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Date: 22/07/05 Course: POLS 4990 Professor: T. Klassen Student #: 205734553 Student’s name: Stanislav Getman
Introduction Contemplating accountability Why do we need bureaucratic accountability? Types of accountability Accountability to superiors Accountability to elected officials Accountability under the law Accountability to professional norms and institutions Accountability to the public Discussion Ensuring accountability in Canadian Federal Public Service Different accountability checks, tests and constraints Values and Ethics Mass media and journalists Evaluation The Office of the Auditor General Information Commissioner and Access to Information Act Potential sanctions and penalties for wrongdoings What can we learn from others? Prominent Cases: Background Health Canada’s ADM scandal: Pushing the limits of government trust Tainted Blood Scandal: A durability test for the public Sponsorship scandal: All the way up? Arar case: Just because of who you are Prominent Cases: Analysis and Discussion Conclusion Bibliography 2 pg. 3 pg. 5 pg. 7 pg. 9 pg. 10 pg. 11 pg. 12 pg. 13 pg. 14 pg. 15 pg. 16 pg. 16 pg. 17 pg. 18 pg. 18 pg. 19 pg. 20 pg. 21 pg. 23 pg. 25 pg. 25 pg. 27 pg. 27 pg. 28 pg. 30 pg. 32 pg. 35
Since ancient times and particularly since the time of the Roman Empire, it was realized by rulers that it was very hard to govern a country successfully without civil servants, especially vast countries.1 The Roman Empire was vast and its rulers understood that the Empire could not be held together or governed without professional administration.2 Since those times public service functions and their number have grown significantly in every country; in Canada Federal Public Service Employment reached 367,000 in 2004.3 However, one thing which has not changed much since ancient times and which is constantly an issue in the Canadian Public Service is administrative accountability, or to be more precise - in most cases the lack of it, resulting in corruption, patronage, etc. To demonstrate the age of this issue let us take an example from the Roman Empire. Here is what a history of administration in the Roman Empire has to say: The administration, or rather the classes from which it was recruited, lacked an adequate code of public conduct. It is true that the government took an idealistic view of its duty to provide for the needs of the community, to ensure the safety and well-being of the governed, to provide justice for those who appeared in its courts. But members of the administration treated their appointments as a means to social and economic gain for themselves, and above all their friends and dependents.4 The consequence of those attitudes and lack of accountability was, of course, frustration and lack of trust and confidence from ordinary citizens. “If the history of the Late Empire shows an increasing alienation of the population from the government, the conduct of an administration that appeared to exist mainly for the sake of its self-preservation is likely to have been a principal cause.”5 So, after all possible checks and preventive measures fail, or if there are insufficient numbers of them, a country would be more likely to find corruption in its public service. Here is what one author has to say about corruption in public service:
Wacher, John S., ed. The Roman World. (New York: Routledge, 2002, vol. 1), 455-456 Ibid. 3 Canada, Statistics Canada. Public Sector Employment. (2005); and Wacher, 459 4 Wacher, 465 5 Ibid.
Corruption in government and public administration is a complex and pervasive phenomenon. In governance terms, corruption threatens democratic public institutions by permitting the influence of improper interests on the use of public resources and power, and by undermining the confidence of citizens in the legitimate activities of state.6 The seriousness and importance of bureaucratic accountability can not be underestimated. As the example of the ancient Roman Empire teaches us, an ineffective, distrusted and corrupt public service can seriously damage the public trust in itself and in government as a whole. Canada also is a large, complex and diverse country, just like the Roman Empire was, with a tradition of reliance on its government and public service. And looking at the Canadian reality we find no lack of examples of misconduct by public servants. Some examples of such misconduct in the Federal Public Service are the tainted blood scandal, the corruption scandal involving the Health Canada Assistant Deputy Minister, the sponsorship scandal. While it seems hard to draw any definite conclusions about the overall impact on how Canadians view their public service and consequently the government, it seems reasonable to assume that these events have contributed to the general voting trend in Canada, where fewer and fewer people vote and fewer and fewer of them care about or are involved in politics and public administration debates.7 And yet the scope of activities that Federal Public Service performs is very wide. As Rand Dyck puts it, “Federal public servants deliver the mail, issue old age security cheques and passports, process income tax and GST forms, admit immigrants, approve drugs and search for illicit ones, engage in UN peacekeeping operations, guard penitentiaries, negotiate treaties with domestic Aboriginals as well as with foreign countries.”8 So, since the public service activities have an enormous influence and impact on Canadians and their everyday life, public service accountability is and should be an important issue for Canadians. Therefore, it seems that for real accountability results to be achieved and to improve the accountability in public service, there need to be more measures taken and checks, tests and
Organization for Economic Co-operation and Development (OECD). Public sector corruption : an international survey of prevention measures. (Paris: OECD, 1999), pg 7 7 Canada, Statistics Canada. General Social Survey. (2003) 8 Dyck, Rand. Canadian Politics: Critical Approaches. (Toronto: Thomson/Nelson, 2004), 533
constraints put in place to create greater opportunities for Canadians to be able to know and judge what exactly is happening in public service; as well, the public service should be more open to any evaluation and examination by overseeing bodies, institutions and regulations. In fact, a number of steps have been taken to achieve just that. But because this is a complex issue, it can not be examined separately from other related issues. This research will explore what is being done and what is not being done, it will look at and examine the issue of accountability in Federal Public Service, what are its components, what measures and tools are there to ensure it, and what are some of the checks and controls on the federal bureaucracy. Then some laws, regulations and initiatives of other countries will be examined, followed by examination of Canadian cases of public officials’ misconduct and an analysis of those cases.
