Dispatch Box: The Spur of Scandal

Canadian political history is replete with scandal and rumours of scandal. The government of Sir John A. Macdonald was found to have taken a massive campaign donation in exchange for the contract to build the Canadian Pacific Railway. The insistence of Minister of Militia Sir Sam Hughes in sticking with the Ross rifle for Canadian soldiers during World War I despite its total unsuitability for battlefield conditions got him fired amid charges of incompetence and corruption. Patronage in the Quebec government of Maurice Duplessis was employed on gargantuan scale and civil liberties were given short shrift. (The premier himself had to pay damages in one notorious case in which the government revoked the liquor licence of a restaurateur it found politically troubling.) Corruption has bubbled up in government contracting, influence peddling, favouritism, nepotism, and a host of other practices.

More recent was the Airbus affair, in which Prime Minister Brian Mulroney was alleged to have intervened directly in Air Canada’s purchase of aircraft in 1988, thereby earning campaign donations for his party and large commissions for his political friends. The Chrétien government stumbled over the Somalia affair, in which soldiers of the Canadian Airborne Regiment were found to have beaten and tortured a Somali youth; the Canada Jobs Fund/HRDC affair, over which Minister Jane Stewart resigned; and allegations of prime ministerial wrongdoing over Jean Chrétien’s financial stake in the Auberge Grand-Mère resort in Shawinigan, Quebec (a scandal that came to be known as Shawinigate). There are numerous other examples involving the Harper government and concerns about alleged electoral fraud, possibly misleading the House of Commons about the abuse of Afghan detainees, and questionable behaviour by senior officials in the Prime Minister’s Office with respect to the Senate scandal involving Mike Duffy.

Scandals have tended to spur public demands for ethical reforms, and these have taken a variety of forms, as elucidated in the text.

Case Study: Singh v. Minister of Employment and Immigration, 1985

Dispatch Box: Tracking Accountability and Ethics Issues

White Paper: Administrative Law at Work

1. Compare and contrast the merits of objective and subjective codes of ethics.

Objective codes

Objective codes derive from the ideas of Herman Finer.

They provide detailed written rules and guidance to cover all the ethical issues that public servants might face in the course of their duties. They delineate the ethical standards required of public servants, accountability relationships between employees and their superiors, and what constitutes a conflict of interest.

Objective codes become important when bureaucracies become very large and most employees do not know one another or have close working relationships with their superiors. Developing objective codes is problematic, however, because of the difficulty of defining all possible situations that require ethical guidance.

Subjective codes

Subjective codes derive from the ideas of Carl Friedrich.

They are based on the common knowledge of public servants gained through years of experience and passed down to their younger colleagues. These codes are rooted in the idea that most people understand the ethical standards expected of them and do not need a formal code to tell them right from wrong. Such codes also assume that only a small number of public servants will ever engage in unethical conduct and that those who do can be dealt with by their superiors.

The core idea of subjective codes is that there is no need to burden the vast majority of public servants with copious formal ethical rules and regulations that slow down bureaucratic decision making and initiative.

2. Identify some primary aspects of political responsiveness and explain the challenges of putting the concept into practice.

Political responsiveness deals with the relationship between public servants and their elected ministerial leaders. Its core concept is ministerial responsibility, both individual and collective. Your response should touch on the following points:

• Elected ministers are in control of the institutions of government, and unelected public servants must act in accordance with the policy and program directions set by their ministerial superiors.
• Public servants are free to give professional and neutral advice to ministers consistent with the chain of command, and such advice is accorded anonymity from public scrutiny.
• Ministers alone are responsible for the successes and failures of their portfolios.
• A key problem in operationalizing ministerial responsibility is the size and scope of government departments. Ministers cannot be expected to know every detail of large departments, and deputy ministers therefore bear increasing responsibility for administrative decisions.
• Ministerial responsibility is ultimately enforced within parliament. How effective, then, is parliamentary scrutiny when a governing party possesses a majority of seats?

3. Identify some primary aspects of legal responsiveness and explain the challenges of putting the concept into practice.

