Democracy, Ethics and Governance in the Public Interest
| Author | Craig Forcese/Aaron Freeman |
| Pages | 410-457 |
Democracy, Ethics
and
Governance
in the
Public
Interest
So
far,
this
book
has
focused largely
on the
"procedural" aspects
of
demo-
cratic accountability:
mechanisms
for
rendering elected
and
unelected
offi-
cials democratically accountable, ultimately
to an
electorate.
In
this
chapter,
we
shift
our
focus.
The
Canadian system accepts that good
gover-
nance
in a
modern democracy depends
not
only
on
procedure,
but
also
on
adherence
to
certain substantive standards
of
behaviour,
falling
under
the
umbrella
of
"ethics."
If
electoral politics
and
responsible government
are
the
process
by
which
officials
are
held democratically accountable
in a
democracy, ethical
rules
answer
the
question "democratically accountable
for
what?"
The
answer
is
honesty
and
integrity, producing governance
in
the
public (rather than
private)
interest.
Ethics
standards
for
Canadian public
officials
are
contained
in a
per-
plexing variety
of
sources, including
the
Parliament
of
Canada
Act,
the
Criminal
Code,
a
Conflict
of
Interest
and
Post-Employment
Code
for
Public
Office
Holders,
the
Standing Orders
of the
House
of
Commons
and
senate,
the
Values
and
Ethics
Code
for the
Public
Service,
Administrative Orders
and
Directives
of
National
Defence
Canada,
the
Canadian Judicial Council's
Ethical
Principles
for
Judges,
and
common
law
sources.
Each
of
these
sources
of
ethics rules,
and
their interplay,
is
discussed
in
this chapter.
410
7
Democracy, Ethics
and
Governance
in the
Public
Interest
411
A.
CORE
PRINCIPLES
OF
CANADIAN ETHICS
RULES
i.
Regulating
the
Private Interest
Impartiality
is a key
principle featured
in
ethics rules;
that
is,
acting
in the
public interest, without
a
predisposition coloured
by
personal interests.
Reconciling
the
notion
of
impartiality with
a
political system that
is
explic-
itly
partisan
can be
difficult.
However,
in the
Canadian system,
it is
accept-
ed
(for
at
least political actors) that allowing party policy
to
influence
a
decision
is not
alone
a
conflict
of
interest. Instead, ethics rules
are
designed
to
guard against
the
manipulation
of
public powers
in
pursuit
of the
pri-
vate
interest
of the
decision-maker.
Ethics
rules take
an
expansive view
of the
"private" interest.
A
common
thread running through these rules
is
that public
officials
must
act not
only
to
avoid real
conflicts
of
interest,
but
also
apparent
or
potential
conflicts
of
interest.
In
the
late
19805,
a
judicial inquiry
was
appointed
by the
Governor-in-
Council
to
investigate allegations
of
conflict
of
interest
in
relation
to
Cabinet
Minister
Sinclair Stevens.
The
1987
inquiry report defined
a
real
conflict
of
interest
as a
"situation
in
which
a
minister
of the
Crown
has
knowledge
of a
private
economic interest that
is
sufficient
to
influence
the
exercise
of his or
her
public duties
and
responsibilities."
A
potential
conflict
of
interest
was
defined
as "a
situation
in
which
the
existence
of
some private economic inter-
est
could influence
the
exercise
of his or her
public duties
or
responsibilities
...
provided that
he or she has not yet
exercised such duty
or
responsibility."
Finally,
an
apparent
conflict
of
interest "exists when there
is a
reasonable
apprehension,
which reasonably well-informed persons could properly have,
that
a
conflict
of
interest exists." This situation remains
an
apparent conflict
of
interest even
if
there
is, in
fact,
neither
a
potential
nor
real
conflict.1
The
Stevens inquiry dealt with
a
minister's potential economic inter-
ests. However, private interests giving rise
to a
real, potential
or
apparent
conflict
of
interest
may
extend beyond economic interest
in
other
instances. Noneconomic private interests that might constitute
a
conflict
Commission
of
Inquiry
into
the
Facts
of
Allegations
of
Conflict
of
Interest
Concerning
the
Honourable
Sinclair
M.