Generally, many people define accountability in terms of being able to justify your actions to others. Definitions along these lines are also found in most of the writings on Public Service Accountability. Nonetheless, it is possible that small differences in the definition of accountability might cause different people to think about and approach the issue of accountability differently. Therefore, some formal definitions of accountability seems to be appropriate. For example, for Paul Thomas, accountability is “…an obligation to explain and to justify how an individual or an institution discharges its responsibilities, the origins of which may be constitutional, political hierarchical, or contractual.”9 Similarly, Gregory Inwood thinks that accountability “…simply means being required to explain one’s actions by answering to someone else.”10 Other authors, like Peter Aucoin and Ralph Heintzman, define
Thomas, Paul G. “Parliament and the Public Service”, in Dunn, Christopher, ed. The Handbook of Canadian Public Administration. (Don Mills: Oxford University Press, 2002), 344 10 Inwood, Gregory. “Public Administration and Accountability”, in Inwood, Gregory J. Understanding Canadian Public Administration: an introduction to theory and practice. (Scarborough: Prentice Hall Allyn and Bacon Canada, 1999), 343
accountability in the following way: “Accountability is a cornerstone of public governance and management because it requires that those who hold and exercise public authority be held to account.”11 As one can see, the above definitions are very similar in their view that accountability is or should be an “insurance” of proper conduct by public servants. Yet, there are differences in the definitions above. Depending on the political paradigms that the above authors belong to they view accountability and its application to public service from different standpoints. For example, Paul Thomas and Gregory Inwood seem to both be supporters of the Institutional Approach (also known as StateCentred Approach) since they both similarly see accountability as something that should emanate from the public servants themselves: “an obligation to explain and to justify” (Thomas) and “being required to explain one’s actions” (Inwood). On the other hand, the authors Peter Aucoin and Ralph Heintzman seem to belong to another ideological camp, to Public Choice Approach. According to their definition provided above, they imply that accountability is something that is instilled from outside and that “requires that those who hold and exercise public authority be held to account”. And so, there are seem to be two main types of definitions for accountability: the definitions based on the Institutional Approach or those based on the Public Choice Approach. In a perfect world, one free of corruption and conflicts of interest, where all people are honest and financially disinterested, accountability would be a part of the public servant’s everyday routine and conduct. In that world there might not even be the need for accountability, since everyone would be so disinterested. However, that world is either many many years away from us or is unattainable at all given human nature. As for this paper, its author, being more influenced by the Public Choice Approach, defines accountability as a tool or array of complex checks and constraints to hold public servants to account for their actions and quality of their advice.
Aucoin, Peter and Ralph Heintzman “The Dialectics of Accountability for Performance in Public Management Reform”, in Peters, Guy B. and Donald J. Savoie, eds. Governance in the Twenty-First Century. (Montreal: McGill-Queen's University Press, 2000), 244
Why do we need bureaucratic accountability?
For authors Peter Aucoin and Ralph Heintzman, there are three main reasons why we need accountability in public service. Firstly, they believe that accountability is needed to make sure that abuse and misuse of public powers does not take place.12 The second reason for accountability is to “provide assurance in respect to the effective use of public resources and adherence to public service values.”13 And thirdly – to create a process of constant improvement of public governance and administration.14 These three reasons for accountability seem to be very relevant for the Canadian public service in the face of new social and economic realities in the country. For example, they say, the complexity of governing is increasing as more and more programs and tasks are being created.15 At the same time, economic pressures are increasing, particularly in the form of global competition. It is not only global competition that creates economic pressures but there are also the increasing pressures of many years of deficits and accumulated national debt, along with calls from the public for more efficient use of public money.16 Moreover, the authors note that the public is also increasingly demanding more effective programs and policies as well as improved delivery of those programs, which creates the need for constant improvement and perfection in performance from the federal public service. They state, “… accountability can, and should, be a major force for improving performance.”17 They add that increasing demand for accountability is part of the phenomenon of increasing universal democratization which includes “…demands for greater transparency in the conduct of public business by political and administrative officials, increased public access to government information, more explicit standards of
Aucoin and Heintzman, 244 Aucoin and Heintzman, 244-245 14 Ibid. 15 Aucoin and Heintzman, 245 16 Ibid. 17 Aucoin and Heintzman, 247
public service entitlements and rights, enhanced citizen consultation and engagement in policy development …”.18 In Kenneth Kernaghan’s and David Siegel’s view, the need for increased accountability for public servants in many Western countries and particularly in Canada has occurred because of great discretionary power that public servants have acquired over the years.19 However, they note that “[i]t is not simply the existence of bureaucratic power but also the irresponsible exercise of that power that arouses public concern”, which has led to “events involving illegal or unethical behaviour by both politicians and bureaucrats”.20 The authors mention that some of the examples of potentially irresponsible bureaucratic behaviour and exercise of power often have to do with “political espionage, conflicts of interests, and disclosures of confidential information”.21 It is also interesting to take notice of the language that Kernaghan and Siegel use when describing inappropriate actions and events, which are happening in public service. Such terms as “irresponsible behaviour”, “wrongdoings”, “unethical” or “illegal behaviour” are used by them almost interchangeably, or at least they do not make a big distinction among those terms.22 It seems to me that all of the following terms and expressions describe inappropriate and wrong actions of public servants and ultimately all of these terms have to do with accountability failure: corruption, misconduct, mistakes, wrongdoings, illegal, unethical, dishonest or irresponsible behaviour. However, all of those expressions also have their own nuances and meanings and especially with respect to accountability. Some of these terms such as “mistake”, “irresponsible behaviour”, have nuances which seem to imply inadvertent behaviour or action. Another group of expressions such as “corruption”, “illegal behaviour” or “dishonest behaviour” indicate that there has been a clear motive to defraud someone. Other expressions are kind of in the middle and straddle the line between intended dishonesty and incompetence:
Aucoin and Heintzman, 245 Kernaghan, Kenneth and David Siegel. Public Administration in Canada. (Scarborough: Nelson Canada, 1995), 352 20 Ibid. 21 Ibid. 22 Ibid.
“wrongdoings”, “unethical behaviour”, “misconduct”. And even though for criminal and other considerations, when blame and punishment are assigned, it is very important whether something was a result of a deliberate motive or inadvertent, for our discussion on accountability is not really important, since if those kinds of things have happened already that means that there is a lack of accountability, checks and constraints (indifferent of the motives); nonetheless those nuances will be taken into consideration when choosing words to describe certain behaviours in order to prevent the possibility of, for example, calling a patronage appointment simply an irresponsible mistake.
Types of accountability
Gregory Inwood identifies five types of accountability that can be applied to public bureaucracy: “accountability to superiors, accountability to elected officials, accountability under the law, accountability to professional norms and institutions, accountability to the public.”23 The author admits that though these types of accountability are not exclusive and overlap, still he gives approximate definitions of each type. Accountability to superiors, Inwood points out, can be understand through the context of administrative accountability in terms of superior-subordinate relationships.24 Accountability to elected officials can be understood as “…political accountability, which refers to competitive elections, and the relationship between representatives and their constituencies and other societal interests.”25 For accountability under the law, the author suggests it can be seen in following contractual rules and requirements while in the service. Professional accountability “…refers to the need to adhere to professional standards and norms”, while accountability to the public does not have a firm basis and includes professional accountability (norms and standards) as well as being based on the powerful
Inwood, 355 Inwood, 356-357 25 Inwood, 357
convention of bureaucratic moral and behavioural responsibilities to the public.26 What exactly these accountability types are and how they interact with each other will now be examined.
