Recently scholars in the United States and Canada have questioned the traditional
conceptions of government. They have drawn attention to certain institutions,
both existing and emerging, that do not fit neatly into the three-branch
(executive, legislative and judicial) paradigm. This article presents a
brief theoretical discussion, followed by consideration of the history,
role and function of various Officers of Parliament in Canada. It examines
the agencies by the type of oversight they provide, and concludes that
their increasingly prominent role is not a threat to the sovereignty of
Parliament or ministerial accountability.
In the United States constitutional theorist Bruce Ackerman has argued
that the bureaucracy constitutes and has long constituted a de facto 'fourth
branch' of government. It warrants constitutional powers and protections
sufficient for it to ensure its position within the ongoing jurisdictional
skirmishes. He argues that the presidential bureaucracy is caught in a
crossfire that Westminster bureaucracies never are:
With the presidency separated from congress, high-level bureaucrats must
learn to survive in a force-field dominated by rival political leaders.
Because both the president and congressional leaders brandish powerful
weapons for disciplining disobedient servants, only the most naïve bureaucrat
would suppose that the ethic of 'neutral competence' can serve as the best
Rather than deliver the goods demanded by her minister,
the bureaucrat's first priority is to articulate a political mission that
will attract the support of the contending powers responsible for legislative
and funding decisions.1
In Westminster systems bureaucrats are exposed to a different dynamic as
servants of a single, variable master. Their jobs are on the line if they
are not seen to be supportive of the current regime. But, as Ackerman points
out, they can take a longer view:
At some indeterminate time in the future, the cabinet will lose an election,
and the next bunch of reigning politicians will exact retribution on bureaucrats
who have ostentatiously committed themselves to the ideology of the previous
If the bureaucrat is to avoid these sanctions, he or she must
cultivate a reputation for neutral competence.2
In Canada, Professor David Smith, drawing inspiration from Ackerman, asserts
that among the major changes witnessed in the past thirty years is a trend
towards what he calls the audit society. Its primary institutional reflection
has been the evolution of Agents of Parliament (APs) from being Parliament's
servants to being Parliament's masters. Smith writes that APs are in
the process of becoming the integrity branch of government.3
For Ackerman the four-branch model is a conceptual starting point. He goes
on to argue for the constitutional recognition of several additional branches,
coaxing them from under-valued functions within the original four and from
entirely new functions to shore up democratic dynamics in the modern state.
His suggestions are creative and intend to provoke debate on possibilities
for progressive constitutional use of separation of powers. It is no surprise
that these suggestions are linked to Ackerman's analysis of individual
rights. As becomes apparent below, the Canadian iteration of these institutions
has been the object of criticism for supplanting a Parliament-centred constitution
with foreign, individualist principles that undermine accountability. What
may be more surprising is how many of his suggestions novel to an American
audience are already taken up by APs in Canada.
Ackerman first suggests the addition of a 'democracy branch' aimed at electoral
impartiality. Every democracy must take the operation of elections extremely
seriously. The security of fair elections should therefore rest in the
hands of an independent, constitutionally protected body, according to
Ackerman. Duties as minimal as the neutral administration of elections,
or as extensive as boundary adjustment and electoral finance review (and
even public party financing), could be accorded to agencies within this
branch. Whatever the ideal embodied by the structure, Ackerman emphasizes
the importance of constitutional assurances that there is a mechanism
to ensure the continuing force of its ideal democracy despite the predictable
efforts by reigning politicians to entrench themselves against popular
reversals at the polls.
An 'integrity branch' reflects in constitutional terms the belief that
at the heart of genuine democracy is an abiding respect for the rule of
law. Put inversely, corruption is a serious threat to the legitimacy and
thereby the viability of a democratic regime. And, as citizens in Canada
today (and every democracy for that matter) would attest, elected politicians
are under electoral pressures such that they cannot be trusted never to
engage in fiscal practices amounting to corruption. Corruption is a persistent
and fundamental threat, Ackerman contends, so modern constitutions ought
to provide for an 'integrity branch' armed with powers and incentives
to engage in ongoing oversight.
Ackerman's third new branch is the 'regulatory branch.' Here a constitution
could entrench guarantees of bureaucratic competence and legitimate the
reality of normative decision- making by a supposedly 'neutral' bureaucracy.
