Canadian Public Administration publique du Canada

Transcription

june/juin 2014
volume 57
number⁄numro 2
original articles / a r t i c l e s o r i g i n a u x
M. Howlett/183
A. Migone
Making the invisible public service visible? Exploring
data on the supply of policy and management
consultancies in Canada
J. Newman/217
A. Perl
Partners in clime: Public-private partnerships and
British Columbia’s capacity to pursue climate policy
objectives
N.J. Mulé/234
M. Smith
C. Alcantara/256
J. Roy
D. Baker/275
Invisible populations: LGBTQ people and federal
health policy in Canada
Reforming election dates in Canada: Towards an
explanatory framework
The temptation of provincial criminal law
Digital dilemmas: Values, ethics and information
technology
research note / no t e d e r e c h e r c h e
K. Langhorn/318
327
Encouraging entrepreneurship with innovation
vouchers: Recent experience, lessons, and research
directions
book reviews / com p t e s r e n d u s
2014 | vol. 57 | no. 2
K. Kernaghan/295
Canadian Public Administration publique du Canada
Canadian Public Administration
Administration publique du Canada
june/juin 2014 | volume 57 | number⁄numro 2
Canadian Public
Administration
publique du Canada
Analyzing national, provincial, territorial, municipal, aboriginal
and international governance practice in a changing world
Analyse la pratique de la gouvernance nationale, provinciale, territoriale,
municipale, autochtone et internationale dans un monde en évolution
original articles / articles originaux
Policy and Management Consultancies: Federal Supply Data
Public-Private Partnerships and BC Climate Policy
LGBTQ People and Canadian Health Policy
Reforming Election Dates in Canada
The Temptation of Provincial Criminal Law
Values, Ethics and Information Technology
research note / note de recherche
Encouraging Entrepreneurship with Innovation Vouchers
book reviews / comptes rendus
Aid on Demand, Negotiating Land Claim Agreements,
Canadian Public Budgeting in the Age of Crises,
Constituency Influence in Parliament, Across the Aisle
Editorial Office / Bureau de rédaction
1075 rue Bay Street, Suite 401
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Tel/Tél.: (416) 924-8787; Fax/Téléc.: (416) 924-4992
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editor/rédacteur – Evert A. Lindquist, Professor and Director, School of Public Administration,
University of Victoria
associate editor/rédacteur associé – Denis Saint-Martin, Professeur, Université de Montréal
associate editor/rédactrice associée – Cynthia Whitaker, Vancouver, British Columbia
managing editor/directrice de la rédaction – Christy Paddick
CEO/directeur général – Robert Taylor
editorial board/comité de rédaction –
Frances Abele, Carleton University
Luc Bernier, ENAP
Sandford Borins, University of Toronto
Keith Brownsey, Mount Royal University
Fred Carden, International Develepment
Research Centre
Ian D. Clark, University of Toronto
Louis Côté, Observatoire de l’administration
publique, Québec
Katherine Fierlbeck, Dalhousie University
Toby Fyfe, University of Ottawa
Monica Gattinger, University of Ottawa
Andrew Graham, Queen’s University
Victor Y. Haines III, Université de Montréal
Joseph Kushner, Brock University
James A. McAllister, Ministry of Finance,
Ontario
Paul F. McKenna, Public Safety Innovation,
Inc., Nova Scotia
Janine O’Flynn, University of Melbourne
Glen Randall, McMaster University
Ken Rasmussen, University of Regina
Alasdair Roberts, Suffolk University Law
School
Lloyd Robertson, Ministry of Transportation,
Ontario
Jeffrey Roy, Dalhousie University
Tania Saba, Université de Montréal
David Siegel, Brock University
Paul ’t Hart, University of Utrecht
Annis May Timpson, University of
Edinburgh
Graham White, University of Toronto
Canadian Public Administration/Administration publique du Canada (ISSN 0008-4840 [print],
ISSN 1754-7121 [online]) is published quarterly on behalf of the Institute of Public Administration
of Canada by Wiley Subscription Services, Inc., a Wiley Company, 111 River St., Hoboken, NJ
07030-5774. Administration publique du Canada (ISSN 0008-4840 [imprimée], ISSN 1754-7121 [en
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We are grateful to the Social Sciences and Humanities Research Council
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ISSN 0008-4840 June/juin 2014
published quarterly
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par l’entremise du Programme d’aide aux publications (PAP), pour nos dépenses d’envoi postal.
June/juin 2014
Volume 57, Number / numéro 2
Original articles / Articles originaux
Making the invisible public service visible? Exploring data on the supply of policy and
management consultancies in Canada
M. Howlett/183
A. Migone
The data on external policy and management consultants in government suggest a pattern of
oligopsonic demand concentrated mostly in a handful of very heavy users and an oligopolistic
supply pattern where less than 5% of companies accounted for 80% of total contract values.
Can measures of accountability and transparency extend to the “invisible” public service of
contract consultants?
Les données sur les conseillers externes en politique et en gestion au gouvernement laissent
entendre qu’il existe un modèle de demande en situation d’oligopsone concentré principalement entre les mains d’une poignée de très grands utilisateurs, et un modèle d’offre oligopolistique où moins de 5 % des sociétés représentent 80 % de la valeur totale des contrats. Est-ce
que des mesures de responsabilité et de transparence peuvent s’étendre à la fonction publique
« invisible » des conseillers sous contrat?
Partners in clime: Public-private partnerships and British Columbia’s capacity to pursue climate policy objectives
J. Newman/217
A. Perl
This article investigates a major public-private partnership (P3) infrastructure project in British
Columbia—the Canada Line extension to Vancouver’s urban rail transit network. Did the P3
organization of the Canada Line partnership constrain the government’s capacity to pursue
policy objectives for climate action?
Cet article examine un important projet d’infrastructure de partenariats public-privé (P3) en
Colombie-Britannique – l’extension de la Canada Line jusqu’au réseau de transport ferroviaire
urbain de Vancouver. L’entente P3 de partenariat avec la Canada Line a-t-elle limité la capacité
du gouvernement à atteindre ses objectifs en matière de politique climatique?
Invisible populations: LGBTQ people and federal health policy in Canada
N.J. Mulé/234
M. Smith
Despite greater attention to diversity and gender mainstreaming in federal public policy, why
do LGBTQ health concerns continue to be marginalized? This article suggests several ways in
which a commitment to gender-based policy analysis could be expanded to address the diverse
health needs of LGBTQ Canadians.
Malgré une plus grande attention accordée à la diversité et à l’intégration de la problématique
des genres dans la politique publique fédérale, pourquoi les préoccupations des LGBTQ en
matière de santé continuent-elles à être marginalisées? Cet article propose plusieurs moyens
d’élargir l’engagement envers une analyse de politique fondée sur le genre, afin de tenir compte
des divers besoins de la population LGBTQ canadienne en matière de santé.
Reforming election dates in Canada: Towards an explanatory framework
C. Alcantara/256
J. Roy
Ten governments in Canada have passed fixed election date legislation. Did they do so to
address public concerns about the undemocratic nature of the election timing power? We
applied the theoretical insights of multiple streams theory. Our findings suggest the political
stream is crucial for explaining the timing of the legislation.
Dix gouvernements au Canada ont légiféré en faveur de la tenue d’élections à date fixe. L’ontils fait pour répondre aux inquiétudes du public au sujet de la nature antidémocratique de
l’autorité de choisir la date d’une élection? Nous avons appliqué les informations théoriques
d’une théorie à multiples axes. Nos conclusions laissent entendre que l’axe politique est crucial
pour expliquer le moment de l’adoption de la loi.
The temptation of provincial criminal law
D. Baker/275
The Federal Parliament has the exclusive authority to legislate “criminal law.” This authority
has not stopped the provinces from passing “quasi-criminal” laws. While provincial or local
laws may allow for more efficient law enforcement processes, do they do so at the expense of
the procedural guarantees associated with the criminal law proper?
Le Parlement fédéral a le pouvoir exclusif de légiférer la « loi criminelle ». Cette autorité n’a
pas empêché les provinces d’adopter des lois « quasi-criminelles ». Alors que les lois locales
ou provinciales peuvent permettre une application plus efficace de la loi, le font-elles aux
dépens des garanties procédurales associées au droit criminel à proprement parler?
Digital dilemmas: Values, ethics and information technology
K. Kernaghan/295
With developments in the use of information technology, what are the implications for public
sector values and ethics? Value conflicts and dilemmas arising from advances in technologies
argue for vigorous measures to alert public servants to the technologies’ impact.
Avec les avancées dans le recours à la technologie de l’information, quelles sont les implications
pour les valeurs et pour l’éthique dans le secteur public? Les conflits de valeurs et les dilemmes
découlant des progrès technologiques plaident en faveur de vigoureuses mesures pour mettre
les fonctionnaires en garde au sujet des répercussions de la technologie.
Research note / Note de recherche
Encouraging entrepreneurship with innovation vouchers: Recent experience, lessons,
and research directions
K. Langhorn/318
Innovation vouchers are usually given directly to small firms to subsidize the cost of business
or technical services obtained from external providers. This approach enables the company to
have more control over how their development activities are undertaken. International and
Canadian program design is fairly consistent. What are the opportunities for further refinement
and application?
Les coupons pour l’innovation sont habituellement donnés directement à de petites entreprises
pour subventionner les coûts d’affaires ou les services techniques des fournisseurs externes.
Cela permet à l’entreprise de mieux contrôler la manière dont elle entreprend ses activités de
développement. La conception des programmes canadiens et internationaux est assez cohérente.
Quelles sont les possibilités d’amélioration et d’application plus poussées?
Book reviews / Comptes rendus
Canadian Public Budgeting in the Age of Crises: Shifting Budgetary Domains and Temporal Budgeting,
by G. Bruce Doern, Allan M. Maslove, and
Michael J. Prince
Negotiating the Deal: Comprehensive Land Claims Agreements in Canada, by Christopher Alcantara
Aid on Demand: Delivering Cost-Effective Technical Assistance in Developing Countries, by Gordon Evans
Constituency Influence in Parliament: Countering the Centre, by Kelly Blidook; Across the Aisle:
Opposition in Canadian Politics, by David Smith
M. Joyce/327
J. Langford/330
J. Bourgault/333
I. Stewart/336
CANADIAN PUBLIC ADMINISTRATION is the refereed scholarly publication of the Institute of Public Administration of
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Michael Howlett
Andrea Migone
Making the invisible public
service visible? Exploring data
on the supply of policy and
management consultancies
in Canada
Abstract: The use of external policy and management consultants in government
has been receiving increasing attention in many countries, including Canada. We
explore new data on management consulting compiled from information released
since the creation of the Federal Accountability Act to address the supply side of
contracting. We find several large multi-year contracts have taken up a larger
percentage of contracting activity while the number of smaller contracts has
declined. The data suggest a pattern of oligopsonic demand concentrated mostly in
a handful of very heavy users and an increasingly oligopolistic supply pattern
where less than 5% of companies accounted for 80% of total contract values and
where repeat contracts are the norm. Measures of accountability and transparency
need to extend to the “invisible” public service of contract consultants.
Sommaire : Le recours par le gouvernement à des conseillers externes en politique
et en gestion fait l’objet d’une attention croissante de la part de nombreux pays,
y compris le Canada. Nous examinons de nouvelles données sur les services
consultatifs de gestion compilées à partir des renseignements divulgués depuis la
mise en œuvre de la Loi fédérale sur la responsabilité au Canada afin de traiter l’aspect
offre de la passation de contrats. Nous découvrons que plusieurs gros contrats
pluriannuels représentent un plus grand pourcentage de l’activité de passation de
contrats aux dépens du nombre de plus petits contrats qui a baissé. Les données
laissent entendre qu’il existe un modèle de demande en situation d’oligopsone
concentré principalement entre les mains d’une poignée de très grands utilisateurs
et un modèle d’offre de plus en plus oligopolistique où moins de 5 % des sociétés
représentent 80 % de la valeur totale des contrats et où les contrats renouvelés sont
la norme. Il faut étendre les mesures de responsabilité et de transparence à la
fonction publique « invisible » des conseillers sous contrat.
The field of government contracting has a very complex and broad scope
and constitutes what has been termed the “shadow,” “hidden” or “invisible”
Michael Howlett is Burnaby Mountain Chair, Department of Political Science, Simon Fraser
University, Burnaby, British Columbia and Yong Pung How Chair Professor, Lee Kuan Yew
School of Public Policy, National University of Singapore. Andrea Migone is Director of
Research and Outreach, Institute of Public Administration of Canada, Toronto.
CANADIAN PUBLIC ADMINISTRATION / ADMINISTRATION PUBLIQUE DU CANADA
VOLUME 57, NO. 2 (JUNE/JUIN 2014), PP. 183–216
© The Institute of Public Administration of Canada/L’Institut d’administration publique du Canada 2014
184
MICHAEL HOWLETT, ANDREA MIGONE
public services (Guttman and Willner 1976; Speers 2007; MacDonald 2011;
McKeown and Lindorff 2011). The subset of policy and management
consulting activities within this category of government expenditure is a
very active one and a very broad range of questions can be asked not only
about the costs involved in the use of consultants in these areas and the
capacity of consulting firms to provide contracted-for goods and services,
but also what effects these have on government policy-making processes,
their content and effectiveness (Howlett 2009; Howlett and Newman 2010).
In most existing studies, however, this discussion has been framed in
terms of answering questions about whether or not “value-for-money” is
being achieved in expenditures made on contracts in this area (Di Francesco
1999; Scott 2005). That is, what quality of advice is being offered compared
to internal sources and at what cost (Howlett and Migone 2013c). Policy and
management consulting, however, also brings to the forefront of inquiry
other, larger questions about the unbiased nature of consultant’s advice and
the extent to which such activities evade traditional mechanisms of civil
service recruitment, expenditure control and norms of democratic accountability in government (van Damme, Brans, and Fobé 2011; Raudla 2013;
Howlett and Migone 2013b). Unfortunately much less work exists in this
area (for notable exceptions see Saint-Martin 1998a; 1998b; 2005; 2006).
This article addresses these larger issues through a case study of
consulting contracting by the federal government of Canada. Answering
these questions, it is argued, ultimately helps us answer the most important
question of all, whether or not citizens should be concerned about whatever
trends exist in this little-known and underinvestigated area of government
spending. That is, is this just a case of “business as usual” in the policy,
management and administrative fields—albeit through different methods
from traditional public service expenditures—or does the increased use of
outside sources of advice and expertise constitute a “consultocracy” operating largely outside the bounds of traditional rules and means of accountability, oversight and responsibility (Howlett and Migone 2012)?
As the data presented here suggest, the answer in the case of the
federal government of Canada1 is a qualified “yes.” That is, trends at the
federal level towards the use of large contracts extended on a repeat
basis to a small group of favoured companies are and should be a
concern to both Canadian governments and citizens. These expenditures
are quite large and involve outside actors in policy and managerial
decision deliberations who are not only unelected but also unappointed.
They evade scrutiny at the polls but also by civil service commissions
and escape the rigours of public service recruitment processes. Their
advice may be biased or of questionable quality, and there is little, if any,
transparency allowing this advice to be judged. It is a slightly qualified
“yes,” however, because the use of large numbers of policy and
THE SUPPLY OF POLICY AND MANAGEMENT CONSULTANCIES
185
management consultants is not a government-wide concern, but rather is
focused on several departments that use these kinds of contracts much
more frequently than others.
The demand and supply of consulting
services in Canadian government
This article follows our September 2013 article published in Canadian Public
Administration, which examined the “demand” side of government contracting in the management and policy areas (Howlett and Migone 2013a).
In this article we re-trace some of this data on the demand side of the
contracting equation before examining currently available data to assess
questions of supply. As will be shown, the demand for contracting work in
this area among government departments has grown substantially in
recent years, although not at as high a rate as some have suggested.
Moreover, over the most recent five-year period, the actual amount of
contracting has decreased; although several departments do not display
this general trend including most notably those dealing with foreign and
aboriginal affairs.
This demand-side analysis, of course, begs the question of what is
actually being contracted and from whom, subjects which the supply side
analysis contained here investigates. As we will show, on the supply side,
contracts have tended to go to a few large firms for multi-year periods,
while the number of small contracts has decreased. Both trends showcase
the “permanent” nature of these “temporary” services both from the
demand side (Howlett and Migone 2013a) and on the part of contractors
providing these services.
Such data help answer the ultimate question—should Canadians care
about these trends—but in a different way than is usually posed by auditors
and others. That is, it is less the rapid growth in expenditures in these areas, which
is worrisome but rather their permanent and oligopolistic status. As MacDonald
(2011) and others have pointed out, the permanent nature of these “temporary” services reinforces the need for them to be fully budgeted and
accounted for in as fully transparent a fashion as more “visible” government
expenditures, something only the federal government of Canada has
attempted to do, and succeeded in doing only partially, in recent years.
In the next section, we provide a description of the data sources
available for this study and their relative strengths and limitations. Section
three then briefly deals with both the supply and demand for management
consulting services in the federal government. We first present general
trends for management consulting as a whole and then some reflections on
policy and management consulting themselves.
186
The available datasets for Canadian
federal contracting
The use of external consultants by governments has become an increasingly important focus of concern. This is true not just in Canada, but in
many countries where in recent years studies and parliamentary inquiries
into the subject have been undertaken at both the national and sub-national
levels (ANAO 2001; House of Commons Committee of Public Accounts
(UK) 2010; Howlett and Migone 2013b).
Areas of concern in internal studies in an age of increased spending on
outsourcing have included such subjects as the potential negative effects of
poor contract design on both government finances and program efficiency
(Amey 2012; Woon Kim and Brown 2012), contract management capacity
in government (Joaquin and Greitens 2012), and the nature of competition
within the scope of contracting (Girth et al 2012; Woon Kim and Brown
2012). Government concerns with this phenomena have hinged on two
broad questions: how to control costs and ensure value-for-money is
attained, and how to assess the effect that employing consultants has on
the efficiency and effectiveness of government activities.2
This dual focus applies both to the use of consultants generally throughout government but also more specifically in their use in policy and
management capacities. The private sector sometimes can be a cheaper and
more efficient agent for the delivery of services and goods than government employees. However, the questions of whether the use of contractors
should extend, and to what degree, to providing policy advice are contentious ones (Boston 1994).
In Canada, beyond a few early articles on policy and management
contracting from the 1960s and 1970s (see for example Deutsch 1973 and
Meredith and Martin 1970), interest in contracting-out policy and
management-related activity has grown among both the scholarly community and governments. This interest, however, has clashed repeatedly with
the limited usefulness of available data on the subject. Studies of the policy
and management consultant contracting situation have required authors to
mine relatively unspecified and undetailed public accounts dealing with
“professional services” in general for statistics on the cost and pervasiveness of policy and management consultants at both the federal and
provincial level (Bakvis 1997; Saint-Martin 1998a, 1998b; Perl and White
2002).3
Perl and White (2002: 52) in their seminal 2002 study, for example, found
that the “evidence for a growing role played by policy consultants at the
national government level is compelling in Canada.” They noted that
annual, government-wide, expenditure on “other professional services”
reported in the Public Accounts of Canada for fiscal years 1981-82 through
187
2000-01 increased from C$239 million to C$1.55 billion (a 647% increase)
“almost tripling Ottawa’s budgetary allocation to policy consulting” (Perl
and White 2002: 53). However, the authors also noted the aggregate nature
of the data they were forced to use, and the difficulties this created when
analyzing specific types of consulting. As noted previously, the Treasury
Board and Public Accounts data they used at the time combined together
all kinds of professional services many of which, for example, in the
information technology or geological services or environmental areas, had
little direct impact or influence on public policy decision-making.
Fortunately in recent years several changes took place in Canada which
have greatly improved the amount and quality of information available on
contracting. Changes in reporting practices linked to government efforts at
furthering cost efficiency and especially to contracting scandals and their
aftermath have affected positively the availability, reliability and accuracy
of contract data, at least at the federal level (MacDonald 2011).
The first step in this process was an internal bid on the part of lead
federal government agencies to rationalize and streamline the process of
government procuring.4 Between April 2008 and January 2009, Public
Works and Government Services Canada (PWGSC), the main contractor for
federal government contracts, consulted with industry actors within the
scope of the “Task and Solutions Based Professional Services” (TSBPS)
project to generate a more defined and uniform process of data collection
on outside goods and services contracts. This process helped develop a set
of shared rules controlling reporting across government agencies (Office of
Audit and Evaluations 2012).
