Errol Mendes is a professor of Law at the University of Ottawa with expertise including corporate law and governance, corporate responsibility, international business and trade law, constitutional and human rights law and policy. He has been an advisor to corporations, governments, civil society groups and the United Nations and recently served as a Visiting Professional at the International Criminal Court. His latest book is titled “The Court of Last Resort; Peace and Justice at the International Criminal Court”.

The list of allegations of assault on Canadian parliamentary democracy by the Harper government is a long one. They include the two prorogations, the lack of information on the cost of the omnibus crime bill, the hiding of $10 billion of the full costs of the F-35 fighter jets and the inclusion of some 70 odd pieces of legislation under the omnibus budget bill without the benefit of full democratic exposure. And now we have a new one, this time being alleged not by the opposition parties, but by an independent officer of Parliament.

On April 12, 2012, the Parliamentary Budget Officer, Kevin Page, requested from certain deputy ministers information regarding the savings measures in their departments relating to the stipulations in the omnibus budget bill that has just been passed in the House of Commons. The PBO relied on section 79.3(1) of the Parliament of Canada Act which was brought in under the much vaunted Harper Conservative Federal Accountability Act.

Eighteen of 82 Department heads replied with the information requested. Then on May 15, 2012, Wayne Wouters, the clerk of the privy council and deputy minister to the prime minister responded on behalf of all deputy ministers expressing concern that the information that the PBO was seeking was subject to the government’s contractual obligations under collective agreements. The Clerk then seemed to be speaking on behalf of the Harper government when he stated that the information would first be disclosed to affected employees and their unions when they begin to implement the reductions and only then communicated elsewhere. The Clerk then only submitted a summary of planned spending reductions and promised more of the same kind.

The PBO responded on May 30, 2012, insisting that the deputy heads are required by law to provide the information and any statutory exceptions relating to restricted documents including Cabinet confidences were not relevant or applicable. The PBO also noted that the unions concerned had accepted disclosure of the information and there would be no breach of the collective agreements if disclosure did take place. The PBO also noted that some departments had already complied and did not see any legal or other obstacles to comply with the PBO request.

On June 18, 2012, the PBO released a legal opinion authored by a leading constitutional law professor, Joseph Magnet of the Faculty of Law at the University of Ottawa. The opinion stated that the 64 departments that had not provided the information requested by the PBO were not acting in compliance with the Parliament of Canada Act. The opinion stated that nobody, including the Clerk, had advanced any proper legal exception to the statutory requirement that mandated the Harper government to provide the information.

Beyond the well-argued legal opinion, there is an even more critical constitutional and democratic issue at stake with this latest subversion of Canadian democracy. The fundamental duty of the elected MPs is not to be subservient to a prime minister and definitely not to the clerk of the privy council. Their duty is to ensure that laws are adequately scrutinized and especially budget bills that determine how taxpayers’ monies are managed and not hidden from public scrutiny.

Most MPs do not have the time or in many cases the expertise to adequately scrutinize the most complex of such financial legislation which involve billions of dollars of monies to be saved or spent. The main reason why the very same Conservative government of Stephen Harper created the PBO in the Federal Accountability Act was to ensure that MPs had the help of the special expertise in the PBO to hold governments fully to account and help make the spending of taxpayers’ monies more transparent.

Canadians should be deeply concerned about the real reason why the Harper government has stymied and insulted the PBO on an increasing number of occasions including on the real costs of the omnibus crime bill, the real costs of the F-35 fighter jets and now to deny the office the most basic information on departmental savings in the budget. If those reasons include attempts to muzzle the PBO and effectively slowly making it inoperative then the Harper government is also muzzling all MPs, including their own backbenchers. They may also be hiding the full extent of the job losses in the federal public service to ensure that this does not hurt their Ottawa area MPs politically. Keeping all MPs in the dark means we will never know. This would be more evidence that Harper seems to regard Parliament more like an irritant that needs to be ignored or managed by remote bureaucrats or by the denizens of the Prime Minister’s Office.

The Canadian constitutional order may be teetering towards a one man government, without the checks and balances needed for a healthy democracy.

Click here to view a list of all columns by Errol Mendes.

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