An example of a mechanism that would be of potential use to this branch
is public participation in regulation creation, or judicial oversight.
Ackerman is fairly vague about how these functions would cohere as a new
'branch' but points to the American Administration Procedure Act as a central
example of the type of legislation he envisions as it would look in a presidential
The fourth, and most controversial, suggestion is a constitutionally protected
'distributive justice branch.' As a rationale for this branch, Ackerman
cites the perpetual economic injustices systematically suffered by a certain
class of citizens in every state, and the corresponding lack of political
mobilization it can muster. The remedy, Ackerman ventures, is a constitutionally
determined percentage of the domestic product dedicated to individual cash
transfers benefiting the most impoverished. Entrenched economic injustice
will never be taken seriously by politicians whose electoral constituents
are mostly well-off, so a creative implementation of the separation of
powers should defend an efficient, straightforward redistributive agency.
The diversity of APs reflecting Ackerman's new powers will be considered
in the following section. His constitutional building blocks may be seen
as a quartet of distinct powers, or more as variations on the single theme
of a fifth branch. Given the institutional pluralism we will witness, perhaps
this has yet to be resolved in Canada.
Who is an Agent of Parliament?
Recent Canadian literature on the subject of APs agrees fundamentally on
one thing: the difficulty of establishing the unifying characteristics
of the existing cohort of Agents. A great deal of confusion has resulted
from the application of the term 'officers of Parliament' for the offices
and commissions that this paper refers to as APs. The first 'Officers of
Parliament' were the Servants of the Houses (the Commons and the Lords)
in Britain, beginning specifically with the Clerks, whose lineage remains
unbroken since 1363. There remains linguistic and conceptual confusion
around the difference between these internal, non-partisan Officers, and
the later, independent genus of officers forming the subject of this paper.
The tenure and importance of the non-partisan servants warrant the title
'Officer' but it appears that in Canada, and throughout the Commonwealth,
the contemporary literature both political and academic has settled on
overwriting this term. For one prominent example, the 1985 (McGrath) Report
of the Special Committee on Reform of the House of Commons called the clerk
and sergeant at arms 'House of Commons officers,' referring to independent
officers as 'other officers.' For another, the Special Committee on the
Modernization and Improvement of the Procedures of the House of Commons'
2001 report referred to both non-partisan officers and independent Officers
as 'officers of Parliament.' Virtually all of the academic references cited
below refer to the independent entities as 'Officers of Parliament.'
Notably, however, the Formal Documents Regulation specifies the following
as Officers of Parliament: the Speaker of the Senate, the Clerk of the
Senate, the Clerk of the House of Commons, the Sergeant at Arms, the Parliamentary
Librarian, the Associate Parliamentary Librarian, and the Gentleman Usher
of the Black Rod. With the debatable exception of the Speaker of the Senate,
these officers fit the traditional definition of an Officer of Parliament
as a non-partisan, internal Servant of the Chambers. The Regulation affixes
these Officers a commission under the Great Seal under a single article,
and leaves Agents of Parliament for a catch-all category.
The term 'Agent of Parliament', as applied in this paper, may be preferable
for several reasons. First, it readily distinguishes the newer independent
genus of entities from the older non-partisan ones in countries across
the Commonwealth. Second, the agencies referred to sometimes call themselves
Offices, other times Commissions or other descriptors; 'Agency' would be
an intuitive, inclusive term. Third, and echoing this paper's thesis, the
word Agent better evokes the identity of these bureaus as active political
entities bearing the sanction of Parliament. (The May 2005 Report of the
Standing Committee on Access to Information, Privacy and Ethics notes that
the Privy Council Office and the public service use the term Agents of
In Canada, as elsewhere in the Commonwealth, confusion over the description
of APs has meant confusion over their identity and nature which will probably
remain until the legislatures lay down guidelines as to the nature and
function of their respective cohorts of Agencies. In the absence of such
guidance, this paper will evaluate the most likely AP candidates by statutory
provisions for independence. It will then introduce the prospective APs
with reference to the agency history and activities promulgated in their
respective Reports on Plans and Priorities (RPPs) for 2005-06.
To be an Agent of Parliament, rather than a governmental agency, an agency
must be sufficiently independent. Where New Zealand has taken a more coherent
approach to empowering their APs, in Canada's development has been pragmatic
and ad hoc. Nevertheless certain criterion may be used for determined what
is an Agent of Parliament. For example:
Is there reference in the enabling statute to a commission under the Great
Seal affixed to the executive agent?
