Strengthening Oversight: Restoring and Improving Independent Commissions and Parliamentary Watchdogs

In Canada, independent commissions and parliamentary watchdogs play an important role in checking the exercise of executive power. To operate effectively, these agencies should be adequately funded, free from political interference, and afforded the powers necessary to investigate, monitor and report on the government’s conduct. In a parliamentary democracy these bodies also ensure oversight by answering to Parliament as a whole, as elected representatives of the Canadian people.

The erosion of oversight under the Conservative government

While in government, the Conservatives interfered politically with numerous independent oversight agencies, in particular those that were critical of the government. Agencies affected included the Military Police Complaints Commission, the Commission for Public Complaints Against the RCMP, ombudsmen for the defence forces and veteransElections Canada, the Parliamentary Budget Office, and the Office of the Correctional Investigator. Although not exhaustive, the following examples illustrate the various ways the Conservatives undermined oversight agencies’ leadership and activities and the damaging consequences for oversight of government action.

During their first term in government, the Conservatives obstructed the Military Police Complaints Commission’s (MPCC) investigation into the handling of Afghan detainees by Canadian forces in 2007. The MPCC is responsible for oversight and accountability of Canada’s military police. The Commission’s final report made highly critical findings about the Conservative government’s refusal to provide documents and to cooperate with the investigation or public inquiry. The Commission found that the Conservative government’s conduct during the inquiry was ‘characterized by an attitude of aversion to, or antipathy towards the public hearing…that led to unnecessary costs and significant delays’.[1] This significantly obstructed the inquiry and undermined the integrity and effectiveness of the Commission’s investigation.[2]

The Conservative government publicly criticized defence forces ombudsman Pierre Daigle in 2012, failed to renew veterans ombudsman Pat Stogran for a second term in 2010, and removed defence forces ombudsman Yves Côté in 2008, half-way through his term. Each of these ombudsmen had repeatedly spoken out against the government’s treatment of current and former defence forces personnel.  Recent reports suggest a refusal to listen to these watchdogs has negatively impacted the lives of veteran service men and women. According to a March 2015 report from Employment and Social Development Canada, for example, as at 2015 over 2,000 former veterans are homeless, a fact which Stogran attributes to resistance from the Conservative government to engage with his office.  Another report also found ‘“little evidence” that Veterans Affairs was adapting to meet the needs of retiring soldiers and their families’.

The Conservatives also obstructed the work of the Parliamentary Budget Office (PBO). The purpose of the PBO is to provide independent analysis of Canada’s finances, assess the accuracy of government budget estimates and give advice about the cost of policy proposals. In 2008, after issuing reports critical of the government’s estimates, the PBO was threatened with large-scale funding cuts and faced concerted efforts to restrict its mandate. The government also repeatedly failed to comply with the PBO’s requests for financial information, limiting the PBO’s ability to properly assess the cost of policy proposals. A PBO report released in early November 2015 suggests that Conservative budget forecasts and estimates were overly optimistic, a scenario the PBO was established to avoid.

In 2014, the Conservatives introduced of the Fair Elections Act, which included provisions that attacked the functioning of Elections Canada, the oversight body responsible for ensuring the integrity of the Canadian electoral process. The Act removed Elections Canada’s enforcement function, and placed it within the Public Prosecutions Service of Canada. The ability of Elections Canada to encourage voting and publish research was also severely limited. Over 450 Canadian academics called for the Act’s withdrawal because of “grave concerns” about the damage the Act would cause Canadian democracy.  International academics also publicly opposed the Act, arguing that its passing:

“significantly diminishes the effectiveness of Elections Canada, a non-partisan agency, in the fair administration of elections and the investigation of electoral infractions.”

 

The value of independent oversight

Despite being buffeted by political forces during the Conservative government’s time in power, oversight agencies worked hard to exercise their mandates to oversee the Canadian government’s conduct and to ensure the Canadian government was held to account. This perseverance has proved fruitful: recent court decisions and government actions have begun the implementation of some of these agencies’ important recommendations – although much remains to be done. Recent examples include:

  • In March 2015, of the Information Commissioner Suzanne Legault released a report about modernizing the Canadian Access to Information Act. The report calls on the Canadian government to improve procedures and timelines for making access requests, maximize disclosure and strengthening oversight. Overall, the Commissioner’s report argues for the establishment of an access to information regime based on proactive disclosure and publication of government information. During the 2015 election campaign, the Liberal Party promised to reform access to government information. While legislation to do so has not yet been introduced, and access to information requests for details on the plan have been partially blocked, the government issued a directive in May 2016 which waives all extra fees related to access to information requests (apart from an initial $5 fee), and also directs federal departments to make data available in accessible formats. The government has also begun consultations on a new plan for Open Government 2016-2018. However, there are still several outstanding concerns, including that substantial reforms to access to information will only be implemented in 2018.
     
