When it comes to understanding the innerworkings of government and getting a high level breakdown related to public policy, there may be no better opportunity than when a respected former lawmaker pursues a Masters of Laws and their thesis ends up focusing on the public policy approach to legislation, or when a recent law graduate, clerking for a Chief Justice at the Supreme Court of Canada, decides to provide an impartial analysis of the efficacy of public inquiries by publishing a legal paper. Both scenarios guarantee that key details will not be overlooked, at a time when the partisanship seen on social media and sometimes in the news seems to favor distinct narratives taking precedence over holistic explanations. What makes this such a rare opportunity is that both scenarios go beyond the minute-long soundbites that often make airwaves and go viral and the public gets a 133-page legal thesis and a 28-page legal paper.
Former lawmaker’s legal thesis takes issue with the public policy approach to Quebec’s Bill 1.
Perhaps there is no greater insight into the world of public policy than when a former lawmaker steps away from politics and decides to pursue higher education including a legal thesis. That is what happened with Graham Steele, a former lawmaker in Nova Scotia’s House of Assembly pursuing a Masters of Laws at Dalhousie University around the time Quebec decided to fight back against corruption. His master’s thesis, “Quebec’s Bill 1: A Case Study in Anti-Corruption Legislation and The Barriers to Evidenced-based Law-Making”, is critical of the Charbonneau Commission’s findings and highlights how New York’s RICO laws originated from remarkable parallels to what had transpired in Quebec, and that Bill 1 should have looked at RICO laws for guidance. Steele’s thesis is that Quebec’s lawmakers could have looked to international and national anti-corruption instruments, a vast literature, and practical examples from other jurisdictions, and that the lawmaking process was driven by other imperatives, particularly speed. The sentence that opens that pandora’s box of realities and sets the tone for the rest is when Steele states, “At the very least, the persistence of corruption, in the face of unprecedented efforts to stamp it out, should serve as a warning to lawmakers: there are no easy answers, and more legislation may well be counter productive.”
Perhaps the most significant aspects of Steele’s report can be traced back to the issue of public policy and some of the barriers to bringing necessary laws into existence. Steele highlights how the then-Parti Quebecois (PQ) government had intended to introduce subsequent anti-corruption legislation, but none passed because the PQ government fell and the National Assembly dissolved for the election, with the bills dying on paper. Steele then goes on to make an interesting point about public policy and legislation, pointing out that attempting to measure the effectiveness of Bill 1’s anti-corruption laws, or even measuring levels of corruption, could not really be done, but that Bill 1 was divorced from international and national anti-corruption context and rather unique to Quebec.
The analysis that Steele carries out to defend his thesis would suggest that advocacy and law reform efforts can be wasted if everyone is not incorporated into the mix, and it is why good legislation takes time to pass. There is something wrong with the idea of doing something and doing it quickly taking priority over substantive efforts to identify the necessary instruments, literature, and precedent required to ensure that anticorruption laws were done as effectively as possible, especially when the stakes were this high. All of it points to Bill 1 being passed through Quebec’s National Assembly far too quickly, key legal concepts being too subjective, institutional oversight agencies lacking the necessary resources, and that Bill 1 is ineffective at containing corruption as a whole.
The end of Steele’s report highlights that lawmakers may have missed adding the necessary legal context by disregarding international best practices, and that the rush to pass legislation was to show the public that something was being done and to act quickly. Steele contrasts this with his experience as a lawmaker in Nova Scotia’s House of Assembly, highlighting the constraints faced by lawmakers and how the passing of predetermined legislation often results in little effort on policy makers spending additional time on research since the idea behind passing legislation quickly is that it is mainly done for public perception. The problem with the speed and public perception approach to bringing forth legislation is that the legal knowledge by the way of experts, law reformers, and legal scholars is lessened, and there is the potential to overlook necessary components to that legislation.
As sincere as the National Assembly’s lawmakers may have been in their desire to fight corruption, Steele concludes that they were ultimately limited in their knowledge, their resources, and their willingness to find the most effective legislative response to corruption in Quebec’s public-sector procurement. But this report is must a read for anyone hoping to better understand the complexities of the lawmaking process.
The University of Victoria’s Faculty of Law’s law journal publishes position challenging described limitations of public inquiries.
One sign that Canada’s justice system’s best days are still ahead can be seen with some of the legal thinking in the University of Victoria’s Faculty of Law journal, APPEAL: Review of Current Law And Law Reform. The APPEAL featured one of those holistic-thinking pieces in 2018 about the Charbonneau Commission and the associated outcomes, written by Sarah Chaster, who was clerking at the Supreme Court of Canada at the time it was published.
Her paper begins with an introduction overview of public procurement and public inquiry commissions, in relation to the province of Quebec. Next, Chaster writes about the recommendations relating to public procurement, but also the implementation of and reaction to the recommendations by dissecting the totality of several legislative responses. Throughout it all, Chaster’s thesis is that the Charbonneau Commission has been a unique opportunity for a detailed and sophisticated examination of the most susceptible sectors prone to corruption, and that the resulting recommendations could cause major structural reform of public procurement in Quebec., She further explains the costs of corruption in this process beyond the financial, including competition costs, quality of public works costs, public needs costs, and public trust in government.
The fourth part of the paper focuses on the responses to the Charbonneau Report, including different reactions, criticisms, and even some legislative responses. Some of the reactions referenced by Chaster highlight the Commission being a failed mission, that there were suggestions of political influence and infighting among its members, and how the report was called an expensive disappointment, costing 45 million dollars and yielding no high-profile political arrests.
With regard to legislative responses, Chaster writes that while legislative changes are worth considering, formal legislative changes should not be done without being aware of the effects of any informal changes from the Commission’s work. There is also reference to the passing of Quebec’s Bill 1, also known as the Integrity in Public Contracts Act, and one of the legal thinkers referenced is former lawmaker in Nova Scotia’s House of Assembly turned legal scholar, Graham Steele. Chaster highlights Steele’s issues mentioned above, noting how Steele concluded that there had to be serious doubt whether Bill 1 represented sustainable anti-corruption agenda.
But after highlighting Steele’s thoughts on the Commission, Chaster counters by saying that the true potential of it lays in nuanced changes, rather than only the legislative changes. Chaster explained how the Commission suggested a broad spectrum of change which would put Quebec on a path to achieving a broad anti-corruption agenda with suggestions on whistleblower protection, establishing a central procurement authority, and focusing on monitoring the procurement process and referencing best practices when necessary. There is also reference to how an overly punitive model also carries challenges, including the challenges associated with complex offences and contested litigation. Additionally, Chaster references how, even at the federal level, there is a lack of distinguishing between criminal law aims and good governance in public procurement.
To conclude, Chaster restates her thesis that the Charbonneau Commission has been a unique opportunity for detailed and sophisticated examination of corruption in an industry long considered as being one of the most prone to it, how the Commission’s recommendations have the potential for major structural reform in public procurement, that some of the recommendations equal or even surpass federal legislations, and how they have already resulted in legislative changes throughout Canada across different levels of government. Perhaps what makes this legal paper such an important piece in the debate on public policy and legislation about public inquiries is that Chaster’s legal paper covers critiquing voices from individuals who have made their careers in law and paints a holistic picture of each critique to provide readers with context about what is being argued. This is why her papers, along with Steele’s thesis, should be seen as must reads.