Accountability to superiors This is one of the most basic types of accountability, which is “derived from the Weberian notion of bureaucracies as hierarchical organizations defined by chain of command”.27 Another way to think about it is that any public servant has a superior to whom he is answerable and so this accountability ensures that a job will be done.28 This type of accountability is similar to what is in the private sector, only in the private sector this type of accountability is much more crucial than for the public sector. In Public Service, superiors under this accountability type can be Deputy Ministers, Assistant Deputy Ministers, Directors, Managers or Supervisors.29 Even though this type of accountability is the most basic and very important, some authors, like Dwivedi and Gow, caution us about some potential backlashes if accountability to superiors is used as a predominant accountability form. For example, they say that since this type of accountability is based on a classic “hierarchic bureaucratic model” where orders and rules originate at the top there is a danger of rules and procedures becoming the centre of public service activities.30 Moreover, these authors say, since “[i]ncentives and punishments are closely related to these rules, so obeying them becomes the chief way to protect one’s career”.31 In other words, if this accountability type is stressed too much there will be a tendency by public servants to concentrate on rules and procedures rather than on achieving the desired objectives intended to bring some good to the public.32 And that is how accountability to superiors, if dominant in public service, can diminish the importance of accountability to the public, which is discussed below. It can also come into conflict with
Inwood, 356 Ibid. 28 Ibid. 29 Ibid. 30 Dwivedi, O.P. and James I. Gow. From Bureaucracy to Public Management. (Peterborough: Broadview Press, 1999), 75 31 Ibid. 32 Ibid.
accountability to elected officials since the goals that they wanted to achieve through public servants are not a priority for the latter.
Accountability to elected officials This type of accountability implies that the whole public service is ultimately accountable to elected representatives of the people: to Legislature and particularly to Ministers and the Prime Minister.33 In fact, there are specific guidelines describing how public servants should conduct themselves with Ministers: • • • Helping Ministers, under law, to serve the public interest Public servants shall give honest and impartial advice and make all information relevant to a decision available to Ministers Public servants shall loyally implement ministerial decisions, lawfully taken 34
So, as one can see from the above guidelines, these obligations and expectations to be of good service to a Minister put a lot of pressure on public servants. Moreover, let us not underestimate the enormous amount of influence that political executives exercise over public servants. From time to time, especially during election campaigns, this influence can potentially materialize into unconventional requests by Ministers, resulting in collisions between accountability to elected officials and three other types of accountability: accountability under the law, accountability to professional norms and institutions and accountability to the public. In addition, as one article suggests, sometimes bureaucrats feel compelled to protect political executives from trouble, who in their turn often protect bureaucrats from the public eye, inquiries and the media. It suggests, “[t]hey [bureaucrats] know where the really big messes are and they have to keep the politicians from stepping in them – even if stepping in it is the right
Inwood, 356 Canada, Treasury Board. Values and ethics code for the public service. (Ottawa: Treasury Board of Canada Secretariat, 2003), 7
thing to do”.35 In return, the article continues, if a bureaucrat has made a mistake he can be allowed by elected officials to get away with it: “…it's common practice for a bureaucrat who has made a colossal mistake to get involved with and influence an inquiry if it starts to get too close to the truth”.36 “In Canada, you can get very well paid to make a multi-billion dollar mistake and never have to worry about paying for it.”37 So, that is another example when accountability to elected officials collide with accountability under the law, accountability to professional norms and institutions and accountability to the public.
Accountability under the law It is a public servant’s responsibility to “uphold the law in the course of administering programs and policies”.38 This also includes upholding any Acts and Regulations that are passed by government. The requirements to uphold laws, acts and regulations are universal within the public service, “from the most senior officers to the lowest clerk”.39 Some examples of accountability under the law include the following: “A government official may not require a person to pay a fee without express authority to collect that fee. A person cannot be required to pay a fee for a permit and a fee cannot be demanded before processing an application without express authority for its collection. The authority to charge a fee is prescribed by statute and the amount is fixed by regulation.”40 Another example can be the exercise of Employment Equity Act which is supposed to “assists designated group members, women, Aboriginal peoples, persons with disabilities and members of visible
35 Lockyer, Debora. Which Canada is the real Canada?: true accountability for politicians and bureaucrats. (Wind Speaker: August, 1998, Vol.16, Iss.4, pg.6) 36 Ibid. 37 Ibid. 38 Inwood, 356 39 Ibid. 40 Blake, Sara. “An Introduction to Administrative Law in Canada”, in Dunn, Christopher, ed. The Handbook of Canadian Public Administration. (Don Mills: Oxford University Press, 2002), 467
minorities in achieving a full and equitable representation within the federal public service”.41 It can be that a desire to make Public Service better represented under the Employment Equity Act can lead to preferential hiring and therefore compromise accountability to the public by not jeopardising the meritbased hiring which is about giving the job for the best candidate.
Accountability to professional norms and institutions – Ethics, Codes, Standards Accountability to professional norms and institutions relates to the issues of Ethics, Codes and Standards. Many formal organizations have their own Codes of conduct for their employees and so does the Public Service outlined in Values and Ethics Code for the Public Service. For example, the Code suggests that public servants should serve “with competence, excellence, efficiency, objectivity and impartiality” and at the same time be responsible with the public finances by ensuring “the proper, effective and efficient use of public money”.42 Other Ethical duties include: • • • Public servants shall act at all times in a manner that will bear the closest public scrutiny; an obligation that is not fully discharged by simply acting within the law. Public servants, in fulfilling their official duties and responsibilities, shall make decisions in the public interest. If a conflict should arise between the private interest and the official duties of a public servant, the conflict shall be resolved in favour of the public interest.43
However, many employees of the Public Service, on top of Values and Ethics Code for Public Service, have other professional guidelines of behaviour. This is due to the fact that Public Service is a large and complex organization that requires many specialists with different skills. “For instance, legions of scientists, engineers, nurses, lawyers, accountants, teachers and professors, surveyors, geologists, architects, real estate agents, urban planners, and countless other professionals work either directly or indirectly for the government.”44 Many of the above mentioned professionals have their own
Canada. Treasury Board of Canada Secretariat. (2005), Available at http://www.tbs-sct.gc.ca/common/us-nous_e.asp Values and Ethics Code for Public Service, 8 43 Values and Ethics Code for Public Service, 9 44 Inwood, 356
professional standards and codes of conducts determined by their corresponding boards and associations. In a way, these public servants are “doubly accountable: once to the government, and once to their professional organization”.45 So, because of this dual nature of accountability for professionals, these people can often feel more accountable to their professional associations rather than to the public service with its many different types of accountability. And although that might be logical (for instance, if an engineer loses her licence to practice, it will result in losing her job in the public service, but not another way around), it does cause accountability to professional norms and institutions to collide with accountabilities to superiors and to elected officials.