Is it required to have the confidence of the chambers i.e. either the House
or Senate or both to approve (or nominate and approve) the agency's executive
Does the executive candidate have a statutory guarantee of a term at least
five years in length?
Is Cabinet required to have a resolution of the House and/or the Senate
to remove a sitting executive agent?
Is a report is submitted, at least annually, to Parliament via the Speakers
of one or both Chambers?
Are the agency's estimates submitted to Parliament by the agency (via the
Speaker) -or determined independently in some other fashion -rather than
by a government department?
Are staff, apart from officers named in the legislation, appointed by the
agency's executive agent rather than by the government?
Is the executive agent's salary fixed or pegged to a reference point in
statute rather than being left to Cabinet discretion?
The five consensus APs until recently were the Auditor General, Chief Electoral
Officer, Commissioner of Official Languages, Privacy Commissioner, and
Information Commissioner. The new Ethics officers in the House and Senate
also demonstrate that they are linked to their respective chambers, and
remarkably well insulated. The Commissioner for the Environment and Sustainable
Development and the Commissioner of Canada Elections are special cases
but clearly do not rank on the same scale as the others. Two other offices,
the President of the Public Service Commission and the Chief Commissioner
of the Human Rights Commission, deserve consideration as possible Agents
Lets us briefly summarize the status of each of the aforementioned Agents
The position of Auditor General (AG) was first established in 1878 by Alexander
Mackenzie's Liberals in the wake of the Pacific Scandal, which had earlier
claimed the first premiership of Conservative Sir John A. Macdonald. Opposition
and government alike publicly supported the nomination of an auditor holding
office during good behaviour, rather than at the discretion of the government.
The evolution of the Office of the Auditor General (OAG) over time has
been remarkable, evolving from a small 19th Century bureau of one to a
contemporary 21st public bureaucracy with 590 full-time equivalent employees.
While Parliament bears the constitutional duty to vigilantly observe the
government's finances on behalf of the citizens, for 127 years the Office
of the Auditor General has possessed the tools (full-time professional
auditors) that Parliament needs in order to fulfill this duty. Its long
history has meant that the Office of the Auditor General has been held
as model of how accountability can be exercised. Its 2005-06 Report on
Plans and Priorities spotlights the special relationship between the House
Public Accounts Committee (PAC) and the OAG, suggesting that committee
hearings help gain department and agency commitment to implement our recommendations.
The single program activity admitted to in the report is legislative auditing.
The office proclaims its status as an Officer of Parliament, independent
of government, suggesting that it brings a non-partisan, objective and
fair approach to its work. Financial accountability and good performance
measurement and reporting are germane to the OAG's value of good public
management and accountability.
The Chief Electoral Officer of Canada (CEO) was first appointed in 1920
under the Dominion Elections Act. This act, later the Canada Elections
Act, fixed criteria for determining who could vote and who could run in
federal elections following suspicions that the extension of the franchise
to some women during World War I was politically motivated. In the early
1980s, the Office of the Chief Electoral Officer acquired the more friendly
name Elections Canada (EC). The last three decades have seen continuous
growth in Elections Canada's mandate. Originally responsible for administering
elections, it now administers boundaries readjustment, a national register
of electors, referenda, registered parties, election advertising, and political
finance laws on individuals, parties, and third-parties during by-elections,
elections, nominations, and leadership contests.
Elections Canada has to be particularly independent of political interference,
not just by the government, but by all elected and non-elected officials.
The agency is committed to maintaining the integrity of the electoral
process. Its relationship with Parliament is therefore different than
that of other APs (except perhaps the Ethics officers). It submits reports
to Parliament to establish transparency, rather than accountability. As
such, it describes itself as an independent body set up by Parliament.
The Office of the Commissioner of Official Languages (OCOL) was established
in the 1969 Official Languages Act, in response to the Royal Commission
on Bilingualism and Biculturalism. The Commission's preliminary report
four years earlier had asserted that Canada, without being fully conscious
of the fact, is passing through the greatest crisis in its history. Such
a statement compelled extraordinary action, and the role of commissioner
was to ensure that the demand for proactivity would not be neglected.
Thirty-six years later, the Commissioner of Official Languages (COL) still
describes its role as being an officer of Parliament and an agent of change.
