Does Independence Matter?

The old saw is that if the only tool you have is a hammer, every problem looks like a nail. For Canada’s federal government, the hammer is partisanship and, of late, the unlucky nails have been a disparate set of independent public agencies, from Elections Canada to the Canadian Military Complaints Commission to the Canadian Nuclear Safety Commission. Whether it is the nature of the Conservative Party, the nature of Prime Minister Stephen Harper or the nature of trying to govern in a minority Parliament where an election is always on the horizon, the government seems unable to distinguish between campaigning and governing.

Partisanship in politics, of course, is nothing new, and is the lifeblood of elections and parliamentary politics. What is eroding is a shared sense of boundaries around certain no-go zones that need to be free of partisanship if democracy is to work. The classic example (and the one that usually sucks all the oxygen out of the room) is the courts. If government tried to subvert the impartiality and independence of the courts by appointing party hacks and fellow travellers to the bench, or only selectively enforcing the judgement of the court, the rule of law would not be worth the paper the Magna Carta was written on. Minority rights, human rights and the Charter of Rights and Freedoms would all be deployed simply to serve government ends. One merely has to look at the recent headlines from Pakistan to Zimbabwe to see how this plays out. Even looking south where the power and primacy of the U.S. courts are beyond debate, partisanship has brought the integrity of the justice system to the brink (think Bush v. Gore, and the spectacle of the Republican-appointed justices handing the presidential election to George Bush in 2000).

Judges are singularly vulnerable to manipulation by government — this begins with the government’s largely unfettered power of appointment to the bench. When the Harper government decided to add a law enforcement officer to the federal judicial advisory committees that vet whether potential candidates are qualified, even Chief Justice Beverley McLachlin felt compelled to speak out, although to little effect. Beyond the appointment power, however, the administration of justice is vulnerable in many other ways. Governments control the budgets of the courts, including the upkeep of courthouses and the hiring and firing of court staff. Governments also control judicial salaries, although since a 1997 Supreme Court decision, constitutionally mandated salary commissions issue recommendations for salary increases in an attempt to depoliticize the process.

The courts are not independent in any real sense. They are, rather, completely dependent on the support of the government. Yet, despite all the ways in which a Canadian government could subvert the judiciary, none has done so (even after courts began striking down government actions and laws under the Charter). As a result, Canada’s judiciary is recognized the world over as one of the strongest and most independent. Ultimately, the judiciary’s independence is as much a product of political leadership as it is testament to the abilities of our judges.

While most would agree that democratic politics requires courts as independent arbiters of social, economic and political disputes, does that same logic apply to bodies like Elections Canada, the Canadian Military Complaints Commission or the Canadian Nuclear Safety Commission? And do Canadians care if it does or not? Unlike courts, these bodies (and hundreds of other arm’s-length agencies, boards and commissions) were designed by government as expert bodies to fulfil specific policy goals. They are created by statute and can have their jurisdiction, authority and structure modified at any time by a simple act of Parliament. They are also expected, however, to be impartial and objective, and to act only to advance the legislative purposes for which they were created. Unlike public servants, the members of these independent agencies owe no duty of loyalty to the government. These administrative bodies, as Chief Justice Beverley McLachlin observed in a memorable passage from the Supreme Court’s decision on the Ocean Port Hotel in 2001, “span the constitutional divide between the judiciary and the executive.”

Independent administrative bodies, in other words, do not fit easily into our political or legal landscape. While they have come to play an integral role in the lives of every Canadian (and even many non-Canadians, through the Immigration and Refugee Board), we tend to pay attention to them only when there is a problem. Lately, we have been paying a lot more attention.

The Government versus Elections Canada

Elections Canada was set up in 1920 as a parliamentary office — that is, the chief electoral officer is appointed by and accountable to the speaker of the Parliament. Parliamentary agencies such as Elections Canada, the Privacy Commission and the Auditor General are believed to be more independent than other boards and commissions because they answer to the whole of Parliament and not simply to the government of the day. Because Elections Canada is responsible for regulating the electoral process, it is especially crucial that it be, and be perceived to be, above the partisan fray.

Of late, Elections Canada and Chief Electoral Officer Marc Mayrand have been anything but above the fray. They have become the fray.

In September 2007, following a decision by Mayrand to allow Muslim women to vote without removing their veils for the purposes of identification, Prime Minister Harper stated bluntly, “I profoundly disagree with the decision.” He criticized not only the substance of the chief electoral officer’s interpretation of the Elections Act, but went further and invoked the spectre of accountability — the fear that independent agencies could become a law unto themselves: “I have to say that it concerns me greatly, because the role of Elections Canada is not to make its own laws. It’s to put into place the laws that Parliament has passed, so I hope they will reconsider this decision.” Mayrand countered by reminding the prime minister that Elections Canada serves Parliament, not the government. “I invite Parliament to change the act,” Mayrand replied at a press conference. “It’s not for the administrator to settle the current societal debate.”