Accountability to the public This type of accountability includes accountability to individual citizens, citizen groups, and accountability for the quality of service.46 This type of accountability is not written or included in any law, but is only a part of public service ethics and values.47 Therefore, accountability to the public is indirect. Even though this is an indirect accountability, it always has been a part of a “powerful convention derived from the subjective responsibility felt by public servants toward the public”.48 “This is reinforced by the expectation on the part of the public that public servants will behave in a responsible manner toward them.”49 It is the ultimate reason (to serve the public) why public service is established and therefore public servants always “should resolve any conflict between their personal or private interests and their official duties in favour of the public interest”.50 A tension can, however, arise with other types of accountability if the advice of particular public servants is heavily influenced by some citizens’ groups or interest groups. And so the advice that this
Inwood, 356 Ibid. 47 Ibid. 48 Ibid. 49 Ibid. 50 Institute of Public Administration of Canada (IPAC). The IPAC Statement of Principles Regarding the Conduct of Public Employees. Available at http://www.ipac.ca/ethics/index.html
public employee would give to the Minister would not be impartial or the best advice, it would be biased. This will cause accountability to the public to collide with accountability to elected officials by presenting them with biased options. In a way, if that were to happen accountability to the public would be in conflict with itself since only some part of the public is favoured and not the others. Public servants who deal with citizens’ groups on a daily basis as a part of their duty to keep their superiors informed about available public policy options can become particularly vulnerable to feeling strongly about some interest groups and not others.
Discussion There also are a few noteworthy aspects which can contribute greatly to a discussion on accountability types in Public Service. First of all, as Kernaghan and Siegel note, the decision-making process in the Public Service is often quite lengthy, and therefore it is hard to identify any particular public servant who can be fully responsible for some actions or advice.51 This would mean that simply because of the long time that some decisions and advice can take, mistakes will happen even with all five types of accountability in place. Secondly, the number of authorities to whom a public servant is answerable and accountable is large.52 And even though all five types of accountability should be in balance in public servants’ actions, the simple fact that “public servants receive directions, rewards and penalties from a variety of sources” does create enormous tensions and collisions among the five accountability types.53 Lastly, it is interesting and also important to note that different types of accountability are not spread evenly across the public service. As Gregory Inwood discovered: The higher the public servant is on the hierarchy ladder, the more inclined she is to feel responsible primarily to the minister and the government of the day. The lower down on the hierarchy, the more inclined the bureaucrats are to feel responsible to the public, and especially to the clients they serve directly.54
Kernaghan and Siegel, 358 Ibid. 53 Ibid. 54 Inwood, 357
Not only does that create tensions among the five types of accountability but also among the public servants themselves. And what that can mean for accountability one can only imagine. Although some of the specific tensions and complexities among the different types of accountability have been named and discussed, overall, I have found very few discussions by authors about contradictions and tensions and complexities in the public service, but rather discussions about how things should be in public service vis-a-vis accountability. Therefore, this paper will make another attempt to discuss this issue when analysing some prominent cases later in the paper.
Ensuring Accountability in Canadian Federal Public Service
Different accountability checks, tests and constraints There are a number of instruments and institutions which are relevant to different situations and under different circumstances in order to ensure accountability by preventing or helping to identify the wrongdoings or misconduct in Canadian Public Service. These checks and constraints include moral ideals or standards, such as values and ethics, the Office of the Auditor General, Information Commissioner and Access to Information Act, mass media and journalists, and evaluation procedures of results and performance. Many authors, like Rand Dyck and James Guy, argue that the Judiciary, Parliament and the Political Executive are also effective in controlling bureaucracy.55 However, it seems that these institutions tend to be more effective in dealing with the consequences and aftermath of misconduct and corruption by creating inquiries, laying criminal or other charges, analysing what went wrong and creating new legislation and laws (Parliament) in the hope of preventing the same from occurring again. Therefore, given the incidents of misconduct, the preventive capabilities of these institutions are questionable.
Guy, James J. How are We Governed: The Basics of Canadian Politics and Government. (Toronto: Harcourt Brace & Company Canada, 1995), 193; and Dyck, 555
Values and Ethics Values and Ethics can be significant in complementing public service accountability as well as preventing wrongdoings from happening through greater understanding and awareness of moral ideals. The core principles of the public sector values can be laid down, according to Andrew Dunsire’s typology, into four main groups: discipline, stewardship, fairness, and cardinal virtues.56 Discipline is basic and at the same time the most important; it implies that “public servants must do their work diligently and competently, without waste or deviation from the goals assigned to them by democratically elected superiors”.57 The second value, stewardship, refers to “character, probity, honesty, and rectitude”, and the third one, fairness, implies “equity, social justice, non-discrimination, and disinterestedness” in public office holder’s actions.58 Cardinal virtues means “upholding one’s duty to the nation, the constitution, and the public interest”.59 This typology is also called the deontological approach.60 However, the problem with this typology is that it is an idealistic approach which “seeks to discover a person’s duty regardless of the circumstances”.61 Still, regardless of its perfectionism, this approach can give to a public servant some standard against which to measure his actions and conduct. Another problem with the deontological approach is that in some situations some values may come into conflict with one another (like values in the discipline and cardinal virtues groups) and then it would be up to the public servant to use her intuition and judgement to identify the priority value on which she would then base her actions.62 Another important moral ideal against which a public servant can compare his actions is public service Ethics. One book identifies three main ethical duties of a public servant: “First, they have a responsibility to act as impartially as possible when carrying out a program established by law. Second,
Dwivedi and Gow, 26-27 Ibid. 58 Ibid. 59 Ibid. 60 Dwivedi and Gow, 28 61 Ibid 62 Dwivedi and Gow, 29
they are acting as trustees for the entire citizenry, and therefore they have a fiduciary responsibility not to abuse that trust. Third, they have a duty to account for their activities and decisions.”63 But again Values and Ethics can serve only as a moral support and source of awareness to complement accountability, which calls on the moral qualities of a public servant, thus preventing him from misconduct and wrongdoings.
Mass media and journalists Mass media and journalists can play a significant role in ensuring public service accountability. Their reports and coverage of controversial issues or actions of public servants can be a source of “heat” not only on them, but also on their superiors and the political party in power.64 So, bureaucrats try not to draw media attention to themselves, because not only is their image at stake but their superior’s and the party’s in power is as well.65 It is regrettable that most journalists pay attention mostly to mistakes and misconduct when it occurs and treat good service as not interesting; as one author puts it, “effective and courteous public administration is unfortunately not newsworthy”, but because of its rigidity and tendency to find more bad than good in public service, mass media is another effective check on bureaucratic power.66
Evaluation Evaluation is another important check on a public servant’s actions. Evaluations usually involve “the examination of the efficient delivery of government services, and attempts to ascertain whether the best value for money is being realized within the framework of democracy and justice”, as well as “audits of budgetary systems, personnel reviews, managerial performance reviews”.67 There are different
Greene, Ian and David P. Shugarman. Honest Politics: Seeking Integrity in Canadian Public Life. (Toronto: J. Lorimer, 1997), 22 64 Guy, 199 65 Ibid. 66 Ibid. 67 Inwood, 233
ways and approaches to evaluate the work of a bureaucrat but generally such evaluations are mostly “technical in nature” and involve analysis of programs’ costs and results.68 One of such evaluation approaches is Performance Management. “Performance management is about collecting, reporting and using information about government programs to assess and improve the delivery of government services.”69 It is also a tool that can help public servants make better decisions about resource allocation and delivery of public services.70 The approach consists of four parts: “…1) deciding what is the desired level of performance; 2) measuring performance; 3) reporting or communication performance information; and 4) using performance information to compare actual performance to the agreed performance level.”71 The overall objectives of performance management as an evaluation tool are: “management and improvement, improved accountability to the public, and budgetary savings”.72 However, Performance Management is only one example of evaluation and evaluation is also only one potential check and constraint ensuring public servants’ accountability. For example, without other checks and constraints the performance management approach would not be very effective since “Politicians and public servants have a clear disincentive to collect and report valid performance information when that information could be used to appraise and possibly criticize or punish them”.73 Therefore, performance management and any evaluation should be used along with other tools, checks and constraints.