Its mandate is to promote and defend the equality of English and French
in federal institutions and in Canadian society, and to promote the vitality
of official language minority communities in Canada. Linguistic audits,
ombuds work, court interventions and research and education make up its
The Office of the Privacy Commissioner (OPC) evolved with the position
of a Privacy Commissioner (PC) that was originally part of the Canadian
Human Rights Commission in the 1977 legislation. No notable crisis precipitated
anxiety over privacy, as happened in other countries but rather this move
was pre-emptive, following a debate on the recommendations of a Department
of Justice task force report in 1972. The debate over Access to Information
legislation in the early 1980s compelled harmonization of Access legislation
with the Privacy Act, and the Privacy Commissioner became a separate Agent.
The Office of the Privacy Commissioner is mandated to ensure the application
of the Privacy Act (1983) in the public sector and the parallel Personal
Information Protection and Electronic Documents Act (2000) in the private
sector. It states more succinctly that its mission is to protect and promote
privacy rights of individuals. Complaint investigations make up the majority
of its work, but it also seeks to promote fair information management
practices. To this end the Privacy Commissioner conducts audits and strives
to be Parliament's window on issues that impact the privacy of individual
The Office of the Information Commissioner (OIC) was created in 1983 with
proclamation of the Access to Information Act, and Canadians' right to
government information. Current Information Commissioner (IC) John Reid
credits backbench MPs from across the spectrum with its creation. Reid
contends that the Access to Information Act is the statute that shifts
the balance of power from the state to the individual. It is not coincidence
that this Act arrived not long after the Charter, reversing the traditional
Westminster burden of secrecy (that is, secret until publicly necessary).
The Information Commissioner investigates, provides advice, and pursues
judicial enforcement for citizens. Governments continue to distrust and
resist the Access to Information Act, the IC writes. Report cards on departmental
performance serve as a form of audit.
The Commons' Office of the Ethics Commissioner (OEC) was established by
Bill C-4 of the 37th Parliament, 3rd Session, amending the Parliament of
Canada Act. This office has its roots in allegations of conflicts of interest
against ministers during the Mulroney Government's tenure. Office of the
Ethics Commissioner evolved from an ethics counsellor's office that itself
grew from an attempt to render the 1988 Lobbyist Registration Act more
visibly impartial. The House Ethics Commissioner's (HEC) responsibilities
(to administer the Conflict of Interest Code for Members) are assigned
by the House itself. A parallel but distinct entity, the Office of the
Senate Ethics Counsellor (OSEC), has even more recently come into being
under the same law.
New legislation coming into force in December 2005 has strengthened the
case for the President of the Public Service Commission to be viewed as
an Agent of Parliament. She is now appointed with Parliamentary approval
and is protected from arbitrary dismissal. Though her report is tabled
by a minister, the minister is required by the new law to place it before
Parliament within 15 days of receiving it. The President is also guaranteed
a fixed term, but the length is at the discretion of Cabinet. Like most
of the AP candidates, there is no independent budget setting mechanism
for the PSC, nor does the statute provide protection for the executive's
The Public Service Commission of Canada (PSC) has undergone an equally
profound evolution from its origins as the Civil Service Board (established
in 1868 to hire for the government in the Ottawa region). In its own words,
it is currently mandated by Parliament to ensure a public service that
is competent, non-partisan, representative of the Canadian population and
able to serve the public with integrity and in the official language of
their choice. The emphasis on accountability to Parliament follows the
executive-driven Public Service Modernization Act, 2003 and the new Public
Service Employment Act. Interestingly, the newest President of the PSC
(PPSC), Maria Barrados, has taken her position after 18 years with the
Office of the Auditor General.
Barrados has stated, At the heart of our mandate is protection and promotion
of the merit principle in all our hiring and promotions.4 This has been
the case for a long time, roughly since the introduction of the Civil Service
Commission in 1908. But the accountability framework of the Public Service
Commission is undergoing major changes right now, inspired not least by
the Office of the Auditor General as an AP. Responsibilities previously
executed by the Public Service Commission such as staffing and recruitment
are being formally delegated to other agencies, and the agency is developing
measurement and reporting capacity to engage in overseeing the success
of these delegations. For example, a comprehensive audit strategy is being
The Canadian Human Rights Commission (CHRC) was created, with its Chief
Commissioner (CCCHRC) at the head, in the 1977 Canadian Human Rights Act.
