Minister has let bureaucrats take over Justice, critics charge

Elected members shoved aside by power-hungry lawyers, MPs say

Monday, July 16, 2001

Chris Cobb
The Ottawa Citizen

There is mounting anger at the federal Justice Department, which critics say is being allowed to undermine Canada's democratic process and exert secret, monopolistic control over new legislation.

Justice Minister Anne McLellan is also being targeted for allowing a "tail-wagging-the-dog" situation in her department.

"The control that elected MPs have over policymaking is being seriously compromised," said southern Ontario Liberal MP John Bryden.

Mr. Bryden's fellow Liberal backbench MP Roger Gallaway, a fierce critic of Ms. McLellan and her department, said Ms. McLellan's ineffective performance as minister is responsible.

"She has lost control," he said. "She's acting more like an employee of the Justice Department than its minister."

At the heart of the criticism are two separate, but controversial, issues: a secret review of the federal Access to Information Act and a series of just-completed, bureaucrat-controlled national consultations into custody and access to children. The consultations were effectively secret because any one participant was allowed to veto media presence.

Mr. Bryden, a long-time advocate of more open government, is so furious at the absence of public hearings into Access to Information that he has formed his own, unofficial, all-party parliamentary committee. The committee has no power, but will hold public hearings next month in an effort to embarrass the government into doing the same thing.

Access to Information allows Canadians to pay a nominal $5 and request government documents, including expense accounts and departmental audits.

The current government review of the act, being directed by Justice and Treasury Board, has been universally criticized for its secrecy -- criticism Ms. McLellan rejects.

Mr. Gallaway, who was co-chair of a joint Senate-Commons committee into custody and access, says the consultations completed last month were "an affront to Parliament" and a deliberate attempt by Justice Department bureaucracy to circumvent his committee's report,

For the Sake of the Children. The report recommended multiple changes to the Divorce Act, including replacement of the terms "custody and access" with a new concept called Shared Parenting.

"The real and ultimate problem is exemplified by these two examples," said Mr. Bryden.

"They are both sensitive issues, though I think access is even more sensitive than child custody and access because it affects the entire operation of government.

"When you have the bureaucracy taking charge and setting policy without the input of MPs," he added, "you have a serious problem. I wasn't elected just to rubber-stamp bills, but to be part of the policy-making process.

"The longer I'm in Ottawa, the more difficult it becomes for me to do my job."

What irks Mr. Bryden and other critics is what they see as the pervasive control Justice bureaucrats have over legislation and the commonly used "solicitor-client privilege" to keep details of that control secret.

Justice routinely blanks documents it releases under Access to Information, citing solicitor-client privilege as the reason.

"The Justice Department has a total monopoly over legislation in Canada," said Mr. Bryden. "It proposes policy, writes legislation and interprets legislation for all cabinet ministers.

The whole process is dominated by one single group of bureaucrats, and what makes it worse is that it is a badly abused, secret monopoly.

"Unless you have brave cabinet ministers, it won't change. Weak ministers will always defer to the Justice lawyers."

Queens University political science professor Al Roberts, an outspoken critic of the government's Access to Information Task Force, said the secrecy surrounding its work is about control.

"They want to maintain control over the process," he said.

"Regrettably, what they don't appreciate is that when you try to exercise too much control you tend to lose it completely.

"They have created a process that is insular and secretive and as a result, it has no legitimacy."

Duff Conacher, co-ordinator of the public interest group Democracy Watch, said anything government does in secret is designed to push a specific agenda and ignore the public interest.

"It's deeply ironic," he said, "that consultations on Access to Information are taking place in private, off-the-record meetings being held behind closed doors."

Some federal departments are more open to public input than others, he said, but there is no consistency across government.

"I'm not impressed by the Justice Department," he said. "Environment Canada, generally, but not always, has a respectful relationship with environmental groups.

The Department of Foreign Affairs does a serious, annual round table with human rights groups, but other ministers treat Canadians in a totally different way.

"Justice," added Mr. Conacher, "is one of those departments that is keeping the barricades up to meaningful citizen participation and public consultation.

"The government should not expect Canadians to trust government if government shows so clearly that it doesn't trust Canadians. It's a two-way street."


The Ottawa Citizen