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A Comprehensive Study of Canada's Osgoode Hall Law School of York University Osgoode Digital Commons PhD Dissertations Theses and Dissertations 5-11-2020 Resisting Obsolescence: A Comprehensive Study of Canada's Conflict of Interest and Ethics Commissioner and the Office's Efforts to Innovate While Strategically Asserting Greater Independence Ian Norris Kellner Stedman Osgoode Hall Law School of York University Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/phd Part of the Law Commons Recommended Citation Stedman, Ian Norris Kellner, "Resisting Obsolescence: A Comprehensive Study of Canada's Conflict of Interest and Ethics Commissioner and the Office's Efforts to Innovate While Strategically Asserting Greater Independence" (2020). PhD Dissertations. 60. https://digitalcommons.osgoode.yorku.ca/phd/60 This Dissertation is brought to you for free and open access by the Theses and Dissertations at Osgoode Digital Commons. It has been accepted for inclusion in PhD Dissertations by an authorized administrator of Osgoode Digital Commons. Resisting Obsolescence: A Comprehensive Study of Canada’s Conflict of Interest and Ethics Commissioner and the Office’s Efforts to Innovate while Strategically Asserting Greater Independence IAN STEDMAN A DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY GRADUATE PROGRAM IN LAW YORK UNIVERSITY TORONTO, ONTARIO December 2019 © Ian Stedman, 2019 Abstract In 2017, Justin Trudeau become the first Prime Minister to be found in violation of Canada’s parliamentary ethics laws. This incident alone demonstrated the need for a comprehensive study of the Canadian parliamentary ethics regime. The Conflict of Interest and Ethics Commissioner (COIEC) who administers this regime is broadly recognized as belonging in a category of parliamentary institutions called agents of parliament. The COIEC is the only one of nine such agents who denies that it should be categorized as an agent. Instead, the COIEC argues it is an Officer of the House of Commons – a category that is heretofore unrecognized. Given the heightened interest in public sector ethics that has emerged, this dissertation analyzes what this Canadian institution is, how it works, where it belongs, what its limitations are and why. This is a unique institution whose design sets it apart from the recognized agents of parliament. The COIEC is responsible for two mandates: one (the Act) is legislative and the other (the Code) is a non-legislative mandate. Work under the Code is explicitly protected by parliamentary privilege, which shields it from judicial scrutiny. This allows the COIEC to exercise a level of independence from government and Parliament that is otherwise unprecedented among agents. I argue that the COIEC cannot be properly characterized as either an agent or an officer of either Parliament or the House of Commons as a result, and that this institutional design has allowed the COIEC to intentionally blend the administration of the two regimes. ii This blending of regimes has contributed to a strong assertion of operational independence that has been exacerbated by Parliament’s reluctance to engage with the Office in good faith in relation to the many recommendations its commissioners have made towards the improvement of both the Act and Code. I explain the implications this has for the COIEC’s constitutional legitimacy and offer recommendations for how the mandates might be reformed and more thoughtfully delegated by Parliament. iii Acknowledgments What a journey this has been. First, I must thank my wife Aimy and our three amazing daughters, Lia, Ivy and Ainsley. They have graciously tolerated me over these last 4+ years, even when I have been intolerable. I owe them more than I can ever repay. The absolute best part of graduate school has been getting to spend more time at home with my girls. I also owe incredible gratitude to my wife’s parents, Hoa and Minh. Returning to graduate school would not have been possible without the sacrifices they have made for us. I hope one day that I will be able to earn the same love and respect from my children and their partners as my in-laws have earned from me. Ontario’s Integrity Commissioner Lynn Morrison (then my boss) introduced me to Professor Ian Greene back in 2013, when I first told her that I wanted to pursue a graduate degree in law. We met for the first time at a Second Cup near Yonge and Bloor and Professor Greene encouraged me to apply to both the University of Toronto (where I later obtained my LLM) and Osgoode Hall Law School. Although he was already officially retired when I received my acceptance to Osgoode (while nearing