The Commission's mandate is to investigate and try to settle complaints
of discrimination in employment and in the provision of services within
federal jurisdiction. It is responsible for federal employment equity
legislation. The Commission has also become a centre for discrimination
prevention and human rights research.
In contrast to the Office of the Auditor General and the Office of the
Commissioner of Official Languages, there is no mention of a relationship
with Parliament in the Canadian Human Rights Commission's Report on Plans
and Priorities. Instead, it mentions a commitment to 'citizen-focussed
service,' though even this reference is not treated as a central facet
of the institutional structure. Administration of the complaint process
appears to define the Commission's point of view. However, the CHRC mimics
other accountability agencies by tailoring the 'audit' concept to its area
of concern: 'employment equity audits.'
At least two of the nine above-mentioned institutions have non-executive
officers that could also contend for AP status. The Commissioner of Canada
Elections (CCE) and the Commissioner of the Environment and Sustainable
Development (CESD) have been overlooked as Agents by studies to this point,
most likely because they are not directly appointed by Parliament but are
instead appointed by the Chief Electoral Officer and the Auditor General
respectively. However, a case can be made for consideration of these two
commissioners as APs on the following grounds: First, both commissioners
are established in the primary statute creating their respective offices.
Second, both commissioners exercise judgment independent of the executive
AP according to statutory provisions. Third, and more subjectively, both
commissioners furnish the kind of independent accountability that other
APs tend to, on a subject matter that is related to, but distinct from,
that of their executive APs. The stronger case may rest with the Commissioner
of the Environment and Sustainable Development as she or he is required
to report to Parliament (albeit on behalf of the Auditor General).
The Commissioner of Canada Elections was introduced in the 1970s to ensure
that the Canada Elections Act and the Referendum Act are followed and enforced.
Complaints are directed to the CCE and he or she decides whether to investigate
and, later, prosecute offenders.
Somewhat like Cabinet ministers serving specific functions at the pleasure
of a Prime Minister, who thereby shares his or her popular legitimacy with
the administration, these two commissioners serve specific functions at
the pleasure of executive APs, who in so doing share the legitimacy of
being Parliament's agents. Still, given the indications of their non-conformity
they can best be characterized as junior APs.
Beyond this, the classification of APs becomes tenuous. Professor Ackerman
writes, A serious constitution for the modern state should take aggressive
steps to assure that bureaucratic pretensions to expertise are not merely
legitimating myths, but hard-earned achievements.5
The Public Service
Commissioner fits into the concept of his 'regulatory branch', offering
a check against bureaucratic incompetence. The Canadian Human Rights Commissioner
can be seen as an example of a distributive justice branch. The Chief Electoral
Officer would clearly fit the description of a democratic branch.
Another way of understanding APs is that they elevate values e.g. bilingualism,
bureaucratic transparency, or human rights above the partisan fray
but not beyond political debates. If a value or set of values become so
entrenched against partisanship (consider human rights, for example) that
the AP (the CHRC in this case) develops a closer relationship with the
courts than with Parliament, then the agency might be denied AP status.
There is an unanswered question as to what AP candidates may be if they
are not APs. One resolution would be to define all as APs, but suggest
that some have achieved enough independence to be considered 'independent
APs' while others remain 'constrained APs.' Often the definition of variables
in the social sciences can be validly accomplished in more than one way.
Given the variety of characteristics possessed by AP candidates, this paper
argues that a multitude of useful categories may be suggested in further
study, but for our purposes the candidates share fundamental characteristics:
independence from executive control (to a greater or lesser extent) and
a value-centred approach to government accountability, and/or independent
public administration. Thus, for the remainder of this study the term AP
will includes all the bodies discussed in this section.
The Debate over the Proper Role of Agents of Parliament
In her pioneering 2002 MA thesis, Megan Furi contends that the exercise
of accountability by APs is an affront to the very principle on which
Canadian government is based,6 in other words, responsible government.
Other commentators have forwarded similar theses. For the most part the
tangible aspect of these critiques are based on analyses of the role of
the Auditor General exclusively, but the principle is sometimes extended
to APs in general.
