As ethical expectations rise and legislatures face new realities, transgressions need to be met with more than symbolic codes of behaviour.
Parliament and provincial legislatures are meant to be showcases of Canadian democracy. Over the past several years, however, they have been rocked by instances of bad behaviour. Misconduct takes many forms: It can be illegal, unethical, disruptive to the affairs of the legislature, socially inappropriate or all of these things. And legislatures, being political bodies dominated by competitive political parties, have struggled to deal appropriately with wrongdoing.
Their greater challenge has been to reach agreement over who should get to decide on the seriousness of different kinds of misconduct and what penalties are fair: Does the responsibility rest with the parties, the legislatures or voters? There is no simple answer. As the recent spate of allegations at the highest levels in Virginia shows, society doesn’t have a consensus on what is an appropriate response to possible wrongdoing.
Historically, parties and legislatures have held the power to deal with wrongdoing, but in an era of heightened mistrust of politicians, the traditional approach is often judged to lack objectivity, transparency and credibility. Parties need to find ways to do better.
Here are a few recent incidents of wrongdoing in Canada:
- In December 2017, Prime Minister Trudeau was forced to apologize after the federal ethics watchdog found he had violated some provisions of the Conflict of Interest Act when he vacationed on a private island owned by the Aga Khan.
- Between 2012 and 2016, a number of senators were alleged to have abused lax spending rules, including Senator Mike Duffy of Prince Edward Island, who was subsequently part of a high-profile court case involving the cover-up of a reimbursement of those expenses by a political staffer in the PMO. Duffy was ultimately cleared of all charges.
- In 2017, Senator Don Meredith was forced to resign after the Senate ethics committee, based on a report from the Senate ethics officer, recommended he be expelled for having sex on more than one occasion with a teenager.
- In 2018, Patrick Brown was pushed out as Ontario Conservative party leader after sexual misconduct allegations.
- In 2018 in Manitoba, an inquiry into unwanted sexual advances by a former NDP cabinet minister discovered a sexist and misogynistic culture within the party during its time in power from 1999 to 2016.
- In January 2018, former BC premier Christy Clark wrote a Facebook post about the toxic and sexist climate in the B.C. legislature.
There is heckling and name-calling in debates, conflicts of interest and abuses of spending rules, leading to private gain from the performance of public duties. There is sexist language, a chilly climate for women and unwanted sexual advances, all of which cause emotional, even physical, harm and limit the contributions of women, discouraging them from entering legislative life. The most serious sexual offences can lead to police involvement and prosecutions in court.
Only a small minority of the thousands of legislators serving in the country are guilty of wrongdoing. But whatever form it takes, bad behaviour harms individual reputations and careers. It contributes to a negative stereotype of legislators as lacking in integrity. It erodes public confidence in legislatures. In at least one opinion survey, only political parties enjoy less public trust than legislatures.
Until the mid-20th century, political parties were seen exclusively as private associations that had to be allowed to control their internal affairs. Gradually, it was accepted they are also instruments of democracy that should be subject to regulation in the public interest. However, the belief that parties are mainly responsible for establishing and enforcing standards of conduct persists to this day. This is risky. It makes it possible for parties to engage in symbolic action and minimize the misdeeds of their members or even engage in coverups.
For example, Manitoba has had a shared code of conduct for political parties since a 1998 judicial inquiry into a vote-rigging scandal. It was adopted with the goal of protecting the integrity of the democratic process, and is based on the principle of self-regulation. It was the only arrangement the parties would accept. But not much has been done to implement the code, as I have argued elsewhere.
Because of recent incidents, most political parties have sought to strengthen their screening processes for prospective candidates. The reforms include more extensive background searches beyond traditional criminal and credit checks. Social-media accounts are reviewed in search of offensive material. Prospective candidates are asked to complete longer questionnaires and submit to more intrusive interviews. They are expected to disclose anything in their past that might damage the party, and sometimes they must sign a pledge promising not to bring the party into disrepute. A few parties have hired outside firms to make the process more professional and credible.
Like political parties, legislatures have also insisted they be allowed to decide how to deal with misconduct by members. Based on the constitutional principle of the separation of powers and the related notion of parliamentary privilege, they insist on dealing with misconduct on their own rather than have the executive or the courts interfere with parliamentary matters. Only with the most serious matters like fraud or sexual assault are the police and courts invited to become involved.
As public respect for legislatures has declined, they have adopted changes to their rules intended to curtail such behaviour as personal insults and sexist language. Elected Speakers have been granted greater authority to enforce the rules of decorum.
Legislatures have also adopted administrative policies dealing with sexual misconduct. In several provincial legislatures, such policies are transferred from the civil service, which is not entirely satisfactory given the inherent difference between the two institutions. Most fundamentally, legislators are elected, not appointed like civil servants, and when an individual is found guilty of a serious offence, it becomes debatable as to who should decide the price to be paid for a transgression: the legislature, the party or the voters in that person’s constituency.
Codes of behavior are relatively recent attempts to deal with issues of integrity within legislatures. This is a complex, specialized area of public law where detailed provisions vary across the country. In broad terms, a distinction can be made between codes of conduct and codes of ethics. Typically, a code of conduct imposes concrete rules on legislators, mainly related to avoidance of conflicts of interest. In contrast, ethics codes contain general values or ethical principles meant to guide behavior.
Many of the COI statutes now have preambles that declare a broader obligation for members to act ethically.
Conflict-of-interest (COI) codes date back to the mid-1980s and focus mainly on preventing legislators and their families from benefitting financially from the performance of their public duties. Initially, COI codes relied on such devices as registries of assets/liabilities, public disclosure and the recusal of legislators from votes and other actions in which they had a pecuniary interest. More recent amendments to COI laws have broadened restrictions to include such things as the acceptance of gifts and the requirement for a “cooling off” period on interactions with government after leaving office.
Many of the COI statutes now have preambles that declare a broader obligation for members to act ethically. For example, Ontario’s statute declares that legislators are expected to perform their duties in a manner that promotes public confidence in the integrity of each member and does not undermine confidence in the legislature. Similarly, Newfoundland and Labrador has a code that, along with aspirational goals, exhorts legislators to avoid “unethical political practices which would undermine the democratic traditions of our province and its institutions.”
Given parliamentary traditions, the handling of integrity transgressions is in most cases left to the parties to investigate and resolve, thereby leaving investigations and enforcement open to self-interested actions by parties. Sometimes a legislative committee investigates offences and applies penalties with the help of an independent official like a conflict-of-interest commissioner or an integrity commissioner. The confusion over which is the best path to follow indicates how legislatures are struggling to improvise in response to new realities and rising ethical expectations.
Leadership is important in ensuring that codes are more than symbolic. Leaders of parties can say all the right things, but it is far more important that they defend values when they are at stake. Parties should make ethics-awareness sessions mandatory for elected representatives and paid staff. Creating psychologically safe places where legislators and staff can come forward with good-faith disclosures of wrongdoing and receive protection from retaliation would be an important step.
Rules and oversight mechanisms have led to more disclosures of bad behaviour. Over time, the impact of such mechanisms might be to deter bad behaviour. Ironically, in the short term at least, the publicity surrounding high-profile misdeeds has probably accelerated the declining public trust in legislators. For the future, we need to put greater emphasis on a preventative approach based on a strong, shared political culture of integrity.
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