The second step was access to more and better data about federal
government contract expenditures which was dramatically improved in
the aftermath of the 2004 scandal surrounding advertising contract kickbacks to the Quebec wing of the Liberal Party of Canada (Canada,
Commission of Inquiry into the Sponsorship Program and Advertising
Activities 2005; 2006). In response to this scandal, first, on March 23, 2004,
the federal government introduced rules of “proactive disclosure” according to which, beginning in October 2004 details on all contracts above
$10,000 would need to be published on government websites. This
increased the number of contracts reported in detail, lowering the old limit
of $100,000 used in the Public Accounts. A second tool created in the
aftermath of the scandal was the Federal Accountability Act, which came
into effect on December 12, 2006, and which has legislative, procedural and
institutional facets designed to increase the transparency and accountability of all government spending including contracting. The new Act, along
with a new framework for procurement accounting procedures and the
requirement for each agency to table an annual report dramatically
improved the availability and transparency of many contracting arrange-
188
ments. The act also introduced other important changes related to contracting, for example, the creation of the Office of the Procurement
Ombudsman, which was tasked with addressing perceived fairness issues
in the procurement area. The federal government also created a new
Management Accountability Framework that laid out the Treasury Board’s
expectations of management best practices across all areas of government
including contracting.
Thanks to these changes, the available datasets for the analysis of federal
government contracting in Canada now include three different and nonhomologous sources: (1) the MERX database (a database for public tendering of government contracts) which is used by the Public Service
Commission (PSC). This database is updated on a continuous basis but
only shows contracts over $25,000, but uses different categories than the
other two databases; (2) the Public Accounts; and (3) Proactive Disclosure.
The categories used in MERX are defined by Goods and Services
Identification Numbers (GSIN), which can be used to find some policy and
management-related accounts but not all. The relevant categories here are
R123AB (Organization Planning/Analysis), R123AD (Policy Analysis/
Evaluation), and R123AE (Policy Development/Research). The Public
Accounts of Canada, published every year by Public Works and Government Services Canada, which were used by Perl and White (2002) in their
study, provide a complete record of governmental spending on outsourced
contracts but offer the least detailed image of this spending as data is only
provided on individual contracts exceeding $100,000. The new Proactive
Disclosure data set details every contract above $10,000 along with
individual amendments to contracts in a keyword searchable on-line
format.
In both the Public Accounts and Proactive Disclosure datasets “policy”
consultants are listed as part of the 0491 Management Consulting category.5
This is not quite as disaggregated as one might wish as policy and
management consultants make up only a part of the latter category,
although it is a much larger part than they make up of the “Scientific and
Professional Services” category in the Public Accounts used by Perl and
White in their path-breaking 2002 study (Howlett and Migone 2013b).
The use of policy and management
consultants in Canada: Trends
and issues
Current data on the consulting industry as a whole (Table 1) shows the use
of consultants in a broad spectrum of policy and management activities in
Canada has become common in both business and government and
indicates that this activity has been growing overall at a rapid pace with
189
Table 1. Sales by type of client for the consulting services industry, Canada
2001
2002
2003
2004
2005
2.2%
2.7%
3.1%
2.8%
2.3%
2006
2007
2008
2009
2010
1.6%
2.5%
2.0%
2.3%
Percent
Individuals and
households
Governments and
public institutions
Businesses
Clients outside Canada
(exports)
Total
1.4%
17.1% 17.7% 19.5% 16.7% 16.0% 13.4% 15.7% 17.2% 17.8% 15.6%
70.4% 69.6% 69.6% 71.4% 73.7% 77.7% 74.7% 71.6% 73.1% 72.8%
10.4% 9.9% 7.8% 9.1% 8.0% 7.6% 8.0% 8.8% 7.1% 9.3%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
The smallest firms, in terms of revenues earned, are not included in the estimates. These firms
account for a relatively small portion of total industry revenues.
Note(s): The results in this table are for firms classified under the North American Industry
Classification System (NAICS) category 5416.
Source: Statistics Canada Bulletin 63-259-X; various years.
high rates of returns to participating firms. Statistics Canada figures show
spending for all management consulting (private sector, government,
and individuals) increased from $6.5 billion in 2001 to $8.7 billion in
2010 (an increase of 25.3%) and the operating profit margin went from
19.0% to 22.4% (Statistics Canada Various Years). Over 90% of business
done by Canadian management consulting firms is done with Canadian
clients.
However, public institutions account for less than 20% of the overall
clients of the industry, and the percentage of business that these companies
do with all levels of government declined from 17.1% of their total to 15.6%
over the same period (Statistics Canada, various years). The amounts spent
by government on management consulting also declined from 7.5% of all
federal expenditures in 2006–2007 to 4.9% in 2010–2011 (Public Accounts of
Canada, various years). This decline does not mean that the actual
amounts have dropped dramatically: rather expenditures per year have
remained relatively stable while overall expenditures have grown more
rapidly.
In practice, however, government units have used consultants in a much
broader manner than in the past. This is true both as far as ease of hiring
is concerned and as far as what roles consultants now cover (MacDonald
2011; Public Service Commission 2010). MacDonald (2011), for example,
utilized early results from the new federal databases to argue convincingly
that expansive trends in contracting were intensifying as federal departments initiated contracting-out measures in order to “cut expenditures in
an age of austerity” (MacDonald 2011: 5).
Unlike previous studies, the new, more precise data available after 2004
allowed MacDonald to distinguish between several different types of
smaller contracts and to extract specific kinds of consulting services from
190
Table 2. Top 10 federal government contract areas 2005-2010
Description
Other Professional Services
Architectural and Engineering Services
Computer Equipment
Management Consulting
IT
Business Services
Telephone and Voice Services
Software
Temporary Help
International Development Goods & Services
Total (April 2005 to June 2010)
$3,833,835,461
$3,629,932,477
$3,319,088,496
$2,422,039,296
$2,179,246,399
$1,329,298,953
$1,085,863,138
$988,382,443
$845,899,781
$697,115,212
Source: MacDonald 2011: 8.
more general “temporary help” categories. He found the cost of federal
personnel outsourcing of temporary help, IT consultants and management
consultants since 2005–2006 had ballooned by almost 80%, to nearly $5.5
billion. He also identified the ten top contract areas in a range of professional and other services (see Table 2). Several of these areas are not policy
related and therefore of less interest in our study, but “Management
Consulting” is one of the largest and does have large policy effects and
attributes (Perl and White 2002; Saint Martin 1998).
As Howlett and Migone (2013a) argued on the basis of a detailed
examination of federal departmental expenditure trends in this specific
area, a pattern has emerged where, generally, a small number of heavy
users interact frequently with a small number of large providers in a
symbiotic oligopoly-oligopsony relationship. Among government agencies,
Public Works and Government Services Canada, National Defence and
Canadian Forces, Human Resources and Skills Development, and Public
Safety and Emergency Preparedness accounted for half of all federal
personnel outsourcing. And contracting out dramatically overtook internal
goods and service provision in terms of relative increases in these areas in
recent years. Their payrolls, for example, increased by only 9% since
2005–06, while their personnel outsourcing costs rose by 100% (MacDonald
2011: 5).
In order to examine this pattern in more detail, data was collected by the
authors at the individual department and agency level on the amounts
spent year over year for the period between 2003–2004 and 2013–2014.
Because of the high level of aggregation in Public Accounts data, this
information was combined with information from the Proactive Disclosure
191
Table 3. Policy and management consulting total expenditures in the Government
of Canada
Fiscal Year
Proactive Disclosure
Policy and Management
Contract Amounts –
Distributed
Public Accounts Policy
and Management
Contract Amounts –
As voted in budgets
Public Accounts
Total Federal
Contract Budget
2006–2007
2007–2008
2008–2009
2009–2010
2010–2011
2011–2012
$261
$347
$414
$448
$429
$359
$555
$567
$586
$596
$525
$503
$7,477
$7,923
$9,041
$9,899
$10,334
$10,552
37.68%
–9.36%
41.13%
Change over
the period
Source: Proactive Disclosure (various websites); Public Accounts of Canada, various
years. Figures in millions.
Table 4. Management consulting expenses as a percentage of total contract spending
Fiscal Year
Percentage
2006/2007 2007/2008 2008/2009 2009/2010 2010/2011 2011/2012
7.43%
7.16%
6.48%
6.02%
5.09%
4.77%
Source: Public Accounts of Canada, various years.
database to provide an inventory of contracts in the 0491 category over the
period 2003–2013.6
Tables 3 and 4 detail changes in the total spending on the 0491
management consulting category and as a percentage of total federal
contract spending for 2005–2012.
The demand side oligopsony
On the demand side at the federal level, the data show that the top 16 users
accounted for over 80% of yearly expenditures in the management consulting category. As MacDonald (2011) suggested was also the general case,
a few historically dominant actors are key users of management consulting
services: Service Canada, Environment Canada, Human Resources and
Development Canada, DND, and Public Works and Government Services
Canada. Among them PWGSC accounted for about 30% of all policy and
management related contracts and HRSDC for approximately 15%. These
five departments accounted for as much as 75% of expenditures on policy
192
Figure 1. Management consulting spending by five major departmental users –
percentage of total
Source: Proactive Disclosure (various websites).
and management consultants in the entire federal government over this
period (Figure 1).
However, demand has neither been constant nor evenly distributed
across agencies, and various departments have followed different patterns
over time, and the overall sums expended have also varied greatly from
year to year.7 Management consulting as a percentage of total governmental expenses as reported in the Public Accounts of Canada, as noted
previously, has generally declined since the 2006–2007 fiscal year. As
Table 5 shows, however, there are some notable exceptions.
The supply side oligopoly
On the supply side, studies tackling the outsourcing process have also
found a pattern of increasing concentration in the supply chain with
a relatively small group of key suppliers capturing a large share of
government outsourcing (MacDonald 2011; Howlett and Migone 2013a;
2013c). MacDonald (2011) detailed the major suppliers of all outsourced
contracts (Table 6) at the federal level and found this area to be heavily
oligopolized as the “top 10 outsourcing companies received almost 40 cents
of every outsourced dollar from the federal government” (Macdonald
2011: 15).
This status, MacDonald noted (2011:15) was institutionalized because
the top companies are favoured by the nature of “standing offers” for
services from major department buyers, which are too complex for smaller
193
Table 5. Management consulting as a percentage of departmental spending – select units
Department
2006–2007
2007–2008
2008–2009
2009–2010
2010–2011
Percentage
Change
7.63%
2.72%
6.82%
6.23%
4.74%
7.19%
4.48%
7.49%
3.46%
8.56%
–54.62%
214.24%
20.62%
20.94%
15.92%
11.33%
8.51%
–58.75%
16.95%
7.84%
11.42%
13.71%
9.75%
–42.51%
4.87%
16.51%
8.26%
14.08%
5.15%
13.52%
7.67%
11.96%
8.36%
9.28%
71.71%
–43.78%
Agriculture And Agri-Food
Foreign Affairs And
International Trade
Human Resources And
Skills Development
Indian Affairs And
Northern Development
Parliament
Public Works And
Government Services
Source: Public Accounts of Canada; various years.
Table 6. Top 10 outsourcing companies ($millions)
Company Name
CGI Information Systems
Calian Ltd.
Resolve Corporation
IBM Canada
Altis Human Resources Inc.
Brainhunter Ottawa
Excel Human Resources
Coradix Technology
Consulting
Oracle Corporation Canada
Ajilon Canada
Total
FY2005
IT
Management
Temporary
Help
Departmental Focus
(% of outsourcing)
$549.5
$450.0
$270.4
$230.7
$120.6
$116.8
$111.4
$86.7
$531.3
$11.5
–
$202.3
$2.0
$96.2
$18.3
$68.9
$16.5
$427.8
$270.4
$27.9
$5.7
$13.5
$7.2
$11.5
$1.7
$10.7
–
$470.5
$112.8
$7.1
$85.9
$6.4
CRA (45.2%0
DND (95.5%)
HRSDC (100%)
PWGSC (45%0
Transport Canada (39.5%)
$85.0
$83.0
$84.7
$66.4
$200.2
$12.0
–
$4.6
PWGSC (88.9%)
Source: MacDonald 2011: 15.
actors to tackle, and which focus on specific core businesses in which these
companies specialize and which represents their main revenue source.
While informative of the general picture with respect to contractors,
MacDonald’s analysis does not answer other questions raised about the
supply side of the consulting equation, such as such as those surrounding
the number and type of companies offering services, their size, and the size
of contracts. Saint-Martin (2005; 2006) noted company size is relevant to the
nature of the contract system as is the size of the contracts and their
continuous (or discontinuous) nature. In particular, the size of the contracting units and the continuous use of specific companies to fill particular
areas of demand are both issues about which the Public Service of Canada
and similar agencies in other countries have been concerned given their
impact on traditional means of controlling and monitoring government
expenditures and ensuring probity and compliance with norms of democratic governance (Howlett and Migone 2014).
194
The new Proactive Disclosure dataset compiled for this study reveals
that contracting in this area has developed in a way which leads a few
individual companies to establish a strong relationship with specific
department purchasers in an oligopsony-oligopolistic relationship. That is,
a high level of concentration exists in the top echelon of government
demand for contracting with a few companies also dominating the supply
of consulting services to government. This happens either through multiple
repeat contracts or through the award of very large contracts. The data
show that some departments have very large percentages of repeat contractors (DND, Service Canada, PWGSC), and that among the top 21
departments for expenditure (those that billed over $15M), the average
percentage of repeat contracts was 66.5%—although it ranged between a
low of 26.3% for HRSDC (the second largest department by expenditure)
and a high of 95.8% for DND.
The concentration of contracts
An initial inventory of the Proactive Disclosure data in the 0491 category
yielded approximately 10,550 companies that had been awarded at least
one contract for a total of over $3 billion between 2003–2004 and 2013–
2014.8 The range of payments for these contracts went from a low of $6,300
to a high of $420.5 million. However, only 31 companies billed a total
above $10 million and only 65 billed above $5 million. Table 7 shows the
companies billing over $10 million during this period, while Table 8 and
Figure 2 presents aggregate data for the whole set.
As these data show, a handful of companies dominate the financial
landscape of policy and management consulting expenditures for the
federal administration.9 In particular, the top four companies billed over $1
billion or about one third of the total. The 31 companies that billed over $10
million accounted for over $1.5 billion, or 51% of total billings but were less
than 0.3% of the total number of contracting companies. The 293 companies that billed more than $1 million over the whole period accounted for
over $2.3 billion (75% of the total billed) but represented only 2.8% of the
companies that received a contract. Overall, less than 5% of all companies
account for over 80% of the money paid out in this category of contracts.
The size distribution of contracts
Not all of the companies that have billed large amounts have done so by
winning large numbers of contracts. The number of contracts awarded to
a company does have some connection to the amounts billed, but it is not
a strong indicator of a company’s capacity for accessing the top tier of
government contracting. The type of work performed and the capacity to
bid for department-wide contracts (as is the case for example with IT and
Technology contracts, but also for Human Resources to an extent) is a
195
Table 7. Select companies by amounts billed (2003/2004 to 2013/2014)
Company
Bell Canada
Resolve Corporation
Hewlett-Packard
Calian Ltd.
Quantum Management Services Ltd.
IBM Business Consulting Services
EDS Canada Inc.
Corporate Research Group (CRG)
Deloitte & Touche Consulting Group
Interis Consulting Inc.
Price Waterhouse Coopers
KPMG Consulting
CGI Information Systems &
Management Consultants Inc.
MapleSoft Consulting Inc.
IT/NET Consultants Inc.
Brainhunter (Ottawa) Inc.
Coradix Technology Consulting Ltd.
Veritaaq Technology House Inc.
DAMA Consulting Services Ltd.
Systematix IT Solutions Inc.
Goss Gilroy Inc.
QMR Staffing Solutions Inc.
DARE Human Resources Corporation
Valcom Consulting Group Inc.
Ajilon Consulting
Delta Partners (168446 Canada Inc.)
Excel Human Resources Inc.
R.A. Malatest and Associates Ltd
Artemp Personnel Services Inc.
ADGA Group Consultants Inc.
Fujitsu Consulting
Area of Operations
Company Amounts
Technology
Outsourced Business
Resources
Technology
Technology
Human Resources
Technology
Technology/ Business
Process
Project Management
Accounting
Project Management
Accounting
Accounting
Technology
$420,596,187.15
$270,659,325.04
Technology
Technology
Human Resources
Technology
Technology
Project Management
Technology
Project Management
Human Resources
Human Resources
Project Management
Technology
Project Management
Human Resources
Market Research,
Program evaluation
Human Resources
Technology
Technology
$19,144,230.55
$18,591,563.62
$17,748,172.47
$15,795,102.59
$14,141,690.92
$13,942,338.17
$13,057,437.43
$12,505,817.84
$12,403,236.79
$12,400,201.57
$12,257,517.63
$11,374,111.11
$11,368,789.58
$11,081,068.24
$11,074,695.50
$178,873,871.92
$136,694,487.89
$70,763,263.22
$46,786,023.03
$45,709,296.41
$37,627,572.17
$31,723,713.39
$27,600,246.01
$24,983,887.21
$24,951,184.30
$20,045,718.19
$10,417,619.62
$10,332,360.59
$10,031,667.44
much better predictor in this area. Many of the top 31 companies were not
awarded large numbers of contracts. However, the average value of their
contracts is much higher than the norm. CRG received the most contracts
(537), but the average for the sample is 150. The top five companies have
very small numbers of contracts but very high average values.
In terms of these, the average value of a contract for the entire sample
is over $10 million. Even when we eliminate the top three companies, as
outliers, the average value is above $447,000. This is a far cry from the average for the entire federal administration, which is approximately $55,000.
In general, the number of small contracts follows a parabolic trend,
peaking in 2007–2008 and then declining to the levels of 2004–2005 by
196
Table 8. Distribution of contract values by dollar amount and percentage
Contracts” Values
Total
money
Number of
Companies
Percentage of
Total ($ Value)
Percentage of
Total (Companies)
Above 100M
50M – 100M
10M – 50M
1M – 10M
500K – 1M
100k to 500k
Less than 100k
Total
$1,006
$71
$497
$727
$169
$309
$277
$3,057
4
1
26
262
245
1,479
8,553
10,570
32.93%
2.31%
16.26%
23.77%
5.54%
10.12%
9.06%
100.00%
0.038%
0.009%
0.246%
2.479%
2.318%
13.992%
80.918%
100.000%
(figures in $millions)
Figure 2. Distribution of contracts by value awarded to individual companies
2010–2011. For larger contracts the pattern is different. Medium-sized
contracts peak in 2005–2006 and then keep declining. Large contracts reach
a plateau in the same year and remain stable until 2008–2009, after which
they decline. Very large contracts increase until 2009–2010 and then begin
a marginal decrease.10
Areas of contract activity
There are also significant differences within the various companies in terms
of their areas of specialization. If we aggregate the top 31 companies by the
activity they predominantly undertake (Table 9), we can observe some
197
Table 9. Averages of contract distribution by company’s predominant activity
Technology
Project Management
Human Resources
Accounting
Other
Top 31 Companies
Entire Sample
Small
Medium
Large
Very Large
32.6%
37.7%
40.2%
48.6%
20.8%
38.4%
66.6%
15.8%
23.1%
19.7%
16.4%
7.5%
20.7%
14.6%
20.5%
28.7%
19.2%
16.5%
10.4%
24.6%
12.0%
29.2%
10.4%
20.8%
18.4%
61.3%
16.3%
6.7%
The Other Category contains Resolve Corporation and R.A. Malatest only. The
former provides outsourced business services, and the latter market research and
project evaluation.
interesting variance from the general sample. About 50% of the top 31
companies by billing (Table 7) are active in the technology sector, six
companies each provide either project management or human resources
services, while three are well-established accountancy and consulting
entities (KPMG, Price Waterhouse Coopers and Deloitte & Touche
Consulting Group). Finally we have a market research and program
evaluation company (R.A. Malatest) and a company delivering outsourced
business resources (Resolve Corporation).
If we set aside the “other” category we can see how technology oriented
companies tend to have larger contracts and receive 13% more very large
contracts than the average for the top 31 companies and over 22% more
than the general sample.
Policy-related contracting
The general data on contract activity presented previously are relatively
poorly disaggregated across various management consulting activities, and
the details of what a company was actually contracted to do are often
missing from the databases, with the only indication being that activities
occurred in the general 0491 “management consulting” category.
The Public Accounts reporting in particular is not designed to provide
any kind of readily available information on specific kinds of contract
activity leaving the only recourse to look at individual contract descriptions in the MERX and Proactive Disclosure websites. In most cases,
however, the reporting in the Proactive Disclosure database is no more
detailed, and only a handful of administrative units provided (and even
then only quite sporadically) any kind of extra information about the
nature of a contract besides its title. Hence, for about 34,000 individual
contracts for which we collected data, only about 850 contained any
198
additional kind of description of contract activity. Among these contracts,
only 25 mentioned activities with any kind of policy relevance, and these
accounted for only $831,000. The highest amount ($175,700) was billed by
Stratos Inc. for a process of evaluation of a cabinet directive on implementing the Canadian Environmental Assessment Act. Without this outlier
contract, the average value of the other policy contracts is only $27,800.