Professor Peter Aucoin, for example, challenges the Auditor General's role
in performance auditing on several grounds. Principally, he distinguishes
the general duty of the Commons to hold ministers to account from the
specific duty of the Commons to provide an assurance that monies appropriated
from the public purse have been properly 'administered.7 Financial audits
conducted by the Office of the Auditor General pertain to the latter duty,
and have probably reinforced the former (ministerial accountability) by
remaining particular to public accounts' compliance with transactional
and reporting requirements. Performance audits, on the other hand, assess
the extent to which policy has been realized, and as such enter into nebulous,
potentially partisan territory. Aucoin is concerned that public servants
are put between a rock and a hard place, trying to implement policies with
vague, or controversial, objectives that often conflict with other government
objectives while being held to specific 'results' targets that may or
may not reflect the essential goals.
The Auditor Generals performance audits are limited, however, to commenting
on the governments record in measuring its own results (not on results
themselves). This seems to be a lesser burden than Aucoin makes it out
to be. While he wants to see performance audits sharply curbed and explicit
recognition that public administration is a complex art full of trade-offs,
he appears to downplay the benefits of the Office of the Auditor General
promoting the use of policy indicators within government wherever possible.
As with other APs, Auditors General promote a specific value financial
and policy accountability that may well become partisan, but that has
been deemed worthy of independent promotion despite prevailing political
Aucoin also pits performance accounting against reform of the Parliament-centred
accountability function inherent in ministerial responsibility. He clearly
favours the latter as a strategy to improve accountability, though it is
not clear that the two are mutually exclusive. Auditing is not a public
process because auditors are unelected and unrepresentative of Canadians,
one presumes he would argue. Whereas an arguably stronger form of ministerial
accountability, such as a division of accountabilities between ministers
and deputy ministers, is about holding publicly elected ministers to a
higher standard, he might suggest.
But it is again unclear how APs, in this case the Auditor General who furnish
politically relevant knowledge to the publicly elected Parliament, undermine
ministerial accountability. Furthermore, his critique appears to completely
ignore the benefits of an independent body of professionals exercising
toothless oversight of specific policy targets. Whether or not the OAG
is right in its findings, and each chapter of its reports publishes the
government's response to the contents, the very process of identifying
policy objectives and trying to measure results brings transparency to
corners of the public service that would otherwise never receive public
attention. If this attention, as interpreted by the opposition or the media,
is sometimes overly harsh or unfair, the burden carried by a tacit public
service left undefended by a self-interested government is painful but
not pathological: unpopularity.
Aucoin is not the only academic concerned about an AP's effect on the accountability
function; the most vociferous critic of the Auditor General's constitutional
role is Professor S.L. Sutherland. Sutherland is gravely concerned that
the power and esteem of the Office is a threat to representative government.
The current Auditor General, Sheila Fraser, asserted in her 2000 annual
report that Canadians have the right to control how public funds are collected
and used. This statement marked for Sutherland a serious lack of understanding
of representative government. Calling on the doctrine of responsible government,
Sutherland argues that the elected representatives should be the ones to
hold the government responsible; neither citizens nor their popular auditors
have this right.8
This doctrine marks the Public Accounts Committee as home of Parliament's
financial expertise and charges it with holding the government to account
on its financial performance. The Committee, however, has had difficulty
establishing its own credibility until relatively recently. Conventionally
chaired by an Opposition backbencher to demonstrate its independence from
government, the Public Accounts Committee is foremost charged with studying
the reports of the Auditor General. A history of the OAG written in 1979
described the Public Accounts Committee as a committee with chronic difficulties
to secure a quorum.9
More significantly Sutherland charges that the OAG has colluded with the
Treasury Board Secretariat (TBS) to supplant the PAC as the overseer of
the government's finances. The defining moment came with the passage of
the 1977 Audit Act, which vastly expanded OAG powers by giving the AG discretion
to conduct performance audits.
The Office of the Auditor General, whether or not it appropriates the voice
of the Canadian public to criticize government spending, has not and cannot
appropriate public power to 'control how public funds are collected and
used.' Ultimately, the OAG, like other APs, retains the right to report
to Parliament and the ability to testify in committee on its findings.
In so doing, it is able to exercise influence. How the committee and Parliament
react to these findings, including any attempt to defeat the government,
is the exercise of power. APs do not undermine the constitution. Parliament
has delegated to them the authority to promote certain values, and Parliament
can take this authority back.
