Speaking truth to power? The search for bureaucratic independence in Canada

I Introduction

For government to be effective and to serve the public interest, politicians and bureaucrats must often work in tandem, hand in glove, especially in the development and implementation of public policy. At such times, the separation between the political and the bureaucratic functions is fluid and porous, and the executive branch of government is characterized by the interdependence of these political and bureaucratic spheres. At other times, a virtually impenetrable wall insulates the bureaucratic from the political sphere, as in the context of prosecutorial discretion in the criminal justice context. The questions across these various governmental settings are these: How independent should public servants be from the government of the day, and how can this independence be assured? This article seeks to address these questions about the nature and scope of bureaucratic independence, examine its sources in Canada's constitutional order, and explore its implications for public law and public administration.

In his thought-provoking study of Canadian bureaucracy, Donald Savoie takes as his point of departure the idea that the relationship between bureaucrats and politicians is not subject to constitutional rules and therefore has developed around mutually acceptable practices or, in his words, a 'bargain.'¹ While it is true, as Savoie observes, that the Canadian Constitution Acts of 1867 and 1982 contain virtually no references to the civil service, this overlooks a rich constitutional tradition in Canada of locating many of our most important constitutional principles (judicial independence, the primacy of the rule of law, etc.) largely outside the formal text of these acts. In this article, I argue that the civil service is subject to a dense network of constitutional provisions, conventions, and principles and that our democratic institutions and practices would be meaningfully enhanced if these rules, principles, and conventions were more fully elaborated. Civil servants are the guardians of a public trust underlying the exercise of all public authority.² Their ability to maintain the integrity of that trust and, when called upon, to 'speak truth to power' depends on a measure of independence from undue political influence. Neutrality, integrity, professionalism, and trust, on this view, are inextricably linked to the norm of bureaucratic independence. The consequence of reaffirming the critical role played by the civil service in discharging the public trust is not to erode or undermine parliamentary supremacy; rather, it is to recognize that the separation of powers doctrine, as it has developed in Canada (and elsewhere), has failed to come to terms with the complexities of the executive branch. As Terence Daintith and Alan Page have observed,

While the trinity of executive, legislative and judicial functions may be the most powerful rationalization of the specialization process that has yet been offered, it cannot by itself capture the overall significance of any given structure of government for constitutional values such as democracy and accountability ... We should therefore resist the easy assumption that the allocation of powers and functions within each of the organizational blocs identified by the separation of powers are less significant to the protection of constitutional values than are the relations between those blocs.³

In embarking on this inquiry into bureaucratic independence, the first question to address is, Independence from whom? Public servants work for the Crown. In most cases, civil servants take instruction from the government of the day. Indeed, some would suggest that any distinction between the Crown and the government of the day is itself a legal fiction.⁴ To what extent, and in what circumstances, does public servants' duty to the Crown to uphold the public interest permit, or even require, them to refuse instructions from the government of the day? What constitutional doctrines enable bureaucrats to remain protected from the undue interference of their ministers? What safeguards ensure that civil servants cannot use their positions to partisan ends? Is bureaucratic independence, to the...