  • The Canadian Human Rights Commission referred a landmark case to the Canadian Human Rights Tribunal, dealing with the issue of adequate services for First Nations children and families. The Commission and the original complainants were strenuously opposed by the federal government at every turn, causing this critical fight against discrimination to drag on for almost a decade. The Commission’s intervention on behalf of the public interest contributed to the Tribunal’s January 2016 decision that the federal government’s underfunding of child welfare services discriminated against First Nations children and their families living on reserves, as well as children and other parts of Canada. Responding to the Tribunal’s ruling, the government has committed to ‘renovating’ the child welfare system in Canada and to significantly increasing the money spent on child welfare. While the government pledged $382 million to address services for First Nations children, advocates have criticized it for not going far enough, for narrowing the scope of funding, and for dragging out implementation times.
     
  • Correctional Investigator Howard Sapers consistently criticized the Conservative government’s correctional policies, calling for urgent action to address the over-representation of Indigenous Canadians in prisons, measures dealing with over-crowding, and access to programs and treatment for prisoners. The Conservatives ignored Sapers’ recommendations and publicly announced they would not reappoint him as Correctional Investigator. In contrast, on 31 March 2016 the government re-appointed Sapers as Correctional Investigator for a one-year term. It has also expressed support for Sapers’ work, and the government’s ministerial mandate letters call for action which echo many of the recommendations made by Sapers over the years.  
     
  • The Auditor General, who oversees federal government spending and evaluates and advises on government programs and services, identified numerous problems in the Conservative government’s use of public funds. For example, 2015 reports by the Auditor General found:
  • long delays in determining disability pensions by both Employment and Social Development Canada and the Social Services Tribunal, including for those with terminal or grave conditions
  • a failure to apply gender-based analysis across all departments, despite a commitment made 20 years ago to do so
  • the Canadian Border Services Agency lacks the resources necessary to enforce Canada’s export control laws, so that suspected stolen property is being allowed to leave the country
  • Shared Services Canada has failed to achieve its objectives of maintaining or improving the government’s IT infrastructure and making savings. Problems with SSC’s performance include a radio communication outage that affected 9000 police and other first responders in Saskatchewan.
  • During its 2015 campaign, the Liberal Party of Canada committed to ensuring the Auditor General’s office be adequately funded to do its important work. However, no new funds were pledged in the 2016 federal budget, and 2016-2017 federal spending estimates show the AG’s budget holding steady (p. 10).

 

What next

The government must do much more to establish proper independent oversight of its conduct.

Oversight bodies must have robust appointment processes, that ensure these bodies are led by well-qualified candidates. For many oversight agencies, the current appointment process fails to protect against conflicts of interest: the cabinet of the ruling party can appoint the candidate of their choice, and the opposition need only be consulted. Better checks and balances must be put in place, such as requiring all such appointments to be approved by Parliament, or including legislative requirements regarding skills, qualification or other standards.  

Reappointment processes must also be strong; if reappointment is allowed, it should be clearly linked to merit and performance. This mitigates the risk that heads of oversight agencies seeking reappointment might pander to the ruling party in their initial term.

All oversight agencies should have the power to order the disclosure of information and the power to fine those who refuse to do so. This helps avoid the need for oversight agencies to go to court when the government refuses to provide the information needed for the agency to perform its functions. 

Oversight agencies must also have a transparent complaints process, which permits, where appropriate, public access to the details of the complaints oversight agencies receive and the action the agency has taken in response.

The following examines some of the most pressing steps the government must take to improve the functioning of Canada’s key oversight agencies.

 

Oversight for Canadian intelligence and security agencies

  • Establish independent oversight and review mechanisms for Canadian intelligence and security agencies

For many, the most pressing oversight issue confronting the government is the establishment of robust oversight and review mechanisms to oversee the conduct of Canadian intelligence agencies.

In June 2015, the Conservative government’s Bill C-51, Anti-Terrorism Act, 2015 became law.  Numerous human rights and civil society groups, experts and academics, and members of the public have spoken out about the risks the Act poses to the human rights and democratic freedoms of Canadian. Some of the Act’s more troubling aspects include:

  • the introduction of a host of new terrorism-related offences, which threaten human rights including freedom of speech, freedom of association and peaceful assembly
  • expanded powers to collect and share information between government departments about broadly and vaguely defined ‘activities that undermine’ national security’
  • greater powers to put Canadians on a no-fly list
  • the ability to seek permission from the Federal Court to engage in conduct that violates the Canadian Charter of Rights and Freedoms.