The Office of the Auditor General One of the most important administrative institutions for identifying misconduct, wrongdoings and corruption is the Office of the Auditor General. This is an independent body whose head is
Inwood, 233 Carroll, Barbara W. and David Dewar. “Performance Management: Panacea or Fools’ Gold?”, in Dunn, Christopher, ed. The Handbook of Canadian Public Administration. (Don Mills: Oxford University Press, 2002), 413 70 Ibid. 71 Ibid. 72 Ibid. 73 Ibid.
appointed for a ten year period and is answerable directly to Parliament.74 There are three main questions that the Auditor General has to answer in compliance with the Auditor General Act when performing an audit: The first question calls for attest auditing, which simply means that the auditor attest to or verify the accuracy of financial statements. The second question calls for compliance auditing, in which the auditor general reveals whether the government has complied with Parliament’s wishes. The third question calls for value-for-money auditing, sometimes called performance auditing, in which the auditor general investigates whether or not taxpayers got value for their tax dollars.75 All the findings of the Auditor General have to be published in a report that she produces three times a year.76 These reports include the result of the audit “of federal departments and agencies; government-wide audits; follow-up reports concerning previous audits; and audit observations” and do not hesitate to make technical as well as policy recommendations.77 So, we can see that the Auditor General’s mandate allows her to check and examine a wide range of public service activities in great depth. This has an enormous constraint on public servants and political executives, which enhances their accountability to Parliament and ultimately to the public.
Information Commissioner and Access to Information Act Another important agency which serves to ensure openness and transparency of public service is Information Commissioner. Before the Access to Information Act was adopted in 1983 and the Information Commissioner appointed, public service activities were under a “thick cloak” and carried out in a secret and quiet manner.78 The public, mass media and even opposition parties could not penetrate that cloak. The Act has significantly improved the situation by requiring public service to provide information that citizens, journalists, companies, pressure groups or political parties request within 30
Inwood, 359-360 Inwood, 360-361 76 Inwood, 361 77 Inwood, 361; and Dyck, 557 78 Dyck, 556-557
days.79 If a requested piece of information is denied, the Information Commissioner can consider an appeal and has the power to overrule a department’s decision to deny requested information.80 The Federal Court is the ultimate final court of appeal for these matters. It has been mentioned that mass media and journalists play a crucial role in ensuring public service accountability by putting “heat” on bureaucrats and their superiors, by placing them in the public spotlight. However, in order to do that, journalist need to review and see the records and information from the public service itself and, thanks to the Access to Information Act, they are now able to acquire all the needed information.
Potential sanctions and penalties for wrongdoings Prior to discussing sanctions and penalties for public servants’ misconduct, it is important to mention some of the quite recent developments in this area. Particularly, the concept of ministerial responsibility becomes the centre of the discussion when talking about assigning responsibilities. The concept of ministerial responsibility, which has supposedly been used in Canada for a long time, tells us that individual ministers are responsible for the wrongdoing of their staff and should resign as a consequence.81 However, as Gregory Inwood notices, “no minister in Canada has ever resigned because of a mistake made directly by a subordinate”.82 At the same time, one article points out, the demand for accountability in the public service is growing, partially due to an increase in “the scope and complexity of governmental activities” that are mostly executed by bureaucrats, and partially due to the deterioration of the concept of ministerial responsibility.83 So, if ministers, Kernaghan and Siegel say, do not resign for the mistakes of their subordinates, and the bureaucrats with increasing decision-making discretionary powers are not really expected to take the blame for their mistakes, then, they wonder, how can
Dyck, 556-557 Ibid. 81 Inwood, 350 82 Ibid. 83 Kernaghan and Siegel, 352
accountability be achieved?84 The authors note that to this day experts in public administration have agreed neither on principles nor on mechanisms about who should assume responsibility and blame when mistakes happen in the public service and particularly what consequences or punishments a culprit should face.85 Nonetheless, there are some criminal code provisions applicable to public servants’ misconduct: The Criminal Code of Canada includes offences which prohibit bribery (ss. 119, 120), frauds on the government (s. 121), fraud or a breach of trust in connection with the duties of office (s.122), municipal corruption (s. 123), selling or purchasing office (s. 124), influencing or negotiating appointments or dealing in offices (s. 125), willfully attempting to obstruct, pervert or defeat the course of justice through bribery or other corrupt means (s. 139(3)), fraud (s. 380), and secret commissions (s. 426).86 In addition, a number of Criminal Code provisions prohibit efforts to deceive others or to induce others to rely on inaccurate books and records (e.g. s. 321 [definition of "false document"]; s. 362 [false pretence or false statement]; s. 366 [forgery]; s. 380 [fraud]; s. 397 [falsification of books and documents]; and s. 400 [false prospectus]).87 Another type of laws prevents any person convicted of misconduct of dealing with or associating with the public service ever again. The rules state the following: Further, a person is precluded from holding any public office or other public employment, or from being elected or sitting or voting as a member of Parliament or of a legislature, or from exercising any right of suffrage if that person has been convicted of an indictable offence and sentenced to a term of imprisonment for two years or more, until that person has served that term or the punishment has been substituted by a competent authority, or the person has been given a pardon. No person convicted of frauds on the government, of selling or purchasing office, or of selling defective stores to the government has, after that conviction, the capacity to contract with the government or to receive any benefit under a contract between the government and any other person or to hold government office (s. 750).88 While the laws presented above can be applied in a variety of situations, like laws against fraud and breach of public trust, they also seem to be the most basic ones. In order to determine if the current
Kernaghan and Siegel, 352 Ibid. 86 Canada, Department of Justice. Canadian Public Integrity and Anti-Corruption Measures. (2001) 87 Ibid. 88 Ibid.
