PPAL 6120 Ethics, Privacy and Access to Information

PPAL 6120Ethics, Privacy and Access to Information March 3, 2009 Ian Greene

Introduction to Administrative Law, Ethics, Privacy and Access to Information • Schedule for tonight: • Brief Introductions • Course expectations • Electronic resources • Discussion about readings assigned for this evening

Course Expectations • Assignment on public sector ethics (15%) • Short paper on public sector ethics (25%) • Assignment on administrative law (15%) • Short paper on privacy and access to information (25%) • Seminar participation (10%) • Seminar presentations (10%: 2X5%) • Alternative mark breakdown • Avoid Plagiarism

Introductions • Name • How does your work (current or past) relate to ethics, privacy or access to information?

Democracy, ethics, administrative law, privacy and access to information • Democracy is government based on the principle of mutual respect, which implies: • Social equality • Deference to the majority • Minority rights • Freedom • Integrity • These principles imply ethical duties for public officials: impartiality, fiduciary trust, and accountability & responsibility. The 5 principles and 3 ethical duties are supported by the legal principles of the rule of law, and the doctrine of fairness. • Ethics principles in the public sector are derived from mutual respect • Administrative law helps to promote the 3 ethical duties, supported by the rule of law and the doctrine of fairness • Legislation and case law surrounding privacy and access to information are derivatives of the principle of mutual respect, especially the principles of equality, freedom & integrity, the ethical duties of fidiciary trust, and accountability and responsibility. The case law surrounding privacy and access to information provides examples of the application of the principles of administrative law.

Presentation: Chapter 1, Greene & Shugarman • Lisa Peacock • Discussion

Presentation: Chapter 1, Kernaghan and Langford • Heather McMartin • Discussion

Mullan Chapter 1 • What is administrative law? • Admin law is one aspect of public law (others: constitutional law and criminal law) • The principles by which courts supervise supervise the functioning of persons and bodies that derive their powers from statute or the Royal prerogative. These persons and bodies must respect the limits of their authority • Abuse of power is acting outside legal authority • Two concepts are central • Procedural fairness (including natural justice) • Jurisdiction (public persons and bodies must act within jurisdiction) • Courts (superior) have jurisdiction over administrative tribunals to ensure procedural fairness and intra vires

Boundaries of administrative law are fuzzy • Sometimes private organizations are regulated by administrative law – eg membership (even in religious organizations) • Contracting out to for-profit or nonprofit agencies • Dicey’s definition of the rule of law includes “the equality of all before the law including the subjection of administrative officials “to the ordinary law of the land administered by the ordinary law courts.”

The players, roles & limits • Government: • Formal head of government is the monarch, who has delegated authority to the governor-general (federal order) and lieutenant-governors (provincial orders) • By convention, most royal “prerogative” powers are exercised by the first minister and cabinet (executive) • Many of the powers of the executive are prescribed by statutes • The monarch and her representatives retain the “reserve power” – power to act against the advice of the first minister to protect the constitution, written and conventional • Conventions are enforced by the political process, not by the courts -Responsible government -cabinet responsible to the legislature -Ministerial accountability -Cabinet solidarity • Constitutional principles of the rule of law, and judicial independence, are enforced by the courts. • Public servants

Other players • Administrative tribunals • Regulatory agencies • Crown corporations • Bodies created by statute, such as universities and hospital board, professional organizations (eg. the Law Society of Upper Canada), Indian band councils, municipalities • Sometimes affects foreign bodies such as visitors to Canada, or foreign corporations doing business in Canada. (Federal laws have extraterritorial effect) • Those involved in gov’t procurement

Roles • How much discretion should a statute give a public servant? • Dicey: none • Jennings: in the age of social welfare, experts working for government require discretion • Mullan: “discretionary executive powers are at the heart and sole of modern legislation.” • Discretion involves choice, but according to the relevant laws and regulations, and limited by the constitution and procedural fairness/natural justice

Natural Justice & Fairness • Natural Justice • Nemo judex in sua causa (impartiality) • Audi alteram partem (hear both sides) • Functions of Admin. Agencies: • Legislative (eg. CRTC) • Administrative (no discretion) • Executive (discretion) • Judicial or quasi-jud. (determine rights and obligations)

Judicial review • Judicial review • Jurisdictional • Division of powers • Charter of rights • Limits in relevant statute and regulations • If outside jurisdiction, “ultra vires” • Abuse of power: public official acting without legal authority • Natural justice: applies to judicial or quasi-judicial tribunals • Doctrine of fairness: natural justice applied to all public decision-makers where relevant • Patently unreasonable decisions are ultra vires • Privative clauses • No appeal of the substantive issue to a court, but they can’t stop judicial review • Tribunal can’t hide behind privative clause if there is a const issue, or if it is claimed a decision is patently unreasonable

PPAL 6120 Ethics, Privacy and Access to Information