Chapter 1: Democratic Ethics
In September 1995 Lorne McLaren, Grant Devine's labour minister, was sentenced to three and a half years in jail for his part in a scheme that defrauded the people of Saskatchewan of nearly $1 million. The strategy, which had been approved at the highest levels of the Saskatchewan Conservative party, diverted funds earmarked for constituency communications expenses to numbered companies, and from there into the pockets of Conservative MLAs and cabinet ministers as a kind of personal reward.
Every one of the 38 Conservative MLAs approved the diversion of 25% of their communications allowances to the numbered companies, and at least 11 members received payments from the illegal fund before they were caught. McLaren admitted that he personally took $114,000. Moreover, he testified that former deputy premier Eric Berntson told him to put $125,000 from the illegal fund into provincial Conservative party funds as an open-ended "loan." In 1990, Berntson was appointed to the Senate by Brian Mulroney and to date has not been charged with anything. But four other MLAs have been convicted, five more charged, and one committed suicide rather than face investigation. Former minister Joan Duncan said she participated in the fraud because she was angry about being dropped from the cabinet in 1989. She used the money for a trip to Hawaii. (Globe and Mail, November 9, 1995 and May 29, 1996)
The expense fund fraud is an example of what ethicists call an abuse of trust. Democracy is government based on the principles of equality and respect for all individuals. When public officials abuse the trust that is placed in them in order to provide themselves or their friends with special benefits, or to achieve personal goals in violation of the principles of equality and respect, we say they have acted unethically.
An abuse of trust is basic to political acts that might be considered unethical. But some public officials justify what would otherwise be considered to be unethical practices as being necessary to achieve good results. For example, there was the RCMP "dirty tricks" campaign. Throughout the early 1970s Canada's security intelligence services were involved in a succession of shady, duplicitous practices. According to the McDonald Royal Commission on the RCMP, security officers of the national police force were involved in break-ins, wire-taps, incidences of disinformation, illegal mail openings, and scare tactics, and they spied on political parties and members of Parliament. Members of the force who testified before the Royal Commission saw nothing wrong with these actions because from their perspective, they participated in these activities for the greater good of Canadians as a whole. Not a single member of the Liberal cabinet was willing to take responsibility for what happened. And this despite the fact that a former chief of security services in Quebec admitted that certain illegalities such as opening the mail and theft "were so commonplace they were no longer thought of as illegal." (Toronto Star, January 12 1978)
We call this second type of ethical breach the "over zealous syndrome." It also occurs when public officials are so convinced of the rightness of their cause that they will do or authorize to be done almost anything that they feel is needed to see that it succeeds. The illegal or immoral acts that result from over zealousness are rationalized as being for the greater good of the public. The reasoning is that it is often necessary for public officials to "get their hands dirty" to further the public good. But in a democracy, it is necessary for public officials to get their hands dirty only during times of war or other emergency situations. During peace-time, dirty-handed actions are an abuse of trust which betray the fundamental democratic principles of equality and respect.
Although the Saskatchewan communications fund fraud is the most blatant example of political corruption in recent Canadian history, no jurisdiction has escaped a major ethics scandal during the past two decades. Each of these episodes reflects poorly not only on the guilty, but on the majority of elected officials who behave ethically. Is it any wonder that Canadians are increasingly cynical about the motives of politicians? Clearly, we have an ethics problem in Canadian politics. This book suggests a number of potential solutions, but first it is important to consider the theory behind ethical politics.
Ethics is the application of principle to behaviour. Since the dawn of recorded history, human beings have been wrestling with tough ethical issues. The quantity of books related to the philosophy and practice of ethics is now so great that no one could hope to read them all in a lifetime. All of these writings have two things in common. First, there is a set of general principles which are justified in some way as deserving priority in determining acceptable behaviour. Second, there are procedures for applying these principles to particular situations.
Because the opportunities for human action are enormous and change over time and in various circumstances, no set of ethical principles and applications can determine what ought to constitute appropriate behaviour in every situation. And reasonable people who accept the same principles can disagree about how these principles ought to apply. The value of an ethical approach is that it provides an opportunity to reason out resolutions to difficult situations. And an important part of being content with ourselves is the extent to which we feel we have made our best efforts when faced with the difficult choices which life presents us with.
As we mentioned above, democracy is founded on the principles of equality and respect for all individuals: what we refer to as mutual respect. In this chapter, we reflect on the five pillars of democracy which follow from mutual respect: social equality, deference to the majority, minority rights, freedom, and integrity. These principles establish two basic duties for public officials: impartiality, and the responsibility to honour a fiduciary trust from the people; these in turn provide a framework for making ethical judgements. We use recent situations involving ethical dilemmas to illustrate our arguments.
The focus of our analysis is elected public officials. Public servants also have ethical responsibilities, and we hope that our analytical framework is also useful to them. But ethical issues that relate specifically to Canadian public servants have already been carefully analyzed by Kenneth Kernaghan and John Langford in The Responsible Public Servant, and there is no need for us to cover that ground again.
We argue that the principle of mutual respect is the ethical foundation of democratic government. Ronald Dworkin, a contemporary legal theorist, put it this way: "...individuals have a right to equal concern and respect in the design and administration of the political institutions that govern them .... [T]hey possess [this right] not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice."
Mutual respect means that we owe the same consideration to others, while making decisions that have an impact on these others, as we feel that we are owed by others when they are make decisions that affect us. [Endnote: John Rawls] There are others who would suggest that the fundamental principle of democracy is the concept of free elections for representative institutions, or the related principles of equality and freedom, or the postulate of individual autonomy. [Endnote: See Held, 1987.] Our thinking, however, is that mutual respect is a more basic principle: it is the concept from which free elections, equality and freedom are derived. We have found useful David Held's argument that the contemporary quest for democracy stresses individual autonomy, or the idea that the "individual ... is free and equal only to the extent that he or she can pursue and attempt to realize self-chosen ends and personal interests." [Endnote: Held, 268] However, we think that Held's approach does not adequately convey the notion that others are as important as self, an ideal embedded in the concept of mutual respect.
There are several factors that have led to the ascendance of mutual respect in the world's democracies. First, the world's religions have undoubtedly played a major role. Not only do religions concern themselves with ethics, but the ethical principles held by most religions tend to have a lot in common. Among these is the belief that every human being has equal worth, and therefore is equally deserving of respect. There has obviously been a great gulf in many periods of history between religious belief and practice, but the tenet of the equal worth of all human beings is so pervasive that it has survived movements in the opposite direction and has had a major impact not only on the institutional structures of religious organizations, but also on the thinking of their adherents about democratic government. Among the secular humanists who have rejected religion but still seek guiding principles around which to organize their lives and their society, there are few who would reject the "golden rule": do to others as you would have them do to you.
Second, the impact of the political philosophy of liberalism and the development of liberal societies also contributed to the prominence given to the principle of mutual respect. Liberalism first developed during the turbulent seventeenth century in the United Kingdom, where civil wars were being fought between those who believed that a peaceful and orderly society would result only through a monarch with ultimate absolute authority, and those who held that government must be by the consent of "the people." The fact that the liberals gained the upper hand in the Glorious Revolution of 1689 has had a profound impact on the history of the democratic world. The philosophy of liberalism is complex and has many variants, but the essentials are that mutual respect implies as much individual freedom (individually and commercially) as is consistent with safeguarding the equal freedom and security of others, and government by consent of the governed. Liberalism broke the strangle-hold which the upper, land-owning classes had previously held over the economy, and established the sovereignty of the people in government. And the ideals of liberalism powered the American revolution.