Canadian laws and rules are common, we will now look at examples, laws and initiatives, from the public service of some other countries.
What can we learn from others? Many countries, just like Canada, have criminal laws dealing with bribery (in different definitions) and abuse of public finances and power by public servants.89 Other laws more common across countries are laws that prohibit trading in influence, interfering with public procurements, making or giving false statements to mislead officials and some others. Some countries have unique laws against public servants’ misconduct, like Japan which has criminal penalties for “causing discredit to the public service”, but those are exceptions.90 Some countries also include general provisions as supportive legal measures to fight corruption and can be used, for example, “to target the consequences of corrupt behaviour.91 In Ireland, Korea and Germany such general provisions include reduction in retirement pensions for public servants convicted or dismissed for corruption.92 Also, in Germany, one such provision states that any supervisor “who allows or induces a subordinate to commit an illegal act in the performance of duties can be penalized to the same extent”.93 Other measures that some countries have for ensuring accountability are Human Resource Management controls which are intended as preventive measures. While most countries have similar practices in this category, like standardised recruitment and selection of public officials, processes for detecting and preventing conflicts of interest (by declarations and employment restrictions), other countries like Italy, Greece, Japan have practices of “regular redeployment of officials in positions susceptible to corruption”.94
OECD, 15 Ibid. 91 OECD, 16 92 Ibid. 93 Ibid. 94 OECD, 19
Evaluating the effectiveness of existing measures is also common in many countries. Most countries’ officials agree that there is no single mechanism that is the most effective against public service corruption but rather a variety of measures, laws and procedures are necessary.95 However, many countries have also admitted that some measures can be more successful than others due to the existence of some trouble spots in public administration that vary from country to country. For example, Greece, Mexico and Poland admit that their areas of greatest concern are those of “general interaction of public money and private enterprise”.96 For Germany those trouble spots are in “awarding of public contracts, allocation of subsidies, licensing and levying fees”.97 “Poland added privatization and cross-border transactions to the list and Greece mentioned collection of tax and customs revenues.”98 There are also some new developments and initiatives in many countries with respect to accountability in public service. Some countries, like Germany and France, have proposals to introduce some risk-analysis measures to “identify the areas of the public sector most susceptible to corruption”.99 Some other developing issues and new initiatives in many countries are: attempts to restate public sector values, ethics and guidelines for public servants’ behaviour and providing training regarding these ethics guidelines; “initiatives related to “whistleblowing” – typically, the development of procedures for public servants to report wrongdoing or to appeal or seek counsel when asked to do something they feel is inappropriate or unethical”, “provisions for disclosure of financial or other interests”.100 So, it seems that even though laws, regulations and procedures against corruption are quite similar from country to country, it also true that each country has been trying to identify their most troubled areas of public administration and work on those more vigorously, on top of creating general, across all public service, anti-corruption rules.
OECD, 21 OECD, 22 97 Ibid. 98 Ibid. 99 OECD, 23 100 OECD, 24
Prominent Cases: Background
The Canadian public service it not perfect, just like public service in other countries, and therefore from time to time wrongdoings or corruption do occur. Of course, the most recent and prominent examples of abuse of bureaucratic powers are the sponsorship scandal and the Arar case, but there were also a few noteworthy others such as the scandal around the Assistant Deputy Minister of Health Canada and the tainted blood scandal.
Health Canada’s ADM scandal: Pushing the limits of government trust This example involves former bureaucrat Paul Cochrane who was Assistant Deputy Minister of Health Canada in the period 1994 to 2001.101 In the late 1990s and early 2000s, he headed the First Nations Inuit Health Branch with an overall budget of one billion dollars.102 On October 18, 2000, The Globe and Mail reported that Paul Cochrane went on a Caribbean cruise and it was not known whether it was on his own money or on public money.103 In the middle of that extravagant cruise he was called back to Ottawa to explain his behaviour. Then an investigation was launched by the RCMP to see whether he went on this cruise paying himself or using public money. Cochrane resigned as the investigation started.104 However, as it turned out later, it was not only the cruise he had to worry about. The RCMP charged him soon after with fraud and bribery in connection with Virginia Fontaine Addictions Foundation (near Winnipeg), which was a treatment center for First Nation children suffering from different addictions, and its director Perry Fontaine.105 The investigation revealed that Mr. Cochrane had been providing preferential treatment to Virginia Fontaine Treatment Centre in terms of “cooperation, assistance, exercise of influence or an act of omission” as well as providing larger than
CBC News. Ex-bureaucrat Faces Charges in Treatment Centre Scandal. (July 4, 2003) Community Action. Ex-ADM Admits Fraud and Bribery. (March 21, 2005, Vol. 20, Iss. 7, pg.2) 103 Globe and Mail. Civil Servant Well Traveled. (December 18, 2000) 104 CBC News. Ex-bureaucrat Faces Charges in Treatment Centre Scandal. 105 Ibid.
needed sums of money through government contracts.106 Just months before he had to resign he had negotiated another contract with this Centre for 35 million dollars.107 Overall, Cochrane authorized more than 70 million dollars from the Health Canada budget to Virginia Fontaine Treatment Centre, “much of it by-passing normal departmental procedures.”108 In return, Cochrane and his family received gifts from the foundation director Perry Fontaine. “Those gifts included $50,000 in cash, several SUVs, trips, season NHL tickets, and charitable tax receipts worth $10,000.”109 As for the Centre itself, reporters found that this Treatment Centre had been constantly underfunded and tolerated low professional standards when dealing with patients. For example, The Globe and Mail states that: “Yet here were addicted children and adults from native reserves around the country being shipped to a center where, it turns out, the cooks were promoted to counseling jobs without training.110 But that was not all. To complement the earlier findings, reporters also found out through the Access to Information Act that Mr. Cochrane had traveled 391 working days while Assistant Deputy Minister from 1997 to 2000.111 Most of the trips were to Canadian destinations but others included Hawaii, Barbados, Peru, Switzerland, New Zealand, Australia, London, Oslo and several U.S. cities - all government paid journeys.112 Moreover, on many of these trips he stayed in five-star hotels and resorts and one time, while traveling to Barbados, he stayed for a week in Sam Lord’s Castle, all paid by the government. Whether those trips were appropriate or not, the Health Canada spokesperson refused to answer directly, saying that his position did involve a lot of travelling.113 No charges were laid because of his extravagant trips but the RCMP did charge him with seven counts of fraud and with one count of breach of trust.114 Cochrane pleaded guilty in March 2005 to “breaching the public's trust by providing
CBC News. Ex-bureaucrat Faces Charges in Treatment Centre Scandal. Ibid. 108 Community Action. Ex-ADM Admits Fraud and Bribery. 109 CBC News. Ex-bureaucrat Faces Charges in Treatment Centre Scandal. 110 Globe and Mail. Corruption Most Foul. (March 15, 2005) 111 Globe and Mail. Civil Servant Well Traveled. 112 Ibid. 113 Ibid. 114 CBC News. Ex-bureaucrat Faces Charges in Treatment Centre Scandal.
