end when things happen. But where I come from, it's always important to prevent the dilemmas we have in front of us, like what we've seen most recently in the case of the nuclear agency.
I'm just assuming everyone has read this legislation at this committee, on the public appointments commission. I have to say I'm a little saddened that every time this is brought up the government says, “Well, we had our guy and you guys said no.” Let's get over that and get on to good public policy and what's in the legislation and enact it.
In this legislation, Bill , the cornerstone of this government, the Accountability Act, it asks for the government to set up a public appointments commission. In it, it says appointments should be based on merit. We haven't seen that in this town for a long time. This government has a hissy fit because it didn't get what it wanted with the person who was named by the before the act was passed.
So give me a break when you say, “Oh we were going to do it, but they didn't allow us.” It's in legislation. It says, “to audit appointment policies”—this is what it says in the legislation as to what the public appointments commission should do—“and practices in order to determine whether the code of practice that is aforementioned is being observed”; to ensure that “public education and training of public servants involved in appointment and reappointment processes regarding the code of practice” is put in place.
It talks about the commission itself—and we're getting the spin lines now from the staffers here—that it makes sure it's under good behaviour. I'm glad you underlined good behaviour. I don't want the pleasure, because we've seen what happens at pleasure.
Before my Liberal friends jump on this, the reason why we had the Accountability Act and the public appointments commission was because of the smell and whiff of scandal that came from their government. So we have a crisis. My concern is that this government is going to do the same as the previous government and they're going to take Lord Elgin's dilemma and not do the responsible thing. Lord Elgin signed the bill, by the way, the Rebellion Losses Bill; we know that.
This government seems not to be going to honour Lord Elgin; it seems to be looking the other way.
I want to ask you what you think of the public appointments commission proposal.
:
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?
:
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.
:
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.
:
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?
:
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.
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.
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?
:
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.
:
Thank you, Madam Chair.
We have some difficulty with the motion as it stands. I'd like to suggest a friendly amendment. We as a government and members have no difficulty with calling in witnesses to add more clarification to the issue between Rosdev and Public Works in that. With regard to the witnesses, though, I would like to remove the second paragraph, “That the unelected Minister of Public Works [...]”, and the reasoning is very, very simple.
Minister Fortier has appeared before this committee probably more than any other minister on the Hill--six times now before this committee. The last time he was here, just a short while ago again, the minister was left wanting for questions on this file, and the minister left early simply because there were no more questions.
This motion suggests that the minister is hiding something. He has been totally forthright for six consecutive times coming before this committee.
Also in here, the wording says “to explain, among other things”. Well, it's totally ludicrous to ask a minister to come before committee to explain “things”, without even knowing what “things” are. How would you even prepare information to come to explain “things”?
I really think that is a real level of inadequacy that just doesn't do justice, to bring officials here to give explicit answers to explicit questions. I really honestly do believe that it's politically motivated, because obviously the minister is running against one of her compatriot members, and I think we should get beyond that.
:
Yes, it is a friendly amendment.
I really think this is an affront. It is going overboard--let's get information, call the ministers. We had Mr. Loiselle just here at committee. We had the minister, again, just here at committee. Why would we be bringing back these same people for the same questions on the same times? Obviously the responsibility is on all committee members.
If you want to ask questions when people are here, then be prepared and dig into your files and do your homework and ask the questions when they're here.
On a simple matter of courtesy and respect, there's a difference between using and abusing. I really think it's preposterous to ask a minister to be at our beck and call for every other time we have a session here.
Madam Chair, you were a minister.
An hon. member: She was an elected minister.
Mr. Daryl Kramp: Madam Chair, I really think I've made my point on this. I really think we are abusing a minister and our privilege. I would certainly lose a bit of respect for common decency when we obviously have had every question answered fully by this minister every time he's been here and left wanting. So to carry on on another witch hunt now, simply for partisan purposes due to a potential election again, once again gets away from doing what we have to do as a committee.
If we need evaluation of Public Works officials, bring them in. That's our job. Let us investigate. We already asked this minister, time and again, on this same subject. How many times do you want him back--every other day here? Ministers have a lot of other serious responsibilities too, and never once has the minister said he would not appear. He has always been a willing attendant at any of these meetings here. So I just ask our committee members to use a little discretion, a little intelligence, a little compassion, a little capability, and a bit of maturity in just simply dropping the second paragraph.
Certainly we as a government have no regret and/or no objection to the intent of Madame Bourgeois' motion on discussing the issue. That's why I would suggest that friendly amendment. I think that would make sense at this time.
:
I will let Ms. Bourgeois speak, but first, I would like to say two things. First, I appreciate and understand the point of view expressed by my colleague Mr. Kramp. Rather than tell us 10 times though, he could have said it once or twice. We understood him the first time. The same goes for all of my colleagues opposite.
Next, if I understand what Ms. Bourgeois is saying, since the motion was made in French, I am wondering if we could use the French text as the official version. Mr. Kramp has just referred to three words in the second paragraph, namely, “among other things”, which appears to be a rather loose translation. The French word “notamment” is an expression of what Ms. Bourgeois intended to say. I would like to use the French text for the official motion, since I believe that Ms. Bourgeois drafted it herself.
As to the amendment, yes, the minister did appear on numerous occasions, but as my colleague Mr. Holland has said, it is the only way for opposition members to speak to him directly, on the record. When we ask questions in the House, during question period or at some other time, the person who answers on his behalf is his parliamentary secretary, who is an elected member of Parliament.
When the was here yesterday to speak to us about Bill on Senate reform, I asked him how someone could have been appointed by the . The minister was not elected. He ran in the riding of Laval—Les Îles, the riding that I currently represent in the House of Commons, he was rejected by the voters, and the Prime Minister appointed him to his position. After that, the senator even refused to run in a by-election, something that he could have done. This is the only place where we can direct questions to him.
I agree wholeheartedly with my Bloc Québécois colleagues that this person should appear before us to answer our questions. We have more questions for him.
:
Thank you, Madam Chair.
I have two points. Madame Bourgeois has said there might be more questions we might want to ask the minister. The minister left a full half-hour at the last meeting alone before the time expired because there were no more questions.
If you have more questions, do your homework and be prepared and ask them.
This went on and on, so might I suggest at this point another.... really wants to get to the bottom of this file. On and on and on--as he said, it's gone on with various ministers. I suggest let's just put a halt to all of this nonsense, this politicizing, and bringing in a minister when it's unnecessary. Let's get to the bottom of it.
I think Mr. Dewar might even appreciate the friendly amendment I'm about to make.
Let's bring them in then; if they wish to bring in Minister Fortier again, then fine, but let's also bring in the person who was responsible for dealing with most of the Rosdev file all the way through. Let's bring in Minister Brison and his chief of staff as well and let us deal with this issue and with all the key people who have been involved. We'll put them on the stand, deal with it, and get it over with.
Does that sound like a reasonable, friendly amendment?
An hon. member: Maybe not friendly.
:
Just for the record, I'm completely agnostic on this. I don't have faith in either of them, so bring them on.
Seriously, you've looked at the Rosdev file. I've got a letter to the minister, to which sadly I've not had a response yet, about the option to buy L'Esplanade Laurier, which goes back to 2005, and it's coming up again.
Rosdev owns L'Esplanade Laurier. I would like to know what is going on there with the minister and what the discussions were with Rosdev officials and certainly with the PMO.
So I'd like to get the minister here and then take it from there. So yes, bring Brison up front, or whomever, and follow the path. He was responsible.
So yes, I would support that.