3. Implementation of the Good Governance Principles in Canada

1982 is no different. Freedom of information legislation advances transparency by establishing a governmental obligation to release government information, both proactively and reactively, and to ensure that information is delivered in a timely and accessible manner. Freedom of information can enhance participation by creating informed citizens. Despite this potential, the Freedom of Information Act 1982 has historically failed to achieve these aims due to high costs, lengthy delays, and a governmental culture that promoted secrecy over transparency. The Act served to facilitate an information asymmetry between government and the public. The Freedom of Information Amendment (Reform) Act 2010 has served to address some of these issues, demonstrating a shift from a ‘pull’ model of information disclosure to a ‘push’ model. A continuation in the direction of a ‘push’ model, facilitated by the use of information and communication technology, and the utilization of an administrative access scheme, could realize the potential of the Freedom of Information Act 1982 to enhance public transparency and participation in Australia.

3. Implementation of the Good Governance Principles in Canada

Understanding ‘good governance’ in Canada is a difficult task. While there is literature to suggest that there is ‘good governance’ in Canada,106 it is not specifically defined by the Constitution, in any legislation, in policies, or in case law. There are, however, principles of good governance, as defined by the United Nations (UN), which Canada practices. These principles have various sources throughout Canada. Some principles are newer and less practised, whereas others have been engrained in society since the independence of Canada as a country with the British North America Act 1867. While learning about good governance in Canada, the history behind the practices and principles and how it works in everyday life, it is evident that Canada is largely a country wherein good governance is practised. There are, however, improvements that can be made, as Canada, like any other country, has its flaws.

We begin with an explanation of the concept of good governance in Canada. This is followed by an outline of where the principles of good governance practised within the country can be found. Second, the sources of good governance will be explained. Within this section the 1982 Constitution (‘the Constitution’) and the Canadian Charter of Rights and Freedoms (‘the Charter’) are explored, specifically focusing on ‘peace, order, and good government’, the ‘rule of law’ in Canada, and the ‘equality rights’ guaranteed to Canadian citizens. The next part discusses the judiciary, one of the three branches of government within Canada. Specifically, judicial independence and the transparency of the judiciary will be explained. Subsequently, it will be argued that Canada’s electoral system represents the principle of participation, as it is representative of Canadian citizens and its provinces and territories. In the following part, a specific Act of Parliament is discussed to further prove the principles of transparency and accountability within the Canadian government. Afterwards, the accountability of administrative officials in Canada is discussed. The last part examines various examples

106 Graham, Amos, and Plumptre 2003, 1–9; Wilson 2012, 12; Treasury Board of Canada Secretariat, Meeting the Expectations of Canadians: Review of the Governance Framework for Canada’s Crown Corporations (Report to Parliament) (Her Majesty the Queen in Right of Canada, 2005), <http://www.tbs-sct.gc.ca> [Meeting the Expectations of Canadians] at 7.

of certain principles of good governance, and specifically how the courts have interpreted these principles, creating binding case law throughout the country.

(a) Good governance concept Given that Canada’s unofficial national motto is ‘Peace, Order, and Good Government’, it may not come as a surprise that good governance is an area in which Canada has been identified as a country with experience and knowledge.107

Good governance has become a fundamental feature of the Canadian identity, and is heavily promoted in Canada’s foreign and development policy.108 That being said, deciphering what ‘good governance’ means in Canada is not necessarily an easy task. Good governance is not explicitly defined in the Canadian Constitution, or in legislation, overarching government policies, or case law. Indeed, in 2007, during a panel discussion on Canadian good governance at the Centre for International Governance Innovation in Ottawa, a consensus on what ‘good’ meant could not be reached.109 Several different organizations, committees, councils, and institutions have formulated lists of principles defining what ‘good governance’ actually is. However, similar themes and principles can be found throughout the literature, and most seem to be based on the United Nations Development Programme’s (UNDP’s) set of principles.

Canada does not have a specific set of principles of good governance that the country is governed by, but it does practise good governance as defined by the UN, which Canada has been a member of since its foundation in 1945.110 The UN states that ‘Good governance promotes equity, participation, pluralism, transparency, accountability and the rule of law, in a manner that is effective, efficient and enduring’.111 This terminology translates into principles of good governance, which are similar to those in the European Council. The sources of good governance in Canada come from the Constitution, the Charter, case law that has interpreted the Constitution and the Charter, the judiciary, Canada’s electoral system, Acts of Parliament, and the country’s commitment to a transparent and accountable government.