To expand the sample of companies that could have provided policyrelated services, we examined the type of work firms that had previously
received federal contracts advertised for on their websites. In our database
we have records for a little over 10,550 companies and individuals
recorded in the Proactive Disclosure databases as having received contracts. An initial survey identified 122 companies that were likely to be able
to provide or had provided policy services to the federal government
(Appendix 1). Overall these companies billed a total of $212.6 million in the
0491 category according to the Proactive Disclosure data (Table 10).
This number, of course, does not represent the actual amount that was
billed for policy-related work. For example, the top companies in this
sample are likely to have billed very large percentages of their total activity
with the federal government for non-policy-related consulting. Therefore,
we weighted in a conservative fashion the type of billing that was reported
by these companies.11 We assigned to firms and individuals that provided
primarily policy-related services (for example, the Institute on Governance
or the Public Policy Forum) a 50% chance that the amounts billed actually
involved policy work. The companies noted in Table 10 were assessed as
having a 5% chance of providing policy work, while all others were
assessed at 20%. While conservatively calculated and open to debate, this
approach allows us to put forward some general statements about the
policy advice field. The calculations in Appendix 1 lead us to estimate that
an amount of at least $31 million could be assessed as belonging to
policy-related activity in the Proactive Disclosure dataset.
In a bid to increase the number of contracts for which we had a
policy-related connection, we also ran searches in the MERX database for
Table 10. Top billing companies with policy-related operations
Company Name
KPMG Consulting
Total
Source: Proactive Disclosure.
Total Billing (Proactive Disclosure)
$11,368,789.58
$12,403,236.79
$24,951,184.30
$31,723,713.39
$37,627,572.17
$118,074,496.23
199
awarded contracts and collected the results from both the MERX and
Proactive Disclosure databases into a single table (Appendix 2).12 While it
is true that the categories used by the two databases are different, with the
MERX one being more detailed, merging the two also generates a total
amount of $31 million. It should be noted that we also have a few very
large contracts, especially from the Canadian International Development
Agency included in this amount that are about the development of projects
abroad, which include some policy elements, but are too large to be only
policy related.
Once we eliminate the large contracts from the extended sample, we
have a total of 61 policy-related contracts, which were awarded to a total
of 47 companies. The average size of these contracts is larger than in the
Proactive Disclosure sample ($92.6 thousand) and they are relatively
evenly distributed in terms of size (Table 11).
The image changes, however, when we look at the billing by company.
In total, 19 companies (over 40% of the sample) billed over $100,000 since
2006 in policy-related projects. While contract size is relatively evenly
distributed, over time we find the same pattern of concentration in which
a small number of companies receive large total amounts. The companies
receiving these contracts range from large consulting firms like KPMG and
Deloitte & Touche, to specialized ones like The Sussex Circle, Prairie
Research Associates, or Advanced Policy Concepts Inc. to individuals and
research entities like universities or the Institute in Governance.13
Collating together all companies that either have, or are likely to have,
provided some kind of policy-related services for the federal government,
we obtained 149 companies from our preliminary analysis (Appendix 3). In
the sample there are 127 (85.2%) companies or individuals operating as
private entities, 13 university related suppliers (schools of public policy or
university personnel) accounting for 8.7% of the total, and finally nine
suppliers (6.0%) represent think tanks.
In terms of size, an initial analysis of available data found that the
companies engaged in this field are predominantly small or very small,
often composed in fact of an individual or a very small groups.14 In some
Table 11. Size distribution of policy-related contracts
Contract Size
Number of
Percentage
Companies
Range
Percentage
Less then $25k $25k to $50k $50 to $100k More than $100k
Contracts
of Total
in Billing
17
18.03%
14
11
27.87%
3
17
27.87%
11
16
26.23%
19
of Total
29.79%
6.38%
23.40%
40.43%
200
cases, because the companies had ceased to exist or did not provide clear
information about their size, we could not provide a categorization at this
point (Table 12).
As a third step after this general analysis of the structure and numbers
of the actors involved in policy-related work, we explored the type of
activities these companies advertised through their websites. We divided
these activities into seven categories (document management, policy
services, research [non-policy], management consulting, ecconomic and
financial services, communication, and security)15 and analyzed the most
common specialization for the actors present in the sample (Table 13 and
Table 14).
Ultimately, policy work and general management consulting remain the
most common activities performed by these actors followed by general
Table 12. Company size in policy sample
Company Size
Micro
Small
Medium
Large
Very Large
N/A
Frequency
Percentage
52
35
10
10
9
33
34.90%
23.49%
6.71%
6.71%
6.04%
22.15%
Table 13. Combination of activities by sample companies
Activity combinations
Frequency
POL
POL RES
MC
N/A
MC ECON
POL MC
ECON
POL MC ECON
POL RES MC
POL RES ECON
RES
POL RES MC ECON
POL ECON
POL COM
22
20
20
18
11
10
7
6
4
4
3
3
3
3
Activity combinations
MC SEC
MC ECON SEC
SEC
RES MC ECON
RES ECON
POL RES ECON COM
POL MC ECON SEC
POL MC ECON COM
POL MC COM
MC COM
DM POL RES MC ECON
DM ECON COM
COM
Frequency
2
2
1
1
1
1
1
1
1
1
1
1
1
201
Table 14. Frequency of individual work specialization
Specialization
Frequency
POL
MC
ECON
RES
COM
SEC
DM
80
64
43
38
9
6
2
research services. While policy services are the ones most commonly
offered by these actors, we also find that many companies combine
different area of expertise.
Conclusion
In this article we provide an assessment of the nature of the supply of
policy and management consultants in Canada using procurement information for the federal government in the area of management consulting
in general, and of policy consulting in particular, made available only very
recently.
The data confirm already noted tendencies for contracts to become
semi-permanent arrangements but also reveal a pattern of oligopsonistic
demand in the policy and management consulting areas concentrated
mostly in a handful of very heavy user departments and also an increasingly
oligopolistic supply pattern where less than 5% of companies accounted for
80% of total contract values and where repeat contracts are the norm.
Traditionally, concern about this kind of outsourcing has hinged on its
costs and benefits or its efficiency as a source of government expenditure
vis a vis the utilization of existing internal sources of supply. Here we
argue that while these are important issues, attention should be paid not
only to the “permanence” of outsourced services but also to its oligopolistic
nature. Increasingly we find evidence of a long-term external “invisible
public service” operating alongside the traditional “internal” one.
In keeping with previous research on the demand side of the policy and
management contracting equation (Howlett and Migone 2013a), we
mapped a pattern of oligopolistic supply. In terms of concentration and
potential impact, of the over 10,500 companies that successfully bid for
contracts with the federal government over the period considered in this
study, 31 billed over $10 million. That is to say 0.3% of the companies
awarded contracts obtained 51.5% of the overall amount let by the federal
government while 95% of companies billed the government for less than
$500,000, and as a whole, this group of over 10,000 companies and
individuals was awarded only 19% of the money spent. Furthermore, we
have found that in general the pattern has been towards fewer contracts in
most size categories except for the very large category (over $100,000).
We also found that some companies receive very large multi-year
contracts, skewing at times entire departmental expense patterns. This type
202
of very large contract has been noted in the literature before (Macdonald
2011). While there may be very good reasons in terms of economies of scale
and firm capacity to allow such very large contracts, this reduces the
pool of potential bidders and limits the capacity of government to exploit
the benefits of competition (Woon Kim and Brown 2012). In addition,
these larger contracts are multi-year or department-wide ones that “lock
in” the relationship between purchaser and supplier without many of the
usual safeguards which come with internal spending of this kind and
duration.
These findings suggest existing measures of accountability and transparency focused on traditional civil service hiring and financial practices
are in need of reform if they are to successfully extend to the “invisible”
public service of contract consultants.
Although the federal government did implement a variety of changes in
the area of contract reporting in the early 2000s, and the current situation
is much better than when Perl and White (2002) undertook their study, in
most respects the specific nature of the policy advice services remains
broadly hidden from us because of lack of detail and comprehensiveness
in the data sources. Thus, much of the needed analysis regarding government outsourced contracts in the area remains either speculative or must
be developed through surveys and ad hoc analyses. Of the three databases
readily available for our analysis (Public Accounts, Proactive Disclosure
and MERX) the first two have either a very low level of disaggregation
(Public Accounts) or provide us with very little detailed information on
actual contract activity (Proactive Disclosure and Public Accounts). Additional and more precise information can be glimpsed by using the MERX
database and some entries from the Proactive Disclosure, but this still
remains a relatively limited tool.
These results indicate that it remains critical that better measurements of
the extent of policy and management consultants be developed in order to
provide more readily accessible, increased detail regarding the type of
contract activity that occurs with each contract. Although recent reform
efforts at the federal level are important, and the situation in Ottawa is
much better than that at the provincial level, we find that the new data are
limited to areas related to the “governance” of federal procurement and to
the financial auditing of outsourced activity rather than towards larger
questions relating to the purposes of such expenditures and their impact
on the traditional civil service and traditional measures of accountability
and responsibility in government. These questions, however, continue to
warrant in-depth analysis and study of the activity of both suppliers and
government purchasers and their effects, not just on finances, but on the
content of decisions and activities influenced by this heretofore almost
completely “invisible public service” (Speers 2007).
203
Notes
1 Virtually no reliable data exists at all on the situation at the provincial and local levels
where contracting practices are also quite prevalent, and this lack of data, in itself, is also
worrisome (Office of the Auditor-General of British Columbia 2001; Howlett and Migone
2013b).
2 The increased use of external consultants, for example, has been correlated to the
emergence of New Public Management (NPM) practices in many jurisdictions, which
increasingly shifted the public service away from administering programs to managing
them. The “service” or contract state needed a variety of external “contractees” who would
actually deliver goods and services on government behalf rather than have these delivered
by government employees (Freeman 2000; Vincent-Jones 2006; Butcher, Freyens, and
Wanna 2009; DiFrancesco, Uhr, and Mackay 1996; Weller and Stevens 1998; DiFrancesco
2000; Tiernan 2011).
3 This data problem was not limited to Canada and was particularly noticeable in the early
stages of the research with either very high levels of aggregation or very different methods
of collecting information marring both individual country studies and comparative
treatments of the subject (New Zealand 1994; Boston 1994; Perl and White 2002; Howlett and
Migone 2013c). In many cases, decisions about reporting contracts were left up to individual
administrative units, meaning whatever data existed was often idiosyncratic, and it was
very difficult to arrive at an accurate assessment of the scope and use of any kind of
consultants, including policy ones, across government (Howard 1996; Perl and White 2002).
This is still the case in many countries and at the provincial level in Canada itself (Howlett
and Migone 2013b).
4 The situation remains very poor at the provincial level where reporting is rudimentary
although still a concern and subject of investigation (Office of the Auditor General of
British Columbia 2001).
5 The individual contracts appear in individual webpages generally detailing the name of
the company or vendor to whom it was awarded, the contract’s reference number, the
contract date and contract period and whether or not the contract was amended at any
point in time. In general, however, these pages do not specify the type of work actually
performed besides indicating whether or not it did fit within the 0491 category, therefore
providing very little indication of its content.
6 However, the last full set of contract data available at the time of writing was for
2011–2012. Data past this date contains only adjusted figures for multiple year contracts
that extend into future years. A new definition of the category “Other Professional
Services – Management Consulting (0491)” was introduced in 2006 meaning consistent
data is only available since 2006–2007 and hence truly comparable data span only the
five-year period between 2006–2007 and 2011–2012. Various departments and agencies
provide data for previous years under the 0491 category but it is unclear (and unlikely)
that these were reconciled with the new definition. A third caveat is that National
Defence and the Canadian Forces do not use the 0491 code, and the numbers presented
here are a proxy. Finally, multi-year contracts were distributed annually according to the
number of months that the contract covered, which may not correspond to the way in
which the money was actually paid out. For example, if a contract covered two fiscal
years and was awarded for a sum of $100,000, each year was assigned $50,000 allowing
a more “normalized” map of this spending. The most significant remaining data-related
problem, however, is the continuing classification of policy-related contracts as part of
the larger category of management consulting. A survey of federal agencies and departments found that most contract data is kept for a limited period of time and that
specific contracts have to be analyzed individually by staff to assess whether, and the
degree to which, they contain policy elements. This imposes a focus in this paper on
204
7
8
9
10
11
12
13
14
15
both management and policy consulting rather than just policy consulting, per se.
However, given the richer databases that now exist, we can discern some patterns in
policy consulting from this larger category of activities, which, in itself also remains a
subject of interest among scholars and practitioners (Saint-Martin 2005; 2006, Speers
2007).
Only seven departments increased their spending on Management Consulting—
Citizenship and Immigration, the Economic Development Agency for Quebec, Environment Canada, Foreign Affairs and International Trade, Parliament, the Privy Council, and
Western Economic Diversification.
The Proactive Disclosure websites also featured about 80 companies that had been
awarded standing offers for which no amount had been expended.
We should also note that among contracts awarded to companies that billed more than $15
million for 0491 services, just over half of all contracts were awarded to companies that
already had worked for the federal government. This meant that 68.30% of the funds
expended over the period we considered went to companies with two or more contracts.
This is similar to the US where Woon Kim and Brown (2012: 692–693) found that the US
Department of Defence tended to have higher average contract lengths and contract values
than other departments.
We have created four categories based on the value of the contracts: (1) “small,” which is
lower than $25,000, (2) “medium” between $25,000 and $50,000, (3) a “large” between
$50,000 and $100,000 and finally a (4) “very large” category for contracts averaging above
$100,000.
Relying on a survey recently completed by Howlett and Migone (2013a) on the activity of
policy consultants we have utilized the results in one of the questions there to guide our
calculations (Table 11).
In our searches we also found various contracts that we did not include and contracts that
did not have an amount associated with them. Among these are 17 INAC standing offers
(Research Analysis, Policy Development and Research Support Services – Standing Offer)
for a total of $7.5 million. Among the three areas covered here it is unclear how to split the
various amounts, but we estimate the Policy Development component to be below 10%.
Among the contracts without a dollar amount, there are 22 supply arrangements with
Western Economic Diversification Canada (Corporate Policy Research Services Supply
Arrangement, Western Canada).
While a more detailed analysis of the nature of the consulting workforce is currently being
undertaken, preliminary results show there is a fair amount of personnel in these
companies who had previous experience working for the federal government and who are
applying their previous expertise in their outsourcing work (Howlett et al 2013 and 2014;
Howlett and Migone 2013a).
We designed four separate categories for the supplying companies based on the number
of people working there: micro companies (less than 10), small (between 10 and 25),
medium (between 26 and 75), large (between 76 and 100), and very large (over 100).
The categories were organized as follows:
1. Policy Services: policy research, policy drafting, policy evaluation, policy advice,
environmental scanning, strategic advice, governance, accountability, law, regulation.
2. Economic and Financial Services: financial services, auditing, accounting, procurement
strategies, human resources work.
3. Management Consulting: management consulting, change management, organizational
change, facilitation, project management, risk management (non-physical).
4. Research (Non-Policy): data collection, general research services, conference services,
instructional services.
205
5. Communication: Communication, surveys, stakeholder engagement, public opinion,
media relations.
6. Security: security, physical risk management.
7. Document Management: web content creation or management; document management.
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Appendix 1. List of companies
advertising policy services
Company Name
Policy and Management
Consultants I
Mcdavid, Dr. Jim
BNMD Public Policy Inc.
Institute of Intergovernmental
Relations (Queen’s University)
Policy Research International
Institute for Security Studies
AMD Consultancy
School of Policy Studies
Senior Research Fellow –
Institute For Public Policy
Research
Ray Tomalty Co-Operative
Research & Policy
GPT Management Ltd.
Institute of the North
Brown Governance Inc
Brown Public Affairs
Atlantic Policy Congress Of
First Nation Chiefs
Secretariat Inc
International Centre For
Criminal Law Reform And
Criminal Justice Policy
Wolf Policy Network
Policy Assessment Corp.
Public Policy Consulting
Ottawa Policy Research
Associates
Protectcan Consultants Corp.
Hall, Daniel
Women’s Health Research And
Policy Of C.E.W.H. Society
Empirical Policy and Analysis
J-M Associates
Rowan Health Policy Consulting
Fischer, Carolyn Ph.D.
Governance Research Innovation
Development (GRID)
Low, John – Senior Policy Writer
Data Angel Policy Research Inc.
Open Policy
Technopolicy Network
Media Policy and Strategy Ltd
Link HR Systems Inc.
Hossack, Emmett P.
Cooperative Research and
Policy Services
Estimated
Total Billing
Policy
(Proactive Disclosure) Percentage
Estimated
Policy
Billing
$10,000.00
0.5
$5,000.00
$12,000.00
$12,084.00
$12,170.76
0.2
0.5
0.5
$2,400.00
$6,042.00
$6,085.38
$12,438.75
$12,500.00
$14,951.30
$15,750.00
$16,930.00
0.5
0.5
0.2
0.5
0.5
$6,219.38
$6,250.00
$2,990.26
$7,875.00
$8,465.00
$18,444.00
0.5
$9,222.00
$20,000.00
$20,076.00
$20,212.50
$20,888.00
$21,000.00
0.2
0.2
0.5
0.2
0.5
$4,000.00
$4,015.20
$10,106.25
$4,177.60
$10,500.00
$21,296.25
0.2
$4,259.25
$23,100.00
$23,200.00
$23,400.00
$24,075.00
0.5
0.5
0.5
0.5
$11,550.00
$11,600.00
$11,700.00
$12,037.50
$24,357.00
$24,480.00
$24,598.00
0.2
0.2
0.5
$4,871.40
$4,896.00
$12,299.00
$24,973.00
$24,973.80
$24,975.00
$25,000.00
$25,000.00
0.5
0.2
0.5
0.2
0.5
$12,486.50
$4,994.76
$12,487.50
$5,000.00
$12,500.00
$25,000.00
$29,944.50
$34,840.00
$35,852.46
$38,160.00
$38,520.00
$47,080.00
$49,035.00
0.5
0.5
0.5
0.2
0.5
0.2
0.2
0.5
$12,500.00
$14,972.25
$17,420.00
$7,170.49
$19,080.00
$7,704.00
$9,416.00
$24,517.50
Ascertained
Policy Billing
$12,000.00
$20,000.00
$25,000.00
209
Company Name
Paton & Associates Management
Center For Clean Air Policy
Fox Consulting Ltd.
Levac, Odette
C3I Group (The)
Leslie Harris Centre Of Regional
Policy And Development
Maeander Enterprises Ltd.
Centre For Trade Policy And Law
Caledon Institute of Social Policy
JUA Management Consulting
Wells, David
Hall, Jenna
Flaman Management Partners
Ltd.
Educational Policy Research Inc.
Hillbrooke Group (The)
Public Policy and Management
Inc.
PPM Public Policy Management
Limited
Kernaghan Kenneth Professor
Department Of Political
Science And Management
Maga Policy Consultants Ltd
Entrans Policy Research Group
Inc.
Policyworks Inc.
Aura Environmental Research
And Consulting Ltd.
Canadian Policy Research
Networks
Rideau Strategy Consultants
Ltd.
NRG Research Group
Doern, Bruce (Dr.)
Parr Johnston Economic &
Policy Consultants
Compliance Strategy Group
Shillington & Burns
Consultants Inc.
Educational Policy Institute
(EPI)
A Hundred Answers Ottawa
Ont
Perrier Consultants
Weippert HR Solutions
Compass Resource
Management Ltd.
Interface Strategies Inc.
Institute For Research On Public
Policy (IRPP)
G.A. Packman & Associates Inc.
Estimated
Total Billing
Policy
Estimated
Policy
Billing
$49,300.20
$50,000.00
$54,370.00
$57,200.00
$58,152.00
$60,904.89
0.2
0.5
0.2
0.2
0.2
0.5
$9,860.04
$25,000.00
$10,874.00
$11,440.00
$11,630.40
$30,452.45
$64,200.00
$66,660.00
$74,330.00
$81,112.50
$88,000.00
$89,414.75
$93,438.00
0.2
0.5
0.5
0.2
0.2
0.2
0.2
$12,840.00
$33,330.00
$37,165.00
$16,222.50
$17,600.00
$17,882.95
$18,687.60
$103,110.00
$103,820.00
$105,043.00
0.5
0.2
0.5
$51,555.00
$20,764.00
$52,521.50
$106,370.00
0.5
$53,185.00
$110,345.00
0.5
$55,172.50
$113,692.00
$152,240.00
0.5
0.5
$56,846.00
$76,120.00
$158,082.00
$167,659.23
0.5
0.2
$79,041.00
$33,531.85
$175,403.00
0.5
$87,701.50
$183,434.85
0.5
$91,717.43
$190,399.13
$195,180.00
$208,650.00
0.5
0.5
0.5
$95,199.57
$97,590.00
$104,325.00
$219,344.50
$225,497.53
0.2
0.2
$43,868.90
$45,099.51
$236,490.04
0.5
$118,245.02
$255,874.50
0.2
$51,174.90
$261,228.00
$273,756.89
$290,046.00
0.2
0.2
0.2
$52,245.60
$54,751.38
$58,009.20
$306,556.75
$314,458.50
0.2
0.5
$61,311.35
$157,229.25
$318,417.04
0.2
$63,683.41
Ascertained
Policy Billing
$10,000.00
$49,932.00
$23,625.00
$23,800.00
$17,800.00
210
Company Name
Hopkins Stewart Associates Inc.