But with liberalism, as with any grand philosophy, there has always been a gap between ideals and reality. The liberal emphasis on equality of opportunity for material enrichment in a free-enterprise economy led to an increased inequality between rich and poor during the eighteenth and nineteenth centuries. Furthermore, early, classical liberalism began by denying women and men from the lower classes (who constituted a majority of the adult male population) any voice in government. The contradictions in the application of liberalism led to the rise of socialism in the late nineteenth and early twentieth centuries. Whereas liberalism had stressed equality of opportunity, socialism concentrated on equality of results. The appeal of socialism in the first half of the twentieth century led to reform liberalism, which encouraged expanding the franchise and supported the development of a democratic welfare state. Whereas socialists claimed that true equality could never be achieved in a capitalist society, reform liberals held that state intervention in the economy could neutralize the worst of the inequalities resulting from capitalism.
State intervention to promote equality after the Second World War had mixed results: enormous advances were made in social security services through programs like unemployment insurance, minimum wage laws, state pensions, public health care and income support for those in dire need. The provision of such services, however, led to the development of large bureaucracies that were sometimes unwieldy and unresponsive to citizens' complaints and suggestions. While welfare state activities helped soften the incidences as well as the repercussions of the boom and bust aspects of the business cycle, they were relatively ineffectual in moderating demands of capital for increased profits and growth. The rich got richer, the working classes and the poor got poorer, and the middle class struggled to maintain their position. Entrepreneurs and the corporate sector were resentful at having to make way for regulations governing the workplace and product reliability , as well as practices providing equal access and equal benefits through universally applied programs like the Canada Health Act. And they were concerned that the increasing cost of such a system would ultimately mean they would be forced to share a much greater tax burden than they had been used to.
In the 1980s and 1990s, powerful business interests moved to support pressure groups and political parties that were committed to dismantling much of the welfare state. These forays into agenda setting have been considerably successful. Consequently, both socialism and reform liberalism have recently been upstaged by both neo-conservatism, and neo-liberalism. Neo-liberals advocate smaller government and a return to many of the original principles of liberalism with special emphasis on relying on market activity and corporate decision-making. Neo-conservatism shares much of the economic emphasis on marketizing and privatizing with neo-liberals, but neo-conservatives also emphasize what they feel is a need to recapture "traditional values", bring religion back into public life and focus on public order and discipline.
In two contemporary studies of Canada's political economy, an investigative reporter and a political analyst have argued, based on a great deal of supporting evidence, that these departures from reform liberalism represent a rejection of some elements of mutual respect. [insert references] Neo-liberals do not yearn for a complete return to the eighteenth-century liberalism, which did not demand that the poor and women be shown the same respect as the wealthy men. However, they tend not to be as concerned about lapses in the universal application of mutual respect as reform liberals and socialists usually are. And although few neo-conservatives would reject the ideals of equality and respect, many are opposed to what they perceive as special treatment for members of groups that bear a disproportionate degree of discriminatory treatment.
The tension that neo-conservatives sometimes feel between a belief in mutual respect on the one hand, and the perception that there is too much government intervention to promote equality and respect on the other, erupted into a showdown in the Reform Party at the end of April, 1996. Reform Party MP Bob Ringma made remarks that it is acceptable for a business person to move an employee whose colour or sexual orientation offends a customer to "the back of the shop." Another Reform MP, Dave Chatters, supported this sentiment, and in the resulting furor Reform Party Leader Preston Manning suspended both MPs from his caucus. On May 6, Manning issued a statement defending equality and respect, and inviting those who rejected these values to leave the party. He said that the Reform Party affirms "equality and tolerance, but we have done so too weakly. ... It is because we have individual members who either do not agree with this principle or do not understand what it truly means when applied to real-life situations. ... The party can no longer be placed in the position of defending ... situations that undermine the important principles of equality and respect for individuals. More importantly, if there are members who at the end of the day simply do not agree with these principles, they should leave the party, the sooner the better." But MP Jan Brown, who had been suspended from the Reform Caucus for her public criticism of Ringma and Chatters, later quit the party because she felt uncomfortable with the number of people in the Party whom she perceived as having views similar to those of Ringma and Chatters and didn't quit. And Ringma and Chatters have been welcomed back into the caucus.
It makes sense that neo-conservatives would gravitate toward the Reform and Conservative parties, that socialists would tend to support the NDP, and that both reform liberals and neo-liberals would be more likely to join and vote for the Liberal party. But Canadian political parties are not pure reflections of particular political ideologies. Rather, we find a mixture of persons supporting these ideological perspectives in all parties (although there are likely very few socialists in the Reform and Conservative parties, and very few neo-conservatives in the NDP). Moreover, we know of no one who adheres to any of these ideologies in their pure form; people tend to choose bits and pieces of ideologies to fit their own world views, and we suspect that most politicians are driven more by pragmatism than ideology in many circumstances. The point is that the tension between these ideologies over the relative importance of mutual respect leads to differing interpretations of that principle, and therefore to different ethical judgments. But from the perspective of our analysis, those for whom mutual respect is of little importance are unlikely to make consistent ethical judgments that are compatible with the needs of a democracy.
The practice of democracy is constantly changing. Representative democracy with a universal franchise is a relatively recent invention in human history that coincided with the increasing importance of mutual respect as the ideologies related to liberalism evolved. But there is always a lag between ideals and practice, and this explains, in part, the fact that ethical practices do not always reflect the standard of mutual respect. In addition, like Maslow's hierarchy of human needs, there is a hierarchy of democratic needs. A nascent democracy has to be concerned first with the development of representative institutions. Once these are functioning tolerably well, more heed can be paid to human rights. And after human rights safeguards are in place, then more attention can be devoted to ethics in government. It has only been since the enactment of the Charter that the creative energy of Canadian democracy has begun to focus on ethics issues, and so naturally there is a lot of work to do. Once the rose was off the bloom of Canadians' love affair with the Charter of Rights and Freedoms, the Charter was criticized for purporting to guarantee rights without mentioning the responsibilities connected with those rights. Democratic ethics is about the responsibility side of democracy.
There are five principles of democracy that follow from mutual respect: social equality, deference to the majority, minority rights, freedom and integrity. A familiarity with these principles is required to provide a foundation for judging ethical behaviour in the public sphere, and for resolving ethical dilemmas in a democratic context.
There is no doubt about the importance of social equality to Canada's political culture today. Even though beliefs do not always translate into actions, and there are frequent media stories about racism in police practices or sexism in the workplace, the public's belief in social equality is probably at an all-time high.
The support for social equality can be traced in part to early liberalism, which advocated free and equal access to the marketplace by entrepreneurs, regardless of their social class background. Although the early liberals felt that social class did not constitute a legitimate reason for limiting equality, they did not question the unequal position of women or of those without property. But the general praise of equality which accompanied the campaign for commercial equality encouraged the lower classes to press for a broader kind equality. As Macpherson shows, the working class and women demanded equality in the right to vote, and more equality in social and economic decision-making than capitalism provided. Ultimately, a more general application of the principle of equality transformed liberal societies into liberal democracies.
The equality principle in western political thought has been interpreted in a variety of different ways. The theories of equality can be divided roughly into two categories: formal equality, and social equality. Formal equality is the narrowest approach, and has two aspects. It suggests that those in similar situations should all be treated in the same way. For example, in 1973 the Supreme Court's decision in Lavell implied that as long as all Indian women in Canada are treated equally by the law, then the requirement of equality under the Canadian Bill of Rights is satisfied, even if Indian men receive more favourable treatment. (Supreme Court of Canada, 1973) The second aspect of formal equality is an emphasis placed on removing legal or institutional barriers to choice, but not providing the means to make choice a real possibility. Formal political equality means everyone has an equal right to vote and an equal right to stand for election. It does not mean that everyone has equal access to and influence on parliamentarians between elections. And unless one has the time, experience and access to material resources -- money -- the chances of participating meaningfully as a candidate for election are slim. Formal legal equality and its limitations are described when we say that in a society which prohibits religious, racial or sexual discrimination, everyone has a right to register at a first class hotel. But of course the right does not mean much to those who cannot afford to stay at hotels. Much like the universal right to spend the night under a bridge, only some will avail themselves of the opportunity.