The case has not been made that these powers are necessary to protect the safety and security of Canadians. Moreover, there is a real risk that these expanded security powers could be used to intrude on the privacy of Canadians and to infringe upon their democratic rights. History shows this risk is not hypothetical. Inquiries into the misconduct of the RCMP, the Air India tragedy and the capture, detention and torture of Maher Arar all revealed that Canadian security and intelligence agencies abused their extensive powers and failed seriously in the collection and sharing of information.

Compounding these concerns, the expansion of powers for Canadian intelligence agencies has not been met by any corresponding increase in oversight. The need for robust and transparent oversight was a key theme in the recommendations of earlier inquiries into the conduct of Canadian security and intelligence agencies. Since the introduction and passing of Bill C-51, human rights and civil society organisations, academics, members of the public and Canadian politicians have all lobbied for the bill’s provisions to be accompanied by proper oversight.

First, the government must repeal Bill C-51. It must then engage in robust and open consultation with the Canadian public, civil society groups and all sides of politics about what legislation, if any, should stand in its place. The government has been accused of taking too long to make the necessary changes. After nearly a year in office, the government followed up on its campaign promise to hold consultations on national security and Bill C-51, launching a national in-person and online process. While many welcomed the consultations, privacy, human rights and civil liberty groups continued to express concern. In particular, there is worry that the framing of the consultation documents and questions lack neutrality and are slanted towards the view and needs of law enforcement, and that not enough prominence is given to concerns about the impact of the C-51 and Canada’s national security framework on civil liberties and charter rights.

Some limited progress has been made. In June 2016, the government introduced Bill C-22 to create a new National Security and Intelligence Committee of Parliamentarians, which is to provide oversight of national security agencies. While a parliamentary committee is an important part of any accountability framework, alone it is not enough. In addition, some aspects of the proposed committee have been criticized:

  • Federal departments could refuse to provide information to the committee, and the Public Safety Minister could put an end to investigations, based on national security concerns.
  • The committee must table a report in parliament at least once per year. However, any other reports could be kept secret, and the report tabled in parliament will be reviewed and redacted by the Prime Minister, leading to concerns about the  transparency of the committee’s work and the ability of parliamentarians to scrutinize it.
  • While only four of the committee’s nine members will be from the governing party, they are appointed by the Governor in Council Governer in COuncil crutiny by pdictions for limiting committee independence. by the Prime Minister, who also appoints the commion the recommendation of the Prime Minister, who also appoints the committee chair; both practices have been criticized in other jurisdictions for limiting committee independence.

Canada’s national security framework must not infringe on the privacy and human rights of Canadians. Whatever way this framework is administered in the future, there must be strong and transparent mechanisms for independent review and oversight of Canadian security agencies.

 

Oversight for the Canadian Border Services Agency

  • Establish an oversight body and complaints and review mechanism for the Canadian Border Services Agency

The Canadian Border Services Agency (CBSA) is responsible, among other things, for determining who can enter Canada, detaining those who may pose a threat to Canada and removing people not permitted to enter or remain in Canada.

Since 2000, fourteen people have tragically died in CBSA custody, including two in one week in early March 2016. In addition, recent reports suggest that, for the last ten years, the CBSA has been detaining between 4,000 and 6,000 asylum seekers per year, including hundreds of children. These asylum seekers are typically detained in detention centres or provincial prisons, for up to a month. It is estimated that for 90% of these asylum seekers, their detention has no connection to security concerns. There is no way to review or appeal the detention of these individuals.

The CBSA is the only police force in Canada that is not subject to oversight. In June 2015, a Senate Standing Committee on National Security and Defence released a report calling for the establishment of an oversight body for the CBSA and for an independent civilian review and complaints body for all CBSA activities.  These calls build on recommendations made in the 2006 inquiry into the torture and detention of Mahar Arar and the 2014 inquest into the death of Lucia Vega Jiminez in CBSA custody.

In August 2016, the Public Safety Minister Ralph Goodale announced a number of reforms to the immigration system in Canada. However, none of these reforms involves the establishment of an oversight body or complaints mechanism. Civil society groups have responded with mixed reactions to the reforms, including concern that most of the new funding will go to revamping detention facilities, when the focus should be on reducing the number of detainees.

 

Canadian charities Commission

  • Investigate whether Canada should establish an independent commission to oversee charities

The Canada Revenue Agency is responsible, among other things, for auditing Canadian charities to determine whether they comply with the requirements of their charitable status. Under the Conservative government, the Canada Revenue Agency established a ‘special review’ of the political activities of Canadian charities. The vast majority of charities targeted as part of the CRA’s special political activity audit were progressive organisations, in particular those with a focus on the environment, international development and aid, and human rights. The audits had the effect of chilling the advocacy work being done by the charitable sector, and responding to the audits took resources away from already underfunded organisations doing important work for disadvantaged and marginalized Canadians.