International Institute for
Sustainable Development
(IISD)
Portage Personnel Inc.
Advanced Policy Concepts Inc.
Marsh Canada Limited
Governance Network (The)
J. Phillip Nicholson Policy &
Management Consultants Inc.
Rawson Group Initiatives Inc.
David Swayze & Associates Inc.
Bell Browne Molnar & Delicate
Consulting Services Inc.
Regulatory Consulting Group
Inc.
DBS International
Lnw Consulting Inc.
Research And Traffic Group
HLB Decision Economics Inc.
Public Policy Forum
Gartner Lee Limited
New Economy Development
Group Inc.
Eco Ressources Consultants
JLS Management Consulting
Inc.
Gardner Pinfold Consulting
Economist Ltd.
Environics Research Group
Senes Consultants Limited
CPCS Transcom Ltd.
Global Advantage Consulting
Group
Institute On Governance
Blue Drop Inc.
Ference Weicker & Company
Management Consultants
Delsys Research Group Inc.
Lumina It Inc.
Conference Board Of Canada
Bmci Consulting Inc.
Quintet Consulting Corporation
ICF Consulting Canada Inc.
Lannick Contract Solutions Inc.
Marbek Resource Consultants
Ltd.
Terriplan Consultants
Bronson Consulting Group Inc.
HDP Group Inc.
Lansdowne Technologies Inc.
Stratos Inc. – Strategies to
Sustainability
Estimated
Total Billing
Policy
Estimated
Policy
Billing
Ascertained
Policy Billing
$346,805.00
$420,703.92
0.2
0.2
$69,361.00
$84,140.78
$457,635.81
$488,747.00
$555,666.86
$590,906.91
$618,861.00
0.2
0.5
0.2
0.5
0.5
$91,527.16
$244,373.50
$111,133.37
$295,453.46
$309,430.50
$654,694.50
$769,094.37
$787,774.72
0.2
0.2
0.2
$130,938.90
$153,818.87
$157,554.94
$791,879.26
0.5
$395,939.63
$796,333.25
$797,004.95
$851,845.58
$895,369.68
$1,020,461.15
$1,049,910.04
$1,051,450.68
0.2
0.2
0.2
0.2
0.5
0.2
0.2
$159,266.65
$159,400.99
$170,369.12
$179,073.94
$510,230.58
$209,982.01
$210,290.14
$1,080,390.22
$1,089,775.45
0.2
0.2
$216,078.04
$217,955.09
$1,138,201.37
0.2
$227,640.27
$1,312,539.17
$1,364,842.55
$1,427,257.27
$1,570,203.21
0.2
0.2
0.2
0.2
$262,507.83
$272,968.51
$285,451.45
$314,040.64
$67,838.23
$1,643,450.59
$1,788,467.71
$2,081,600.05
0.5
0.2
0.2
$821,725.30
$357,693.54
$416,320.01
$85,465.00
$2,124,129.14
$2,132,384.70
$2,262,482.10
$2,302,094.24
$2,321,602.06
$2,363,619.39
$2,424,034.73
$2,441,027.04
0.2
0.2
0.2
0.2
0.2
0.2
0.2
0.2
$424,825.83
$426,476.94
$452,496.42
$460,418.85
$464,320.41
$472,723.88
$484,806.95
$488,205.41
$2,987,887.15
$3,170,163.81
$3,769,817.46
$4,615,637.36
$5,185,146.84
0.2
0.2
0.2
0.2
0.2
$597,577.43
$634,032.76
$753,963.49
$923,127.47
$1,037,029.37
$24,717.00
$23,994.75
$9,630.00
$11,550.00
$22,900.00
$112,125.00
$12,127.50
$175,693.00
211
Estimated
Total Billing
Policy
Company Name
Sussex Circle Inc.
Centre For Public Management
Samson & Associates (175213
Canada Inc.)
Delta Partners (168446 Canada
Inc.)
KPMG Consulting
Deloitte & Touche Consulting
Group
Corporate Research Group
(CRG)
Total
Estimated Policy 33%
Estimated
Policy
Billing
$5,859,855.00
$7,622,606.63
$8,965,743.69
0.5
0.5
0.2
$2,929,927.50
$3,811,303.32
$1,793,148.74
$11,368,789.58
0.05
$12,403,236.79
$24,951,184.30
$31,723,713.39
0.05
$620,161.84
0.05 $1,247,559.22
0.05 $1,586,185.67
$37,627,572.17
0.05 $1,881,378.61
$212,681,195.46
$70,184,794.50
$31,333,459.80
Ascertained
Policy Billing
$49,222.50
$568,439.48
$53,500.00
$830,919.98
Appendix 2. Policy-related contracts –
proactive disclosure and MERX
databases
Company
Advanced Chippewa
Technologies Inc. (*)
Auguste Solutions & Associates
Inc.
Aura Environmental Research
And Consulting Ltd.
BMCI Investigations & Security
Ltd.
Brattle Street Round Table
Cambria Associates
Canadian Centre On Substance
Abuse (CCSA)
Canadian Institute For Research
On Public Policy And Public
Administration
Christopher Beaton
Consortium-Canadian Society
For International Health /
World University Service Of
Canada (*)
Deloitte & Touche
Deloitte & Touche
Estelle Carrière
Contract Amount
Total Amount
Billed by
Company
Source Database
$914,814.08
$914,814.08
MERX
$24,717.00
$81,612.50
$24,717.00
$81,612.50
MERX
$49,932.00
$49,932.00
$11,550.00
$11,550.00
$45,313.00
$46,895.00
$108,727.50
$468,915.73
$92,208.00
$108,727.50
$468,915.73
MERX
MERX
MERX
MERX
$186,395.00
$186,395.00
MERX
$96,300.00
$23,625.00
$7,490,000.00
$96,300.00
$23,625.00
$7,490,000.00
$399,699.50
$54,296.50
$62,000.00
$453,996.00
$62,000.00
MERX
MERX
MERX
MERX
MERX
212
Company
Experco-Stikeman & Elliott
International Ltd. (*)
Fox Consulting Ltd.
Gardner Pinfold Consulting
Economists Ltd.
Gartner Lee Limited
Group Inc.
Group Inc.
Goss Gilroy Inc
GPT Management Ltd.
Hickling Arthur Lows
Corporation
IBM Global Business Services
IPS (Integrated Planning
Services) Ltd.
J. & C. Nyboer Inc.
Jacobson Consulting Inc.
John Low – Senior Policy Writer
Joint Venture Canadian Society
For International Health/
Queen’s University (*)
KPMG Consulting
KPMG Consulting
Lansdowne Technologies Inc
Lumina It Inc.
Mcdavid, Jim (Dr.)
Memorial University Of Newfoundland
Peter Gusen
Prairie Research Associates
(PRA) Inc.
Prairie Research Associates
(PRA) Inc.
Public Policy Forum
R.E. Gilmore Investments Corp.
Regulatory Consulting Group
Contract Amount
Total Amount
Billed by
Company
$10,597,889.00
$10,597,889.00
Source Database
MERX
$99,680.00
MERX
$25,000.00
MERX
$25,725.00
$59,740.00
$210,145.00
$10,000.00
$17,800.00
$59,735.00
$10,000.00
$17,800.00
$59,735.00
MERX
$117,018.75
$24,989.85
$117,018.75
MERX
$42,848.38
$67,838.23
$574,550.00
$20,000.00
$225,000.00
$574,550.00
$20,000.00
$225,000.00
MERX
MERX
$57,650.00
$70,925.00
$29,094.00
$200,000.00
$102,000.00
$229,094.00
$102,000.00
$91,700.00
$69,229.00
$25,000.00
$7,000,000.00
$91,700.00
$69,229.00
$25,000.00
$7,000,000.00
$109,662.00
$53,500.00
$34,500.00
$77,625.00
$12,127.50
$9,630.00
$12,000.00
$226,000.00
$128,575.00
$163,162.00
$112,125.00
$12,127.50
$9,630.00
$12,000.00
$226,000.00
MERX
MERX
MERX
MERX
MERX
MERX
MERX
MERX
MERX
Proactive
Proactive
Proactive
Proactive
Proactive
Proactive
MERX
$300,000.00
$204,304.00
$300,000.00
MERX
MERX
$123,461.95
$327,765.95
MERX
$23,994.75
$22,900.00
$54,266.93
$79,757.00
$23,994.75
$22,900.00
$54,266.93
$79,757.00
Disclosure
Disclosure
Disclosure
Disclosure
Disclosure
Disclosure
MERX
MERX
213
Company
Source Database
$23,800.00
$23,800.00
$15,000.00
$38,787.50
$175,693.00
$85,004.00
$24,570.00
$24,652.50
$223,000.00
$50,350.00
$11,025.00
$29,750.00
$15,000.00
MERX
MERX
Proactive
MERX
Proactive
Proactive
MERX
MERX
Proactive
MERX
Contract Amount
Shillington & Burns Consultants
Inc.
SJT Solutions
Stratos Inc.
Stratos Inc.
Sussex Circle Inc.
Sussex Circle Inc.
Sussex Circle Inc.
TNS Canadian Facts Inc.
TRM Technologies Inc.
University Of Victoria
URS Corporation (USA)
Total Billed
(*) Total spending in large
contracts with policy facets
Policy Spending
Total Amount
Billed by
Company
$214,480.50
$134,226.50
$223,000.00
$50,350.00
$11,025.00
$29,750.00
Disclosure
Disclosure
Disclosure
Disclosure
$31,655,727.92
$26,002,703.08
$5,653,024.84
Appendix 3. Company activity
Company Name
A Hundred Answers Ottawa Ont
Advanced Chippewa Technologies Inc. (*)
AMD Consultancy
Atlantic Policy Congress Of First Nation Chiefs
Secretariat Inc
Auguste Solutions & Associates Inc.
Aura Environmental Research And Consulting
Ltd.
Bell Browne Molnar & Delicate Consulting
Services Inc.
Blue Drop Inc.
Bmci Consulting Inc.
BNMD Public Policy Inc.
Bronson Consulting Group Inc.
Brown Governance Inc
Brown Public Affairs
C3I Group (The)
Caledon Institute of Social Policy
Cambria Associates
Canadian Centre On Substance Abuse (CCSA)
Canadian Institute For Research On Public
Policy And Public Administration
Canadian Policy Research Networks
Center For Clean Air Policy
Centre For Public Management – John Burns
Centre for Public Management
Centre For Trade Policy And Law
Company Activity
Company Size
DM ECON COM
ECON
MC
MC ECON
POL
Micro
N/A
Small
Small
Medium
MC
RES
N/A
Micro
POL MC ECON
Large
MC
POL MC ECON SEC
MC
POL
POL MC ECON
POL
POL COM
MC SEC
POL
POL ECON
POL
POL
Large
Small
Small
Micro
Small
Micro
Micro
N/A
Micro
Large
Medium
N/A
POL
POL RES
POL MC
N/A
Medium
Small
POL
Small
214
Company Name
Christopher Beaton
Compass Resource Management Ltd.
Conference Board Of Canada
Consortium-Canadian Society For International
Health / World University Service Of Canada
(*)
Cooperative Research and Policy Services
CPCS Transcom Ltd.
Data Angel Policy Research Inc.
David Swayze & Associates Inc.
DBS International
Delsys Research Group Inc.
Doern, Bruce (Dr.)
Eco Ressources Consultants
Educational Policy Institute (EPI)
Educational Policy Research Inc.
Empirical Policy and Analysis
Entrans Policy Research Group Inc.
Environics Research Group
Estelle Carrière
Experco-Stikeman & Elliott International Ltd. (*)
Ference Weicker & Company Management
Consultants
Fischer, Carolyn Ph.D.
Flaman Management Partners Ltd.
Fox Consulting Ltd.
Gardner Pinfold Consulting Economist Ltd.
Gartner Lee Limited (Now AECOM Technology
Corporation – Since 2007)
Global Advantage Consulting Group Inc.
Goss Gilroy Inc
Governance Network (The)
Governance Research Innovation Development
(GRID) Corp.
GPT Management Ltd.
Hall, Daniel
Hall, Jenna
HDP Group Inc.
Hickling Arthur Lows Corporation
Hillbrooke Group (The)
HLB Decision Economics Inc.
Hopkins Stewart Associates Inc.
Hossack, Emmett P.
ICF Consulting Canada Inc.//Marbeck
Institute For Research On Public Policy (IRPP)
Institute for Security Studies
Institute of Intergovernmental Relations
(Queen’s University)
Company Activity
Company Size
N/A
POL MC
POL
POL RES MC ECON
N/A
Micro
Small
Micro
Large
N/A
POL RES
POL RES MC ECON
POL MC
POL RES
MC
POL MC ECON
COM
POL MC ECON
POL MC
MC ECON
POL
MC ECON
POL RES
POL
POL
POL RES
RES
N/A
N/A
MC ECON
N/A
Very Large
Medium
Small
Small
N/A
Very Large
Micro
Medium
Micro
Small
N/A
Small
N/A
Micro
Large
Micro
N/A
Small
POL RES
MC
N/A
MC
ECON
MC ECON
Micro
Small
N/A
Micro
Micro
Very Large
MC ECON
MC ECON
POL MC ECON
N/A
Micro
Small
Very Large
N/A
N/A
N/A
N/A
POL MC ECON
POL RES
MC COM
ECON
MC ECON
N/A
RES MC ECON
MC
POL RES
POL
RES
Micro
Micro
Micro
Micro
Small
Micro
Very Large
Micro
Micro
Very Large
Large
Small
N/A
Small
215
Company Name
Institute of the North
Interface Strategies Inc.
International Centre For Criminal Law Reform
And Criminal Justice Policy
International Institute for Sustainable
Development (IISD)
IPS (Integrated Planning Services) Ltd.
J-M Associates
J. & C. Nyboer Inc.
J. Phillip Nicholson Policy & Management
Consultants Inc.
Jacobson Consulting Inc.
JLS Management Consulting Inc. (Now
Intergage Consulting Group Inc.)
Joint Venture Canadian Society For International Health/Queen’s University (*)
JUA Management Consulting
Kernaghan Kenneth Professor Department Of
Political Science And Management
KPMG Consulting
Lansdowne Technologies Inc.
Leslie Harris Centre Of Regional Policy And
Development
Levac, Odette
Link HR Systems Inc.
LNW Consulting Inc.
Low, John – Senior Policy Writer
Lumina It Inc.
Maeander Enterprises Ltd.
Maga Policy Consultants Ltd
Marbek Resource Consultants Ltd.
Marsh Canada Limited
Mcdavid, Dr. Jim
Media Policy and Strategy Ltd
Memorial University Of Newfoundland
New Economy Development Group Inc.
NRG Research Group
Open Policy
Ottawa Policy Research Associates
Parr Johnston Economic & Policy Consultants
Paton & Associates Management
Peck & Associates, a division of the Cardinal
Group Inc
Perrier Consultants
Peter Gusen
Policy and Management Consultants I
Policy Assessment Corp.
Policy Research International
Policyworks Inc.
Portage Personnel Inc.
PPM Public Policy Management Limited
Company Activity
POL
POL
POL
POL
RES
RES
COM
RES
Company Size
Small
Medium
Small
Small
POL RES
Very Large
N/A
N/A
N/A
POL MC COM
Small
N/A
N/A
Micro
POL ECON
POL MC
Micro
Small
N/A
N/A
MC
POL
Micro
Micro
MC ECON
ECON
MC ECON SEC
POL RES ECON
Very Large
Large
Small
Small
POL MC
ECON
MC
POL
POL MC ECON
N/A
POL
MC
MC ECON SEC
POL
POL COM
N/A
POL RES MC
COM
POL RES
POL
POL
MC
POL RES MC
Micro
N/A
N/A
Micro
Small
Small
Micro
Medium
Very Large
Micro
Micro
N/A
Small
Small
Micro
N/A
Micro
Micro
Micro
MC
POL MC
POL MC
ECON
POL RES ECON
MC
MC
POL RES ECON
COM
Small
Micro
N/A
N/A
Micro
N/A
N/A
Micro
216
Company Name
Prairie Research Associates (PRA) Inc.
Protectcan Consultants Corp.
Public Policy and Management Inc.
Public Policy Consulting
Public Policy Forum
R.E. Gilmore Investments Corp.
Rawson Group Initiatives Inc.
Ray Tomalty Co-Operative Research & Policy
Regulatory Consulting Group Inc.
Research And Traffic Group
Rideau Strategy Consultants Ltd.
Rowan Health Policy Consulting
Samson & Associates (175213 Canada Inc.)
School of Policy Studies
Senes Consultants Limited
Senior Research Fellow – Institute For Public
Policy Research
Shillington & Burns Consultants Inc.
SJT Solutions
Stratos Inc. – Strategies to Sustainability
Sussex Circle Inc.
Technopolicy Network
Terriplan Consultants (Now DPRA?)
TNS Canadian Facts Inc.
TRM Technologies Inc.
University Of Victoria
URS Corporation (USA)
Weippert HR Solutions
Wells, David
Wolf Policy Network
Women’s Health Research And Policy Of
C.E.W.H. Society
Company Activity
Company Size
DM POL RES MC
ECON
SEC
POL MC
POL
POL
POL ECON
MC
MC
ECON
POL RES
POL RES
POL RES ECON
POL RES MC
POL RES
MC ECON
POL
POL MC
POL RES
Medium
MC
POL RES ECON
POL RES
POL RES MC ECON
POL RES
POL RES MC
RES ECON
MC SEC
N/A
MC
MC ECON
N/A
MC
POL RES
Small
Micro
Micro
Small
Micro
Medium
Large
Medium
N/A
Large
Micro
Micro
Small
N/A
N/A
N/A
N/A
Small
Small
N/A
N/A
Micro
Micro
Micro
Micro
Micro
Micro
Micro
N/A
Large
Micro
Joshua Newman
Anthony Perl
Partners in clime: Public-private
partnerships and British
Columbia’s capacity to pursue
climate policy objectives
Abstract: Governments are increasingly using public-private partnerships (P3s) to
draw the private sector into more active participation in infrastructure development. Climate action initiatives have not typically yielded profitable results for the
private sector, and might therefore constrain the placing of conditions by governments on P3 arrangements. This article investigates a major P3 infrastructure
project in British Columbia – the Canada Line extension to Vancouver’s urban rail
transit network – and concludes that the P3 organization did not constrain the
government’s capacity to pursue policy objectives for climate action. This
counterintuitive result occurred because public sector leadership enabled an effective engagement with environmental policy priorities.
Sommaire : Les gouvernements ont de plus en plus recours aux partenariats entre
les secteurs public et privé (P3) pour inciter le secteur privé à participer plus
activement à l’élaboration de l’infrastructure. Les initiatives dans le domaine du
changement climatique n’ont pas généralement donné de résultats rentables pour
le secteur privé, et pourraient par conséquent contraindre les gouvernements à
imposer des conditions aux accords P3. Cet article examine un important projet
d’infrastructure P3 en Colombie-Britannique – l’extension de la Canada Line
jusqu’au réseau de transport ferroviaire urbain de Vancouver – et conclut que
l’organisation P3 n’a pas limité la capacité du gouvernement à atteindre des
objectifs en matière de politique climatique. Ce résultat contre-intuitif s’est produit
parce que le leadership du secteur public a permis un engagement efficace en ce qui
concerne les priorités en matière de politique environnementale.
Since 2006, climate change adaptation and mitigation have emerged as an
area of policy engagement by Canadian provincial governments. Starting
about a decade before this heightened activity on climate policy, the
public-private partnership (P3) has become a policy instrument of choice
for developing infrastructure in many Canadian jurisdictions. Because
neither climate policies nor P3s are restricted to a single policy domain,
Joshua Newman is a research fellow at the Institute for Social Science Research, University of
Queensland, Brisbane, Queensland. Anthony Perl is professor of Urban Studies and Political
Science, Simon Fraser University, Vancouver, British Columbia.
218
JOSHUA NEWMAN, ANTHONY PERL
and because of a growing interest in climate action strategies and in using
P3s as instruments for policy implementation, there is considerable possibility for interaction between the two. P3s have been identified as a policy
instrument that can “harness the innovation of the private sector” to
achieve climate policy goals directly (Partnerships BC 2009: 13).