Theories of social equality begin with the assumption that all human beings deserve to be treated respectfully as equals, and the real-life situations of disadvantaged groups need to be considered to ensure that equality is not just a hollow promise. As Polyviou shows, there are many variations of this theory, ranging from those which hold that only slight adjustments to the rules of formal equality are needed to ensure equality of opportunity, through to those that advocate affirmative action programs to encourage groups that have been the victims of unfair discrimination.
The Supreme Court's decision in Lavell was vehemently attacked in the law journals for its narrow approach to equality, and after the Charter of Rights came into effect the Court rejected formal equality and adopted social equality as a means of interpreting the Charter. (Greene, 165 ff.) The Supreme Court's preference for social equality over formal equality is probably a reflection of the views of many contemporary Canadians. A survey of Canadians toward civil liberties which was conducted by Peter Russell and others in the late 1980s found that 72% of Canadians disagreed with the statement, "Some people are better than others," and 73% disagreed with the proposition that "all races are certainly not equal." There is no doubt that there is much greater support for social equality in Canada today than there was several decades ago.
This greater concern with equality may be in part a response to the media coverage of the civil rights movement in the U.S., and recent movements in Canada which have advocated equality of treatment for women, visible minorities, the handicapped and the elderly. It may also reflect the emphasis which liberal ideology placed on a broader notion of equality beginning in the late 1800s, and which was furthered by the socialist movement in this century, as Marchak shows.
Consistent with this trend, the wording of the equality clause in the 1982 Charter of Rights and Freedoms is an attempt to broaden the scope of legally-enforceable equality provisions in Canada, in reaction to the more limited equality provisions in the 1960 Canadian Bill of Rights. In particular, s.15(1) of the Charter guarantees the "equal benefit of the law", which according to Bayefsky makes it one of the most far-reaching equality clauses of any modern bill of rights.
Although there is an increased demand for and acceptance of practices which promote greater social equality, there is certainly no general consensus about how far social equality should extend. The 1996 debate in the House of Commons over extending the protection of the Canadian Human Rights Act to homosexuals certainly testifies to this lack of consensus. Such issues as pay equity, compulsory retirement, whether juvenile sporting associations should be segregated according to gender, and whether discriminatory auto insurance rates are acceptable also exemplify the controversy about how social equality should be implemented. Another issue which could be included in this list concerns government contracts and appointments: should decisions be made impartially, i.e. based on equal opportunity modified by merit, or should supporters of the party in power should be given preference, and if so, in which situations? Although many of our governments in Canada are led by decision-makers who believe that economic efficiencies need to take priority over measures to lessen social inequalities, and that moves toward greater equality are "too costly" at the present time, overall the trend in public expectations and attitudes does seem to be toward acceptance of higher levels of social equality.
With regard to gender equality, from our perspective public officials have a proactive ethical responsibility to treat women and men with equal concern and respect. There are a number of obstacles that stand in the way of this ideal. There is the lingering legacy of earlier generations of men who considered themselves superior to women. This attitude has not only led to a tendency to pay men more for doing the same work as their women counterparts, but has led to unequal treatment in the political arena in a variety of other ways ranging from the near-absence of washrooms for women in many government buildings to a shortage of day care facilities for parents who enter public life. The failure of too many men to accept an equitable share of the responsibility for child care has had a profound effect on the career opportunities for women in public life -- both in elected and appointed positions. And male stereotypes of expected behaviour continue to dominate theories of political interaction, from international relations to domestic party politics. As Malszechi argues, men are more prone than women to thinking of politics as akin to a combative sport, and the effects of this orientation on political organizations has tended to discourage women from entering public life.
But the greater emphasis that the Canadian public has placed on social equality during the past few decades may explain why Canadians seem to be more concerned than ever before not only about gender-related breaches in political ethics, but a whole spectrum of issues. In the past, if ministers exercised discretionary decisions to reward their friends -- personal and political -- their relatives, and themselves, such practices were tolerated, if not applauded, as the inevitable consequences of the political process. Today, however, with less tolerance for the unequal distribution of benefits under the law, Canadians are less complaisant about such practices.
Deference to the majority
Mutual respect suggests that everyone in a particular community should have an equal opportunity to participate in community decision-making. In small communities, decisions by consensus after everyone has a chance to be heard make the most sense. The consensus approach has for centuries been an important part of the decision-making process in the democratic aboriginal communities in North America (Anthony Long et al.). In our experience, in most Canadian communities that are small enough to be governed by all their members, consensus decision-making occurs naturally -- for example in families, in parent associations in small schools, in academic departments, and in small churches, synagogues or mosques. But when disagreements cannot be resolved through discussion and compromise, then a majority vote is a fair, though not ideal way of settling the issue. It is fair because everyone in the community has an equal right to vote. It is not ideal because the interests of the losers in a vote sometimes end up being treated as inferior to those of the winners.
Most communities are too large for community decision-making about all issues, and the solution is to provide for intermittent elections to select community representatives for making community decisions as trustees. From an ethical perspective, both the elections and the subsequent decision-making process must demonstrate mutual respect.
Deference to the majority is not as simple as "majority rule." Every effort must be made to find a broad consensus. When a consensus is not possible, then from a practical perspective the issue is settled by a majority vote. But representatives must be selected fairly, and they need to be in a position to make fair decisions. Fairness means that all sides to an issue have a right to be heard, that the decision-makers are not in a position to benefit personally (they are not in a conflict of interest situation), that undue influence -- pressure contrary to democratic principles -- is not brought to bear on decision-makers, and that it is not acceptable to make decisions that violate the basic principles of democracy. This latter point means that in order to treat minorities in representative systems with equal respect, their "rights," or their basic entitlements in a democracy, must be protected.
Even when minorities are on the losing side of an issue, they still have the right to be treated with equal concern and respect. There is a tendency for majorities to forget about respect for minorities in their haste to achieve their goals, and so all democracies have developed mechanisms to remind us of our philosophic commitment to respect minorities. In Canada, these safeguards are to be found in the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights, the various provincial bills of rights, and the federal and provincial human rights acts. Minority rights are also reflected in parliamentary and legislative rules and conventions, for example providing major opposition parties with official status, research resources, and rules of debate which are intended to allow the opposition a full hearing.
Human rights legislation is not a catalogue of special entitlements, but rather an attempt to list the most important ways in which all members of society, and in particular minorities and the less advantaged, deserve to be treated with equal concern and respect. For example, the Charter of Rights highlights fundamental freedoms (freedom of religion, expression and assembly), the democratic rights to vote and run for office, legal rights such as right to counsel, to fundamental justice and to an independent and impartial judge, and the right to equality without discrimination. As well, the rights to use and to be educated in the English and French languages receive special treatment, there are some safeguards for aboriginal rights, and for the right to move within Canada for employment purposes.
The tradition of safeguarding minority rights is important to ethical politics because the principle of mutual respect implies that citizens in a democracy have a duty to ensure that minorities are treated with the same respect as majorities. The Charter of Rights confers a duty on all public officials -- elected and appointed -- to respect the rights listed in it. Failure to do so is not only a breach of the constitution, it also represents an ethical lapse.
One of the more interesting features of the Charter is Section 1, which guarantees the rights set out in the Charter "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The Supreme Court has decided that a law that violates a Charter right can survive only if the law has an important objective, if it sets out to achieve that objective rationally, if rights are limited as little as necessary to achieve that objective, and if the law overall does more good than harm. (Greene 1989, 55) Public officials have an ethical duty to undertake this kind of analysis whenever they are considering a policy that might interfere with a Charter right. Unfortunately, there is a temptation to avoid that ethical responsibility by trying to "Charter-proof" a law -- that is, to devise a plan to prevent a Charter challenge rather than to take minority rights seriously. (Greene, Chapter 8)
Mutual respect implies that individuals have the right to make their own decisions about how to conduct their lives. Limits should be placed on this freedom only to help attain the higher goal of mutual respect. Clearly, the plethora of federal, provincial and municipal laws and regulations, and the taxes we have to pay to support the programs authorized by these laws, place enormous restrictions on our freedom. These restrictions fall into three general categories: negative restrictions designed to prevent harm to others (for example, the Canadian Criminal Code, the provincial Highway Traffic Act, and municipal parking by-laws), positive restrictions designed to promote equality of opportunity (for example, medicare, social welfare entitlements, fair trade laws, education systems and libraries), and taxation systems to pay for these programs.
