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Speech in Senate Chamber: Inquiry—Proper Role of the Auditor General—Debate Adjourned

Proper Role of the Auditor General

Inquiry—Debate Adjourned

Hon. Anne C. Cools rose pursuant to notice of June 3, 2015:

That she will call the attention of the Senate to:

(a) the statutory officer, the Auditor General of Canada, and his powers and duties granted by the current Auditor General Act; and, to our 1878 statute, An Act to provide for the better Auditing of the Public Accounts, which Act created the new auditor general as an independent officer, absolutely and completely separate from government, to be beyond and outside government influence, favour, and disfavour; and,

(b) to the powers of the auditor general, by the Auditor General Act section 13.(4), by which section he is a commissioner under the Inquiries Act, Part I; and, to his powers to compel and obtain information that he needs for his audit, and to the fact that these powers have no application to senators; and, to section 13.(4) that states:

The Auditor General may examine any person on oath on any matter pertaining to any account subject to audit by him and for the purposes of any such examination the Auditor General may exercise all the powers of a commissioner under Part I of the Inquiries Act.

(c) to the February 16, 2011, 9 page paper, The Accountability of Agents of Parliament, and its accompanying 5-line letter, signed by seven office holders, who describe themselves as "agents of parliament," in preference to the term "officers of parliament," when in fact these office holders are neither; and,

(d) to the 1988 Senate National Finance Committee's Eighteenth Report on its consideration of the Main Estimates, and also on its study on the role of the auditor general pursuant to the then still new 1977 Auditor General Act; and, to this Report, which concluded that the auditor general's role is not to judge the merits of public policy; and,

(e) to Carleton University Professor Sharon Sutherland's article, The Office of the Auditor General of Canada: Watching the Watchdog, which examined the auditor general's value-for-money audit, which article is chapter 6 in the 1981 book, How Ottawa Spends Your Tax Dollars edited by Bruce Doern.

She said: Honourable senators, the Senate Government Leader's government motion, moved as government business here, made the Auditor General's Senate audit government business. Adopted in a government whipped vote, this motion became an order of the Senate. This government business set the auditor general to audit senators. But Canada's Auditor General has no business in the government's business, especially when that government's business is their forced audit of senators. This Auditor was the government's man in this audit. Unlike the Senate, the auditor general was not created by the Constitution Act 1867, but by a simple 1878 statute of this Parliament, An Act to provide for the better Auditing of the Public Accounts. This made the auditor general a statutory officer, meaning that his powers are solely those in the statute. This new officer was a parliamentary creature, in contrast to a Queen's creature, created by Her without statute. Most officers predate our 1867 Act. The receiver general, attorney general, the solicitor general, judges and copious others are all crown creatures, unlike the statutory auditor general.

Honourable senators, on April 4, 1878, in the House of Commons debate on this bill to better audit the public accounts, Charles Tupper, in his exchange with Finance Minister Cartwright, said, at page 1701 Commons Debates:

. . . you are professing to give the public the security of an independent Parliamentary officer.

Charles Tupper added, at page 1702:

. . . they ought not to lose sight of the fact that they were dealing with a somewhat new question. They were appointing a Parliamentary officer in contradistinction to an executive officer. The whole scope of this legislation was to give Parliament control in the contradistinction to the Government. . . ., so that the officer appointed as auditor might be independent of the Government of the day, so that he might act without being controlled, . . .

Members had wanted the House's control, not the government's control, of this new independent auditor general of the public accounts. They wished this auditor to be beyond government control. Edward Blake spoke, at page 1701:

He wished to secure a parliamentary officer, who should have hands with which to do his work, free, to some extent, from the control of the Government of the day.

These men intended that the auditor general be an officer, by Parliament's own statute, as distinct from a prerogative officer, solely of the Queen's royal powers. They thought that their house's "control of the public purse" would be best served by this. Our 1878 Act was drawn from the British 1866 Exchequer and Audit Departments Act.

Honourable senators, for decades, our Privy Council Office described the auditor general as a "parliamentary officer," as had Edward Blake. With the 1920 statutory creation of the Chief Electoral Officer, they also described him thus. En passant, the Chief Electoral Officer replaced the Clerk of the Crown in Chancery, who had charge of elections to the House of Commons. Later, with more statutory officers, the term "parliamentary officers" gave way to "officers of Parliament." This term is wrongly used for seven to twelve officers. The term "officers of Parliament" has no Parliament pedigree or usage. Our parliamentary books of authorities yield no use of the phrase "officers of Parliament." They use "officers of the houses," whom they list by the house to which they are appointed and attached, such as the Senate Clerk. Parliament is the Senate, the House of Commons and Queen. Other than Throne Speeches, Royal Assents, et cetera, Parliament never acts as a unity. Parliament has no officers. Its three independent parts, as separate entities, each jealously exercises its own powers, with its own officers, such as the Clerk of the House of Commons. The two houses' officers are separately appointed to and separately attached to each house by Governor General's Commissions.