The use of P3s, however, may not yield a completely smooth articulation
with climate adaptation and mitigation policy priorities. Environmental
protection can require action, or necessitate inaction, that may reduce the
profitability of private firms, such as regulations that restrict carbon
emissions, or taxation of such emissions. Public-private partnerships are
binding contracts between the public and private sectors that often create
shared responsibility for decision-making in service delivery areas that
were previously the purview of the public sector. Because of this divided
responsibility, it is possible that P3 delivery arrangements for infrastructure
and social services could introduce business priorities from private partners that constrain government’s climate change adaptation and mitigation
capability. To date, there has been very little empirical research that
explores the relationship between a government’s climate change priorities
and its partnerships with private entities to deliver specific policy outputs.
Given that climate change has only recently appeared on the Canadian
political agenda, and considering that the use of P3s is still maturing as
multiple Canadian jurisdictions experiment with different forms of partnership, it is likely too soon to evaluate the impact of P3s on governments’
ability to achieve climate-related policy results. Instead, a more useful
avenue of analysis would be to investigate how the use of contractual
partnerships with the private sector can affect the public sector’s capacity
to formulate climate policy inputs. Many authors conceptualize “policy
capacity” as either the ability to create advice on policy options for delivery
to a decision-making executive (Anderson 1996; Bakvis 2000; Howlett
2009), or in the broader sense of a government’s ability and autonomy to
formulate and implement its chosen policy agenda (Conley 2002; Assetto
et al. 2003; Painter and Pierre 2005). Taken together, then, assessing capacity is about measuring the capability to shape policy inputs, rather than
judging the result of outputs. In a P3, the private partner’s decision-making
role in the delivery of goods or services to the public has the potential
to constrain a government’s capacity to advance climate change policy
objectives.
In this article, we investigate how urban transportation infrastructure
was delivered by a recent and high-profile P3 – the Canada Line addition
to Vancouver’s rail transit network – to explore whether or not the
requirements of a contractual partnership with the private sector necessarily impede the capacity of the government to pursue its climate policy
agenda in the implementation of a specific policy initiative. By comparing
P3s AND CLIMATE POLICY CAPACITY IN BC
219
the analytical efforts of public servants, consultants, and the private
partner in the development of the Canada Line with the project’s stated
environmental policy priorities, we conclude that contrary to our hypothesized constraint on climate action, climate policy capacity was not
impaired by the Canada Line project’s delivery mechanism. Due in large
measure to leadership from the public sector, this public-private partnership did not constrain the public sector from advancing its environmental
policy priorities. This finding is consistent with previous claims that
government prioritization is necessary for effective policy implementation
on climate change and the environment (for example, Jänicke 2005;
Hepburn 2007: 378; Bélanger 2011: 22). Moreover, this finding suggests that
policy capacity – if supported by appropriate leadership – can avoid the
risks of demands for a “privileged position” from private sector partners
(Lindblom, 1977: 172–173).
Public-private partnerships
P3s have been variously defined over the past two decades, and there is
still some debate over what exactly constitutes a public-private partnership. Hodge and Bowman aptly define P3s as “a family of integrated
partnership modes by which asset and service provision may be supplied
to the public sector” (2004: 203). This definition is useful because it is
flexible enough to encompass many different kinds of P3s. P3s are by
definition contractual arrangements between the public and private
sectors, but there is considerable scope for possible permutations in these
arrangements. Rather than assigning a label to a specific kind of publicprivate partnership, it is more useful to conceptualize P3s as a spectrum of
collaboration between the public and private sectors. Outside of this
spectrum on one end would be found traditional public provision of goods
and services; at the other end, there would be privatization.
Nonetheless, many P3s, especially in Canada, exhibit similar characteristics. A typical P3 will have a lengthy contract duration, usually 25 or 30
years. They often involve large capital expenditures, typically hundreds of
millions of dollars and above. In addition, they sometimes allow for the
private sector to increase its earning potential in some fashion, which
means that some decisions about implementation can be made by the
private sector. And while no two P3s are precisely the same organizationally, the sharing of investment, responsibility, risk, and rewards that is
typical in a P3 contract will yield a complex interaction between the public
and private sector partners that creates the potential for conflict with other
policy agendas, such as advancing climate change adaptation and mitigation. For example, it may be difficult to mandate rigid climate action targets
when some of the decision-making responsibility in a P3 project has been
220
delegated to a private firm, which may not see the potential for profit from
pursuing climate change adaptation, either in the short term or over the
length of its contract.
in the contractual arrangements of P3s, there lies the
potential for the partnership dynamics to create conflict
between the public sector’s goals of climate action and
the private sector’s goals of profitability
Effective climate change adaptation and mitigation policy will require
substantial government action (Perl and Newman 2012). The private sector,
if left alone, is highly unlikely to achieve reductions in greenhouse gas
emissions, as evidenced by the poor results in climate action achieved by
Canadian jurisdictions in the years before substantive climate legislation
was enacted (Rabe 2007). Thus, in the contractual arrangements of P3s,
there lies the potential for the partnership dynamics to create conflict
between the public sector’s goals of climate action and the private sector’s
goals of profitability.
Measuring climate change policy
through inputs, not outputs
Serious climate change adaptation and mitigation efforts in Canada are
relatively recent. Although the federal government signed the Kyoto
Protocol as part of the United Nations Framework Convention on Climate
Change in 1998, and ratified it as early as 2002, Canada has since withdrawn from the Protocol after several years without significant action.
Among the provinces, the oldest (non-legislative) climate action plan was
released in 2005 by Newfoundland and Labrador, and no province enacted
significant climate legislation prior to 2006. Official action to address
climate change in Canada was slow to start and has not been in force for
much of the Kyoto commitment period.
At present, therefore, it is too soon to evaluate empirically the outcomes
of Canada’s policy measures to reduce greenhouse gas emissions. Nonetheless, it is not too early to examine the effects that constraining forces
may have exerted on Canadian governments’ capacity to pursue their
climate policy objectives.
There are two prominent uses of the term “policy capacity.” One view,
predominantly (but not exclusively) emerging from the Canadian literature,
defines policy capacity as the ability of civil servants to produce policy
advice and to deliver it to their political executive. This definition of capacity
encapsulates the training, experience and expertise of individual policy
221
analysts, the resources at their disposal, the effectiveness of their management, and their ability to communicate with the political executive (Fellegi
1996; Howlett and Oliphant 2010). From this point of view, policy capacity
is not simply the activity of policy analysts and public sector decisionmakers; it refers to the overall capability of the public sector to create and
provide advice on policy options, which is then used by politicians and
senior bureaucrats in top-level decision-making. It is about inputs to policy
formulation rather than about empirical assessment of policy implementation and its outcomes. It reflects the analytic aspect of policy formulation:
planning, research, advising and decision-making, and has in some sources
been referred to as “analytical” capacity (Howlett 2009: 162).
A parallel strand of literature uses the term “policy capacity” in a
broader sense. These authors refer to the public sector’s ability to introduce
an issue on the policy agenda and to succeed in having its chosen policies
enacted. It is “the ability of a government or agency to carry through and
implement chosen goals successfully” (Bell 2004: 22). This ability includes
the autonomy to choose objectives and the instruments to meet those
objectives, but also the ability to muster the political support to enact laws
and regulations that will allow chosen instruments to be employed and
objectives to be achieved (Daugbjerg and Halpin 2010). In either sense of
the term, capacity refers to inputs to the policy cycle, not to outcomes that
result from particular policy choices.
One way to evaluate policy capacity is to compare policy activity to
policy goals. Once a policy agenda has been set in a particular jurisdiction,
it may be possible to determine whether or not a government has the
capacity to support that agenda and to achieve the desired goals, both in
terms of the technical analytical capacity of its workforce as well as in the
sense of the government’s autonomy to make choices and implement them.
This assessment can be done by examining the policy activity in that area
and then evaluating its potential for producing policy that addresses
formulated objectives. For example, if a government makes the claim that
it is committed to reducing carbon emissions within its jurisdiction, it
ought to be possible to assess whether or not the capacity exists to fulfill
those goals by examining the activity of policy workers in areas that affect
carbon emissions.
In our investigation, we examine the effect that P3s may have on a
government’s capacity to address climate adaptation and mitigation priorities. In a P3, the goals of the public sector, the nature of the partnership,
the specifics of the contract, and the relationships between the actors
involved will all contribute to the framework within which project objectives will be articulated. All partnerships involve some degree of compromise, and it is likely that the demands of the private sector and the final
contract that emerges from the networked interaction of all actors will at
222
least in some way constrain the goals of the public sector. In other words,
the substance of a P3 arrangement could limit policy capacity in areas
where P3s are used as instruments to achieve policy goals. By examining
the resources available to policy workers in the development of the Canada
Line and their engagement with British Columbia’s climate change policy
priorities, we hope to highlight the effect of using a P3 as a policy
instrument on the government’s capacity to advance its climate agenda.
The Canada Line pushes the boundaries of the meaning
of “partnership” in a P3, because it involves the interaction of so many different public and private sector
organizations
It should be noted, of course, that the Canada Line represents only one P3
infrastructure project, and data from this case should not be construed as
representing the entirety of British Columbia’s climate change adaptation
and mitigation policy agenda or on the government’s capacity to achieve this
agenda writ large. The question here is whether or not the demands of a P3
arrangement for a major piece of transportation infrastructure can impinge
on a government’s capacity to advance its own policy goals within a specific
initiative, which was part of a much broader policy agenda.
The Canada Line project
The Canada Line is a 19 kilometre rail transit line connecting downtown
Vancouver with the Vancouver International Airport and the nearby
municipality of Richmond. Costing over $2 billion (in 2005 Canadian
dollars), it ranks among the most ambitious infrastructure projects ever
undertaken in the province of British Columbia. It can also be considered
a highly successful project, in that it opened for service nearly three
months ahead of schedule, was completed within its budget parameters,
and by August 2011 it had reached a daily weekday ridership of 116,000
passengers – 16% above its target for 2013 (Bailey 2011).
The Canada Line pushes the boundaries of the meaning of “partnership” in a P3, because it involves the interaction of so many different public
and private sector organizations. The Canada Line’s legal contract was
signed by one public entity, the Greater Vancouver Transportation Authority (GVTA),1 and one private firm, InTransit BC (a private special-purpose
consortium created specifically for the design, construction, partial finance,
and 30-year operation of the Canada Line). However, there were numerous
public sector entities that contributed as funding partners and advisors,
some of which were represented on the board of directors that oversaw the
223
project. These entities include Canada’s federal government, the government of British Columbia, the City of Vancouver, the City of Richmond, the
Vancouver International Airport Authority, the Vancouver Port Authority,
and Partnerships BC – a corporation owned by the provincial government,
whose mandate is to provide advice and support to P3 endeavours. In
addition, the private sector partner is composed of three major ownership
interests: the Québec-based engineering firm SNC-Lavalin, the BC Investment Management Corporation (British Columbia’s public sector employee
pension fund), and the Caisse de dépôt et placement (Québec’s public
sector employee pension fund).
Furthermore, the operating period of the Canada Line concession, which
extends until 2040, requires cooperation among multiple agencies. Protrans
BC, a separate but wholly-owned subsidiary of InTransit, is in charge of
operations and maintenance on the line for the duration of the concession,
adding another layer of interaction between the public and private sectors
for the life of the contract. In addition, as the Canada Line was designed
for interconnectivity with Vancouver’s existing SkyTrain transit network,
the private operator must coordinate with the public transit authority (now
officially known as the South Coast British Columbia Transportation
Authority, or TransLink) and their subsidiary responsible for SkyTrain, the
British Columbia Rapid Transit Company.
In short, despite its legal status as a contract between two partners, the
Canada Line is in reality a complex arrangement involving the participation and cooperation of multiple public and private sector entities. The
informational output of all the participating organizations and the compromises that will necessarily emerge from coordinating their efforts on a
project of the Canada Line’s magnitude is likely to influence public policy
development. Additionally, both shared decision-making responsibilities
and revenue streams heighten the potential for conflict between the policy
objectives of the government and the goals of the private sector partner.
The Canada Line is a good candidate for exploring how a P3 policy
delivery structure might influence or constrain a government’s capacity to
carry out its chosen climate change policy agenda. First, the Canada Line
is a major piece of transportation infrastructure, and transportation infrastructure usually has significant environmental impacts, from changes in
carbon emissions to effects on the water table. Second, the Canada Line is
part of a public transit network, and investment in transit has often been
justified as a policy tool for enhancing environmental protection and
reducing greenhouse gases (Dittmar, Belzer, and Autler 2004: 3; Pucher
2004: 211–212). And third, the Canada Line project was initiated in 2002,
the P3 contract closed in 2005, and the system opened to customers in 2009,
so the span of its development life cycle (that is, design, procurement, and
construction) began immediately after Canada ratified the Kyoto Protocol
224
and ended soon after climate change attained a high profile on the political
agenda. The timeline of the Canada Line’s development is therefore well
aligned to assess the potential impact of the demands of a P3 arrangement
on British Columbia’s capacity to advance its climate change policy objectives through a particular infrastructure project.
The Canada Line and the environment
Climate change has attained a higher priority within environmental policy.
In part, this priority came from the growing importance and visibility of
the consequences of a warming global climate, particularly in the global
north (Dion 2011: 23–24). And despite, or perhaps because of, increasingly
apparent federal government inaction, Canada’s provinces and municipalities have been, since 2008, significantly increasing their efforts to address
climate change. This effort has occurred in some provinces in the form of
legislated targets for reduction of greenhouse gas emissions and also
through the funding of research and innovation (Bélanger 2011: 24–25; also
see Dickinson and Burton 2011 for a detailed list of actions taken by
provincial, territorial, and municipal governments). In other words, climate
change is quickly becoming – if it has not already become – a central focus
of environmental policy development, and of broader policy interest in
many other sectors, especially at the provincial and municipal levels.
Throughout the design, procurement, and construction
phases of the Canada Line, environmental rhetoric
figured prominently in the official statements that were
released to the public
However, because climate change adaptation and mitigation constitute
such a recent area of policy activity, there are not likely to be many P3
examples in which climate action was an explicit, let alone driving, public
sector objective. Published research in this area to date is scarce. It may,
therefore, be illuminating to consider the commitment that a particular P3
project has made to a broader range of environmental rules and regulations
during its development as a proxy for a direct engagement with climate
change adaptation and mitigation issues. If a partnership demonstrated
significant engagement of environmental rules and regulations during its
design phase, in the tendering and negotiation stages leading to contract
closure, and through its construction work, then we can infer that future
partnerships could enhance the capacity to address climate change issues
– as climate change will likely be a central environmental issue for many
jurisdictions going forward.
225
Throughout the design, procurement, and construction phases of the
Canada Line, environmental rhetoric figured prominently in the official
statements that were released to the public. In 2003, a press release about
the Request for Proposals (RFP) stage of the P3 procurement process
highlighted the then ongoing environmental review being conducted by
the BC Environmental Assessment Office (RAV Project Management Ltd.
2003). In 2004, official news releases touted “improving air quality” and
“contributing to ‘smart growth’ ” as benefits of the line and listed “benefits
to the environment” as one of the selection criteria for private sector
candidates (RAV Rapid Transit Project 2004a, 2004b). In 2005, almost
immediately after the concession agreement had been formally signed,
InTransit BC released a statement in which they outlined the environmental assessment process as well as their commitments to complying with
that assessment (InTransit BC 2005). And in 2007, an article in the industry
magazine Tunnelling and Trenchless Construction described the care that
InTransit and its contractors had taken to ensure that contaminated water
did not enter the city’s sewage system, through the use of multiple
small-scale water treatment plants along the length of the route (Demetri
2007: 19).
In addition, public outreach efforts by the Canada Line’s publicly-owned
project management corporation (originally called RAVCO, then later
Canada Line Rapid Transit, or CLRT) emphasized environmental concerns.
For example, brochures prepared for in-person community consultation
events held in 2003 and 2004 stated that one of the reasons for building the
Canada Line was to reduce air pollution caused by increased traffic
congestion. They also outlined the environmental assessment process and
listed consultant reports that had been commissioned on the environmental
costs and benefits of building the line (RAVCO 2003, 2004). Representatives
from environmental advocacy groups were directly invited to participate in
events, and the Canada Line’s project managers took the process a step
further by sending their own representatives to participate in public
meetings held by the Environmental Youth Alliance, a local non-profit
community sustainability group (Cornerstone Planning 2003; InTransit BC
2006).
Environmental studies were an integral part of the project definition
phase that served to shape the scope, scale, and preliminary design
features of the Canada Line. To this end, the Canada Line project management team commissioned several independent consultant reports to
deal with environmental issues. For instance, in April 2001 a multiple
account evaluation report on the feasibility and desirability of a northsouth rapid transit line through Vancouver aimed to assess “the impact of
a rail line on greenhouse gas emissions and local air pollutants.” The report
added later that “[r]eduction in vehicle emissions is one of the important
226
environmental benefits from implementation of rapid transit services” (IBI
Group 2001: 27 and 45).
Later reports, also commissioned by the Canada Line project management
corporation, reinforced the importance of environmental issues in the project
definition phase. A report on the Richmond segment of the line contained
numerous references to environmental benefits and concerns, with a significant amount of consideration given to the crossing of the Fraser River and
how construction in that area would affect soil conditions and animal life
(IBI Group 2002). And in 2003, a thorough quantitative analysis of the effect
of a future rapid transit line on reducing vehicle-based greenhouse gas
emissions was released. This report specifically recommended the Canada
Line as a way to help Canada meet its Kyoto Protocol obligations and argued
that the Canada Line “fits the policy framework of BC and Canada’s climate
change strategies” (Global Change Strategies International 2003: 1).
Environmental concerns were carried forward to the P3 procurement
phase of the project. In the Project Definition Report, which served as the
basis for the Request for Proposals that went out to the private sector, “[f]ull
compliance with all applicable Federal and Provincial environmental legislation” was the third of seven “Project Principles,” a list that included due
diligence, public consultation, involvement of municipalities, encouraging
private sector innovation, proper risk allocation, and encouraging competition among private sector candidates (Richmond/Airport/Vancouver
Rapid Transit Project 2003a: 28). Also in the same report, design options were
said to have been rejected where they were seen to cause severe environmental impacts, and the Kyoto Protocol was specifically named as a
justification for federal and provincial funding contributions. In an earlier
Request for Expression of Interest (RFEI) document, the environmental
assessment process was outlined for the private sector candidates’
consideration, sensitivity to the environment in the Fraser River area
was stated to be a mandatory requirement of any P3 bid, and the
project itself was promoted as advantageous to the environment
(Richmond/Airport/Vancouver Rapid Transit Project 2002). In the Request
for Proposals, in addition to statements about the environmentally sensitive
areas of the project and an outline of the environmental assessment process
that are repeated from previous documents, there was a separate section
describing the environmental management plan that any successful P3 bid
must include (Richmond/Airport/Vancouver Rapid Transit Project 2003b).
These statements were repeated in the Best and Final Offer Invitation
(Richmond/Airport/Vancouver Rapid Transit Project 2004).2
There is evidence that the private sector took the environmental requirements of the P3 procurement process seriously. The Best And Final Offer
(BAFO) bid from the winning proponent contained a detailed point-bypoint description of how they would meet the environmental requirements
227
of the RFP and, additionally, how they intended to mitigate environmental
risk – including such details as the structure and personnel of their
environmental management team and how they would reduce greenhouse
gas emissions from the vehicles used to build the project. They also
included an environmental management plan for the operating period of
the system (RAV Project Management Ltd. 2005a: Schedule 6). Furthermore, the public sector selection committee that evaluated the BAFO bids
and selected the winning proponent identified environmental benefits as
one of its selection criteria (RAV Project Management Ltd. 2004).
the Canada Line partnership was able to overcome
obstacles surrounding the project’s environmental
assessment process
The governments and public sector agencies that contributed funding to
the Canada Line project made mention of environmental goals as well. The
federal government made it clear that funding was contingent upon
compliance with several environmental management stipulations: conducting a harmonized federal and provincial environmental assessment; conforming to all existing environmental legislation and monitoring to assure
continued compliance; the right of the public sector partner to audit the
private sector partner for environmental compliance; the ability of the
federal government to communicate directly with the private sector
partner to ensure that they comply with environmental laws and regulations; and the requirement that supplemental environmental assessments
would need to be done if there were to be any major changes of scope to
the project (Government of Canada 2005). The provincial government and
the Greater Vancouver Transportation Authority also invoked environmental regulations linked to their monetary contributions to the project, and
the Vancouver International Airport Authority, which paid for the entire
length of the airport branch of the line, stated that “minimal environmental
impacts” were an essential element to its funding agreement (Greater
Vancouver Transportation Authority 2004; Province of British Columbia
2005; Vancouver International Airport Authority 2005). These requirements
of the funding contributors – as well as the intentions of the private sector
partner as detailed in the BAFO bid – were eventually entrenched in the
official contract document that formalized the P3 arrangement (RAV
Project Management Ltd. 2005a: Schedule 2).