Decisions about to what extent it is necessary to limit freedom are difficult ones, and they always boil down to the question of how best to advance the ideal of mutual respect. Ronald Dworkin contends that in cases where claims to liberty and equality conflict freedom must yield to equality. A public official behaves ethically, when considering limits to freedoms, by seriously considering how mutual respect is best advanced. But if freedoms are limited for other reasons -- for example for administrative convenience, or to provide special benefits to some at the expense of others -- then freedom is limited in an unethical fashion.
Freedom of expression
One of the central freedoms enjoyed in a democracy is freedom of expression, which is a good in itself in that it promotes mutual respect. In addition, full public discussion of issues is essential for the machinery of democracy to work. According to John Stewart Mill, Jean-Jacques Rousseau and Carole Pateman, full public debates about important issues help citizens to understand each others' points of view and to enter into the kind of compromises necessary for democracy to function. Mill argues that only an open dialogue about contentious subjects, in which no points of view are suppressed, is the most likely to lead to reasoned, enlightened policy choices.
The right to freedom of expression only takes effect to the degree that Canadians permit and promote full and free public discussion of events and issues. Two major political cover-ups which have occurred recently -- the Somalia affair and the "bingogate" scandal -- are examples of the suppression of public discussion. In 1993, members of the Canadian Airborne Regiment murdered civilians whom they had captured while on a humanitarian mission in Somalia. Subsequently, according to testimony before a public inquiry into these events conducted by Mr. Justice Gilles Letourneau, senior officials in the Canadian Armed Forces and the Defence Department ordered the destruction of official documents which would have shed light on the circumstances surrounding the killings. (Globe and Mail, April 4, 1996)
The "bingogate" affair refers to a registered charity in B.C., the Nanaimo Commonwealth Holding Society, which raised money from bingos and other activities as far back as 1983, and then illegally channelled as much as $200,000 into the local and provincial NDP organizations. Disturbing as this fraud itself is, of even greater concern to B.C. voters was what appeared to be an attempt by NDP Premier Michael Harcourt and his cabinet in 1995 to cover up the facts of what had happened. (Globe and Mail, March 14 & October 14, 1995) Even more troubling was the fact that the bingogate coverup was not unique. According to B.C.'s Conflict-of-Interest Commissioner, Ted Hughes, in another instance the government tried to cover up the fact that they were contracting with a U.S. public relations firm by routing payments through a B.C. firm. (Globe and Mail, March XX, 1995) The alleged cover-ups led to Harcourt's resignation as Premier and his replacement by Glen Clark, who was able to distance himself from the incidents in time to win the 1996 B.C. election by a hair. But allegations of a cover-up continued to dog the Clark government. One of the planks in Clark's platform was that the NDP government had managed to balance the budget in spite of maintaining social spending. Shortly after the election, the finance minister admitted that in fact there was a deficit because the economy had not performed as anticipated, and so tax revenues were down. If this information had become available during the election campaign, then Clark had an ethical responsibility to disclose it, but he claims that he didn't realize the deficit situation until after the election.
Those who have intentionally tried to prevent relevant information from entering into public debates have failed to live up to their ethical responsibilities as citizens of a democracy. We realize, because of our own experience in politics and public administration, that it is human nature to try to cover up embarrassing incidents. These cover-ups often occur almost automatically, without any thought about the ethics of the situation and with little concern about consequences. This tendency can be combatted to the extent that public officials are able to reason through a personal ethical position. Because political ethics has been neglected by most political scientists up to now, there is, unfortunately, no great tradition of reasoning through these kinds of ethical dilemmas.
One of the safeguards of democratic government is the principle of openness or transparency. All information collected by governments should be open to the public -- both because of the potential uses of much of this information, and to prevent corruption -- except for information which for good reason should be kept private, such as individual health or financial records. During the 1980s and 1990s, the federal government and several provincial governments enacted freedom of information and privacy laws to further the complementary ethical principles of openness and privacy. In Alberta, the Ethics Commissioner is also the Freedom of Information and Privacy Commissioner.
But mutual respect as applied to freedom of expression implies more than simply getting all relevant facts about a public issue out into the open, and then carrying on a responsible public debate about those facts. The process of public debate itself needs to demonstrate a concern for mutual respect. The Supreme Court has found that Canadian anti-hate laws represent a reasonable limit to freedom of expression, in part because messages of hate violate the fundamental principle of equal concern and respect. The rules of debate in Parliament and Canadian legislatures are intended to promote an atmosphere of mutual respect. Unfortunately, this ideal has been buried in an avalanche of political self-interest.
In his 1994-95 Annual Report, Ontario's Integrity Commissioner, Gregory Evans, expressed his concern about the disregard for ethics which is sometimes seen in legislative debates, particularly during question period:
My previous experience as a judge conducting judicial business in a courtroom where a certain decorum is demanded and a sense of dignity prevails, did not prepare me for the raucous behaviour in the Legislature which through the medium of television invades private living rooms.
After viewing a particularly noisy and rebellious Question Period, I expressed my opinion to a former member of the [cabinet] that such conduct did not do much for the public image of the Legislature. ... His reply was that it was an opportunity to 'let off some steam' and to embarrass the government members. ... He stated it's just like a 'game'. I did not agree. ... Most observers would welcome some flashes of wit and humour, some overheated rhetoric, and verbal jousting, if they were not carried to the extent that it interfered with the business of the Assembly. ... Why provide a fertile field for the critics and the cynics?
On November 1 1995, Ian Greene testified before the Joint Committee of the Senate and House of Commons on a Code of Conduct. The committee was charged with recommending an appropriate code of ethics for MPs and Senators. Greene had the opportunity to witness a particularly stormy question period in the House of Commons just prior to the committee meeting. The following excerpt is taken from the official proceedings:
Mr. Greene: In a democracy such as our own, the concepts of justice, human rights and political ethics, and democracy itself, all focus on a single reference point: an unwavering respect for social equality and human dignity. In other words, a country cannot be truly democratic without respecting justice, human rights and political ethics. ... MPs, MLAs and Senators get into questionable ethical situations for two basic reasons. First, many elements of the political culture in their legislature become inculcated into them, regardless of party affiliation. I think that is the reason for the despicable display during Question Period in the House of Commons today. That sort of behaviour is totally unacceptable to Canadians....
The Joint Chairman (Senator Oliver): For purposes of the record and for people reading this transcript, do you want to say what you saw?
Mr. Greene: Yes, I do, very much so. ... I saw insults being hurled across the House, name-calling, and distortion of truth. This doesn't do anyone any good.
At this point, Conservative Senator David Angus -- who had been chair of the PC Canada Fund during the Mulroney years and among the last of Mulroney's patronage appointments to the Senate -- began to joke about question period. Clearly, he saw question period as little more than a harmless game. Greene's perspective, however, was that ethical standards in politics are based on mutual respect. If MPs and Senators cannot treat each other with respect during a debate, how can they hope to produce a meaningful code of conduct?
But other members of the committee were clearly disturbed by how raucous the question period had become. After the committee hearing, a Liberal MP who had been a teacher said she was deeply embarrassed about the example -- or lack of it -- that members were setting for visiting school classes. And a Reform Party MP was reminded of one of his original reasons for running for office: to clean up question period. The problem was, he said, without participating in the vitriolic exchanges in the House, the Reform party did not get much television coverage. And without television coverage, their popularity ratings plummeted. This brings us to the question of the media and ethics.