As in most of these imbroglios, the substance of the debate soon receded from view. Mayrand said the act does not contain an absolute visual recognition requirement, noting that about 80,000 voters cast their ballots by mail in the last federal election. Harper pointed out that all four parties in the House of Commons voted “virtually unanimously” this spring to bring in a new law requiring visual identification of voters. Mayrand countered that the act was clear and it was not within his mandate to make any changes. And so it went. And then it went away. The three federal by-elections were held in Quebec on September 17, 2007, and the waning fortunes of the Liberals took centre stage, not the handful of voters who may have arrived at the polling station wearing a niqab or a burka.

More recently, in April 2008, the federal Conservative Party has lashed out at Elections Canada for raiding its party headquarters under a warrant alleging election finance irregularities and, more specifically, that the party dodged the Elections Act party spending limits by forwarding significant sums of money (over a million dollars) to local candidates and having them send those same funds back to the party to cover advertising costs. The Conservatives claim that this “in and out” scheme broke no laws. This is a battle that the Conservatives will lose even if they win, by looking like the party that believes breaking no laws is the same as doing right.

At a loss for a principled explanation for playing fast and loose with campaign finance regulations while riding to office on a Gomery commission–induced wave of accountability and transparency, the Conservatives once again reached for the hammer. The government has sought to undermine the credibility of Elections Canada by alleging partisan motivations behind this prosecution. Government House leader Peter Van Loan claimed that the Conservatives alone are being targeted for investigation by Elections Canada — and, worse, that Elections Canada had tipped off the media and the Liberals about their raid in order to maximize the political damage to the government. The Conservatives suggested this could even represent retaliation for a lawsuit that they had launched earlier against Elections Canada over its denial of rebates to local candidates.

Not only the government and the Conservative brand have been tarnished by these squabbles, but Elections Canada as well, not because it has lost the confidence of the public, but because it has lost the confidence of the Conservatives. Elections Canada must be respected as a fair and impartial arbiter if it is to have the credibility it needs to regulate the sharp edges of electoral politics. No matter how independent, an administrative agency cannot be effective if it is perceived as one party’s enemy or another’s friend.

The Government versus the Military Police Complaints Commission

The government has not merely sought to influence independent administrative bodies through the media and the court of public opinion — it has also sought to achieve its ends through the other kind of court.

In April 2008, the government applied to the federal court for an injunction that would bar the Military Police Complaints Commission from holding public hearings into the allegation that Canada turned prisoners over to Afghan security forces knowing they would likely be tortured.

Established by Parliament in 1998 (partially in response to the aborted Somalia inquiry), the role of the MPCC is to provide for greater public accountability by the military police and the chain of command in relation to military police conduct and investigations. The commission was established as a quasi-judicial, independent civilian agency to examine complaints arising from either the conduct of military police members in the exercise of policing duties or functions, or from interference in or obstruction of their police investigations. To ensure the integrity of the MPCC, it operates outside the authority of the Department of National Defence and is staffed entirely by civilians who report through Parliament.

The Afghanistan probe was triggered by a joint complaint by Amnesty International Canada and the British Columbia Civil Liberties Association alleging that members of the Canadian Forces military police transferred detainees to Afghan authorities, or allowed them to be transferred, notwithstanding evidence that the detainees could be tortured. For example, in 2006, a photo surfaced showing a member of Reconnaissance Platoon, 1st Princess Patricia’s Canadian Light Infantry, guarding six of ten suspected Taliban prisoners captured in a raid on a compound in northern Kandahar. The suspects were subsequently handed over to the Afghan National Police.

The MPCC began investigating the allegations in February 2007, but the government only raised its formal objection when that investigation moved from internal activities to the public realm. The MPCC stated that it decided to hold public hearings in response to “stonewalling.” The government now claims that military operational decisions, including detainee handling, are not subject to oversight through the military police complaints process.

The decision to take the MPCC to court, as in the case of Elections Canada, gives the cover of legality to what otherwise might look like a partisan attack. The government is not asserting that it does not want probes into the Afghan detainees; in other words, it is simply arguing that the MPCC has no authority to conduct such probes. In this way, the government seeks to use one independent body, the courts, to declaw another.

The Government versus Linda Keen

By far the most contentious and noteworthy incident of government interference in the decision making of an independent body occurred in January 2008 when Natural Resources minister Gary Lunn removed Linda Keen as the head of the Canadian Nuclear Safety Commission, Canada’s nuclear safety watchdog. Lunn justified Keen’s removal on the basis that she had lost the government’s confidence over the way she handled the shutdown of the medical isotope-producing nuclear reactor in Chalk River, Ontario, owned and operated by Atomic Energy of Canada Limited, a Crown corporation, in December 2007.

The CNSC ordered the reactor to close on November 18 over safety concerns about the emergency power system not being connected to cooling pumps, as required to prevent a meltdown during disasters such as earthquakes. The closure of the 50-year-old reactor, which generates two thirds of the radioisotopes used around the world in medical procedures and tests, prompted a worldwide shortage of the crucial medical material.

Keen was removed as head of the CNSC the day before she was scheduled to appear before a parliamentary committee to offer her version of the events leading up to the shutdown of the reactor. Liberal member of Parliament David McGuinty accused the Conservatives of “U.S. Republican-style tactics” by having Keen removed in the “dark of night,” just hours before she was due to testify.