In addition, the Canada Line partnership was able to overcome obstacles
surrounding the project’s environmental assessment process. The Canada
Line’s project management team had very early on elected to combine the
provincial and federal environmental assessment applications. Although
228
the provincial assessment was not mandatory, because the line was less
than the 20 kilometer length required to trigger an assessment under
British Columbia’s environmental assessment regulations, the Canada Line
team decided to opt into the provincial assessment process and harmonize
it with the federal assessment. Public consultations were held on several
occasions, and comments from the public about the impacts of the Canada
Line on the environment and about the construction process itself were
forwarded to the BC Environmental Assessment Office as part of the
Canada Line’s environmental assessment application (see for example RAV
Project Management Ltd. 2005b).
In 2005, however, a private advocacy group by the name of Do RAV
Right Coalition filed an injunction with the BC Supreme Court seeking to
halt the progress of the project. Do RAV Right contended that the environmental assessment application was flawed because it had not allowed
for sufficient public consultation as required under provincial law. Later,
after the Canada Line project team had submitted a supplement to their
environmental assessment application and held further public consultations, the BC Supreme Court denied a further petition from Do RAV Right
to stop progress on the Canada Line, and the project continued as planned.
An appeal was overturned by the BC Court of Appeal, and although Do
RAV Right further appealed to the Supreme Court of Canada, that court
refused to hear the case.3
Discussion
We have found clear evidence that the Canada Line project did in fact
engage with the government’s environmental policy priorities, including
concerns related to climate change, such as reducing greenhouse gas
emissions produced by vehicle exhaust. Environmental policy concerns,
including air quality, soil erosion, destruction of animal habitat, traffic
congestion, safe disposal of contaminated soils, and commitments to the
Kyoto Protocol all figured prominently in the development of the Canada
Line. This environmental planning and management activity occurred
throughout the project, from its inception, through the procurement
process and the final contract with the private sector partner, and remains
evident during the operating period, which will continue until 2040. Every
stage of the process included a commitment to protection of the environment and frequently connected to issues related to climate change.
Furthermore, we discovered evidence that the Canada Line project went
beyond its minimum obligations with respect to environmental policy. The
project’s managers pursued a combined federal and provincial environmental assessment application when only the federal assessment was legally
required. They also held open consultations with the public, they directly
229
invited representatives of environment and sustainability non-governmental
organizations to provide input, and they participated in other groups’ public
consultation events regarding rapid transit in Vancouver.
Since the Canada Line incorporated the goals embodied in government’s
environmental policy priorities into the procurement process and within all
contract documents, it is clear that the partners in this P3 were willing and
able to translate environment-friendly public rhetoric into legally-binding
contract obligations. Since the Canada Line successfully defended its
compliance with environmental regulations in court and through two
judicial appeals, it has the Supreme Court of Canada’s de facto validation
of its engagement with environmental priorities.
The Canada Line’s performance in this area indicates that environmental
matters – including climate change – were real priorities for the project’s
implementation. Minimum legal requirements were superseded, and the
private sector partners proactively engaged with environmental priorities
even when they were not directly obliged to. Policy capacity was therefore
not impaired by the contractual partnership with the private sector in this
case, as the public sector clearly demonstrated the capacity to advance
policy that addressed the government’s climate policy agenda.
However, the “Canada Line” is not and never has been a single entity
or organization acting alone. It is a collaboration between multiple actors
and organizations, including two formal contractual partners and numerous financial contributors, advisors, subsidiaries and interveners. The
project and its accomplishments are the result of the collective effort of all
these actors working cooperatively, and sometimes (as in the case of the
several private sector proponents), competitively.
it appears likely that the Canada Line project prioritized
environmental policy considerations because of decisions
made by its public sector project management team
The history of the Canada Line project’s development suggests that
much credit for engaging environmental issues belongs to the public sector
project management corporation that directed the development of the
Canada Line from the outset. The environmental and climate change
commitments that appeared in the final contract documents are based on
decisions made by the project management team to include these priorities
in earlier project-building stages such as Project Definition or Request for
Proposals. The private sector proponent’s decision to include rigorous
environmental management criteria in its official P3 bid is therefore likely
a response to the public sector management corporation’s early actions to
embed those priorities in prior phases of project development.
230
In short, it appears likely that the Canada Line project prioritized
environmental policy considerations because of decisions made by its
public sector project management team. Most of the independent studies
were commissioned before the procurement process even began, and the
environmental assessment was completed before the private sector partner
had been selected. This is not to say that the private sector was reluctant
to engage with these priorities; on the contrary, the early actions and
continued prioritizing of environmental considerations by the project management team led to a formal establishment of the importance of environmental policy priorities in the final contract documents and indeed in the
legal structure of the concession. While the private sector may not have
initiated an engagement with environmental policy, it did not disrupt this
engagement, and even worked to advance it, as environmental concerns
continued to be prioritized even once the private sector partner had been
brought on board.
The Canada Line project clearly showed a propensity to engage with
British Columbia’s environmental policy priorities, and there is no evidence to suggest that policy capacity was impaired in any way by the
interests of the private sector partner in this case. On the contrary, it
appears that through the design of contract documents, negotiation
between collaborating organizations, and public relations and community
consultation, decision-makers responsible for the Canada Line were able to
leverage the skills and efforts of the private partner to supplement – and
therefore enhance – the public sector’s capacity to engage with the government’s stated climate policy agenda.
Conclusion
Despite the constraints imposed by a binding contract with a private sector
partner, decision-makers responsible for the Canada Line project were able
to maintain sufficient policy capacity to address the project’s stated climate
policy objectives. This capacity was possible as a result of leadership from
the public sector to engage with environmental policy priorities and to
entrench those priorities in the project’s partnership contract.
One lesson from the case of the Canada Line is that it is possible for the
public sector to foster policy capacity for climate action while using a
public-private partnership as a policy delivery vehicle. As P3s are popular
in various other policy sectors, including health care, waste management,
and water treatment, and since climate change is an issue that affects
almost all policy subsytems, there is no reason to believe that the outcomes
seen in the Canada Line should be unique to the transportation sector.
More research is therefore required to investigate the effects of P3s on
policy capacity for climate action in other sectors. Moreover, there is still
231
room for research within the transportation sector as climate change policy
priorities continue to conflict with policies in many Canadian jurisdictions
that promote the expansion of road traffic and as P3s are increasingly used
in this area.
As Canadian P3s progress further along their life cycle towards the end
of their initial concession periods, new evidence will emerge about how
well environmental – and increasingly, climate action – policy priorities are
addressed over time. Although the evidence is not yet definitive, future
research will hopefully tell us more about how the public sector’s ambitions to enhance and sustain policy capacity for climate change will
perform under the auspices of a public-private partnership.
Notes
1 The GVTA’s project management subsidiary, RAVCO/CLRT, was also a signatory to the P3
contract, but it has since been dissolved.
2 The Canada Line’s P3 procurement proceeded in four stages. From 2001 to 2002, consultant
reports contributed to the project definition, in which the scope and scale of the project were
delineated. In 2002, an RFEI was sent to ten private sector corporations that were thought
to be interested in a P3 venture on the project. In 2003, an RFP was sent out to four of the
proponents who had responded to the RFEI. In 2004, two of those firms were invited to
submit a BAFO bid, from which a team led by the Québec-based engineering firm
SNC-Lavalin was selected.
3 See Do Rav Right Coalition v. Hagen, [2006] BCCA 571.
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——. 2004. “Invitation to Submit a Best and Final Offer,” Invitation to Submit a Best and Final
Offer for the Richmond • Airport • Vancouver Rapid Transit Project, July 6, 2004.
Vancouver International Airport Authority. 2005. “YVR Funding Agreement (Restated) among
Greater Vancouver Transportation Authority and Vancouver International Airport Authority and RAV Project Management Ltd. concerning the Richmond • Airport • Vancouver
Rapid Transit Project,” YVR Funding Agreement, January 24, 2005.
Nick J. Mulé
Miriam Smith
Invisible populations: LGBTQ
people and federal health
policy in Canada
Abstract: This article reviews the state of federal health policy discourse toward the
LGBTQ population in Canada. Despite the advent of greater attention to diversity
and gender mainstreaming in federal public policy and the shift to legalized rights
protections for LGBTQ people, symbolized by policies such as same-sex marriage,
LGBTQ health concerns continue to be marginalized in federal health policy. Based
on a systematic review of federal policy documents and websites as well as a small
number of interviews with federal policy-makers, the research demonstrates the
extent to which LGBTQ health concerns are rendered invisible in federal health
policy. The article suggests several ways in which a commitment to gender-based
policy analysis could be expanded to take account of diverse health needs of
LGBTQ Canadians.
Sommaire : Cet article passe en revue l’état du discours de la politique fédérale sur
la santé à l’égard de la population LGBTQ au Canada. Malgré la plus grande
attention accordée à la diversité et à l’intégration de la problématique des genres
dans la politique publique fédérale et la tendance à légaliser la protection des droits
des LGBTQ, que symbolisent des politiques comme le mariage entre personnes de
même sexe, les préoccupations des LGBTQ en matière de santé continuent à être
marginalisées au sein de la politique fédérale sur la santé. Se fondant sur un
examen systématique des documents de politique et des sites Web du fédéral, ainsi
que sur un petit nombre d’entrevues avec des décisionnaires fédéraux, l’étude
démontre dans quelle mesure les préoccupations des LGBTQ en termes de santé
deviennent invisibles dans la politique fédérale sur la santé. L’article propose
plusieurs moyens d’élargir l’engagement envers une analyse de politique fondée
sur le genre, afin de tenir compte des divers besoins de la population LGBTQ
canadienne en matière de santé.
Gender and diversity have become central issues in health policy-making.
Increasingly, health policy analysis is grounded in population health or
social determinants of health approaches that define particular populations
as objects of policy intervention and that consider the impact of social
inequality on health status and outcomes (Orsini 2007). This approach calls
attention to the role of factors such as gender, social class, indigeneity, and
race in health policy outcomes. Despite the increasing attention to gender
Nick J. Mulé is associate professor, School of Social Work, York University, Toronto. Miriam
Smith is professor, Department of Social Science, York University, Toronto, Ontario.
INVISIBLE POPULATIONS
235
and diversity in health policy over the 2000s, however, there continues to
be a systematic lack of attention to lesbian, gay, bisexual, transsexual,
transgender, two spirit,queer and questioning (LGBTQ)1 health issues. This
paper explores this lacuna, pointing to the exclusion of systematic and
explicit consideration of sexual orientation, gender identity, gender expression and LGBTQ health, in federal health policy discourse.
The exclusion of LGBTQ issues from federal health policy discourse is
important for a number of reasons. A wave of recent research has highlighted the extent to which the social location of LGBTQ communities and
the discrimination and stigmatization experienced by these populations
may influence health outcomes in a range of other ways, including higher
rates of certain cancers, alcohol and tobacco use, reproductive health
issues, sexually transmitted infections (STIs), barriers to accessing health
care, lack of knowledge of medical professionals, and specific mental
health concerns (Canadian Rainbow Health Coalition 2004; 2006; Jackson
et al. 2006; Lehavot and Simoni 2011; Mulé et al. 2009: 20–21). LGBTQ
health is most often referenced in relation to HIV/AIDS, which, from its
emergence in the early 1980s, affected gay men more frequently than other
groups. More recently, health issues affecting trans people have also been
the subject of public discussion, as several provinces, including Ontario,
have debated the funding of Sexual Reassignment Surgery (SRS) and other
publically funded medical treatments for trans people such as hormone
therapy. Aside from these areas, there has been little public debate in
Canada about the distinctive health needs of LGBTQ populations.
Moreover, over the period from 2004–2011, the LGBTQ community has
repeatedly called attention to health issues. A number of non-governmental
organizations have been formed to push the agenda of LGBTQ health. The
Canadian Rainbow Health Coalition, established in 2001, has undertaken a
range of initiatives in LGBTQ health and, although it has been relatively
inactive over the last few years because of lack of funding, its website
contains a wealth of material on LGBTQ health and wellness (Canadian
Rainbow Health Coalition 2011). In addition, funded services across
Canada such as Avenue Community Centre for Gender and Sexual Diversity Inc. (formerly Gay and Lesbian Health Services) in Saskatoon,
Rainbow Resources Centre in Winnipeg, Vancouver Coastal Health and
QMunity in Vancouver, and Rainbow Health Ontario have been very active
in putting forth LGBTQ health issues through provincial health delivery
systems and at a grassroots advocacy and education level through the
Rainbow Health Network based in Toronto (Rainbow Health Ontario 2011).
In addition, the lessons of the HIV/AIDS crisis of the 1980s, in which AIDS
activists of the era intervened to shape health and drug policies in an active
way suggest that federal policy-makers should be alert to the health
concerns of particular groups such as the LGBTQ community. Therefore, in
236
NICK J. MULÉ, MIRIAM SMITH
addition to recent research that shows the gaps in LGBTQ health provision,
there is also political demand from LGBTQ stakeholders for increased
recognition in health policy-making and delivery.
Such an approach would also be well-grounded in current health policy
templates and, especially, the dominant approaches to public health, which
routinely reference gender equity and social exclusion as key components
of health policy analysis, emphasizing the importance of these factors to
health and the importance of including all groups in society in decisionmaking (World Health Organization [WHO] 2011). Approaches to health
policy-making such as population health and health promotion both
emphasize structural factors that influence health outcomes and the role of
prevention and education in determining health and wellness. These
templates fit well with the focus of biomedical research on the LGBTQ
communities as well as with the communities’ own demands for inclusion
and consideration in health policy-making.
Another factor that might potentially facilitate LGBTQ inclusion in
federal health policy is that the government has attempted to take up the
discourse of gender-based analysis (GBA) or gender mainstreaming, an
approach that integrates gender into all aspects of policy-making and that
considers the ways in which policy choices—even when seemingly genderneutral—will affect women. Health Canada has been committed to GBA
since the early 2000s (Health Canada 2003: 6–7; on GBA in the federal
government in general, see Status of Women Canada 1996), while GBA had
been envisioned as part of the Public Health Agency of Canada’s mandate
from its inception (for example, Women’s Health and Public Health
Roundtable 2004).2 The mandate of gender-based policy analysis is to bring
this gender lens into the policy-making process, based on evidence, on the
assumption that policy will be more effective if it is based on a gendered
lens rather than designed in a gender neutral way (Hankivsky 2007).
Sexual orientation and gender identity are sometimes mentioned as additional diversity factors when gender-based analysis is presented (Health
Canada 2003: 9). The government took a further step toward the recognition of sexual orientation and gender identity in health policy by adopting
Sex and Gender-Based Analysis (SGBA) in 2009. This approach emphasizes
the importance of biomedical research on health differences between the
sexes, which are cast in a binary fashion; nonetheless, the SGBA policy
does recognize the concept of gender as a socio-cultural construction
(Health Canada 2010a). A number of observers have pointed out that the
adoption of GBA by the Liberal governments of the 1990s through the
2000s and the adoption of SGBA by the Harper government are hardly
unalloyed success stories when it comes to the recognition of the interests
of women in health policy (Rankin and Wilcox 2004; Paterson 2010).
Nonetheless, the adoption of GBA and its expansion to SGBA should
237
trigger the consideration of LGBTQ interests in federal health policy,
especially given the political demand from the LGBTQ communities and
their advocacy organizations.
In this article, we specifically examine federal health policy discourse
and action, focusing on the major federal department that is responsible for
health—Health Canada—as well as the Public Health Agency of Canada,
charged with responsibility for public health. These federal bodies are
responsible for national discourses, models and perspectives that shape
concepts of health and health care in Canada with international influence.
Our purpose is to evaluate the extent to which federal policy discourse
incorporates LGBTQ health issues. While the federal government is not
responsible for the direct delivery of health services to most Canadians, it
does play a lead role in macro level discourse and health care strategies
that influence health care delivery at the provincial and territorial level,
where health care is administered. We then explain the methodology we
used to evaluate the government’s discourse, and we then present our
findings that suggest LGBTQ interests are marginalized and silenced in
federal health policy.
Methodology
In order to evaluate the federal government commitment to LGBTQ health,
we surveyed policy and research documents produced by Health Canada
and the Public Health Agency of Canada (PHAC) since 2004 and sought
interviews with Health Canada and PHAC officials. While policy documents and research reports do not provide complete information on the
implementation of federal health policy, they do furnish a reasonable basis
for evaluating the federal government’s health policy discourse. The government’s policy agenda is defined and shaped by what it says about its
own policies and research reports in publicly available websites, policy and
research documents, and interviews. Even when research reports are not
written by government staff, but commissioned from outside consultants
or produced in partnership with other agencies, this research reflects the
parameters and priorities set by the government departments and agencies
that fund the research.
In order to develop a well-grounded picture of federal government
health policy, we searched the publicly available documents authored or
published by Health Canada and PHAC as well as searching the documents available on the Health Canada and PHAC websites. Health Canada
is the main federal health ministry and PHAC is the main agency responsible for public health. Given the range of health issues that have been
raised in biomedical research and in advocacy on LGBTQ health over the
course of the 2000s as well as the expansive recognition of LGBQ rights in
238
Canadian law over the same period (for example, through the passage of
the same-sex civil marriage legislation in 2005), we expected that Health
Canada and PHAC would offer some recognition of LGBTQ interests in
health. In addition to Health Canada and PHAC, we included some
documents that were authored, co-authored, or published by the Health
Council of Canada, the Canadian Institute of Health Information, and
Statistics Canada. The Health Council of Canada was established by the
federal and provincial governments to monitor the operation of health care
systems and health outcomes and is funded by Health Canada as part of
the federal-provincial health accords of 2003–4 (Health Council of Canada
2009a). The Canadian Institute of Health Information (CIHI) is funded by
the federal and provincial governments to provide independent health
information (CIHI 2011). In addition, a number of documents were
authored by non-governmental researchers or in partnership with nongovernment organizations, but were published by Health Canada or
PHAC. Statistics Canada, the federal agency responsible for the census and
other data, has a division responsible for health information that sometimes publishes health reports in conjunction with PHAC or Health
Canada and these were included in the sample. We excluded the Canadian
Institutes of Health Research (CIHR) from the sample. As the main federal
granting agency for scholarly health research, CIHR operates at arm’s
length from the federal government. Although it sets priorities for health
research, it does not control the applications it receives nor does it approve
or control the research results. Its curiosity-driven research model does not
directly reflect the federal government’s health policy priorities, which
were the object of our interest in this paper.3
In order to conduct the document analysis, we used the York University
library to collect Health Canada and PHAC-authored documents published
in English from 2005 to August 2011. Like most university libraries, the
York library is a depository for Canadian government documents (York
University Library 2011). The search for English-language documents
authored or published by Health Canada or PHAC after 2004 yielded 367
results. As the purpose of the sample was to evaluate the extent to which
and the ways in which LGBTQ health was discussed in federal policy
discourse, the sample was culled to include only publications on topics
that could be defined as potentially relevant to LGBTQ health. Topics were
considered to be potentially relevant to LGBTQ health if they had been
identified in reports of biomedical research, identified by LGBTQ stakeholder organizations such as the Canadian Rainbow Health Coalition,
identified in secondary literature, or covered in the media. These issues
included access to health care, the (lack of) cultural competence of health
care professionals, higher rates of certain cancers (for example, breast
cancer for lesbians), domestic violence, sexual reassignment therapy,
239
hormone therapy, reproductive and sexual health, parenting, HIV/AIDS,
and mental health and addiction (see Canadian Rainbow Health Coalition
2011 for an overview of LGBTQ health issues). In addition, discussion of
specific populations such as Aboriginal people, youth, children, the elderly,
racialized minorities and migrants, immigrants or refugees were included
in the sample in order to see if LGBTQ people were mentioned or
considered to be part of these populations. In many cases, particular health
issues have been identified for LGBTQ people within these groups such as,
for example, the lack of appropriate care facilities for LGBTQ seniors
(Brotman, Ryan, and Cormier 2003), the lack of appropriate housing and
shelter for street-involved LGBTQ youth (Teotonio 2011) and the bullying
of LGBTQ youth in schools (Taylor and Peter 2011).
Topics that were not considered as potentially relevant for LGBTQ
health included areas such as workplace health and safety, vaccinations,
pandemic preparedness, food and chemical safety, and reports on drug
testing.4 While these areas might affect LGBTQ health interests, they have
not been recently identified as such in the biomedical literature or by
LGBTQ health policy stakeholders, the criteria we used to define “relevance” in the document analysis. In other words, the sample was
restricted to those areas where we might expect discussion of LGBTQ
health, based on health concerns that had already been identified by
LGBTQ stakeholders or in biomedical research. After culling the items in
this fashion and eliminating duplicates, the original search total of 367
English-language documents published from 2005–2011 was reduced to
172. In other words, 47% of the documents were deemed potentially
relevant for LGBTQ health. Of these, over one-third (36%) of these documents (62/172) were searched at random and reviewed for mention of
LGBTQ health issues. In order to validate the findings from the document
search, we also conducted a Google search of the Health Canada and
PHAC websites to identify discussions that might not have been published
in official government documents.