Freedom of expression and the media
In one of Canada's most famous judicial decisions, the media were described as "the breath of life for parliamentary institutions." (Chief Justice Lyman Duff in the Alberta Press Bill case, 1938) We rely on the media for the information required for informed public debate about important public issues. We expect political news coverage to be comprehensive, balanced, accurate and impartial.
Another side to the media's role in a democracy is investigative journalism. Large media outlets such as the CBC, CTV, The Globe and Mail, The Toronto Star, Southam and Maclean's have supported the work of some very able investigative journalists. Without the many hours which these reporters put in -- often without any result -- to following up stories on political corruption, there would be little to stop the politicians intent on abusing their power. And this book could never have been written.
The point is that without an ethical media, it is not possible to have ethical politics. Most media outlets have codes of ethics for their journalists which stress impartiality in presenting news events, and which prohibit conflicts of interest. Although many journalists take these codes seriously, they are often written in very general language and could be interpreted in widely different ways. As well, the media codes have yet to tackle some of the more difficult issues related to impartial reporting of the news.
For example, impartiality is sometimes simplistically assumed to consist of presenting two different perspectives -- often extreme -- about the same issue. More moderate and balanced positions are sometimes considered as not newsworthy. The emphasis on the entertainment value of a news story, and the pressure to compete with other media outlets for readership or viewership, can lead to subtle pressures to distort a matter. As well, some visible minorities claim that the news coverage of their community is biased either because there are not enough journalists from their community, or because a media outlet may be catering to the biases of the majority community. And other minority groups, such as gays, lesbians and labour, sometimes claim that the media refuses to cover events that are of concern to them.
Another problem is that the television news format, which most Canadians rely on for their understanding of public affairs, has severely limited the depth with which most issues can be treated. We were once contacted by a national television news program to provide background on one of the conflict of interest laws introduced into the House (but never passed) during the latter years of the Mulroney government. In the end, the correspondent handling the story concluded that the issues were too complex for the 45 seconds he had been allotted, and so he decided to treat the event as a story about the "posturing" of the Mulroney government.
It is this tendency of the media to comment incessantly on the "posturing" of politicians instead of analyzing the substance of public issues which is targeted by James Fallows, the Atlantic Monthly's Washington editor. He attributes the tendency of journalists to comment on political maneuvers and avoid analysis of issues to two factors: a lack of in-depth knowledge about public issues on the part of many of them, and falling into the habit of doing what the most prominent journalists do. The result is that important public issues are not covered in depth, and therefore informed public debate is becoming increasingly rare. And because of the impact of media coverage on political fortunes, politicians often feel forced to take a policy position that is likely to get good media coverage rather than one that might be more thoughtful, nuanced and fair.
Public and judicial policies, such as libel law, gag orders before and during trials, and laws that regulate election advertising can have either a positive or a negative effect on media ethics. Another potential threat to impartial news coverage is the concentration of media ownership. Even if the owners of newspaper chains such as Thompson and Southam exert no influence whatsoever over editorial policy or the impartiality of news coverage, the economies of scale that accompany a chain's method of operating surely have an impact on the dissemination of a wide range of points of view.
Rick Salutin, who held the Maclean-Hunter chair in ethics in communications at Ryerson University for two years, claims that to most journalists, media ethics consists of "niggling personal dilemmas about whether to use sources or photos. ... They eliminate the larger ethical context -- the social ethics involved -- that in their case includes questions about media ownership by a few individuals and corporations and the effect this has on the moral health of our polity. ... [Media ethics ought to be] about respect for people, not about playing "Gotcha!" and it's inevitably tied to the state of justice in your whole society."
Although the focus of this book is on ethical issues that impinge directly on politicians, it should not be forgotten that politicians and the media have a symbiotic relationship, and the ethical standards in one domain will always have a profound influence on the other. David Olive writes that in Washington, journalists "who condemn rampant influence-peddling ... accept undisclosed gifts and fat speaker's fees from groups seeking to influence pending legislation. Celebrity columnists and reporters hide behind anonymous sources of dubious credibility when imparting unverifiable 'truths.' ... Dialogue is fabricated when transcripts are not at hand, in order that high-ranking officials can be depicted as profane and ridiculous." (Globe and Mail, July 20 1996, A1) Any comprehensive attempt to raise ethical standards in politics is bound to fail unless there is a concurrent reform of ethical standards in the media.
Respect for freedom is clearly an essential ingredient of mutual respect, of which freedom of expression and freedom of the media are important elements. In a democracy, freedom needs to be exercised with ethical responsibilities in mind.
Integrity is honesty modified by concern and respect for our fellow human beings. As Stephen Carter puts it, "one cannot have integrity without being honest ... but one can certainly be honest and yet have little integrity." For example, a party could make a campaign promise that it would fight crime by doubling the sentences available under the Young Offenders Act and making them mandatory. If the party gets elected and follows through with its promise, we would consider it honest. But there are many studies that show that young offenders learn how to become better criminals in the places where they are incarcerated, and the longer they are jailed, the more effective they are as criminals when released. If party officials were aware of these studies and admitted their credibility, but ignored them in order to gain easy votes, then these officials would lack integrity.
Telling a lie is dishonest. But telling the whole truth at every possible instant in time does not necessarily mean acting with integrity. We all face situations where we must be the bearers of distressing news. But we can often choose the time and the circumstances for presenting the news so that we can maximize the respect we can show for the recipient. Carter mentions the case of a husband, on his death-bed, admitting to his wife that he had extra-marital sex. This admission might have made the husband feel the virtue of his honesty for a few minutes, but it would fill the rest of the wife's life with needless distress.
So integrity is actually a complex ideal, closely related to the political problem of "dirty hands." A dirty hands situation is one where a public official knowingly does something dishonest, but justifies this action as being in the public good. The problem of dirty hands is such a critical issue in politics that we have devoted Chapter 6 to it. Suffice it to say here that although it may sometimes be necessary during wars and other emergencies for public officials to act dishonestly in order to advance the public good, we can think of no examples in a peace-time democracy where dirty-handed actions could be justified as ethical. Public officials may try to rationalize their dishonesty for several reasons. First, there may be a lack of moral creativity about how to resolve a difficult situation with integrity. Second, public officials may learn to act according to the norms of the political culture they find themselves in, and the Canadian political culture often justifies dirty hands actions as necessary when, in fact, they are not. In other words, if everybody seems to do it, it's OK. Third integrity demands courage: dirty hands solutions are often easier, and sometimes less risky, than solutions that conform to integrity.
Not infrequently, a political party will make a number of election promises, and then break many or most of them once elected. The flip-flop of the federal Liberal party on abolishing the GST after the 1993 election is only the most recent example of this tendency. In some cases, such scenarios represent dirty hands problems: party loyalists feel so strongly that their party needs to get into power for the public good that they are willing to make irresponsible promises to win. But we think that in most cases, promises are made on the basis of an insufficient understanding of the issue, and it is not until after the election that party loyalists, provided with comprehensive information, realize that fulfilling a particular promise would be bad public policy. Certainly, political parties should be held accountable for breaking promises. But we feel that integrity is better served when a party admits it was wrong and breaks a promise, than when it proceeds with implementing a promise that it afterwards discovers would lead to unintended harmful results.
In early 1996, Sheila Copps resigned as Deputy Prime Minister and as the MP for Hamilton-Mountain because she had made a categorical promise to resign during the 1993 federal election campaign if the Liberal party did not abolish the GST. After 1993, the Liberal government had come to realize that in spite of problems with the GST, there was no better tax to produce the kinds of revenues the government needed to reduce the deficit. During the week before her resignation, Copps made light of her 1993 promise as simply being an example of her "big mouth." In the subsequent by-election, Copps was re-elected, but with a lower level of support than in 1993.