(b) Good government, good governance, and the principle of properness When discussing good governance in Canada it is important to look at the Constitution and the Charter. The introduction to section 91 of the Constitution reads:

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.112

This introduction, specifically the words ‘peace, order, and good government’, essentially enables Parliament to enact laws on matters not conferred upon the provinces. More importantly, it establishes that good government is important in Canada. The history of peace, order, and good government is significant. Prior to 1867, within

107 Welsh 2007, 279. 108 Thompson 2007. 109 Ibid. 110 Government of Canada, Canada and the United Nations (2015), online: Permanent Mission of Canada to the United Nations <http://www.canadainternational.gc.ca/>. 111 United Nations, Governance (2015), online: United Nations <http://www.un.org/>. 112 Constitution Act 1982, s 91, being Sch B to the Canada Act 1982 (UK), 1982, c 11 [Constitution].

Britain the phrase used was ‘peace, welfare and good government’. However, the word ‘welfare’ was replaced with ‘order’ in the British North America Act 1867.113 The former term ‘welfare’, which was associated with ‘commonwealth’ or ‘common good’, ‘implied a concern for the well-being of the individual citizen’, whereas ‘order’ is ‘concerned with the group or the state’.114 Peace, order, and good government ensure powers that are not allocated to the provinces rest with the national government, which ‘continues the traditional commitment of the Crown to its citizens’.115 The Constitution, which ‘is the supreme law of Canada’,116 sets out the importance of good government within Canada. Although ‘good government’ is not the same as ‘good governance’, this introduction shows Canada’s commitment to its country, having a government that is fair, transparent, representative, effective, accountable, and that promotes equality.

Further expanding on Canada’s commitment to good government, the preamble to the Charter reads: ‘[w]hereas Canada is founded upon principles that recognize the supremacy of God and the rule of law’.117 This means that Canada is ‘ruled by law, not by those who enforce the law or wield government power. No one in Canada is above the law’.118 Furthermore, ‘everyone is subject to the law’, no matter how important that person is.119 The rule of law is seen and practised outside of the Canadian context as well.

The rule of law is defined by the UN Secretary-General as a principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.120 Several principles can be drawn out from this definition, namely: judicial independence, equality, supremacy of law, accountability, fairness, separation of powers, participation, legal certainty, and transparency. Some of these principles of the rule of law overlap with the UN’s definition of good governance.

Thus, while abiding by the rule of law, Canada follows international principles of good governance. As previously mentioned, the UN’s principles of good governance can be found in the Constitution, the three branches of government, and by practice within Canada. The principle of human rights, or the UN’s equity, is found in section 15 of the Charter, which lays out equality rights: ‘Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.’121 This is enforced and interpreted by the courts through litigation, like the rest of the Constitution. This section has been interpreted many times by the judiciary within Canada, but most importantly by the Supreme Court of Canada (SCC), which is

113 Wilson 2012, 237. 114 Ibid, 238. 115 Ibid, 237. 116 Constitution Act 1982, s 52(1). 117 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 118 Canadian Superior Court Judges Association, The Rule of Law (2006), online: CSCJA <http:// www.cscja-acjcs.ca/>. 119 Forsey 2012, 30. 120 Ibid. 121 Canadian Charter, s 15(1).

Canada’s highest court and the general court of appeal from all Canadian courts of law.122 Decisions made by the SCC are binding on all lower courts of Canada.

(c) The principle of human rights The courts are the protectors of the Charter and are able to interpret it in such a way that if a law is inconsistent with the Charter the court has the ability to strike it down. In Canada, under section 15 of the Charter all persons in the same situation must be accorded the same treatment. To make a claim for equal treatment, an individual or group must demonstrate their ‘sameness’ to the norm and their differential treatment from that norm.123

In Egan v Canada, 124 the plaintiffs were a gay couple and upon reaching the age of 65, Mr Egan became eligible to receive old age security from the government under the Old Age Security Act. Mr Egan was refused on the basis that the definition of spouse did not include a member of the same sex. The plaintiffs alleged that the definition of ‘spouse’ constituted an infringement on their section 15 equality rights under the Charter and that this infringement was discriminatory on the basis of sexual orientation. The Court unanimously held that under section 15 of the Charter sexual orientation is an analogous ground.125 The definition of ‘spouse’ as someone of the opposite sex reinforces the stereotype that homosexuals cannot and do not form lasting, caring, mutually supportive relationships with economic interdependence in the same manner as heterosexual couples. This case shows the courts’ ability to interpret the Charter and align with current views, adding analogous grounds to our equality rights. The SCC has discussed the ‘living tree’ theory and said the Constitution was drafted with an eye to the future, capable of growth and development over time. There is a need for a broad perspective, which must meet the realities of the time.126