completion of my LLM), Professor Greene still agreed to co-supervise my PhD with Professor Liora Salter. I could not have been luckier. Professor Greene is the foremost scholar in political ethics and has treated me like a son. A better mentor does not exist. Professor Salter was also amazing because she pushed me. She accepted no excuses and helped me to realize very early on what I was capable of. Both iv supervisors helped me to keep everything in perspective – which I have learned is no small feat during graduate studies. When Professor Salter retired, I was very fortunate to have then Dean, now Justice Lorne Sossin step in as my supervisor (Professor Greene stayed on as a member of my committee). Nobody wants to let the Dean down, so I hung a picture of Justice Sossin on my wall at home (where I hoped my diploma might eventually go) in order to remind myself to get to work. It has been ever-humbling to look up at his picture on a daily basis. Thank you, Justice Sossin, for the support and guidance that you have given me. Professor Trevor Farrow is the final member of my committee and has always been there for me when I needed to call upon him. Professor Farrow has even helped to steer me through some challenging situations and has done so in a way that left me more confident in my own thought processes and decision-making. Thank you. To Professor Naomi Couto, you have been an incredible mentor to me throughout this journey. I have gained so much from your friendship and support. You have continued to encourage me and have helped me keep my head up by reminding me of my value. I’m so grateful to have met you when I joined the YCPE early in my PhD and to have also had you there with me at the end of this amazing journey. A huge thank you must also be extended to University of Ottawa Law School Professor and Dean Adam Dodek for agreeing to take on the role of external examiner for my oral defense. v I could not have imagined a committee with more impressive credentials when it comes to public sector ethics and accountability. Your kindness of spirit and generosity of intellect are truly appreciated and I know that I will benefit a great deal from your insights as I move this project forward. I have also benefited a great deal from having a network of amazing people who have kept me going. First, Dr. Aviv Gaon. What a different and much less interesting journey this would have been without you. You challenged me to see past the fog and you helped me to stay focused on what truly mattered to me. I am thankful to have made such a great new friend during my time at Osgoode. Professor Giuseppina D’Agostino and Michelle Li. Working with you two (and Aviv) on the conferences that we organized at IP Osgoode has been a great experience for me. Thank you for those opportunities and for the constant and ongoing support you have both given me. A further thank you to Professor D’Agostino for the many opportunities you have given me over these past few years, including the opportunity to contribute to York University’s Artificial Intelligence and Society Task Force and for being the chair of my oral examination committee. To Dr. Ron Laxer at SickKids: I am here because of you and Lia and I will never forget that. No matter where life takes me, you will always be with me. vi Professor Ron Pearlman, who came into my life simply because I agreed to do some volunteer work at the York Collegium for Practical Ethics. You have been a true mentor. You have allowed me to grow in ways that I never thought I would during my years at York University and you have opened doors for me that I never dreamed could open for me. I thank you from the bottom of my being for your friendship and mentorship. (Who gets to spend a week in a Biology lab using CRISPR on ciliates to make them antibiotic resistant during their PhD in Law?!). Thank you also to Professor Richard Haigh for your ongoing friendship and for allowing me to tag along with you and the York Centre for Public Policy and Law. You have generously funded/co-sponsored quite a few of my ideas over the last four years, yet you still have not asked me to be on your podcast, “What’s Law Got to Do with It?”. Tsk. I also owe a tremendous debt of gratitude to Professor Mike Brudno and the team at SickKids, including Dr. Ron Cohn, Professor Anna Goldenberg, Dr. Rulan Parekh, Dr. Elizabeth Stephenson and Amanda Silva. You have all given me the opportunity to put myself on a path towards a career that is deeply meaningful and fulfilling. Your support has allowed me to take risks and empowered me to engage in work that is both creative and forward-thinking.
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