Canadian courts have ruled in several cases that integrity, and equality of opportunity for influence, in government and political processes must always be strictly and strongly protected in order to have democratic good government and in order for Canada to be a democracy.
A. Rulings requiring integrity in government and political processes
- Fraser v. P.S.S.R.B. (1985 Supreme Court of Canada ruling)
In the Supreme Court of Canada’s 1996 ruling in Fraser v. P.S.S.R.B., the Court stated that it is in “the public interest” to have both “actual, and apparent, impartiality of the public service” (para. 41) and based its ruling on “the importance and necessity of an impartial and effective public service” (para 39).
- R. v. Hinchey (1996 Supreme Court of Canada ruling)
In the Supreme Court of Canada’s 1996 ruling in R. v. Hinchey, a case involving a federal public servant who was charged with violating the Criminal Code for handing out contracts to his own company, Justice L’Heureux-Dube wrote the following for the majority judgment:
At paragraph 13, speaking of the purpose of s.121 of the Criminal Code (which, along with other sections, makes corruption and fraud by public officials illegal):
“[the Criminal Code is] one of the myriad ways in which the government seeks to achieve this purpose. … Obviously, the criminal law is not the only method utilized; a variety of other statutes contain provisions which deal with corrupt or fraudulent practices, while there are also conflict of interest and ethical guidelines to regulate behaviour. See for example Financial Administration Act, R.S.C., 1985, c. F-11, ss. 80 and 81; Conflict of Interest and Post-Employment Code for Public Office Holders (1994).”
And at paragraph 14:
“It is hardly necessary for me to expand on the importance of having a government which demonstrates integrity. Suffice it to say that our democratic system would have great difficulty functioning efficiently if its integrity was constantly in question. While this has not traditionally been a major problem in Canada, we are not immune to seeing officials fall from grace as the result of a violation of the important trust we place in their integrity…
“I would merely add that the importance of preserving integrity in the government has arguably increased given the need to maintain the public’s confidence in government in an age where it continues to play an ever increasing role in the quality of everyday people’s lives. As the U.S. Congress has stated about its own anti-corruption measures:
“The necessity for maintaining high ethical standards of behaviour in the Government becomes greater as its activities become more complex and bring it into closer and closer contact with the private sector of the Nation’s economy.”
As quoted in United States v. Evans, 572 F.2d 455 (5th Cir. 1978), at p. 480.”
And at paragraph 17 (with similar comments elsewhere):
“For a government, actual integrity is achieved when its employees remain free of any type of corruption. On the other hand, it is not necessary for a corrupt practice to take place in order for the appearance of integrity to be harmed. Protecting these appearances is more than a trivial concern.”
And at paragraph 18:
“In my view, given the heavy trust and responsibility taken on by the holding of a public office or employ, it is appropriate that government officials are correspondingly held to codes of conduct which, for an ordinary person, would be quite severe. For the public, who is the ultimate beneficiary of honest government, it is not so easy to sort out which benefits are legitimate and which are laden with a sinister motivation. Moreover, it is inefficient for a government to be paralyzed by rumour and innuendo while an inquiry is made into the motivation behind a certain benefit or advantage conferred on an official. What Parliament is saying through this provision is that the damage sought to be prevented is actually done once the benefit is conferred, and not after an ex post facto analysis which demonstrates that no harm was intended. It is from the point of the conferral of the benefit forward that the appearance of integrity has been slighted.”
The minority judgment in R v Hinchey , delivered by Justice Cory, did not dissent on any of the above points. In fact, Justice Cory agreed with the need for an “appearance of integrity” standard for public officials, stating at paragraph 94:
“The magnitude and importance of government business requires not only the complete integrity of government employees and officers conducting government business but also that this integrity and trustworthiness be readily apparent to society as a whole.”
- Harvey v. New Brunswick (1996 Supreme Court of Canada ruling)
In the Supreme Court of Canada’s 1996 ruling in Harvey v. New Brunswick, the Court stated that ensuring the integrity of elections “is always of pressing and substantial concern in any society that purports to operate in accordance with the tenets of a free and democratic society” (para. 38) and that “If democracies are to survive, they must insist upon the integrity of those who seek and hold public office.” (para. 61)
B. Rulings requiring equality of opportunity for influence, transparency and integrity in government and political processes
- Libman v. Quebec (1997 Supreme Court of Canada ruling)
and
- Harper v. Canada (2004 Supreme Court of Canada ruling)
In the Supreme Court of Canada’s ruling in Libman v. Quebec in 1997, the Court first set out key factors and constitutional principles that form the basis of what came to be called the “egalitarian model” for political processes. In the Court’s ruling in Harper v. Canada in 2004, the Court reaffirmed the principles established in its Libman ruling.
An overall test established by the Court is that the rules and practices in each process are assessed based on the system itself, not based on outcomes that result from the system, such as the result of an election (Harper, paras. 64 and 95-99).
The first key principle is that the system should uphold, as much as possible, while taking into account social factors and practical considerations, the fundamental democratic equality principle of one person, one vote (Libman, paras. 41, 47 and 61; Harper, paras. 61-63) so as to ensure that, again as much as practically possible, every voter has a close to substantively equal opportunity to participate in, or influence, the electoral system or the government public policy-making system (Harper, para. 73).
The second key principle is that the public must perceive, and have confidence in, the fairness and integrity of every aspect of the system. To express this in reverse, every aspect of the system must appear to be fair and to have integrity, and actually be fair and have integrity, in order for the public to have confidence in the system (Harper, paras. 23-24, 63, 79, 82-83, 91-92, 97, 99, 101-104, 108-109, 120, 122, 142 and 146; Libman, paras. 41, 52 and 84).
And the third key principle is that limits on spending cannot be so low as to prohibit expression and participation in the election at a level that is meaningful nor to prohibit the flow of adequate information for voters to make informed decisions and, by extension, information provided to voters must be required to be accurate or they will not be able to make informed decisions (Libman, para. 41; Harper, paras. 15, 61-63 and 67-70).
C. Rulings requiring integrity in lobbying
- Democracy Watch v. Campbell (2009 Federal Court of Appeal ruling)
In the Federal Court of Appeal’s (FCA) unanimous ruling in Democracy Watch v. Campbell in 2009, the FCA stated that “Any conflict of interest impairs public confidence in government decision-making” (para. 48). The FCA went on to clarify the need for rules to restrict lobbyists from doing or giving things that create any conflict of interest:
A lobbyist’s stock in trade is his or her ability to gain access to decision makers, so as to attempt to influence them directly by persuasion and facts. Where the lobbyist’s effectiveness depends upon the decision maker’s personal sense of obligation to the lobbyist, or on some other private interest created or facilitated by the lobbyist, the line between legitimate lobbying and illegitimate lobbying has been crossed (para. 53).
- R. v. Carson (2018 Supreme Court of Canada ruling)
In the Supreme Court of Canada’s 8-1 ruling in R. v. Carson in 2018 upholding the conviction of Bruce Carson for influence peddling the Court cited several past cases summarized above, and stated that the Criminal Code prohibition on influence peddling “aims to preserve both government integrity and the appearance of government integrity” and that:
“As this Court’s jurisprudence on both judicial independence and the impartiality of the public service demonstrates, the appearance of integrity, impartiality, and independence are tied to actual integrity, impartiality, and independence…”
The behaviour criminalized by this section risks depriving citizens of a true democracy predicated on free and open access to government. Corruption and the sale of influence, whether real or apparent, with government may undermine the integrity and transparency that are crucial to democracy. (paras. 38-39)