An example of a controversial decision made by the SCC is Canada (Attorney General) v Bedford. The plaintiffs argued that three provisions of the Criminal Code of Canada (‘the Criminal Code’) surrounding bawdyhouses, living on the avails of prostitution, and communicating for the purposes of prostitution were unconstitutional.127 The SCC declared sections of the Criminal Code inconsistent with the Charter and hence the laws were void. This SCC decision gathered much media attention. However, because of judicial independence, the judges are able to make an impartial decision without fear of retribution.

(d) The principle of transparency Transparency has been enshrined in Canada by Acts of Parliament. Transparency means ‘the public has the right and should have the means to assess whether or not the government is delivering on its policy commitments and whether or not public funds are being managed effectively’.128

In 1985, the Canadian Parliament enacted the Access to Information Act, which allows Canadian citizens to request access to government records. The purpose of the Access to Information Act is to: ‘extend the present laws of Canada to provide a right

122 Supreme Court of Canada, The Canadian Judicial System (2008), online at <https://www.scccsc.ca/court-cour/sys-eng.aspx>. 123 Macklem and others 2010. 124 [1995] 2 SCR 513. 125 Egan v Canada [1995] 2 SCR 513. 126 Hunter v Southam Inc [1984] 2 SCR 145. 127 Canada (Attorney General) v Bedford, 2013 SCC 72 at 3–6. 128 Ibid.

of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government’.129

A Canadian citizen ‘has a right to and shall, on request, be given access to any record under the control of a government institution’.130 Requests to access records must be made in writing to the government institution that has control of the record. Within thirty days after the request is received the head of the government institution must: (a) give written notice of whether or not access or partial access will be granted; or (b) give access to the record.131

With respect to the review of information independent of government, section 30 reads: ‘the Information Commission shall receive and investigate complaints’.132 In addition, the Commissioner shall report to Parliament within three months after the termination of each fiscal year. The Commissioner acts as a type of ombudsman to citizens requesting records who have been denied access to the records or receive redacted records. This holds the government institutions accountable for the decisions they make of whether or not to grant access, as well as creates transparency with respect to government records.

In Canada, judicial independence is a fundamental part of the judiciary. If administrative authorities in Canada exercise power they have not been given and thus do not abide by the rule of law, they must answer to the courts,133 which hold them accountable. Furthermore, the courts interpret the Constitution. Judicial independence allows the judiciary to ensure laws are proper, effective, and equal.

The first component of judicial independence is security of tenure. The English Act of Settlement 1701 states, ‘judges, though appointed by the King ... could be removed only if both houses of Parliament, by a formal address to the Crown, asked for their removal’.134 Today, section 99 of the Constitution gives superior court justices guarantees with regard to their tenure.135 This allows justices to be safe in their position, despite the government disliking their decisions, since both the House of Commons and the Senate must both ask for their removal.136 Section 11(d) of the Charter requires provincial court judges, which do not fall under the heading of ‘superior court justice’, to be subject to an independent review and determination before removal, and only by causes related to their capacity to perform their judicial functions.137 Security of tenure allows judges to make controversial or unpopular decisions, or interpret the Constitution in a restrictive or expansive way, in the best interest of the citizens without the fear that they will be fired or reprimanded for their decisions.

The second component is financial security. The Supreme Court of Canada held that section 100 of the Constitution ‘requires that the salaries of superior judges be fixed by parliament directly’, but section 11(d) of the Charter ‘requires that the right

129 Access to Information Act, RSC, 1985, C A-1, s 2(1) [Access to Information Act]. 130 Ibid, s 4(1). 131 Ibid, ss 6 and 7. 132 Ibid, s 30(1). 133 Supreme Court of Canada, The Canadian Judicial System, online at <https://www.scc-csc.ca/ court-cour/sys-eng.aspx>. 134 Forsey 2012, 31. 135 The Canadian Bar Association, Judicial Independence in Canada, (Legislation and Law Reform Department: 2009), online: <http://www.cba.org/> [Judicial Independence in Canada] at 1. 136 Forsey 2012, 31. 137 Judicial Independence in Canada, The Canadian Judicial System (2008), online: SCC-CSC <http://www.scccsc.gc.ca/> at 2.