If you take a look at the commissions of our Clerk of the Senate or even the Black Rod, you would see their attachment to the Senate.

The Governor General also has his own officers. Our Senate Clerk is styled the Clerk of the Senate and the Clerk of the Parliaments, not Clerk of Parliaments but Clerk of the Parliaments. When the Governor General and the two houses are in parliament assembled, the Senate Clerk is the Clerk to that parliament, so designated anciently. The House of Commons Clerk is the Under Clerk of the Parliaments. The king's words, "I shall summon a parliament," were famous. Headed by a monarch, a parliament is the assembly of the sovereign, and the three estates. Jowitt's Dictionary of English Law, Volume 2, defines "parliament," at page 1298, as:

. . . consisting of the sovereign, and the three estates of the realm, i.e., the lords spiritual and temporal called the House of Lords . . ., and the persons elected by the people called the House of Commons . . . .

Obviously, elected to the House of Commons by the people, in the principle of representation by population born of the electoral franchise and suffrage, granted by Her Majesty.

Honourable senators, seven statutory officers recently restyled themselves from "officers of parliament" to "agents of parliament." I note their February 16, 2011, five-line letter and its nine-page paper, "The Accountability of Agents of Parliament," addressed to some MPs and to Speaker Peter Milliken, who was the then Chair of the Advisory Panel on the Funding and Oversight of Officers of Parliament. The Senate was excluded. Not on letterhead, this letter was signed by seven officers, self-described as "agents of parliament." They were, Auditor General Sheila Fraser, the Chief Electoral Officer, and the five Commissioners of Lobbying, Information, Privacy, Official Languages, and Public Sector Integrity. Their letter read:

The Agents of Parliament have held recent meetings to discuss the ways that their accountability can be highlighted and enhanced. We are pleased to provide you with the attached paper which discusses the results of our discussions.

We would like to meet with you to discuss the paper and other perspectives that you may have about our accountability. We will contact your offices to arrange a time to meet to discuss these matters further.

Their paper said, at page 1, and note this carefully, colleagues:

We are using the term "Agents of Parliament" . . . . This is the term that is used by government. It has been suggested that the term "Officers of Parliament" may be confusing, as it is also used to describe other officers that serve Parliament, including the Sergeant at Arms, the Usher of the Black Rod, and the Parliamentary Librarian.

Interestingly, the Black Rod is the personal attendant of the Queen, who serves in the Senate.

These seven officers claim a power to style themselves as they wish, without any authority from parliament, though they claim to be parliament's agents. But the problem is that the Law of Agency does not apply to them. Nor are they officers of parliament, because parliament has no officers. The two houses and the Queen have officers.

Honourable senators, the Auditor General of Canada is no officer of parliament because there is no such animal. In 1988, our Senate Finance Committee studied the Auditor General's role and the 1977 Auditor General Act. Our committee heard the Auditor General, the Comptroller General of Canada, the Canadian Institute of Chartered Accountants and the Canadian Comprehensive Auditing Foundation. Our Eighteenth Report, said, at page 24:11 of the committee proceedings::

While this Act says nothing about the policy role of the Auditor General, there is a clear understanding that his office does not judge the merits of policy. Mr. Dye was categorical that auditing government policy is the responsibility and prerogative of Parliament only.

It also said, at page 24:8 of the committee proceedings:

The third general issue was the limits to the responsibilities of the Auditor General of Canada in value-for-money auditing. While the Auditor General Act, 1977 clearly gives him responsibility to report to House of Commons on value-for-money, and hopefully one day to all of Parliament, there is common agreement that this does not include a review of the merits of policy. But there is no common agreement as to where the setting of policy ends and the administration of it begins.

Colleagues, senators were concerned about the auditor's invasion of public policy. Our National Finance Committee agreed that the Auditor General could not and should not audit government policy.

Honourable senators, the Canadian Comprehensive Auditing Foundation was founded by Auditor General Macdonell and funded from his Auditor General budget. On retirement in 1980, he became its chairman, serving until his 1983 death.

This foundation testified at our committee, as did Carleton University Professor Sharon Sutherland. In Bruce Doern's 1981 book, How Ottawa Spends Your Tax Dollars, Professor Sutherland's Chapter 6 is titled "The Office of the Auditor General of Canada: Watching the Watchdog." She wrote, at page 220:

There is a certain lack of subtlety in the revolutionary value-for-money ranks of the Office which allows them to believe that they, alone, are fully independent of government and therefore know how to achieve objectivity. They tend too often to take their views of the world, which are as subjective and value-laden as those of any other mortals, for the "truth," and think their job is to make their value position stick throughout the walk of public life and government. . . .

This same world view sends the Office in two directions at once in its relationship with the new Foundation for Comprehensive Audit, created by Mr. Macdonell. On the one hand, the Office staff costs out every service and good provided to the new Foundation's headquarters. . . . On the other hand, the Office includes in its 1980-81 Estimates 110,000 dollars, and in its 1981-82 Estimates 290,000 dollars to fund the Foundation, . . .