The Copps case illustrates the kinds of complex ethical issues often associated with an integrity question in politics. If Copps' 1993 promise was an example of dirty-handed politics, then we would have to assume that she made this promise to get votes, even though she knew that abolition of the tax was doubtful. On the other hand, as seems more likely, she may have believed sincerely that the Liberal Party would abolish the GST once in office. From this perspective, Copps acted with integrity by resigning, although making light of this promise during the week prior to her resignation was certainly not an act of integrity.
What are we to make of Copps' original promise to resign if the GST was not abolished? On the one hand, it could be argued that politicians who promise to resign if their main promises are not kept act with integrity -- after all a promise is a promise. On the other hand, it could also be put forth that Copps made a promise on the basis of insufficient information, and this was irresponsible and therefore not ethically sound: taxation policy is certainly one of the most complex of public policy fields, and Copps erred in treating it so simplisticly. In interviews after her by-election win in June 1996, Copps said as much.
The integrity of election promises is an important and difficult ethical problem. There are three approaches that might keep parties and candidates out of ethical hot water. First, political parties need better policy research units. Second, candidates should not promise to resign if they fail to fulfill certain promises unless the implications of those promises are thoroughly researched. Promising to do one's best to move in a particular direction is both more honest and more realistic. Third, the integrity of election promises should be addressed in a party's code of ethics, a topic we will return to in Chapter 7.
The five key principles of democracy stemming from mutual respect -- social equality, deference to the majority, minority rights, freedom and integrity -- imply three ethical duties on the part of public officials. First, they have a responsibility to act as impartially as possible when carrying out a program established by law. Second, they are acting as trustees for the entire citizenry, and therefore they have a fiduciary responsibility not to abuse that trust. Third, they have a duty to account for their activities and decisions.
For the purposes of this study, when we refer to impartiality or fairness we mean lack of bias in the decision-making process in a public organization. An impartial procedure is one where all parties to an issue have an opportunity to present their perspectives fully, and where their views are considered in a fashion that is as free from bias as possible. Impartiality is a corollary of the basic principle of mutual respect, and it is implied by each of the five principles of democracy. Clearly, social equality demands the impartial treatment of everyone; deference to the majority combined with minority rights suggests that laws should be administered impartially; freedom means that public officials cannot interfere with the private lives of citizens except when authorized by laws applied impartially; and integrity denotes that public officials need to make an honest effort to act impartially. The right of those charged with offences to impartial treatment is essentially what the legal rights sections of the Charter of Rights are about -- but Charter represents the "taking" side of democracy. On the responsibility side, citizens, and in particular those entrusted with public office, have a responsibility to treat others impartially or fairly.
In 1993, Ontario Provincial Court Judge Walter Hryciuk made rude remarks toward several women. A subsequent inquiry by Madame Justice Jean MacFarland recommended the judge's removal because Hryciuk's comments and behaviour made it impossible for him to be considered impartial toward women litigants or witnesses. Similarly, in 1996 an investigating committee of the Canadian Judicial Council recommended that Quebec Superior Court Judge Jean Bienvenue be removed because during a sentencing procedure, he remarked that women could "sink to depths to which even the vilest man could not," and that the Nazis killed Jews "in the gas chambers, without suffering." The Committee concluded that Bienvenue had failed to uphold the standards of impartiality expected of him.
Although impartiality is a duty often associated with judging, it also applies more broadly to public officials as a result of the principles of democracy, but in different ways. Clearly, politicians do not have a duty to be impartial when arguing on behalf of their party platforms (although they have a responsibility to argue honestly); however, cabinet ministers have a duty to act impartially when administering the law, and MPs have a duty to represent their constituency impartially, rather than to act with bias in promoting the interests of just a few select constituents. We will argue in Chapter 4 that in the Pearson Airport affair of 1993-96, members of both sides of the Senate violated the duty of impartiality because each produced a biased report which they tried to pass off as impartial.
Perhaps the greatest threat to the impartiality principle is patronage, the practice that some governments have of providing special favours to their partisan supporters when making appointments or concluding contracts. Patronage became rampant in the United Kingdom and Canada after the introduction of cabinet government two centuries ago, and concurrently in the United States after the War of Independence. It provided an opportunity for those who had been powerless for years to take advantage of the potential spoils of office, but at the expense of temporary political minorities and the principle of fairness. Patronage was routed out of most parts of the public services in these countries during the last two decades of the 19th century and the first two decades of the 20th century, although the habit is still dying a slow death in parts of Atlantic Canada. According to the Canadian Bar Association, patronage remains a factor in provincial judicial appointments in the three maritime provinces, and patronage was an important factor in federal judicial appointments at the trial court level during the Mulroney period.
At the upper levels of politics, patronage still plays an important role in all Canadian jurisdictions. One of the worst abuses concerns lucrative government advertising and public relations contracts, which often go to firms with the appropriate political connections. In addition, there are the thousands of "order-in-council" appointments to supposedly independent boards and commissions. According to cherished Canadian political tradition, party supporters often end up filling these positions regardless of their qualifications both at the federal and provincial levels.
Patronage is so ingrained in the culture of Canada's political parties that it will take extraordinarily strong political will, and careful planning, to eliminate it altogether. But patronage, with very few exceptions, should yield to the impartiality criterion. Patronage is simply a bad habit left over from the pre-democratic era.
Two legal principles closely associated with the duty of impartiality are the rule of law and the duty of fairness; we will consider these in Chapter 2 in conjunction with a consideration of giving effect to ethical norms.
Because public officials are always acting on behalf of the public, they are trustees of the public interest. Having a fiduciary relationship with the public does not mean a paternalistic relationship -- we know what's best for you and it's too bad if you don't understand our superior wisdom -- but rather a responsibility to act so as to protect and promote mutual respect and the principles of democracy derived from it.
The Saskatchewan MLAs who participated in the expense fund fraud abused the trust placed in them by the electorate. As Mr. Justice Isadore Grotsky said in September 1995 in a judgment about one of the former members, "A Legislative Assembly comprised of members committed to the principles of honesty and integrity is fundamental to a democratic society as Canadians understand that term." When public officials behave so as to undermine any of the fundamental principles of democracy, they abuse the standards of the trust relationship that is expected of them.
Accountability and Responsibility
The duty to be accountable means being able to demonstrate that the expectations of public office are being met. The most appropriate methods of accountability will vary from one situation to another, as Philip Stenning's book Accountability for Criminal Justice illustrates. For example, in a police force, line accountability up through a chain of command is quite effective. For judges, however, line accountability would violate judicial independence, and so accountability is focused on such mechanisms as procedures for appointment and promotion, the moral suasion of the chief judges, judicial councils, courts advisory committees, continuing education and annual reports.
Elected officials are accountable to their constituents at election time. And a crucial component of politicians' accountability is the requirement to provide the public with clear information, full disclosure, concerning what they have done or intend to do in office. They are also accountable to the courts and the governor general for acting constitutionally. In the parliamentary system the principles of "responsible government" provide a mechanism for continuous accountability. Responsible government is a "convention," or a tradition that has attained the status of being part of the "unwritten" constitution. (Canada's constitution, or fundamental rules of government, is composed of written parts like the Charter of Rights, judicial decisions about
constitutional interpretation, and conventions.) Responsible government has three aspects: ministerial responsibility, cabinet solidarity, and the rule that the cabinet can exercise power only so long as it maintains majority support in the legislature. The purpose of responsible government is to promote democratic accountability.
All three aspects of responsible government have ethical overtones. If a cabinet loses the support of the legislature in a vote of confidence and does not resign, it has behaved both unconstitutionally and unethically. It faces dismissal by the Governor General or Lieutenant Governor, as well as the likelihood of electoral defeat.
Ministerial responsibiltiy means that cabinet ministers must take public responsibility for explaining the actions of officials in their departments (especially during question period), and they must resign if a serious administrative error has occurred in their department that they could have and should have prevented. Because the focus of accountability is on ministers, public servants can remain anonymous, meaning that they are not singled out for public blame. The purpose of public service anonymity is to encourage impartiality in public administration, as well as loyalty to the minister. If ministers avoid responsibility, as the federal solicitors general did in the 1970s and 1980s concerning the dirty tricks campaign of the RCMP, or if ministers blame public servants instead of shouldering responsibility themselves, they have failed to act with integrity.