to salary and pension be established by law and not be subject to arbitrary inference by the executive in a manner that could affect the independence of the individual judge’.138 Judges must be paid sufficiently so they are not in a position of dependence or pressure.139 This allows judges to make decisions without external pressures or corruption. The SCC, as well as the lower courts, can strike down federal and provincial legislation that infringe Charter rights. Last is administrative independence, which requires judicial control over their matters.140 This ‘means that no one can interfere with how courts manage the litigation process and exercise their judicial functions’.141 Each jurisdiction within Canada, including the provinces, territories, and federally, has a judicial council that promotes professional standards of conduct. These councils can recommend the removal of a judge if necessary.142 Therefore, while judges have security of tenure, financial security, and administrative independence, there is still a system in Canada to hold judges accountable for their actions.

In addition to judicial independence, the Canadian judiciary follows the principle of transparency. There is public access to judicial proceedings, ‘except where the court has determined that certain proceedings should be closed to the public’.143 Likewise, all materials filed with the court are public, unless otherwise ordered. Furthermore, hearings are generally open and accessible to the public, unless a court orders the material shall be treated as confidential. An example of restriction to access is ‘serious risks to individual privacy and security rights’.144 Overall, it is apparent that the judiciary operates transparently and allows public access to hearings and decisions. Similarly, the Canadian electoral system and Parliament value the principles of transparency and accountability, as well as participation.

(e) The principle of participation The electoral system of Canada carries out the principle of participation, as the Members of Parliament represent their specific electoral district in the House of Commons. Within Canada, the legislature is elected democratically, and it is accountable to the executive.

There were 338 electoral districts in the 2015 federal election (thirty more than the previous 308 electoral districts), and the candidate with the highest number of votes in each electoral district is elected as a Member of Parliament and wins a seat in the House of Commons. Moreover, ‘the party with the largest number of elected representatives will normally form the Government, and its leader is the Prime Minister. It must be able at all times to maintain the confidence of the House in order to remain in power.’ The system within Canada is that of plurality, as one candidate does not have to have the majority of the votes to win, just the most votes.145

138 Ibid. 139 Government of Canada, Canada’s Court System (2015), online: Department of Justice <http:// www.justice.gc.ca/>. 140 Judicial Independence in Canada, The Canadian Judicial System (2008), online: SCC-CSC <http://www.scccsc.gc.ca/> at 2. 141 Government of Canada, Canada’s Court System (2015), online: Department of Justice <http:// www.justice.gc.ca/>. 142 Ibid. 143 Open Society Justice Initiative, ‘Report on Access to Judicial Information’ (2009) at 7. 144 Ibid at 9. 145 Elections Canada, The Electoral System of Canada (2011), online: Elections Canada <http:// www.elections.ca/>.

(f) The principle of accountability Canada’s Parliament values accountability, such as in Crown Corporations, which are corporations owned by the provincial or federal governments.

The Treasury Board of Canada defines accountability as ‘a relationship based on the obligation to demonstrate and take responsibility for performance in light of agreed expectations’.146 Governance, as opposed to government ‘is concerned with how other actors, such as civil society organizations, may play a role in taking decisions on matters of public concern’.147 This can include Crown corporations, which have autonomy over decisionmaking, but report back to Ministers. These Ministers, who are appointed officials, are accountable to Parliament for their Crown corporations within their departments, for day-to-day operations, but also to show that they are running effectively.148

It is important to note the accountability of administrative officials when discussing good governance within Canada. There are various ways to hold an administrative official accountable if he or she exercises power not given to him or her. The first type of recourse is judicial review. This is where the courts oversee the decisions made by public administrative officials to ensure the decisions made are within their conferred powers. Judicial review is specifically for cases of procedural unfairness or when the decision-maker’s statutory mandate was exceeded.149 All legislative and executive actions are subject to review by the judiciary. The relief for judicial review can be: (a) common law remedies, which are historically known as ‘prerogative writs’; (b) declaration and injunctions; and (c) damages and costs. A further discussion of the types of relief is beyond the scope of this chapter.