What Keen would likely have said to the committee is that the Chalk River facility was in breach of the safety rules that Parliament itself had established for nuclear facilities. While the decision may have precipitated a health crisis, this was not the purview of a nuclear regulator to remedy, and was as much a product of the chronic delays in upgrading the Chalk River facility (and providing no backup supply of isotopes) as any decision by the regulator. The committee, and the country, heard the government’s version of events loud and clear. Gary Lunn maintained that the extended shutdown of the reactor threatened a national and international health crisis. He made the issue about, literally, life and death: “Had we not acted, people invariably would have died … We could not let that happen. We had to act, and we did.”

In December 2007, the government resolved the crisis by using the legitimate stick always available to government to interfere with independent administrative agencies — it overruled a decision it did not like through Parliament. On December11, an emergency measure passed through the House of Commons that ordered the reactor to be restarted for a 120-day run on December 16.

There is nothing inconsistent with the independence of the CNSC in Parliament trumping one of its regulatory decisions based on an overriding public concern (in this case, the shortage of medical isotopes). Since administrative agencies are created by statute, and can be eliminated by statute, it follows that the authors of a statute can also rewrite any of its decisions. What was a threat to the independence of the CNSC, and to the integrity of independent administrative agencies and quasi-judicial tribunals generally, however, was the decision to remove Keen in the middle of her second five-year term as president. This move was not necessary to ensure a steady supply of medical isotopes. This was payback.

A December 27 letter from Lunn to Keen (leaked to the Ottawa Citizen) indicated that the minister questioned Keen’s judgement and was considering having her removed. It was left to Harper to connect the dots — noting that Keen was a “Liberal appointee.” Once again, the hammer had found a nail.

Keen responded by accusing Lunn of improper interference and threatened litigation if she were removed. The Keen affair also shows the more mean-spirited side of the Conservatives’ determination to see administrative agencies as a policy tool. Whereas the dispute with the MPCC was with the commission as a whole, and the dispute with Elections Canada was with the chief electoral officer, the dispute with the CNSC was a personal one between Lunn and Keen.

Following Keen’s removal, an assistant deputy minister within the Ministry of Industry was named interim president. While he may be eminently qualified for this role, the fact that the government has chosen a civil servant who emerges from a culture of loyalty to the government is perhaps telling.

While Keen remains a CNSC commissioner, her termination as president, like the Elections Canada and MPCC incidents, remains a political saga, the final chapter of which will likely be written by the courts. The politics of independence, however, will never be resolved by judicial fiat, no matter who may leave the courtroom vindicated.

Independence and Accountability

In each of the dust-ups discussed above, the government comes off looking awful. Depending on your vantage (and perhaps your partisan inclinations), the Harper government looks reckless, petty, arrogant, incompetent, paranoid, sinister and/or just plain vindictive.

Independence, however, is a two-way street. While government interference may lead to the loss of credibility and effectiveness in federal regulators and tribunals, the lack of oversight in the affairs of independent agencies may also lead to problems. George Radwanski’s tumultuous demise as the federal privacy commissioner in 2003 is just one such cautionary tale (it was an Auditor General investigation into financial irregularities that led to his resignation amid a flurry of accusations, including one by Radwanski alleging “a powerful political backlash from some who would prefer a less forceful privacy commissioner”). Sometimes a nail is just a nail.

While a timely audit may deal with ethical and financial problems in independent administrative agencies, what if such an organization did become a “rogue,” or worse? While judges must answer to a judicial council, the heads of independent agencies answer only to the Crown, or to Parliament, and, even then, in oblique ways. I once asked the head of a regulatory agency to whom he felt accountable. He scoffed when I suggested the government, cringed when I suggested stakeholders and, finally, offered the “public interest.” Accountability to all, however, risks becoming accountability to none. That said, accountability, if it is to mean anything, requires a foundation of transparency and evaluation according to objective criteria. Government should expect nothing less from independent agencies acting in the public interest.

It is ultimately self-defeating for government to attack independent agencies, or to attack the people appointed by government (or a former government) to run them. Partisanship begets more partisanship. The result is public cynicism, a corrosive Parliament and the undermining of the policy goals that led to setting up those agencies in the first place. The government may choose not to reappoint a member of an agency or to rewrite an agency’s mandate, or even to overturn an agency’s decision through Parliament (as occurred in the context of the Chalk River reactor closing), but they ought to respect the integrity of the agency’s decision making, whether or not the prime minister likes the decision and whether or not he or she likes the decision maker.

The recent confrontations show that there is little to compel Canadian governments to respect the independence of administrative agencies if they do not want to. They reveal the hard but important truth about independence in administrative decision making: while the rule of law and principles of fairness and impartiality may require it, only political leadership can sustain it. Political leadership is what created independent agencies, in order to ensure that important areas of the public interest (such as governing fair and free elections, regulating nuclear power and overseeing military police activities) are served by people and institutions not caught up in partisan politics. It will take political leadership to make the boundaries of partisanship real.

After all, a hammer is built not only with the ability to drive a nail down, but to lift it up as well.