Legal responsiveness deals with the relationship between governments, public servants, and the law. Its core concept is the rule of law. (See the Bonus Chapter on administrative law for a full overview of public administration and the rule of law.) Your response should touch on the following points:

• The rule of law stipulates that government decisions must be procedurally and substantively just, made in accordance with formal, legally prescribed means and resulting in legally acceptable ends. The formal rules of natural justice and fairness, bias, and error of law, as found in Canadian administrative law, apply to all governmental administrative decision making.
• Any government decision can be challenged in court if a citizen, interest group, or corporation believes that it is in violation of Canadian law.
• Many government decisions respecting individual Canadians or corporations are made by specially designed quasi-judicial administrative tribunals, which are required to adhere to strict rules of administrative law as they make their decisions.
• Government decisions are subject to judicial review by the courts, subject to the court’s assessment of the administrative law threshold.
• A key problem with operationalizing legal responsiveness lies in defining the appropriate jurisdictional boundary between quasi-judicial administrative tribunals and the courts.
• Legal responsiveness is contingent on the ability of individuals, interest groups, and corporations to challenge questionable government actions in court, but the cost of litigation can be prohibitively expensive. This places in doubt the ultimate degree of fairness respecting this form of governmental responsiveness.

4. Identify some primary aspects of social responsiveness and explain the challenges of putting the concept into practice.

Social responsiveness deals with the relationship between governments and the Canadian public. Its core concept is the degree to which government actions are in the public interest. Your response should touch on the following points:

• Social responsiveness is the most subjective of the three forms of responsiveness because it is based on inherently political, ideological, and personal judgements, on which reasonable people will reasonably disagree.
• Nonetheless, social responsiveness is the criterion by which most people judge a government, and all political parties seek to claim that they adhere to it.
• The electoral success or failure of any government depends on the degree to which a leading plurality, if not a majority, of the public believe that the government has acted in the public interest.

5. Is it ever permissible for public servants to lie or misrepresent the truth to members of the public and elected officials? Take a position and support it with historical or contemporary examples.

The text discusses several historical examples of governments’ misrepresenting or concealing the truth from the public. Your response could pick one and either support or criticize it. Can you develop a general rule to justify such action and govern future cases?

Alternatively, you could develop a more contemporary example, such as one of the following:

• Would it be justifiable to exaggerate the effects of climate change to gain greater public support for comprehensive environmental policies?
• Would it be justifiable to exaggerate crime rates in Canada in order to gain public support for legislation to promote public safety?
• Would it be justifiable to misrepresent the total cost of acquiring new F-35 stealth jet fighters in order to gain public support for the project?

1. Which of the following is not within the mandate of the Office of the Chief Human Resources Officer?

• a. establishing ethical standards
• b. coordinating department and agency ethics enforcement initiatives
• c. promoting diversity and employment equity
• d. assessing the civic values of public servants

2. The Value and Ethics Code for the Public Service

• a. defines conflicts of interest
• b. defines the requirements for disclosure of private assets and liabilities
• c. defines the rules for post–public employment activities
• d. all of the above

3. Which of the following is a feature of the Federal Accountability Act?

• a. requiring regular accountability plans from departments
• b. establishing formal whistleblower roles within departments
• c. both a and b
• d. neither a nor b

4. The key concept of political responsiveness is

• a. political ethics
• b. ministerial responsibility
• c. the public interest
• d. the rule of law

5. The key problems with operationalizing the social responsiveness element of accountability are

• a. evaluation and subjectivity
• b. cost and complexity
• c. imposing discipline upon political parties
• d. assessing the merits of tribunals and courts

6. Judicial deference in administrative law refers to

• a. governments deferring to the Supreme Court of Canada
• b. administrative tribunals deferring to courts
• c. interest groups deferring to administrative tribunals
• d. courts deferring to administrative tribunals

7. What are the core principles of the Access to Information Act?

• a. Government and bureaucratic decisions should be made public.
• b. Cabinet decisions should be made public.
• c. Federal-provincial decisions should be made public.
• d. Government business decisions should be made public.