. . . this result clearly demonstrates that LGBTQ health
issues have not been systematically taken up by Health
Canada and PHAC in their published policy discussions.
Finally, we sought interviews with officials from Health Canada and the
Public Health Agency of Canada who were positioned in departments and
units that could potentially address policies related to LGBTQ health. The
intent was to target key policy makers at the intermediate and senior
levels. Within Health Canada five divisions were identified and nine policy
makers and one ministry official therein were approached to participate in
240
the study. Four divisions within PHAC were identified and five policy
makers were approached. Some indicated a lack of availability during the
data collection time period. Others indicated that they did not have any
knowledge of LGBTQ populations and/or that their work did not expose
them to these communities, and as such did not see themselves being
useful for our purposes, clearly indicating the absence of policy attention
to our subject matter. It is also possible that the pending federal election of
May 2011 may have dampened the response rate for interview requests. In
addition, the Harper government has exerted strong and centralized
control over the management of information and this may have shaped the
challenges we faced in obtaining interviews (Delacourt 2011; Kozolanka
2009: 227–232;). Nevertheless, we were able to undertake interviews with
two Health Canada civil servants, both of whom were interviewed in
person at their departments in Ottawa, as well as one civil servant from
PHAC based in BC, who was interviewed by phone in March 2011, and we
include their insights here.
Findings
Overall results in context
Table 1 presents the number of documents in the culled sample of 62 that
included LGBTQ search terms such as “sexual orientation,” “gender identity,” “gay,” “lesbian,” “bisexual,” “transgender(ed)” or “queer.” Of these
documents, 14.5% contained at least one of the keywords. Table 2 indicates
whether or not the reference to LGBTQ keywords was substantive. If the
LGBTQ communities were mentioned in passing (for example, Health
Canada 2010b: 84) or in a discussion unrelated to the health topic (for
example, Martin and Johnston 2008: 18), the document was classified as not
substantive. If the document substantively discussed some aspect of
LGBTQ health (for example, PHAC 2010a; PHAC 2010b), the document
was categorized in the substantive category. After a careful review of the
document sample, the results in Table 2 show that LGBTQ health was
substantively mentioned in only 8% of the total document sample. The
specific keyword counts ranged from 3.2% to 8% of the 62 documents. The
terms “gay,” “lesbian” and “bisexual” were mentioned most frequently at
8% while the terms “transgender,” “two spirit,” “queer,” “sexual orientation” and “gender identity” were less frequently used. Given that the
sample reviewed was culled to focus on LGBTQ health and included issues
of concern to LGBTQ communities or issues identified as important for
LGBTQ health in the biomedical literature and by LGBTQ stakeholders,
this result clearly demonstrates that LGBTQ health issues have not been
systematically taken up by Health Canada and PHAC in their published
policy discussions.
241
Table 1. Total LGBTQ Keywords in a Sample of Health Canada and PHAC
Publications 2005–2011
Total Keywords
Keyword
# of documents that
mentioned keyword
as % of total document
sample (62 documents)
9
8
6
3
2
2
3
3
9
14.5
12.8
9.6
4.8
3.2
3.2
4.8
4.8
14.5
gay
lesbian
bisexual
transgender
two spirit
queer
sexual orientation
gender identity
total*
Source: Health Canada and PHAC document sample taken from York University library
catalogue, August 2011. *Most of the keywords appear together in the same document.
Therefore, the totals do not add.
Table 2. Substantive v. Non-Substantive Discussion of LGBTQ Keywords in a Sample
of Health Canada and PHAC Publications 2005–2011
Substantive
Keywords
gay
lesbian
bisexual
transgender
two spirit
queer
sexual orientation
gender identity
total*
Not Substantive
# of documents
that mentioned
keyword
as % of total
document sample
(62 documents)
# of documents
that mentioned
keyword
as % of total
document sample
(62 documents)
5
5
5
2
2
2
2
2
5
8
8
8
3.2
3.2
3.2
3.2
3.2
8
4
3
1
1
0
0
1
1
4
6.5
4.8
1.6
1.6
0
0
1.6
1.6
6.5
Source: Health Canada and PHAC document sample taken from York University library
catalogue, August 2011. *Most of the keywords appear together in the same document.
Therefore, the totals do not add.
To put this result into perspective, we reviewed the same set of documents
for references to gender and gender-based analysis. Over one-quarter of the
documents mentioned gender (if only in terms of the gender binary) and
exhibited awareness that health research, needs and outcomes might be
different for women than for men. However, only about 10% of the
document sample mentioned or engaged in gender-based analysis, showing
the weak level of commitment to GBA in the practice of Health Canada and
PHAC’s documentary discussions and research reports. Nonetheless, there
242
was more discussion of gender and gender-based analysis in this sample
than of sexual orientation, gender identity or any single LGBTQ keyword.
This reinforces the view that gender and gender-based analysis often do not
include discussion and consideration of sexual orientation and gender
identity in the same way that Hankivsky et al. (2010) has noted that health
equity research often overlooks intersectional analysis.
Our interviews with federal civil servants parallel the content and
website findings. LGBTQ people are not recognized for their broad health
and wellbeing issues in federal health policy, funding and programming,
nor as a designated population outside of STIs. GBA does not figure
strongly, and LGBTQ communities are not considered a part of the social
determinants of health model. When recognized, the LGBTQ populations
are seen as illness based and, as such, the federal government has not set
up any formalized systemic mechanism to address the broad health issues
of these communities.
Substantive content
The marginalization of LGBTQ health in these documents is even more
pronounced when the substantive content of the discussions is considered.
All of the documents that mentioned LGBTQ keywords in the sample were
qualitatively reviewed in order to assess the quality and nature of the
discussion of LGBTQ health, producing a short list of a few documents that
contained such substantive discussions. These documents included PHAC’s
two pamphlets on sexual orientation and gender identity in schools (PHAC
2010a; 2010b), the population studies of HIV/AIDS (PHAC 2009a; PHAC
2011) and one other document produced for the Mental Health Commission
of Canada that mentioned LGBTQ health needs, although without explicit
discussion of the specific needs of trans people (O’Hagan et al. 2010).
Therefore, of the sample, only five documents substantively discussed
LGBTQ health over the course of the decade.
Overall, most policy documents and research reports were resolutely
heteronormative and gender-normative; that is, they implicitly or explicitly
assumed an opposite-sex definition of couples and a heterosexual sexual
orientation (heteronormative) and failed to mention gender beyond the
traditional binary, thus excluding gender variant and trans people. For
example, discussions of treatment options for Aboriginal youth with substance use problems recommended that youth should be mentored and
housed with peers of the same-sex, overlooking the possibility of same-sex
relationships or two spirit identities (Chiefs of Ontario 2009). A PHAC
document on pregnancy and childbirth presents information on how to
manage risks of childbirth with repeated references to the “husband or
partner” but without mentioning female partners or gay fathers, thus
243
eliding the reality of the growth of queer parenthood (Public Health
Agency 2009d: 1, 7; see also McCourt 2005; on queer parenthood in the
Canadian context, see Epstein 2009). A discussion of children’s health
presents family types, without mentioning same-sex parents (Pollution
Probe 2008). A discussion of mental health in schools similarly avoided any
mention of LGBTQ populations, whether as students or parents, despite an
extensive discussion of bullying (Morrison 2010).
The marginalization of LGBTQ health in these documents is even more pronounced when the substantive
content of the discussions is considered
Moreover, there were areas in which we have expected the incorporation
of LGBTQ interests in health, given the identification of these health issues
in the biomedical literature as well as their identification by LGBTQ health
advocacy organizations, and yet they were not discussed. For example,
several biomedical studies have identified the fact that bisexual and lesbian
women (or women who have sex with women—WSW) have higher rates
of breast cancer than heterosexual women (Kavanaugh-Lynch et al. 2002;
Dibble, Roberts, and Nussey 2004; Brandenburg et al. 2007). Yet, a PHAC
guidebook on breast cancer screening discusses breast cancer risk factors
without mentioning lesbian and bisexual women or the terms sexual
orientation and gender identity (PHAC 2009b). A guidebook on cervical
cancer does not mention gender, lesbian or bisexual women (PHAC 2009c).
Discussions of women’s health equity from a population health perspective
listed ethnicity, income, education and geography as important factors
within each gender category (male and female) without further reference
to gender identity or sexual orientation (Bierman 2006). A discussion of
street-involved youth and the health risks of their sexual behavior did not
mention same-sex sexual behavior or LGBTQ people (PHAC 2006a; see
also PHAC 2007a; 2007b). Publications on access to care (that is, the ability
to access a knowledgeable family doctor), a major concern for LGBTQ
communities (Ryan, Brotman and Rowe 2000), did not refer to these
communities (Statistics Canada 2006; Health Council of Canada 2010).
Many other areas in which the LGBTQ communities might be expected to
have specific concerns and interests such as assisted human reproduction
(Health Canada 2006); addiction (Ahmad 2008), cancer (Canadian Cancer
Society 2007; Canadian Cancer Society 2010), public and stakeholder
communication about health risk (PHAC 2006b) and palliative, chronic,
and elder care (Health Canada 2007; Zierler 2010; Health Council of
Canada 2007; Health Council of Canada 2009b), did not include any
mention of LGBTQ people. The population-based reports on HIV/AIDS in
244
the Black and Caribbean communities and among First Nations provide
some of the only examples of intersectionality (PHAC 2009a; PHAC 2011).
Other reports and documents on Aboriginal health policy do not mention
two spirit people (for example, Health Canada 2009).
Overall, most policy documents and research reports
were resolutely heteronormative and gender-normative;
that is, they implicitly or explicitly assumed an
opposite-sex definition of couples and a heterosexual
sexual orientation (heteronormative) and failed to
mention gender beyond the traditional binary, thus
excluding gender variant and trans people
The most common frameworks for health policy discussion excluded
sexual orientation and gender identity. For example, the population health
approach was presented repeatedly in Health Canada and PHAC documents and yet sexual orientation and gender identity were not included as
factors constituting specific populations (PHAC 2006a). A report on Hepatitis C infection in Canada stated that “the renewed Hepatitis C Program
will ensure an evidence-based approach to policy and program development, implementation and sustainability. Ongoing policy and programming investment decisions will be based on a population health approach
that takes into consideration key health determinants,” which are listed as
“income and social status, social support networks, education, employment and working conditions, social environments, physical environments,
personal health practices and coping skills, healthy child development,
culture, health services, gender and biology and genetic endowment”
(PHAC 2009e: 12). A discussion of community-based interventions to
reduce health inequalities focussed extensively on poverty reduction and
socio-economic determinants of health with no intersectional consideration
of poverty in terms of gender, race, sexual orientation, gender identity or
any other populations aside from youth and elderly (Bell 2009: 3–12). A
scan of the literature on how mental illness and mental health are taken up
in the Atlantic provinces made no mention of the terms gay, lesbian,
bisexual, transgender, sexual orientation or gender identity, despite the fact
that the report had been commissioned with a mandate to explore the
social determinants of health using a population health perspective
(Muzychka 2007: 3). This author interviewed a number of people from the
community and clearly received a street level view of the need for more
mental health services. Yet, throughout her research, the mental health
needs of the LGBTQ population, which have been clearly identified in
biomedical and stakeholder reports, were not mentioned (Muzychka 2007).
245
This example demonstrates the extent to which the LGBTQ communities
are submerged from view in government-sanctioned health research, even
when such research is explicitly undertaken using a social determinants or
population health approach and even when it is based on a participatory
model of research (for a queer critique of the social determinants and
population health perspectives, see Mulé et al. 2009).
This combination of social determinants and population health
approaches was typical in these policy documents, which often used the
terms interchangeably to refer to the social environment for health policy
and outcomes. A number of reports using the population health approach
listed socio-economic status, geography, culture, education and other
factors without reference to sexual orientation or gender identity. This
finding is consistent with discussions of population health in the secondary
literature that do not mention gender identity or sexual orientation or
mention them only in passing. For example, a recent discussion of social
determinants of health does include passing reference to gay, lesbian and
trans people in the discussion of gender, although the discussion is limited
to the health needs of LGT youth (Mikkonen and Raphael 2010: 45); other
dynamics of health inequity are not considered from the perspective of
gender and sexual diversity.
There were also examples in the sample of policy and reports that took
up an explicitly gender-based analysis without mention of sexual orientation or gender identity or with only passing mention, reflecting the extent
to which S/GBA itself has been based on and has replicated the
heteronormative assumptions and the gender binary. For example, a discussion of the development of women’s health indicators moves beyond
GBA to diversity-based analysis, emphasizing “the interaction between
gender and the social determinants of health” (Bierman 2006: vii). While
the author argues that “gender and equity analyses should be routinely
incorporated into all Canadian health indicator reporting initiatives”
(Bierman 2006: vii), gender is understood in binary terms and used
interchangeably with sex. In keeping with the focus on SGBA, the author
deploys gender-based analysis to show men’s health situation, as they are
more prone to binge drinking and other conditions. The author is critical
of previous work that has mentioned gender but did not undertake a
gender-based analysis. Ethnicity, income, education and geography are all
identified as important factors within each gender category (male and
female). This document was one of the few to incorporate an extensive
discussion of race, using the terms race, and migration, but gender was not
deemed to include the LGBTQ populations, either on their own, or as
subsets of other groups (Bierman 2006: 2–7). Similar results were found in
other documents covering topics such as addiction (PHAC 2007b; Ahmad
2008), among others.
246
Even when LGBTQ issues are taken up, federal policy discussions do
not centre the LGBTQ population itself. For example, Health Canada and
PHAC’s population-based reports on HIV/AIDS in Canada focused on the
Black and Caribbean population and the Aboriginal population, extensively discussing LGBTQ identities in these communities (PHAC 2009a;
2011). This intersectional perspective is important and highlights the challenge of LGBTQ identities in these communities, as the reports argue that
it is more difficult for Black Caribbean and two spirit people to come out
in their communities. The reports also discuss violence specifically directed
against women and girls, trans and bi people and people with disabilities,
thus showing an awareness of gender and diversity-based analysis (PHAC
2009a 4–6, 37ff). However, LGBTQ populations appear in the populationbased studies only through their membership in other population groups.
Given that gay and bisexual men constitute 48% of HIV/AIDS cases in
Canada, the lack of a specific population study of the LGBTQ communities
is a lacunae and one that has been pointed out by LGBTQ stakeholders in
HIV/AIDS policy (Garro 2009). Acknowledging gay and bisexual men
under other social locations (that is, racialized, ethnicized cultures) or
absenting them altogether, is in effect invisibilizing those that are out and
proud as gay and bisexual men and their social location on the cultural
map (Mulé 2005; Young and Meyer 2005). Perhaps in part in response to
this criticism, PHAC has recently stated that it would undertake a population study of gay, two spirit and bisexual and other men, although this
report, if completed, did not turn up in our document search (PHAC 2012).
In addition, the lack of discussion is occurring at a time when controversies
over the criminalization of PWAs are on the rise (Fagan 2011) and in a
context in which stable federal funding for HIV/AIDS prevention among
gay and bisexual men is lacking (Barsotti 2010; D. Smith 2011; Salerno
2012).
The discussion of HIV/AIDS is a key example of the way in which
LGBTQ health is currently situated in federal policy. While HIV/AIDS is
a longstanding issue in the LGBTQ communities, sparked the establishment of early queer health organizations such as the AIDS Committee of
Toronto (ACT), and continues to affect a large number of gay and bisexual
men, their status in HIV/AIDS health research and service delivery is
contested. Despite the fact that these men are disproportionately affected
by HIV/AIDS (Jaffe, Valdiserri, and De Cock 2007; Sullivan, et al. 2009),
gay, bisexual and other men were not singled out as a population according to the document search. Moreover, in an attempt to focus on behaviour
rather than identity for purposes of public health, HIV/AIDS research and
policy sometimes deploys the epidemiological terminology of men who
have sex with men (MSM) and, at times, writes of HIV/AIDS and of
same-sex sexual behaviour without ever referring to LGBTQ identity (Mulé
247
2005; Young and Meyer 2005). For example, a recent report on a joint
UN/Health Canada/PHAC consultation on disability and HIV/AIDS
focuses on people with disabilities and people with HIV/AIDS without
mentioning LGBTQ populations. The report also mentions that many
stakeholder groups were invited to the consultation as well as individuals
from the education, service and research communities. There is no mention
of LGBTQ groups having been invited to these consultations, although,
undoubtedly, many members of the communities would have been
involved as members of other organizations or as people with disabilities
or people with HIV/AIDS. However, these intersections are simply invisible in the report. Similarly, although there is some discussion of the
specific situation of women with HIV/AIDS, the word gender does not
appear in the document nor does the term gender-based analysis (Joint
United Nations Programme on HIV/AIDS 2009: 10–12, 19, 21).
Websites
In order to obtain another view of the public discussion of LGBTQ
communities by the federal government and in order to validate our
results from the document search, we also used Google to search the
Health Canada and PHAC websites. Websites are an important aspect of
the public presentation of health discourse and may contain additional
resources that are not captured by formally published government documents. We used Google’s Advanced Search to conduct site-specific
searches for LGBTQ keywords as well as comparator keywords over the
period 2004 to August 2011 on the Health Canada and Public Health
Agency of Canada websites. There were 17,500 mentions of the word
“health” on the Health Canada website, but only 45 mentions of the
word “gay,” 34 mentions of the word “lesbian,” 19 mentions of the word
“bisexual,” 14 mentions of the term “transgender,” 6 mentions of the
term “gender identity” and 25 mentions of the term “sexual orientation.”
Most mentions of lesbians and all mentions of bisexuals and transgender
people occurred as part of the umbrella term LGBTQ, rather than as a
discussion of specific lesbian, bisexual, or transgender health issues. The
search of the Public Health Agency of Canada website covering the same
period found better representation of LGBTQ populations. There were
131 mentions of the word “gay” on the PHAC website; however, 90 of
them mentioned gay men in relation to HIV/AIDs or other sexually
transmitted infections. Interestingly, PHAC links gay men with HIV/
AIDS through its website. Yet, like Health Canada, it fails to do so in its
more comprehensive documents that impact health policy. The other 41
documents on the PHAC website mentioned gay men (usually as part of
the LGBTQ group, rather than on their own) in relation to a few other
health issues including mental health, domestic partner abuse and, in
248
one case, homophobic bullying of gay youth. Many other healthidentified issues were not mentioned, however. For specifically lesbian
issues, there were only eleven mentions, most of them on intimate
partner violence, certainly an important issue, but far from the only
public health issue affecting lesbian women, according to the secondary
literature and according to LGBTQ stakeholder organizations. For bisexuals, there was only one specific mention, aside from their inclusion
under the umbrella of LGBTQ and this was a substantive discussion of
the risk of intimate partner violence for bisexual men compared to
straight men. Tellingly, the term “transgender” had the lowest number of
total hits on the PHAC website, at 36, most of them overlapping with
the LGBTQ category and all but three focussing on HIV/AIDs. Only one
document on the PHAC website specifically discussed trans health
issues. These findings confirm the results of the document analysis and
the exclusion of discussion of broad LGBTQ health issues from the
public presentation of Canadian health policy by Health Canada and by
the Public Health Agency of Canada.
Beyond publicly accessible documents, we also pursued interviews with
civil servants in Health Canada and PHAC involved in policy development. The challenges in obtaining interviews are consistent with our
research results. Those we approached claimed not to work on LGBTQ
issues and were unable to refer us to those who did. Of those who
considered our request, three—two from Health Canada and one from
PHAC—agreed to participate.
Interview results
Several key themes emerged from the data gathered from interviews with
three federal civil servants that provide relevant insights into the development of LGBTQ-sensitive policy. The interview subjects confirmed that,
at best, LGBTQ communities are thought to be included in illness-based
HIV/AIDS/STI policies or diversity-based policies, the latter of which
focuses strictly on “sexual orientation,” ignoring trans issues. The interview participants questioned the influence of GBA in the federal government and argued that, if anything, it appears that community-based
groups and organizations contribute to shaping policy and programming
based on their feminist analysis and mandates more so than the government’s commitment to GBA. Regarding the Social Determinants of Health
model, one interviewee questioned why the government has not captured
LGBTQ populations within it, given the obvious fit.
Although respondents were clearly in touch with the LGBTQ communities and did receive issues and concerns regarding their health and
wellbeing, what is lacking is a formal governmental systemic vehicle with
which to address the broad health concerns raised by the LGBTQ
249
communities. Recommendations from final reports of federal governmentfunded community-based LGBTQ health research studies were neither
formally followed up, nor was an environment created that encouraged
policy makers to do so. These recommendations essentially called for
governmental recognition of broad health issues, needs and concerns of
LGBTQ people with corresponding education, research, policy, programming and funding. Many called for a formalized government-backed
systemic initiative that would ensure these components are properly
resourced and implemented. This lack of priority and minimized recognition
meant that LGBTQ individuals were generally consulted regarding HIV/
AIDS/STIs but not regarding other health issues. In this way, the interview
participants confirmed the federal government view of the LGBTQ communities as illness-based rather than socially located or positioned. Despite
numerous federal government-funded community-based LGBTQ health
research studies, health-based LGBTQ funding was not extended for broad
health and wellbeing issues. Yet, funds were extended for public awareness
campaigns regarding STIs codifying the LGBTQ communities as sexualized
and dangerously so. The interview participants also pointed to the role of
fear and ignorance in limiting attention to and inclusion of LGBTQ
communities. In sum, the interview results were consistent with the findings
of the document analysis and website searches.