preferential treatment to the foundation and receiving bribes of approximately $200,000 in gifts from Fontaine” and was sentenced to a year in custody and two years of probation.115
Tainted Blood Scandal: A durability test for the public Not only can public officials’ misconduct occur through preferential treatment in return for monetary advantages, but sometimes it can occur in terms of not being able to prevent disasters. In the 1980s, the Canadian Red Cross was responsible for distributing tainted blood, from which more than 1,000 Canadians became infected with HIV and about 20,000 infected with hepatitis C.116 By 1997, about 3,000 infected people had died. In this case, Red Cross officials were responsible for the disaster, but some Health Canada officials were also found responsible because they “failed to take adequate measures to prevent people infected with HIV-AIDS from donating blood, failed to institute blood testing in a timely manner and allowed the distribution of tainted blood products.”117 RCMP has laid charges against two federal public servants who could face up to ten years in prison in relation to “criminal negligence causing bodily harm” and “common nuisance by endangering the public”.118
Sponsorship scandal: All the way up? A more recent development is the sponsorship scandal. Auditor General Sheila Fraser’s audit has found millions of dollars in inappropriate spending, particularly with relation to the sponsorship program.119 The new Prime Minister, Paul Martin, has assigned a commissioner, justice John Gomery, to investigate the matter. A few weeks ago, Gomery’s commission finished hearing testimony and the Commissioner has retired to write a report. However, so far, the RCMP has accused a former federal public servant, Chuck Guite, along with some ad agency heads who “defrauded taxpayers of almost $2
Community Action. Ex-ADM Admits Fraud and Bribery. Canadian Press NewsWire. Criminal Charges Against Red Cross for Tainted Blood Expected to be Resolved. (May 27, 2005) 117 Ibid. 118 CanWest News. RCMP Charges Four in Tainted Blood Scandal. (November 20, 2002) 119 CanWest News. Auditor General to be Gomery’s Guard Dog. (May 17, 2005)
million through the sponsorship program”.120 “That includes the alleged forgery of at least one bogus contract for $330,000. Their joint trial will begin in October.”121 One ad agency head, Paul Coffin, has confessed that he constantly overbilled the government as well as produced faked invoices; many other ad agencies’ heads have admitted that too.122 That money and preferential contracts were there, it seems, for political reasons in order to stimulate donations to the Quebec wing of the Liberal Party. However, politics and ministerial corruption aside, at least one public servant, Chuck Guite, was involved in this directly and therefore makes this case relevant to our discussion of public service accountability. Overall, the forensic accountants found that the “federal government spent $355 million on the sponsorship program”.123 “The accountants also said sponsorship contract recipients contributed $801,000 to the Liberals, on top of $1.8 million in indirect or unaccountable donations allegedly made to the party.”124 However, even after Gomery finishes writing the report, it is not clear how the guilty ones would be called to account. And even though he can assign responsibility, he can not lay criminal charges and so RCMP will have to look at that afterwards.125
Arar case: Just because of who you are In September 2002, U.S. authorities detained a Canadian citizen of Muslim origin, Maher Arar, claiming his affiliation with al-Qaeda.126 After spending two weeks in U.S. custody and being questioned by American authorities, he told Canadian officials that Americans might deport him to his country of origin, Syria.127 However, after there had been no visible actions by Canadian officials, Arar was awoken in the middle of the night and deported to Syria, where he hadn’t been for sixteen years.128 In Syria he
Canadian Press NewsWire. Bureaucrats Outline Changes Brought in Since Sponsorship Scandal. (May 17, 2005) Ibid. 122 Canadian Press NewsWire. Justice John Gomery Wrapped Up the Public Phase of the Sponsorship Inquiry on Friday. (June 17, 2005) 123 Ibid. 124 Ibid. 125 CanWest News. Tories to Table Motions on Opposition Day. (May 28, 2005) 126 Tandt, Michael D. and Brian Laghi. CSIS Wanted Arar Kept in Syria, Memo Shows. (Globe and Mail: June 4, 2005) 127 Ibid. 128 Frank, Steven. Seeking The Truth: Why was Maher Arar Detained and Handed to Syrian Torturers? His Search for Answers is Shaking Canada's Establishment. (Time Canada: December 27, 2004, pg. 70)
was jailed and spent a year, as he said, in a “three-by-five-by-seven-foot windowless cell”, brutally beaten and tortured with wire cables.129 With the help of Canadian authorities and pressure from the public organized by his wife, Maher Arar was released and returned to Canada. Arar demanded answers from Canadian authorities and Paul Martin, who had just become the Prime-Minister, promised publicly to get to the bottom of that event. So, the Inquiry started and continues to this day. Even though the Inquiry has not finished yet, there were some interesting revelations. As one declassified document shows, nine month after Maher Arar, a computer engineer, was jailed, Canadian officials and particularly CSIS still did not want him back in Canada. The document is a memo that was prepared for the Foreign Affairs intelligence unit; it reads “There is not sufficient evidence against Arar for him to be charged with anything in Canada” and that “…CSIS has made it clear to the department that they would prefer to have him remain in Syria, rather than return to Canada”.130 The memo continues, stating that “…CSIS must accept that [the Department of Foreign Affairs] must assist Arar even though this may result in his regaining his freedom in Canada”.131 Although the government legal team at the Arar Inquiry insist that the memo was never actually sent, it does make one wonder about the way Canada treats its newly named citizens. As a CBC report suggests, even the Former Foreign Affairs minister, Bill Graham, when testifying at Arar inquiry, expressed “frustration” when dealing with authorities and public officials within Canada.132 Graham used the word "frustration" several times as he described his attempts to get co-operation from police and security officials in Canada… He said he had to battle an impression in Syria that Canada didn't really want Arar back. But he could never discover who, if anyone, in Canada had given the Syrians that message. He also says that his American counterpart, former secretary of state Colin Powell, never wavered in insisting that Canadians were behind Arar's deportation to Syria.133
Tandt, Michael D. CSIS Had Chance to Sit in on Arar Grilling. (Globe and Mail: June 16, 2005) Tandt, Michael D. and Brian Laghi. CSIS Wanted Arar Kept in Syria, Memo Shows. 131 Tandt, Michael D. and Brian Laghi. CSIS Wanted Arar Kept in Syria, Memo Shows. 132 CBC News. Graham ‘frustrated’ by Lack of Arar Information. (May 31, 2005), Available at http://ottawa.cbc.ca/regional/servlet/View?filename=ot-graham20050531 133 CBC News. Graham ‘frustrated’ by Lack of Arar Information.