Cabinet solidarity means that the cabinet is collectively responsible for policy decisions; a minister who disagrees with any policy position adopted by cabinet must resign, as did former Ontario cabinet minister Karen Haslam, who decided that she could not support the social contract policy of the Bob Rae cabinet. Cabinet solidarity is intended to ensure that ministers will thoroughly debate all cabinet policies before they are agreed upon, because they realize that their personal political futures are intimately connected with the cabinet's collective position. To act with integrity, ministers must either do their best to explain cabinet policies to the public, or resign.
The relation between the principles of democracy and the three general kinds of duties they confer on public officials is shown in Figure 1. Figure 1 also includes the two "intermediate principles" considered in Chapter 2: the rule of law and the duty of fairness.
Figure 1: Principles of Democracy
MUTUAL RESPECT | _______________________________|_________________________
| | | | |
Social Deference to Minority | |
Equality the Majority Rights Freedom Integrity
|__________________|__________________ |_________ |_________|
| | |
Impartiality Fiduciary Accountability
| Trust |
Duty of Fairness The Rule of Law
To some readers, our suggested theoretical approach to ethical politics may seem so straight-forward as to be self-evident. But this likely makes sense only to readers for whom the principle of mutual respect is important. Not everyone is so sanguine about this principle.
Whenever the subject of ethics in public life arises, certain arguments inevitably come up. The one we hear most frequently goes something like this: 'Most politicians are corrupt or, more sympathetically, are forced by the system to act in corrupt ways even if they begin with honest intentions.' This view, which derives from modern cynicism, suggests that power by its nature corrupts those in public life, and it provides a rationale for dirty-handed politics. (Thompson 1993)
From our perspective, this view is insupportable because when a good ethical standards are in place, there is evidence that the great majority of elected officials in Canada behave ethically. The British Columbia ethics commissioner, Ted Hughes, remarked in our conflict of interest workshop that "My experience with the 75 current members of the B.C. Legislature -- and of course I know them all because I have met with them and will be meeting with them all individually again soon -- my own assessment is that today we don't have a rogue amongst them. If that's so, I think that augers well for the future because I'm satisfied that they all want to do the right thing and they've now got, with [the B.C. ethics] legislation, the assistance to make that possible." The major problem up to now is that standards for ethical behaviour have either been non-existent or unclear, and there has not been enough use made of independent ethics advisors. Prior to the enactment of conflict of interest legislation in B.C. in 1990 and Hughes' appointment as ethics commissioner, there had been seven major conflict of interest scandals in five years.
Others might adopt the view that because there is no absolute proof, scientific or otherwise, that mutual respect is better than any other basic value, then politics is simply a matter of one person's wits against another's. (This outlook is supported by some of the more radical theories of skepticism, and by the contemporary post-modernism.) It is true that both in science and philosophy, there are no absolute proofs of anything including our own existence; we simply make the most careful judgments possible given the best evidence available. Our own judgment is that there is overwhelming evidence that democratic government based on mutual respect is and is likely to be more satisfactory than any other form of government.
John Rawls has argued that if we could imagine a group of reasonable persons suddenly cut off from the rest of the world, such persons would invent a government based on mutual respect because this principle would result in all of the individuals involved being better off than in any other imaginable system where equality, liberty and justice are valued. Another way of defending the primacy of the principle of mutual respect can be called the 'individual rights' approach. From this perspective, individual rights are treated as "natural" in the sense that persons have certain entitlements in virtue of their humanity that are independent of any political agreements or historical arrangements. Rights such as the right to be treated as an equal, the right to have one's autonomy respected and the right to develop one's uniquely human attributes in association with others are fundamental to any moral order. Ronald Dworkin is a modern legal theorist who is associated with a rights-based liberalism.
For those who find empirical evidence more convincing than theory, since 1989 the United Nations had rated all countries in the world according to a "human development index," which takes into account indicators of quality of life such as health, education and income. The democracies that value the importance of mutual respect are consistently at the top of the index (Canada has been ranked first four times out of seven), while the corrupt dictatorships tend to end up near the bottom. (Globe and Mail, July 17 1996, A10)
From our perspective, very few of those who engage in what we consider to be unethical behaviour in the Canadian politics do so for reasons of philosophy. They are opportunists who see a chance for personal gain, or an occasion to help their political friends or their family, and they simply take advantage of the situation without thinking about it very much. Sometimes they simply fall into what they consider to be the normal game of politics, and at other times the temptation for personal enrichment is just too overpowering. George Hees, a Member of Parliament for 37 years, former President of the Progressive Conservative Party, head of the Montreal Stock Exchange and a cabinet minister in both the Diefenbaker and Mulroney governments, admitted this to a reporter:
You ask any member why they're here and they'll tell you it's to serve the people. That's bull! ... They're here because of why we're all here. Because we're arrogant and full of ourselves, vain and ambitious. ... I'll at least admit it." (Toronto Star, June 15 1996)
What is problematic and disconcerting about opportunists is that they very often believe that what they do is OK because that is what competitive politics is all about: ego gratification, the reach for personal advantage and the dispensing of favours. From this perspective undue influence and conflicts of interest are pseudo problems. Everyone is entitled to as much influence and advantage as he or she can muster. Ayn Rand's ideology of "objectivism," which glorifies self-centeredness well beyond the limits of classical liberalism and neo-conservatism, is an attempt to provide a philosophical rational for opportunism.
Opportunism and egoism simply don't work because in a world filled with egoists and opportunists, eventually everyone is victimized by someone else. Great works of philosophy from Plato to Locke to Rawls have demonstrated that such a world would not be a pleasant place to live in except possibly for a few, but even these few would have difficulty sleeping at night because of the fear that their turn as a victim was coming. Like juvenile gang members, most opportunists just haven't thought very much about consequences.
A note about sex. A great many stories about political corruption have involved sex -- although more-so, it seems, outside of Canada rather than inside. But Canadians, polite and proper as we think they are, have also had their share of sex-and-politics scandals. For example, Prime Minister John Diefenbaker's associate defence minister, Pierre Sévigny, was caught consorting with a prostitute who turned out to be a minor spy. Francis Fox had to resign from the Trudeau cabinet because he forged a signature on an official document required by a girl friend who wanted an abortion. And Brian Mulroney's defence minister, Robert Coates, was forced to resign when it was revealed that he had not only attended at a strip club in West Germany while on government business, but might have given away some defence department secrets to a stripper.
Our view is that politics-and-sex issues must be judged from the perspective of mutual respect rather than from a position of prevailing social standards or taboos about sex. For example, Quebec's Premier Duplessis was known to provide public office favours to the family of one of his mistresses. From a political perspective, the issue is whether it is acceptable to provide special public office favours to friends. Duplessis' extra-marital sex is a personal rather than a political matter, although on a personal ethical basis it would have been enlightening to know whether Duplessis treated his wife with fairness and respect during this episode.
Making ethical judgments
When a public official is faced with an ethical dilemma, that is a decision about whether a particular course of action is acceptable in a democratic context, he or she should first consider whether it is a situation covered by the law. The law is a reflection of the public will, and should be considered binding in nearly every case.
There are two exceptions. The first is in a case where a law might violate the Charter of Rights or another part of the constitution, and in such a case the advice of the department's legal counsel should be sought. The second is in a situation where the public official feels strongly that the law itself violates a higher moral principle. These circumstances are often exceedingly complex, as Kernaghan and Langford demonstrate, and public officials should be very cautious about substituting their own judgment for that of the legislature. However, situations do occasionally occur where there is a legitimate conflict between a public official's ethical principles and a law. Fortunately, many government agencies now have ethics counsellors who can advise in such a situation. For example, a police officer opposed to abortion may object to an assignment to protect an abortion clinic. In that case, an ethics counsellor may be able to support the officer's request for a re-assignment. Elected members very seldom face such dilemmas because they are more concerned with law-making than law implementation.