In January 2016 the government announced that it would put an end to the special review of political activities. However, ongoing audits have continued, raising questions about why charities continue to face penalties under an outdated system that the Liberal Party, while in opposition, spoke out against. In addition to ending the special review, the government should:

  • Immediately suspend the remaining audits started as part of the “special audits” campaign
  • Investigate the establishment of an independent charities commission that would oversee the regulation of the charitable sector. Such a model exists in Australia and the United Kingdom.
  • Commit to fully investigating whether there was bias in the auditing of charities and making the results public
  • Clarify the parameters of the public consultation launched on September 28, 2016. While the consultation in itself is welcome, it seems based on an assumption that the restrictions currently found in the Income Tax Act will remain in place, rather than revisiting the regulations as a whole.

 

Establish an independent Parliamentary Budget Office

  • Make the Parliamentary Budget Office independent

As noted above, the Parliamentary Budget Office is responsible for providing the government with independent analysis about Canada’s finances and trends in the economy, assessing the accuracy of government budget estimates and providing advice about the cost of policy proposals.

Established in 2006, the PBO is part of the Library of Parliament. One consequence of this is that the level of independence enjoyed by the PBO was never clear. Disputes about the PBO’s mandate arose several times under the Conservative government. Some disputes have persisted, with the PBO critiquing the Liberal government in April 2016 for classifying as “confidential” important budgetary data needed by parliament and the public in order to ensure proper financial scrutiny.

In July 2016, at the request of the government, the PBO released draft legislation which seeks to establish the independence of the PBO, expand its mandate and ensure it is properly resourced to perform its functions.  The proposal has been described by an NDP spokesperson as an “improvement”, although it is still being considered by parliamentarians. This legislation should be enacted, subject to the amendments necessary to truly ensure it provides for the independence of the PBO and its proper functioning.

 

Oversight of Access to Information

  • Give the Information Commissioner the power to order disclosure of government information, as part of the Canadian access to information system

In March 2015, the Information Commissioner released a detailed report making recommendations about modernizing Canada’s access to government information system. The review recommended:

  • extending the coverage of the Access to Information Act to a broader range of public institutions and records.
  • giving the Information Commissioner more powers in order to promote disclosure of records, and where appropriate, sanction those who fail to disclose.
  • drastically limit the exceptions to disclosure, and instead require proactive disclosure of disclosable records.

If implemented, this would be a more robust system than presently exists. Currently, the Commissioner only has the power to investigate a department’s refusal to disclose and to make a non-binding recommendation in favor of disclosure. This system provides little incentive for the government to maximize disclosure.

 

Make the Canadian Human Rights Commission Truly Independent

  • The Chief Commissioner of the Canadian Human Rights Commission should be designated as an Officer of Parliament by law.

This would ensure that the Minister responsible for the legislation governing the Commission’s operation (in this case, the Minister of Justice) is not also the Attorney General and therefore the most likely adversary the Commission has to face in human rights complaints.

 

Strengthen the transparency of the Elections Canada

  • The government should ensure Elections Canada can perform its functions transparently so it can properly oversee Canada’s electoral system

It is critical that the Elections Canada have the powers necessary to perform its functions and that it discharge its oversight role transparently. Elections Canada should be required to disclose rulings on investigations into complaints. Where there has been a violation of elections law, the Director of Public Prosecutions must provide reasons for not prosecuting. In addition, the Fair Elections Act failed to provide the Commissioner with the power to compel documents or witness testimony, a problem in the investigation of misleading robocalls in 2011 and the production of financial information about campaign spending.

 

Conclusion

Oversight agencies and watchdogs hold the government to account. They ensure that the government’s policies and its conduct meet the needs of Canada’s population and are implemented fairly and efficiently. As this review of oversight in Canada has demonstrated, oversight comes in different forms, from permanent independent commissions, such as the MPCC, to officers of parliament, such as the Auditor General. However they are constituted, to be effective, oversight mechanisms must be independent from government and adequately resourced to provide robust and transparent review of government decisions and actions. They must also, ultimately, be answerable to Canadian parliament, as representatives of the Canadian people.

Since its election in 2015, the government has indicated a willingness to engage with the recommendations of Canadian oversight agencies, and taken modest steps towards stronger and more independent oversight of government conduct. However, as this update makes clear, much more must be done.




[1] Military Police Complaints Commission’s Final Report, Afghanistan Public Interest Hearing, 17.1.1

[2] Military Police Complaints Commission’s Final Report, Afghanistan Public Interest Hearing, 17.1.1-17.1.4.

 

Published: 28 Oct. 2016