It is interesting to note that Sutherland's critiques have roots as far
back as the first Auditor General. In 1879 Auditor General John Lorne
McDougall received a letter from the Deputy Minister of Finance, Z.A. Lash,
asserting that McDougall's duties and powers as Auditor General are confined
to seeing that any moneys which the Government seek to expend have been
voted to Her Majesty for the purpose, and that you have no right to enquire
into the legal right of the Government to do that for which they seek to
expend the money which has been voted to them by Parliament.10
This letter did not deter McDougall, who clearly envisioned his office
as responsible to Parliament and to the spirit of accountability, more
than to government and the strict interpretation of his enabling legislation.
He responded that, The view which would confine the duties of the Audit
Office to those directly laid down in the Audit Act seems to me narrow.
He published Lash's letter, along with his rebuttal, to ascertain the wishes
of Parliament, and hearing none expressed felt empowered to continue unabated.
It would be a mistake to presume that the history of the Auditor General
speaks adequately for the history of the other APs. Still, there is plenty
of evidence that other APs have likewise insinuated themselves in their
own mandates, and in doing so crossed from commenting neutrally on the
administration of certain values, to actively advocating for these same
values in the political sphere. In his Annual Report for 1976, Commissioner
of Official Languages Keith Spicer recommended to Parliament that it amend
the Official Languages Act to counteract a Federal Court judgment of January
1977 that he viewed as too restrictive in its interpretation of the important
section 2. In the 1977 Annual Report, new Commissioner Max Yalden proposed
the creation of a Special or Standing Committee of Parliament to review
the office's Annual Report.
Throughout the 1990s, Chief Electoral Officer Jean-Pierre Kingsley was
seen by some as the key factor forwarding new elections policies into the
political arena. One result was a monumental and controversial transition
from national enumeration to a national voter's list. A detailed analysis
of this shift explicitly concluded that Elections Canada was at the centre
of an explanation of the changeover. The Office of the Privacy Commissioner
played a central role in moving the federal government from public-sector
privacy protection to public-and private-sector protection thereby doubling
the Office's mandate. In his 1998-99 Annual Report to Parliament, John
Reid advocated the relocation of responsibility for his reports on Access
to Information to a different House committee. In 2002, he critiqued the
Access to Information Act and proposed specific reforms in a special report
One clear constitutional question regards the degree to which the independence
of APs is compromised by funding mechanisms. For many years APs have complained
about the process by which they receive their budgets. More than one Auditor
General had concerns about perceived or possible governmental interference
in audits by way of funding blackmail. John Reid repeatedly highlighted
the same concern stating in his 2005 Annual Report that due to its control
of the purse strings, the government has control over the effectiveness
of Parliament's officer. So much for independence!
Bolstered by the constitutional principle that Cabinet must initiate spending,
Canadian governments have been extremely reluctant to allow Parliamentary
committees to negotiate budgets with APs. But as Thomas writes, this has
not caused great harm in other Westminster Parliaments: In both the United
Kingdom and New Zealand there is provision for parliamentary involvement
in setting the budgets for their national audit offices, and this has not
resulted in serious constitutional problems.11 Perhaps even more compelling
is the Canadian experience where the EC's expenses have been paid directly
from the Consolidated Revenue Fund. This has ensured no political pressure
can be exercised on behalf of either government or Parliament. Too widely
mimicked, this practice might encourage irresponsible spending, and especially
in the wake of the Radwanski affair one must submit to some checks on the
independence of APs.
In May 2005, the Standing Committee on Access to Information, Privacy,
and Ethics reported on funding mechanisms for APs. This committee recommended
that a permanent Parliamentary body (the Board of Internal Economy, on
a trial basis) be created as the budget determination mechanism for the
funding of all APs.12 A concurrent initiative of the Treasury Board Secretariat
to negotiate funding mechanisms for the APs was expected to produce options
by Fall 2005.
Conclusion: Has the Rise of APs Supplanted a Parliament-centred Constitution?
