Is democracy still a sexy issue?
There was a theory, popular among the most cynical members of the political establishment, which says that voters don’t care about process. When Stephen Harper was proroguing Parliament, blocking independent officers’ inquiries, stuffing omnibus bills through Parliament, many jaded journos yawned and said that it wouldn’t really matter because nobody cares.
Yet, when Justin Trudeau won, there was a general sense in the land that maybe people did care, that Harper’s cynicism and manipulation wore out his welcome and made Trudeau’s open spirit seem even more refreshing when it arrived. Maybe people really do care about making sure that politicians respect the ground rules of democracy, transparency and decency.
All right, New Brunswick. It’s your turn to weigh in.
Because if Bill 27, introduced by the Gallant government this week, doesn’t make you mad enough to fight back once you know what’s in there, not much will.
If you don’t get mad when your government guts the Auditor-General’s office, you’ll prove the cynics right.
If you don’t get mad when the Ombudsman and Child Advocate, with their proud history of raising issues of how government can hurt those without power, get silenced, you’ll fire up all the ‘told-you-so’s’ of the cynics.
If you watch your government become the only one in Canada to throw the Inquiries Act out the door so they don’t have to tell anyone the truth in real time, and you decide it’s fine as long as the roads get paved, you will not have a government fear your power of protest again.
If they can get away with this, governments will know they can get away with anything.
Here’s what is happening in Bill 27.
For years, through successive administrations, governments have lived with the idea that there are offices that hold them and their officials to account. The Auditor-General can ask departments if they are delivering results with the millions we give them, and followed the rules when spending our money. The Ombudsman can ask if citizens got treated fairly. The Child and Youth Advocate can ask uncomfortable questions when young offenders die in custody or children don’t learn in school.
It’s no fun when one of these independent voices says you could have done better. I know. I got slammed hard by one, once, when I was a minister. But I accepted it, like Frank McKenna, and Bernard Lord, and Shawn Graham, and David Alward did. Because in a democracy, people have a right to let the facts come out so they can question you. Because in a democracy, you do better when you know you’ll have to explain yourself. It pushes you to do better.
Here are the facts about this Bill 27.
It practically shuts down the ability of the Auditor-General to do performance audits. Each year, the A-G puts out a report detailing what happened when she showed up and asked departments if programs were actually delivering what they were supposed to. She could ask for any document, demand an interview with anyone, and make you answer.
Not anymore. The government has taken away her powers under the Inquiries Act – the law that lets investigators and officers get documents and interviews when they feel it is necessary. Her powers to enforce a summons (Section 5), to require answers (Section 6), run meetings (Section 7), gather evidence (Section 8) – those are gone.
In particular, the elimination of Section 8 is a big loss. Before, if the A-G thought something might be necessary to get at the truth, she was entitled to it. The onus was on government to show there was some exception, like privacy rights, that applied. Now, the A-G only gets documents if they would be admissible in court to you and I. The onus is on her to go to Court and get the documents, and she has to prove admissibility even if she hasn’t seen them. She doesn’t even have the disclosure process of an ordinary citizen to know what to ask for. It is, essentially, a bill that creates a maze of delay for the A-G to ask even basic questions.
As well, Section 13 of this Bill limits the few powers they leave her – to request documents and take it to court if she doesn’t get them – to “audits”, which the Definitions section limits to those following accounting principles. What that means is, if the A-G is not reviewing balance sheets and accounting, she has no power to get information. Her ability to do “performance audits” – to ask about loans gone bad, programs that don’t work, contracts given without tender, patronage gone mad – that is effectively gone.
When you hear a government spokesperson reply that the A-G can still go to Court and get documents, remember two things. First, they’ve changed those rules. Second, the Minister hiding the information gets represented by the lawyers in the Attorney-General’s office. The Auditor-General doesn’t have a lawyer unless she hires one out of her office budget. And the people who decide if she gets a budget to hire lawyers are….the Cabinet.
That should slow down the pace of documents going to the Auditor-General, no?
To sum up. The Auditor-General can’t enforce her right to get documents and answers without going to Court. And they’ve changed the rules for going to Court. And she can’t have a lawyer to help her go to Court unless the guy hiding the information agrees.
It gets better.