Honourable senators, the control of the public purse took no note that public monies were spent on the Auditor General's brainchild foundation as though it were a public service. This new Macdonell entity showed this auditor's power to use public funds for his new, public-funded foundation. Clearly, the Auditor General had shed its 1878 concept as verifier of the public accounts and departmental spending as voted in the appropriation acts and laid out so carefully by vote in the schedules. These new comprehensive audits and their frolics in public policy grounds were easier than the boring, pedigree audit called the appropriation audit. This had been the gold standard by which each appropriation vote had its own number and its own account, all voted and adopted in the appropriation act's schedules. Each appropriation vote account was audit-examined to verify its appropriation purpose. Currently, audit functions have reached beyond certifying and verifying the public accounts. Audit has invaded politics. Lee Berthiaume writes about this shift in his June 13 Ottawa Citizen piece headed, "Shining the spotlight into darker corners of state." He wrote, at page A12:

Some have complained that with more power and public standing, some auditors general have become political players, even de facto opposition leaders. Critics argue this can result in an unelected official having significant influence on — or even at times replacing — the decision-making role of an elected government.

This writer points to the problem that needs serious study by this Senate.

Honourable senators, now to the Auditor General's powers to acquire information from his auditees. At first, senators were concerned rightly that by the Auditor General Act section 13(4), the Auditor General might coerce them to this end. This section says:

13(4) The Auditor General may examine any person on oath on any matter pertaining to any account subject to audit by him and for the purposes of any such examination the Auditor General may exercise all the powers of a commissioner under Part I of the Inquiries Act.

This section, like the whole act, does not apply to senators. Our Senate audit was wholly outside of this Auditor General Act. This auditor has no power to coerce or compel senators in audit exam. Further, this act's section 18(2), headed "Immunities," which shields Auditors General from lawsuits from auditees, also does not apply to senators. Senators who have been damaged or defamed or destroyed by the Auditor General may prosecute legal actions against him.

Honourable senators, the most unfair section of the Report of the Auditor General of Canada to the Senate of Canada was his Appendix A, "Files recommended for referral to other authorities." A police referral for criminalization is no part of a report or of a recommendation. It is a sinister judgment of senators absent due process. This report's appendix willfully tramples and condemns some splendid senators. I shall note one, Senator Sharon Carstairs, former Senate government leader and one of the great women of this country. Her ground-breaking work in palliative care and also her work for the world's detained parliamentarians are legend. That these senators were singled out unfairly for police investigation without being heard, without due process, and without natural justice, tells all we need to know. This report's finding 3, about Senator Carstairs, states, at page 43:

We found that the Senator spent extended periods of time in Ottawa. Accordingly, we determined that the Senator's primary residence was in Ottawa. We also found that, when the Senator travelled to Winnipeg, she regularly rented a vehicle at her own expense.

This statement is not even viable or credible. How can a finding be made before a senator has been heard in due process? I question the validity of these findings. No finding of fact is fair absent the affected senators' opportunity to defend and answer in due process. Further, this auditor's finding is not a fact. It is his own private opinion, on a question in which he has no say. He is not the judge of any senator's residency status. The Senate alone determines senators' primary residence and the status of residence. The Auditor General has no power to make such "determinations." Senator Carstairs' worthy and sturdy response is much like her.

The Hon. the Speaker pro tempore: Would you like five more minutes?

Senator Cools: Yes, I do.

Hon. Senators: Agreed.

Senator Cools: Senator Carstairs is one of Canada's great human beings, as I said before.

Under the auditor's heading, "The former Senator's comments," she wrote partly, at page 43:

The audit states that my primary residence was not Winnipeg. All my documentation would indicate otherwise. I owned a home there until June 1, 2011 and farmland property until 2012. I voted provincially and federally in Manitoba. I paid taxes provincially and federally in Manitoba. My health care card, my driver's licence, vehicle registration and my bank accounts were all in Manitoba. This complied with the recommendations of the Law Clerk of the Senate.

Colleagues, remember, we all went through that process and produce those documents as proof of primary residence.

Honourable senators, this dubious appendix was not fair or worthy of senators. This audit and this report, in my view, are questionable. I was saddened that this report became a tool of calumny against the character and reputation of many fine individuals who served here in this institution faithfully, and who performed and conducted themselves nobly in public service for years. I repeat, the auditors' role is not to acquit or condemn, not to advise or correct, but merely to verify and certify the accounts of Canada, of which the Senate accounts are no part.

Colleagues, in closing, I say the role of auditors general, and their damaging frolics in the public policy and public opinion spheres, demands a serious review, as does this Senate audit, which is totally forbidden by the Auditor General Act.

I thank colleagues for their attention.

(On motion of Senator Cools, for Senator McCoy, debate adjourned.)

The remainder of this day's Senate Debates are available here.