Cabinet ministers, however, might sometimes have ethical qualms about the laws they are supposed to administer, and when they do they have an ethical duty to raise the issue with their cabinet colleagues. For example, in 1972 ministers in the newly-elected Lougheed government in Alberta realized that there was a fundamental conflict between the human rights legislation that the government had recently passed, and the Communal Property Act of the previous Social Credit government that restricted land purchases by Hutterites. (The Hutterites are a communal religious sect that was not very popular among some rural Albertans, and the Social Credit government had enacted the restrictive legislation to appease these interests.) Faced with this conflict between the law and a higher ethical principle, the Lougheed government quickly moved to suspended the operation of the discriminatory legislation and then to repeal it.
The most common ethical dilemmas which elected officials face, however, are in situations where the law is silent. For example, until the 1980s and 1990s, Canadian law was almost entirely mute regarding how elected officials should deal with conflicts of interest or potential undue influence from lobbyists. There are still big gaps in the federal legislation concerning conflicts of interests and in provincial legislation concerning lobbyists. There are also weaknesses in party contribution laws at all levels, and it is difficult to enforce integrity through the law alone. In cases that fall into these legal lacunae, public officials will need to go through a process of ethical reasoning if they seek an ethical solution that satisfies them.
On the surface, reasoning out an ethical dilemma is quite simple. You take the situation in question, and apply to it the principle of mutual respect and each of the five principles of democracy that follow from it. For example, we know someone who contested the leadership of a provincial political party during the 1970s. He withdrew from the race prior to the convention -- even when all indications were that he would win -- because he objected to the conditions set by those funding his bid. We do not know the details of these conditions, but for the purposes of this example let us speculate that the prominent political family that funded the leadership bid expected the candidate, if he became premier, to appoint some members of the family and their friends to patronage positions, and to arrange for some hefty provincial advertising contracts to be awarded to family businesses. An ethical reasoning process about whether to agree to these terms might run as follows:
•The deal does not result in equal concern and respect, but rather special consideration to the funders.
•The deal violates the principle of social equality because it would result in increased wealth and privilege for a family already considerably privileged.
•The family is not seeking the welfare of the majority, but its own special interests, and it certainly does not form part of a disadvantaged minority.
•The principle of freedom in this instance does not seem to be relevant to the decision.
•It would be difficult for me to act with integrity were I to become Premier and reward my funders as anticipated because I would not be able to announce the real reason behind the patronage appointments or the contracts.
•For all these reasons, it would not be ethical to accept funding for my leadership bid with these particular conditions attached, and so unless other funding comes along with no strings attached, I must withdraw from the leadership race.
In this case, the reasoning process led to a clear solution. But there are other situations where an ethical decision would be far more difficult. What if, in the above example, the wealthy family did not demand favours for itself, but rather a commitment to cut taxes and to support bilingualism? The reasoning process would be the same, but the result might be different depending on the candidate's evaluation of the impact of each relevant principle.
Let us imagine that a federal MP is deciding whether to support in a free vote special legislation to enable the construction of a toxic waste disposal plant in an adjacent constituency. The majority in the adjacent riding support the plan because of the economic benefits it will bring to the region, but a substantial minority -- those living in close proximity to the proposed construction site -- oppose the idea even though scientific studies indicate that the risk to health, at least in the short run, would be minimal. Those in the MP's own riding do not have opinions as strong as those in the adjacent riding, but a slight majority favors the plan because toxic wastes now being stored in the riding could be eliminated. What the ethical policy choice would be is not all that clear. None of the principles of democracy provide clear guidance, and it may well boil down to deference to the majority versus minority rights.
In this case, reference to more elaborate theories of ethics might be helpful. The academic study of practical ethics has resulted in two main streams of thought: consequentialism and intentionalism. Consequentialist theorists such as utilitarianism stress results over process. Utilitarianism is a variant of liberalism which was popularized and given a philosophical defense a hundred and forty years ago by the English philosopher, John Stuart Mill. Utilitarianism is a goal-oriented approach to ethical propriety whose chief aim and rationale for moral behaviour is founded on the principle that individuals and institutions ought to be contributing to the greatest happiness for the greatest number. A utilitarian "holds that actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness." (Mill, 6) So the object of public policy is to increase the net benefits that are accruable by the greatest number of people.
Intentionalist theories consider that the individual worth of every human being is so important that commitments to beneficence and fair process are key to the duty of respecting each individual's moral autonomy. The will to do one's duty then takes priority over consideration of the results of one's actions or decisions. Both approaches are consistent with the principle of mutual respect, and in most day-to-day situations a consequentialist and an intentionalist would agree on what constitutes an ethical course of action in politics. There are some difficult and fortunately, relatively rare situations where they would disagree, as the case of the proposed toxic waste plant illustrates. A consequentialist MP would likely support the plant, thinking of the overall benefits to the community, while an intentionalist would probably oppose it because of placing a greater emphasis on the welfare of those living close to the plant. It should be stated here that where the two approaches conflict, our own preference is toward intentionalism.
We could make our example even more difficult by hypothesizing that the MP's sister-in-law had a financial stake in the proposed toxic waste plant. Would this relationship affect the MP's impartiality seriously enough to disqualify him from voting? (More details would be needed to answer that question properly.) Moreover, does the duty of fiduciary trust vested in the MP apply more strongly with regard to his own constituents, or does the trusteeship relationship also extend to other Canadians? The MP's answer to that question would depend on his own thinking about the nature of mutual respect. What is important from an ethics perspective is that the MP is satisfied that he has applied the relevant ethical principles to the best of his ability in deciding what to do. If the MP's party had a code of ethics, this might be helpful in resolving such dilemmas.
In the case studies mentioned in this book, we will utilize the kind of ethical analysis described above. In some cases, ethical judgments seem straight-forward to us and we do not hesitate to present our conclusions. In other cases, the ethical course of action is not so clear-cut, and we defer to the judgments of our readers.
A number of mechanisms have already been developed in Canada to promote ethics in politics. These ethics supports include conflict of interest legislation and codes of conduct, lobbyists registration legislation, party financing laws and ethics commissioners. Conflict of interest legislation and codes are reviewed in Chapter 2, and excerpts from legislation and codes in effect in British Columbia, Ontario and Ottawa are included in Appendix II. Because so much attention has been focused on conflicts of interest in politics during the past decade, Chapter 3 is devoted to case studies of some high-profile conflicts of interest. The federal lobbyist registration legislation and party financing laws are covered in Chapter 4, and ethics commissioners are the topic of Chapter 5. As we will show in Chapter 6, integrity, especially that which rejects dirty-handed politics, is hard to legislate. Therefore, additional ethics supports are needed to promote integrity. We explain in Chapter 7 why ethics audits might be useful in this respect, and why codes of ethics for political parties are needed.
All of the ethics safeguards in the world will not help a country where too few of its citizens possess a "democratic character." A democratic character is one which not only honours equal interpersonal respect, but is also community-minded, tolerant and moderate. To the extent that citizens feel that they are treated fairly, they have trust in democratic institutions even when they are on the losing side of a decision. Hidden agendas violate the ethical expectations in a democracy. Yet all of us are prone to letting our own personal agendas interfere with our public responsibilities. To the extent that we are able to control the "my agenda first" urge in our public duties, we have developed a sense of democratic character.
But as Robert Putnam has argued, the democratic character seems to be on the wane in all the western democracies. In Chapter 7, we analyse how this problem and ways of tacking it. In large measure, the survival of democracy depends not only on the health and welfare of the democratic character, but also on the quality and quantity of leadership. Leaders are not merely representatives and trustees; they have a responsibility as opinion leaders and as public philosophers.