Some experts believe that this was not an isolated incidents and that there are other cases waiting to come up in public in 2005.134 And, according University of Toronto history professor Wesley Wark, those new cases, if ever made public, can answer the most important question “Have Canadian lawenforcement officials used foreign agencies to interrogate Canadian citizens?”135
Prominent Cases: Analysis and Discussion
All four cases have some similarities and differences. However, the existence of more similarities than differences indicates that all of them are part of one big systemic problem of accountability. The similarities are: all the cases were uncovered after a significant amount of damage had already been done to the public (either health or financial damage); all the cases took either a long time to be dealt with or a very long time (blood scandal) to deal with them appropriately; any significant actions were taken only after public pressure and outcry (Arar case); on top of the criminal abuses, commissions, inquiries and court hearings took another significant financial toll on the public purse costing millions; in all cases, despite some criminal charges and sentences (which were not very significant) the biggest loser has been the public. On the other hand all of the above cases are also unique. The ADM case represents financial and ethical misconduct and irresponsibility. The tainted blood case mostly represents negligence and inflexibility as well as lack of appropriate levels of motivation and understanding of the seriousness of civil servants’ actions. The sponsorship case, even though there are traces of political involvement and direction, exposes the inability of public service to protect individual employees, assuming this was a political direction which public servants could not refuse, or it can be even more serious when public servants cooperate with higher officials for political or financial reasons. The Arar case demonstrates
Frank, Steven. Seeking The Truth: Why was Maher Arar Detained and Handed to Syrian Torturers? His Search for Answers is Shaking Canada's Establishment. 135 Ibid.
how precautionary measures in the name of public good can put in jeopardy some of the most basic Canadian rights and freedoms. However, the analytical approach that we have used to identify similarities and differences does not tell us much about how and which types of accountability have failed in each particular case. In the same way it does not tell us much about all the tests, checks and constraints outlined above and whether any of them worked or failed. And those things are important to consider if we want to draw conclusions or prescribe a remedy to heal accountability in Public Service. So, what we can do is to try to analyse these four cases by processing them through the five types of accountability and all the checks and constraints that were mentioned above. In Health Canada’s ADM scandal there are clear traces of failure of accountability under the law and to the public. By his actions this public servant has violated not only criminal laws and other regulations, but has betrayed the kids suffering from addictions, to whom adequate service was not provided. Such checks as mass media and journalists, particularly the Globe and Mail who started the investigation, have contributed a lot to the overall process of holding Mr. Cochrane accountable for his actions. Access to Information Act also helped in discovering more details about Mr. Cochrane’s service. The Sponsorship scandal represents the tension between accountability to elected officials and to the public and under the law, since as it seems, the public servants’ decisions and actions were influenced by elected officials. The major player in uncovering the sponsorship related corruption was the Auditor General’s office. So, this major institutional check has played a crucial role in ensuring accountability. In the tainted blood scandal, both professional accountability and accountability to the public failed. Those public servants responsible for monitoring the safety of the donated blood were not vigilant enough. Through their inaction they betrayed the public and their professional (doctor’s) code. In this case, however, none of the above mentioned checks and constraints were effective, even though such
checks as ‘evaluation’ and ‘potential sanctions and penalties for wrongdoings’ should have prevented the disaster. The Arar case reveals tensions and contradictions between accountability to the public and accountability under the law. Public officials, by trying to eliminate a potential threat to public safety, have violated the presumption of innocence of the Canadian citizen. “There is not sufficient evidence against Arar for him to be charged with anything in Canada” – they felt compelled to protect the public, which is understandable in the lights of all terrorist activities all over the world; but no one should have put in jeopardy the life of a citizen, which is protected by laws and by the Charter of Rights and Freedoms.136 This case also represents a collision of accountability to elected officials (Bill Graham could not “get co-operation from police and security officials in Canada”) and accountability to the public, where, again, accountability to the public was the most dominant .137 Also, the fact that the Foreign Affairs unit eventually did get Arar out of the Syrian jail, in opposition to CSIS and the activism of many Foreign Affairs officials, proves that their conduct was influenced by values and ethics of the Public Service.
It has been established that public sector accountability is important to Canadians. The only questions that remain are about how to ensure and improve it. A number of institutional checks and preventive measures have been identified, such as moral ideals (values and ethics), the Office of the Auditor General, Information Commissioner and Access to Information Act, mass media, and evaluation procedures of results. Canada has criminal provisions against the misconduct of public servants, with some major ones being against fraud and breach of trust. Other countries have some different laws and
Tandt, Michael D. and Brian Laghi. CSIS Wanted Arar Kept in Syria, Memo Shows. CBC News. Graham ‘frustrated’ by Lack of Arar Information.
initiatives to improve accountability and it would seem reasonable for Canada to consider the experience of others. A few cases of corruption and misconduct have been identified and analyzed; but there are also some other controversial and serious cases such as the Walkerton tragedy. If one were to continue with the medical tone of the title of this research, I can conclude that after a thorough examination and study, the diagnosis is that checks and constraints are still alive and working in Federal Public Service. Nonetheless, there are traces of systemic accountability failure often on a grand scale. So, that leads me to conclude that accountability failure and any potential solution for it seem to lie in another sphere rather than in the sphere of checks, tests and constraints, a conclusion which contradicts my previous suggestion made in the introduction that more openness and better evaluating and monitoring bodies and regulations should achieve greater accountability. Of course, it is easier to simply blame human nature or so-called human factors. Human nature seems to hardly have changed from the times of the Roman Empire, discussed in the introduction, where people sought public office for personal benefits. Much harder is it to predict it. However, that is what we should be able to do if we want to improve accountability in Public Service. It very well might be that the problem is not that we do not have enough checks and punishments for the wrongdoings; it may be that Public Service does not have enough incentives to prevent corrupt ideas from emerging in a bureaucrat’s mind. It seems that one step forward would be to improve the financial attractiveness of working in the Public Service. For example, it’s commonly known that the private sector pays more on average and therefore attracts more young, smart and active people in comparison to the public sector. The public sector need those kinds of people not less than the private sector and maybe even more. It is common knowledge that corruption decreases as people are paid more and fear to lose the ‘good job’, what should keep any employee cautious, make him care more and make him more vigilant in performing his duty. Also, many small and simple tasks that public servants do can be replaced by technological advances to make better use of public servants’ time, abilities and skills. This would bring
more fulfillment to a public servant’s life if he could feel the real difference that he is making for the people and for the country. So, in the end, it seems that maybe we do not have to look for ways to punish and control bureaucrats more at every step of their work. Those controls and disincentives are already in place. What I think we should do is to look for ways to understand public servants as individuals and try to provide the best possible opportunities for their self-actualization. If that is achieved it could be the last missing piece in the puzzle and the door leading to a greater degree of accountability in Canadian Federal Public Service will be opened.
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