8. Which of the following does not exist?

• a. Canadian Human Rights Commission
• b. Canadian Ombudsman’s Office
• c. Office of the Information Commissioner
• d. Office of the Commissioner of Official Languages

9. The Office of the Public Sector Integrity Commissioner has a duty to encourage public servants to

• a. keep government documents confidential
• b. bring complaints about government ethics to the Office
• c. bring complaints about government ethics to their immediate supervisors
• d. bring complaints about government ethics to the media

10. The recommendations of the Gomery Inquiry into the sponsorship scandal are an example of

• a. objective responsibility
• b. subjective responsibility
• c. bureaucratic responsibility
• d. legal responsibility

Chapter 9 Answer Key

• 1. d
• 2. d
• 3. d
• 4. b
• 5. a
• 6. d
• 7. a
• 8. b
• 9. b
• 10. a

Table 9.1 from Thinking Government 5e— The Synthetic Approach to Accountability

accountability
The duty owed by elected politicians and public servants who are responsible for the procedural and substantive merit of their decision making and are called upon to abide by the concepts of ministerial responsibility, the rule of law, and social responsiveness.

ethics
The concept of appropriate forms of political and bureaucratic decision making within government. The basic principles of government ethics stress that politicians and public servants are to undertake their duties in light of serving the public interest, maintaining fidelity to law, and avoiding having their private interests interfere with their public duties.

governor-in-council appointee
A partisan political appointee hired by the prime minister or a minister to a term contract. Appointees are not officially members of the public service per se because they do not hold permanent positions and do not have to be hired through the rules of the Public Service Commission.

judicial deference
The practice by which judges in superior courts will defer to, or uphold, the ruling of a quasi-judicial administrative tribunal when a case comes before the court on appeal or through an application for judicial review. Deference is based on the principle that it is the specialized tribunal, and not the generalist court, that is expert in its field of policy and law.

legal responsiveness
A principle of accountability stipulating that cabinet ministers and public servants must be responsive to the rules of administrative law in the exercise of administrative and executive authority.

ministerial responsibility
The principle that cabinet ministers, as legal heads of departments, are individually responsible and answerable to parliament for all matters dealing with the running of their departmental portfolios. Collectively, ministers are responsible for all policy and program decisions made by cabinet on behalf of the government. All ministers are expected to participate in setting strategic policy and to support the strategic and tactical initiatives of the government.

Office of the Conflict of Interest and Ethics Commissioner
An office established in 2007 under the provisions of the Federal Accountability Act. The commissioner is an officer of parliament whose duty is to oversee the application of the Conflict of Interest Code for Members of the House of Commons and the Conflict of Interest Act. The office provides counselling on proper compliance for those covered by these laws. When requested to by MPs, the commissioner can also conduct inquiries into the behaviour of officials subject to the laws.

Office of the Public Sector Integrity Commissioner of Canada
An office established in 2007 under the provisions of the Public Servants Disclosure Protection Act. The commissioner is an officer of parliament whose duty is to promote integrity within the federal government by assisting government organizations in preventing workplace wrongdoing and by providing an effective channel for public servants and citizens to raise confidential concerns about wrongdoing without fear of reprisal.

parliamentary budget officer
A position created in 2006 as part of the Harper government’s commitment to greater accountability. The PBO has a mandate to provide independent analysis to parliament on the state of the nation’s finances, the government’s estimates, and economic trends and, at the request of a parliamentary committee or an MP, to estimate the cost of any proposal over which parliament has jurisdiction.

political responsiveness
A principle of accountability stipulating that cabinet ministers and public servants must be responsive to the rules of individual and collective ministerial responsibility in the exercise of administrative and executive authority.

social responsiveness
A principle of accountability stipulating that cabinet ministers and public servants must be responsive to the broad social needs and interests of the communities they serve in the exercise of administrative and executive authority.

tribunal
A generic term given to agencies, boards, and commissions that possess both policy development and program implementation responsibilities, as well as legal powers to resolve disputes arising from the application of their powers. These bodies are often referred to as quasi-judicial administrative tribunals in that their roles are half administrative and half adjudicative. Classic examples are labour relations boards, workers’ compensation boards, and human rights commissions. Tribunals are subject to the rules of administrative law.

Canadian Human Rights Commission

Canadian Human Rights Tribunal

Canadian Ombuds Offices

Office of the Conflict of Interest and Ethics Commissioner

Office of the Public Sector Integrity Commissioner of Canada

Parliamentary Budget Officer

Privy Council Office

Treasury Board of Canada Secretariat