If you read the rest of Bill 27, you will find that almost every other independent watchdog has had their powers limited to get documents. The Ombudsman. The Consumer Advocate. The Child and Youth Advocate. Even the Appeal Board that reviews things if the Minister of Education pulls a teacher’s licence, and tribunals that review treatment of mental health payments.
Of interest, they’ve specifically limited the powers of the Ombudsman to get documents on Section 33.2 complaints under the Civil Service Act -- the part where complaints can be made that government bypassed the hiring process. That area of focus for a government is intriguing, at least.
In most cases, the only applicable parts of the Inquiries Act are now limited to Sections 13, 14, and 17 of the Inquiries Act. Now, things get extra sneaky.
Because those sections don’t restore all the powers that existed before. Hearings, publication, the old Section 8 evidence rules are still circumscribed. Most importantly, their enforcement powers are still gone, reliant upon court intervention where the onus and expense is on them, and your tax dollars will be supporting the lawyers defending the government's right to secrecy. So the powers of independent officers and tribunals are limited to sections that confer no powers of enforcement, and no legislative guarantee of resources to enforce.
It's also worth noting that the new Inquiries Act is ambiguous about whether a Court can order the government to hand over the information. With the Right to Information and Protection of Privacy Act, there is explicit language making the head of a public body subject to a court order to hand over a document. The new inquiries Act doesn't explicitly say that. Our independent officers appear to be left to tangle with government as any private litigant. Against private citizens, they can get orders and contempt findings. Often, these remedies are not available against the government, or Crown. You can get a declaration that they are breaking the law, and that has moral weight, but an order can't happen. The new Act seems to leave it open for government to argue these points, which will let government slow things down at best, ignore them at worst. After all, if we let them pass this bill, why would they think we would get mad if they ignore a court finding?
Why bother amending their powers to sections they cannot enforce? Why send disputes back to a court system already underresourced? Was there an outbreak of Ombudspeople and Auditor-Generals, dragging documents out of people cruelly and capriciously? There is no reason for this other than to deceive. The Attorney-General has introduced a Bill that is deliberately drafted to hide its true intent – the repeal of the broader Inquiries Act powers and the termination of independent government oversight by independent officers and tribunals.
If Bill 27 passes, it will be unprecedented in Canada. No government has dared to be this brazen in simply shutting down oversight by people they cannot control.
The Gallant government has only been in office 18 months, roughly. In that time, we have now seen the following steps:
The gutting of the Legislative Assembly rules to limit sitting days, Question Periods, and Opposition Motions to a statutory minimum of nine days plus time needed for second reading of bills
The use of Omnibus bills (stuffing many unrelated bills together to limit debate time) to reduce legislature days – the very practice the federal Liberals say is “undemocratic” and “limits study”
The presence in that Omnibus bill of clauses that allow ministers to bypass committees that review qualifications when making appointments, and that change the reporting of government loans and grants from monthly to annually
The granting of power to government to interfere with where judges live, which has led to concerns about judicial independence from the Chief Justice of the Court of Queen’s Bench
The expressed concern from the press gallery about access to the Premier
Now, the limiting of inquiries by the Auditor-General and other parliamentary officers on government’s day-to-day operations
Had Bill 27 been in place before, those who locked up Ashley Smith could have sent the Child Advocate away. The death of children in care would have remained beyond the powers of Bernard Richard to study. The Auditor-General could not have asked questions about the safety of daycares, the oversight of health inspections, or the result of loans and grants to business. The Ombudsman could not have required statistics on the sorry state of child services provided in First Nation communities.
You'd have heard less from this guy.
These things all happened. They held people accountable. They made people uncomfortable. They changed behaviour and they let people know that government is never above having to answer. And elected governments of the day accepted that as the accountability that comes with power.
Now, the question is put to us, as citizens. Did past governments accept this only because they were good people, and we were lucky that they acted decently? Or was there also a safeguard that citizens would demand that governments behave decently, openly and democratically? Were we always ready to defend our democracy, or simply at the mercy of the first premier who would be brazen enough to change the rules to benefit himself? Will we demand that opposition parties commit to roll these changes back before trusting them with power? Can Liberals of good conscience challenge their premier to live up to the best traditions of his party and not the worst impulses of his character?
We will know soon enough. The government has introduced a Charter of Rights for Cabinet Ministers, with a right to secrecy for themselves. Will we care?