The Charter provides for enforcement of guaranteed rights and freedoms. Section 24(1) reads: ‘[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the Court considers appropriate and just in the circumstances.’ Furthermore, section 24(2) allows courts to exclude evidence that was obtained in a manner that infringed a Charter right, thus holding the police accountable for their actions. This remedy under the Charter allows courts to give a Canadian citizen a remedy if their rights or freedoms are infringed, holding Parliament accountable for decisions made.

In addition, every province and territory within Canada has an ombudsman, which is a public official appointed by government but is independent and deals with public complaints against government officials. For example, the Ombudsman of Ontario ‘investigates public complaints about Ontario government services’. The ombudsman has strong powers of investigation, which are found in the Ombudsman Act, RSO 1990, c O.6 and all provincial government organizations must cooperate with the investigation.150 The ombudsman recommends solutions and publishes results of major investigations and notable cases in the Annual Report. A glaring omission within Canada

146 Minister of Public Works and Government Services Canada, Chapter 9: Modernizing Accountability in the Public Sector (Report of the Auditor General of Canada to the House of Commons) (Office of the Auditor General of Canada: Ottawa: 2002), online: OAG-BVG <http:// www.oag-bvg.gc.ca>. 147 Graham, Amos, and Plumptre 2003, 2. 148 Meeting the Expectations of Canadians, supra note 1 at 7. 149 Van Harten, Heckman, and Mullan 2010, 26. 150 Ombudsman Ontario, Frequently Asked Questions (2015), online: Ombudsman Ontario <https://ombudsman.on.ca>.

is that there is no federal ombudsman of a general federal jurisdiction, only specialized ombudsmen dealing with specific areas, such as the Office of the Correctional Investigator151 or the Federal Ombudsman for Victims of Crime.152

(g) Findings Although Canada does not have a specific source of legislation that explicitly outlines the principles of good governance, it is clear that Canada has put them into practice. There are several sources where good governance can be found throughout Canada, which were discussed.

The Constitution is the supreme law of Canada and guarantees Canadian citizens ‘peace, order, and good government’. Although ‘good government’ is not the same as ‘good governance’, this constitutional guarantee, from 1867, sets the background for the government’s concern with the well-being of the country. Furthermore, the rule of law provides that every person must abide by the law and no one is above the law. Section 15 of the Charter guarantees equality rights to Canadian citizens, showing that the principle of human rights is enshrined in the Constitution. The judiciary is also a source for good governance. Judicial independence allows for effective decision-making by the courts. The transparency of judicial proceedings and cases further enhances Canada’s commitment to good governance. Within Canada’s electoral system the regional representation in Parliament shows the principle of participation. Additionally, Acts of Parliament, specifically on the release of records, has made the Canadian government more transparent and accountable over the last several decades. Finally, administrative officials are held accountable by judicial review, section 24 of the Charter, and with the provincial, territorial, and specialized federal ombudsman. The last section of this chapter discussed examples of how the judiciary has interpreted the Charter. Their interpretation of equality rights shows an expansion on the enumerated grounds of equality within Canada.

While Canada appears to follow principles of good governance, there is still room for improvement. With respect to participation, only about 20 per cent of the seats in Parliament are held by women.153 In the 2011 federal election, 9.1 per cent of the Members of Parliament were visible minorities, which is much lower than their proportion of the Canadian population, which is 19.1 per cent.154 Furthermore, there is no general federal ombudsman holding the federal government accountable. There are specific ombudsmen for various departments, but this leaves gaping holes for departments without an ombudsman. The ombudsman does not play a very important role in Canadian society, and is ‘a complaint mechanism of last resort’.155 Additionally, the Access to Information Act is only thirty years old and transparency is a topic of interest within Canada. Certain new bills, such as Bill C-51, allow the government to make

151 Government of Canada, Howard Sapers: Correctional Investigator of Canada (2013), online: Office of the Correctional Investigator <http://www.oci-bec.gc.ca/>. 152 Government of Canada, What we are and what we do (2015), online: Office of the Federal Ombudsman for Victims of Crime <http://www.victimsfirst.gc.ca/>. 153 The World Bank Group, Proportion of seats held by women in national parliaments (%) (Washington, DC: 2015), online: IBRD-IDA <http://data.worldbank.org/>. 154 Canadian Parliamentary Review, Racial Diversity in the 2011 Federal Election: Visible Minority Candidates and MPs (Toronto: 2015), online: Rev Parl <http://www.revparl.ca/>. 155 Alberta Ombudsman, Frequently Asked Questions (2015), online: Alberta Ombudsman <https://www.ombudsman.ab.ca>.