Stevens
(1987)
[emphasis
added].
In
December 2004,
the
Fed-
eral
Court
held
that
the
Stevens
inquiry,
in
fact,
stepped outside
its
jurisdiction
in
con-
cocting
these
definitions
of
real
and
apparent
conflict
of
interest.
It
also
held that
the
absence
of an
existing
definition
of
conflict
of
interest
in the
various
ethics
codes
gov-
erning
Stevens
constituted
a
failure
of
notice
as to the
standard
of
behaviour
to be
met,
violating
procedural
fairness.
Given
these holdings,
the
government should
move
promptly
to
adopt
explicitly
a
definition
of
conflict
of
interest
in the
ethics
codes
discussed
in
this
chapter.
Stevens
v.
Canada
(Attorney
General)
1746.
I
412
THE
LAWS
OF
GOVERNMENT
include acceptance
of an
award
or
honour
from
a
person with
a
vested
interest
in
some power exercised
by the
public
official,
an
action
by an
enti-
ty
that benefits
the
official's
family
member,
or, in
certain cases, opportuni-
ties provided
by an
entity
to the
official
that allow
him or her to
gain
visibility
with
his or her
constituents.
As
a
final
introductory point,
it
should
be
noted that Canada's ethics
rules distinguish between matters that
are of
general (although arguably
still
"private") interest
to a
public
official,
versus those that constitute
a
more
specific
interest. Ethics rules generally permit
an
official
to
gain
from
a
change
in
government policy
in a
general way.
For
instance,
the
official,
like other Canadians,
may be
affected
by a tax
change that benefits
the
offi-
cial
as a
homeowner.
Ethics
rules
are
much
more preoccupied with circum-
stances
in
which
the
official
acts
out of his or her
specific
interest;
for
example,
the
awarding
of a
contract
to a
company that
he or she
owns.
2.
Ethics
and the
Allure
of
Public
Service
Some
observers suggest that stringent ethics rules
may
discourage people
of
merit
from seeking public
office.2
Underlying this argument
is an
implicit assumption that "merit"
is
defined primarily
in
terms
of
success
in
business, since
it is
most
often
private business interests that
are at the
centre
of
public
official
conflict
of
interest issues.
Yet
merit
to
hold public
office
comes
in
many
different
flavours, not
just
in the
form
of
material
achievements
in the
business world.
Further,
there
is no
empirical basis
for the
complaint that ethics rules
actually
deter business candidates. Those
from
the
senior ranks
of
busi-
ness
are
already greatly overrepresented
in
Parliament,
and
this proportion
has
been steadily rising over
the
past several
decades.3
Moreover, there
is
In
2003,
responding
to
demands that
he
divest
from
his
shipping
company
Canada
Steamship
Lines,
Paul
Martin
declared,
"I do not
think
it is
advisable
to
discourage
entrepreneurs
from
making
a
contribution
to
public
life."
This sentiment
was
echoed
by
a
number
of
commentators,
as
well
as the
then-ethics
counsellor.
Newspaper
columnists
warned
that
if
Martin
was
forced
to
divest
"only
those
who
have
failed
to
make
it in the
real
world
need
apply
for the top
political
job in the
land."
John
Ibbit-
son,
"Martin
Should
Stick
to His
Guns
— and
Ships,"
Globe
and
Mail,
27
Feb.
2003,
A3.
See
discussion
in A.
Freeman,
"Don't
Become
Rt.
Hon.
Member
from
CSL,"
The
Hill
Times,
10
March
2003.
In the
37th
Parliament,
fully
one-quarter
of MPs
were
from
the
senior ranks
of
busi-
ness,
more than
from
any
other
occupation,
and
nearly
twice
that
number
came
from
the
legal
profession.
This number
has
been
steadily
increasing:
in the
19505,
just
4
percent
came
from
senior management;
in the
19703,
it was
16
percent;
in the
19803,
it
was 22
percent.
See A.
Freeman,
"Don't
Become
Rt.
Hon.
Member
from
CSL."
2
3
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