The earlier defence of performance auditing and the expansion of AP powers
in various domains betrays this paper's conclusions. It is natural for
institutions intended in spirit to aid Parliament in its scrutiny of government
bureaucracy to attempt to ensure that their enabling legislation (and ultimately
their constitutional location) maximizes their capacity to engage in this
scrutiny. APs have not undermined Parliament as the locus of federal political
If APs have engaged in 'mandate creep', as Professor Aucoin fears, this
is neither shocking nor, on the whole, detrimental. The government has
long provided itself with recourse to an expert bureaucracy (the 'executive
administration') in order to ensure that the political decisions taken
by elected politicians are well implemented. Bureaucratic 'mandate creep'
from this initial theory has meant that, in practice, bureaucrats are responsible
for both policy proposal as well as administration.
Parliamentarians can be safely consigned to a similarly minimal, yet profoundly
essential role, in their actions as legislators and scrutinizers. AP mandate
creep is the rational maximization of public expertise finally freed from
the defence of the government of the day. The political power exercised
by APs is influence. Even when APs use the courts to achieve their ends,
Parliament retains the ultimate power of rewriting legislation to override
Part of the conceptual clash some scholars portray is based on the view
that APs have outstripped their role as servants of Parliament. Paradoxically,
this paper affirms this evolution as a natural progression for a branch
that is growing to help Parliament remain the organ of responsible government.
As the bureaucracy provides neutral expertise to its political leadership,
APs must retain their independence from their partisan 'clients' in order
to furnish effective, politically-sensitive yet expert knowledge about
the bureaucracy and its leadership or in the case of 'democracy branch'
institutions, about Parliamentarians themselves to Parliament.
APs, as an evolving 'legislative administration' are slowly making Parliament
stronger. Each AP is a headquarters for a specific area of policy knowledge
that backbenchers appreciate. In his most recent Annual Report, John Reid
emphasizes that a government backbencher proposed a Private Member's Bill
strengthening the Access to Information Act, and that backbench MPs from
all parties have inspired attempts to update the Act in recent years. Opposition
backbenchers were responsible for adding a new AP to the governments whistleblower
protection legislation in the Fall 2005. And as Professor Aucoin suggests,
the vast reach of the Auditor General is probably due to the void left
at the federal level in the absence of an Ombudsperson. Every province
has an AP with the responsibility to follow up on citizen complaints and
report to the legislature.
APs are a source of politically relevant knowledge, but they, like the
bureaucracy, must be seen to be above partisan disputes. This can be accomplished
by the 'democratization' of the specific value centres institutionalized
as Agencies; in other words, by emphasizing the value of bilingualism to
the country as a democratic right, for instance, the value of bilingualism
is elevated above partisan discourse and the AP can shed policy neutrality
and promote the value without becoming partisan.
Smith's 'audit society', Ackerman's 'integrity branch', and the role of
Agents of Parliament are overlapping and potentially positive developments.
Yes, they change the dominant policy networks, the political discourse,
and citizens' impressions of government. But they leave our fundamental
democratic mechanism intact. As always, vigilance is warranted and welcome
as the Canadian constitution gathers more experience. Still, we must not
allow precedent and constitutional idealism to prevent new toolboxes from
1. Bruce Ackerman, The New Separation of Powers, Harvard Law Review,
vol 113, January 2000, p 699.
2. Ibid. p. 698.
3. David Smith, A Question of Trust: Parliamentary Democracy and Canadian
Society. Canadian Parliamentary Review, Spring 2004, p. 25.
4. Maria Barrados, Protecting Merit and Fostering Accountability: The
Role of the Public Service Commission of Canada in Ensuring a Fair, Efficient
and Non-Partisan Public Service. June 16, 2004.
5. See Ackerman, op. cit. p. 694.
6. Megan Furi, Officers of Parliament: A Study in Government Adaptation.
M.A. Thesis, University of Saskatchewan, Saskatoon: 2002.
7. Peter Aucoin, Auditing for Accountability: The Role of the Auditor
General. Institute on Governance Occasional Paper Series, p. 15.
8. S.L. Sutherland, The Office of the Auditor General of Canada: Government
in Exile? School of Policy Studies: Working Paper 31. September 2002,
9. Sonja Sinclair. Cordial but not Cosy: A History of the Office of the
Auditor General. McClelland and Stewart Limited: Toronto, 1979, p. 73.
10. Ibid. pp. 20-21.
11. Paul G. Thomas, The past, present and future of officers of Parliament.
Canadian Public Administration, Autumn 2003, p. 301.
12. See Kristen Douglas and Nancy Holmes, Funding Officers of Parliament,
Canadian Parliamentary Review, Autumn 2005.