Conclusions
Despite (some would argue in spite of—see Garro 2009) federal policy
templates such as population health and the social determinants of health
and the commitment to undertake a Sex and Gender-Based Analysis
(S/GBA) in policy development, LGBTQ communities are, for the most
part, absent from federal health policy. Although S/GBA is now official
policy at the federal level, its traditional assumption of binary notions of
the genders falls far short of even beginning to adequately address the
complex and diverse health-related issues affecting LGBTQ populations.
Where LGBTQ people are acknowledged tends to be in HIV/AIDS/STIspecific initiatives, with an emphasis on MSM. Although these illnessbased policies entail funding, programming and services that by extension
benefit gay and bisexual men, they further marginalize the health needs of
lesbians, bisexual women and the transgender populations, not to mention
the broader health and wellbeing issues of LGBTQ communities in general.
It is well established that LGBTQ communities experience a series of
distinct health and wellness issues and concerns as found in the formal and
grey literature, and has become a focus for organizing and political action
within the LGBTQ movement over the past 12 years. Yet, federal health
policy discourse, with few exceptions, has all but ignored these needs.
250
Our findings show that both Health Canada and PHAC have underrepresented LGBTQ communities’ health issues in their respective published policy documents, demonstrating a systemic oversight. Although
GBA was taken up more so than gender and sexual diversity issues, it too
fell short compared to the perspective of gender, the latter of which was
strictly defined in binary terms. The lack of intersectionality between GBA
and LGBTQ people is remarkable, even when the illness-based issue of
HIV/AIDS is taken up. When LGBTQ communities were mentioned, they
tended to be of secondary concern. Whether it was the population health
or social determinants of health models or the PHAC and Health Canada
websites, LGBTQ health issues were minimally addressed at best with the
exception of HIV/AIDS. Both Health Canada and PHAC would do well to
equally acknowledge MSM and gay and bisexual men, their respective
social locations and differing health needs as a result. Additionally, these
federal health departments need to take up the array of health and
wellbeing issues affecting the LGBTQ communities based on the literature.
The interviews we were able to conduct speak to a limited illness-based
(HIV/AIDS) focus that does not take up LGBTQ people as a population
with distinct health and wellness issues in any of their health models. The
participants acknowledged that the health issues of LGBTQ communities
were not a priority. As such, they were hard pressed to point to funding,
programs and services that addressed LGBTQ health concerns outside of
HIV/AIDS/STIs. They confirmed that no direct link exists between S/GBA
and gender and sexual diversity. They spoke of a lack of political will and
leadership from within that would champion these issues, alluding to a
systemic ignorance and apathy that is leaving the LGBTQ population with
little support at the federal level. Although the few interviews we conducted is a limitation of this study, the participation of and information
provided by these individuals in an environment that discourages such
participation is noteworthy.
A future study might also seek to explore the reasons for the federal
neglect of LGBTQ issues, a neglect that has spanned both Liberal and
Conservative governments. As a minority group that is not able to mobilize
substantial electoral pressure, the LGBTQ community has benefitted from
political alliances with Liberals, and especially, with the federal NDP over
the years. Yet, most of the main changes in federal and provincial policies
toward the LGBTQ community in Canada, especially on issues such as
same-sex marriage and relationship recognition, occurred as a result of
litigation, as the LGBTQ movement was able to exploit the political
opportunities created by an empowered judiciary in the wake of the
constitutional entrenchment of the Charter of Rights (Smith 1999; 2008).
The integration of LGBTQ interests into other aspects of policy-making is
a challenge in the absence of electoral or legal pressure. The project of
251
explaining the position of LGBTQ communities in Canadian health policy
naturally flows from this paper, which has presented an empirically-based
description of the absence of the community from federal health policy
discourse.
As a population that has suffered years of discrimination and marginalization, the LGBTQ movement fought for equitable representation and
recognition, including protection on the basis of sexual orientation in
human rights legislation (this battle continues on the gender identity and
gender expression front). Yet, as demonstrated in this study, the federal
health system has not adequately taken up these issues in a manner that
would effectively address LGBTQ health needs. Given that health care is
administered at the provincial and territorial level, future research can
explore whether these populations are better recognized at that meso level.
Nonetheless, the role of federal health programs is not to be underestimated in setting a pan-Canadian health discourse as a guide for the
provinces and territories to follow. The Canadian federal government can
redress this situation by allowing for a more inclusive, diversified approach
to its health care perspectives encapsulating the LGBTQ populations.
Notes
1 For the purposes of this paper, LGBTQ denotes lesbian, gay, bisexual, transgender, transsexual, two spirit, queer and questioning people. This encompassing acronym captures
sexual orientation regarding those sexually attracted to the same sex (lesbians, gay men)
and both sexes (bisexuals); gender identity and gender expression (transgender, transsexual) that involves identifying with a gender that differs from the biologically assigned
gender at birth (which may or may not conform to binary genders and may or may not
involve sex reassignment surgery); the sometimes contested Aboriginal notion of two
genders within one person (two spirit); the politicized identity of queer that celebrates
difference and resists heteronormativity; and those questioning their sexuality, gender
identity or gender expression.
2 The Public Health Agency of Canada was established in 2006. However, discussion of its
potential gender mandate occurred prior to its establishment (for example, Women’s Health
and Public Health Roundtable 2004).
3 In future research, it would be useful to explore the ways in which CIHR’s priorities have
been set, and the effect this has had on research on gender and sexuality.
4 Drug testing was excluded, as there were no specific controversies affecting the LGBTQ
populations over the period of this study (2004-mid 2011). This would not be true of other
historical periods (on the U.S., see Epstein 1996).
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Christopher Alcantara
Jason Roy
Reforming election dates
in Canada: Towards an
explanatory framework
Abstract: Since 2001, ten governments in Canada have passed fixed election date
legislation. The typical assumption in the literature is that governments did so as
a way to address public concerns about the undemocratic nature of calling and
timing elections. This argument, however, does not explain the timing (that is,
when the legislation was passed by each jurisdiction) of this policy change. We
approach this puzzle deductively by applying the theoretical insights of multiple
streams theory to the Canadian experiences. Our findings suggest that although all
three streams were important, the political stream is crucial for explaining the
timing of the legislation.
Sommaire : Depuis 2001, dix gouvernements au Canada ont légiféré en faveur de la
tenue d’élections à date fixe. Les hypothèses typiques qui ressortent de la documentation sur la question sont que les gouvernements en ont décidé ainsi pour
répondre aux inquiétudes du public concernant la nature antidémocratique de la
convocation et du choix de la date d’une élection. Cet argument, cependant,
n’explique pas le choix du moment (c’est-à-dire, quand la loi a été adoptée par
chaque juridiction) de la modification de cette politique. Nous abordons ce cassetête de manière déductive en appliquant aux expériences canadiennes les informations théoriques d’une théorie à multiples axes. Nos conclusions laissent entendre
que même si les trois axes étaient importants, l’axe politique est crucial pour
expliquer le moment de l’adoption de la loi.
Since 2001, ten governments in Canada (nine Canadian provincial governments1 and the federal government) have adopted fixed election date
legislation, setting all future general elections to occur every four years.2
The first province to pass such legislation was British Columbia in 2001,
followed by Newfoundland and Labrador in 2004, Ontario in 2005, New
Brunswick in 2007, Saskatchewan, Prince Edward Island, and Manitoba in
2008, Alberta in 2011, and Québec in 2013. The federal government passed
fixed election date legislation in 2007. The only provincial government to
not pass fixed election date legislation is Nova Scotia.
Christopher Alcantara is associate professor of political science, Wilfrid Laurier University,
Waterloo, Ontario. Jason Roy is associate professor of political science, Wilfrid Laurier
University. The authors would like to thank the editor and anonymous reviewers of this
Journal for their helpful comments and suggestions on an earlier draft of this paper.
REFORMING ELECTION DATES IN CANADA
257
The emergence of fixed election date legislation is an important development not only for Canada, but also for students of Canadian public
administration. Indeed, this legislation is one of the first visible reforms
successfully passed by the federal government and a majority of provincial governments to address the so-called “democratic deficit,” which
some commentators have argued is one of the most serious problems
facing this country (Aucoin, Jarvis, and Turnbull 2011; Tanguay 2009;
White 2005). As a result, a body of literature has emerged that examines
the impact of this legislation on our Westminster parliamentary system.
One set of commentators has argued that this change has undermined
our parliamentary system, while others have suggested that it has
strengthened it (see Aucoin, Jarvis, and Turnbull 2011; Pepall 2010).
What has yet to be explored, however, are the dynamics that generated
this change.
The emergence of fixed election date legislation is an
important development not only for Canada, but also
for students of Canadian public administration.
So what explains these trends, and more specifically, the timing of the
legislation? Surprisingly, there has been little research that has focused
on these questions directly (although see Cross 2005) and even less effort
towards advancing a theoretical explanation for why a Westminster parliamentary democracy might pass this type of legislation. The typical
assumption in the literature, usually offered in passing, is that these
governments are simply responding to public and scholarly concerns
about the undemocratic nature of the election timing power (Dodek
2010; Leuprecht and McHugh 2008; Milner 2005). While we do not disagree with this reasoning for why fixed election date legislation was
enacted, we do note that there is a void in the existing scholarship
regarding the timing of fixed election date legislation across Canadian
jurisdictions. What explains the twelve-year gap between British
Columbia’s 2001 transition to fixed election dates and Québec’s 2013
enactment of a similar policy? If fixed election date legislation is a policy
response intended to address democratic malaise, why is there a temporal gap in the passage of this legislation? Furthermore, why hasn’t
every province adopted such a law?
In this article, we approach this puzzle deductively by relying on the
theoretical insights of multiple streams theory, originally developed by
John Kingdon (2003) and used by scholars to study policy change in a
variety of countries (Blankenau 2001; Zahariadis 2007), including Canada
(Henstra 2010). Using secondary literature, news sources, and Hansard
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CHRISTOPHER ALCANTARA, JASON ROY
transcriptions, we apply this theory and logic to the experiences of the
federal and provincial governments of Canada. Our findings suggest that
fixed election date legislation is the result of three particular “streams”
converging at different moments in time and jurisdictions. More specifically, we conclude that it is the political stream that is crucial for explaining
the timing of legislation across Canadian jurisdictions. The implications of
these results offer further insight into the opportunities and challenges
Canadian policymakers face in their effort to address public malaise within
a Westminster institutional setting.
The problem and
potential explanations
The problem this article addresses is two-fold. First, we consider why the
Canadian federal government and nine provincial governments adopted
fixed election date legislation. Our findings, which are consistent with the
existing scholarship, suggest that the adoption of fixed election date
legislation is a government response to the public’s concerns regarding
democratic performance (Dodek 2010; Leuprecht and McHugh 2008; Milner
2005). The willingness of a government to enact such a policy, however, gets
to the core of this article’s contribution. What explains the differences in the
timing of the legislation being passed across jurisdictions?
One possible explanation is that fixed election date legislation and other
democratic reforms like citizens’ assemblies and juries are just convenient
and harmless fads that have emerged at roughly the same time (Adams and
Hess 2001). Others might argue that the reigning neoliberal economic
paradigm in Canada has had a powerful influence on all recent government
approaches to policy, focusing party and government promises mostly on
consultative mechanisms, which are relatively cheap and open-ended, rather
than substantive policy mechanisms, which can be expensive (Larner 2000;
Phillips 2006). Although both are plausible, neither explains the timing of
Canadian jurisdictions that have passed fixed election date legislation. In the
case of the “convenience” argument, it fails to specify the factors that
produced a twelve-year gap between the policy response in BC in 2001 and
the one in Québec in 2013. In the case of the neoliberal argument, one would
have to assume that the sequencing of jurisdictions that adopted fixed
election date legislation would reflect the precise timing in which
neoliberalism took hold in each jurisdiction. However, at the federal level,
neoliberalism has been the dominant paradigm since at least the early days
of Jean Chretien’s government in 1993. Yet it was a conservative government,
under Stephen Harper, that passed fixed election date legislation in 2007.
Another problem with the neoliberal argument is that it does not specify
what causal mechanisms might connect the neoliberal ideas to the passage
259
of the legislation in the ten Canadian jurisdictions over a twelve-year
period.
Perhaps a more parsimonious explanation is that fixed election date
legislation was simply the result of a significant change in the incentive
structures facing Canadian political parties. A variety of jurisdictions in
Canada have altered their campaign finance laws over the last ten years
(Young and Jansen 2011), which in turn may have created powerful
incentives for parties to want to regularize election timing to facilitate
campaign planning and the efficient expenditure of campaign funds.
While plausible, our analysis of the literature, media reports and
Hansard found no evidence that policymakers were driven by these
factors. Indeed, if this explanation was true, there should be a direct
correlation between changes in electoral financing laws and the adoption
of fixed election date legislation across jurisdictions. Such a correlation is
not evident.
We contend that the most likely explanation for the timing of fixed
election date legislation can be drawn from Kingdon’s (2003) multiple
streams model, which seeks to explain how certain issues end up on the
agenda of government officials and how particular policy solutions come
to receive serious consideration. Although his model was originally
intended to explain agenda-setting, Kingdon did acknowledge that his
theory could be used to explain policy choices, and scholars have done so
in a variety of contexts and policy areas (Kingdon 2003; Henstra 2010;
Mucciaroni 1992; Zahariadis 1992).
At the core of his theory is a conceptualization of the policy environment as consisting of three streams: the problem stream, the policy stream,
and the political stream. Each stream tends to operate independently, but
there are moments when they come together and it is at these critical
junctures that there is the greatest potential for policy change (Kingdon
2003: 19). Policy windows, therefore, are “opportunities for action” when
developments in one or more of the streams converge and make it more
likely for policy change to occur. Policy entrepreneurs take advantage of
these windows to pursue policy change (Kingdon 2003: 166, 179). As
outlined below, this understanding of the policy process offers considerable
leverage at addressing how ten different governments in Canada over a
twelve-year period passed fixed election date legislation. We build this
argument in the following section by briefly describing each of the streams
(problem, policy, and political) and presenting evidence from our cases to
show how each stream contributed to the change. As a point of departure,
Table 1 provides a summary of information pertaining to the federal and
provincial jurisdictions that have passed fixed election date legislation. We
refer to the information presented in the table throughout the discussion
that follows.
260
Table 1. Canadian Fixed Election Date Legislation Summary3
Jurisdiction
Date Legislation
Passed
Government
Date Elected
British Columbia
2001/08/27
Liberals
May 2001
Newfoundland
and Labrador
Ontario
2004/12/16
PCs
October 2003
2005/12/15
Liberals
October 2003
Federal
Government
New Brunswick
2007/05/03
Conservatives
January 2006
2007/06/26
Liberals
September 2006
Saskatchewan
2008/04/28
September 2007
Prince Edward
Island
Manitoba
2008/05/22
Saskatchewan
Party
Liberals
2008/10/09
NDP
September 1988
Alberta
2011/12/08
PC
August 1971
Québec
2013/06/14
PQ
September 2012
May 2007
Previous
Government
and Tenure
NDP – 10 Years
(2 terms)
Liberals – 14 Years
(4 terms)
PC – 8 Years
(2 terms)
Liberals – 13 years
(4 terms)
PC – 7 years
(2 terms)
NDP – 16 Years
(4 terms)
PC – 11 Years
(3 terms)
NDP – Government
since 1988
PC – Government
since 1971
Liberals – 9 Years
(3 terms)
Fixed election date legislation:
Towards an explanation
The problem stream
Kingdon’s problem stream focuses on the types of policy problems that
typically capture the attention of policymakers. Problems find their way on
to the agenda of governmental officials in a number of ways. First,
government and non-government studies on specific issues or indicators
such as consumer prices, cost of government programs, and disease rates,
for example, can be used to show that something is amiss or deserves
further attention (Kingdon 2003: 91). Second, focusing events, such as an
airplane crash, might prompt action because such events are relatively rare
and occur suddenly. Relatedly, personal experiences and symbols may
serve to focus attention on an already existing problem. Medical research
on a particular disease, for instance, is likely to resonate with law-makers
who have had family members, or are themselves, afflicted by a similar
condition (Kingdon 2003: 95–96). Finally, policy feedback on programs
already in operation can spur policy action. Policy feedback can include
data gathered through regular monitoring or through more informal
channels such as public complaints to politicians. Bureaucrats who actually
implement and oversee programs are also able to provide important data
to policymakers. Feedback spurs policy action if it suggests that a policy
261
has not been implemented according to the original legislative intent, the
delivered results fall short of the targets set out at the beginning, costs are
expanding too fast, or if there are negative or positive unintended consequences (Kingdon 2003: 101, 103).
In regard to fixed election date legislation, it seems
likely that this issue rose to the top of the policy agenda
following numerous studies that found Canadians were
becoming increasingly dissatisfied with their political
institutions and representatives.
Recognizing a problem may not always be enough to place it on the
agenda, given the infinite number of issue-areas that exist. Successful
agenda setting and policy change will often depend on how the problem
is defined and linked to various policy solutions. Therefore, policy
entrepreneurs usually devote considerable resources to problem definition
and the coupling of problems with developments in the political and policy
streams (Kingdon 2003: 115).
In regard to fixed election date legislation, it seems likely that this issue
rose to the top of the policy agenda following numerous studies that found
Canadians were becoming increasingly dissatisfied with their political
institutions and representatives (Aucoin and Turnbull 2003; Blais and
Gidengil 1991; Blais et al. 2002; Cross 2004; 2010; Gidengil et al. 2004;
Gidengil et al. 2010; Milner 2005). Based on these trends, commentators and
academics have concluded that Canada suffers from a significant and
persistent democratic deficit. In essence, they argue that the locus of power
in Canada has shifted away from citizens towards elites (Savoie 2010), and
“that the traditional mechanisms of representative democracy – political
parties, elections, and territorially based legislatures – are simply not up to
the task of articulating or defending the interests of the vast majority of
citizens in the current age” (Tanguay 2009: 223–224). As a result, many
citizens have become disengaged from Canadian political life. Beginning
with the 1988 federal election, for instance, voter turnout in Canada has
declined from 75% to 59% in 2008 (Tanguay 2009: 223). While turnout
increased marginally in the 2011 federal election, reaching 61%, participation
remained low compared with participation levels from the 1960s and 1970s.
In addition to electoral participation, survey data show that fewer Canadians are getting involved in election campaigns and political parties and that
in general, they have also become less optimistic about the ability of
Canadian political parties to successfully effect meaningful change (Cross
2010; Gidengil et al. 2010). As a result, “many Canadians are simply
disengaged: they do not vote in elections, and they do not sign petitions, take
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part in demonstrations, or boycott products, either” (Gidengil et al. 2010:
96–97).
While no single explanation has been agreed upon to explain Canadian
democratic malaise, many scholars point to dissatisfaction towards political
leadership, specifically the prime ministers of Canada, past and present,
and the provincial premiers. For example, Donald Savoie (2009), Herman
Bakvis (2000), and others (Aucoin, Jarvis, and Turnball 2011; Bernier,
Brownsey, and Howlett 2005) have convincingly shown that over time,
power in the Canadian system has become concentrated in the centre, and
specifically in the hands of the federal and provincial first ministers
and their supporting officials, organizations and departments. As a result,
and especially in majority government situations, Canadian first ministers
have the ability to bend the political system to serve their interests and the
interests of their parties (Savoie 2009: 125–126).
The discretion that first ministers have to control the timing of elections
has received substantial scholarly attention. A number of scholars have
documented the many instances when prime ministers and provincial
premiers have used this power to call elections during periods that were
most conducive to their party’s re-election chances (Aucoin, Jarvis, and
Turnball 2011: 130–132; Pepall 2010: 11; Roy and Alcantara 2012). Predictably, critics and opposition parties have objected “strenuously to the ability
of prime ministers to call an election simply when it is politically advantageous” and have regularly called on governments to pass legislation to
curtail this behaviour (Aucoin, Jarvis, and Turnball 2011: 131). For example,
Ross Wiseman, an MLA in the Newfoundland and Labrador legislative
assembly, emphasizes the potential abuse of this power for political gain:
If you look at the history, and most recent history, of elections in Newfoundland and
Labrador, we saw, in a period of 1993, 1996, 1999, rapid successions and rapid calls of
elections. Mr. Speaker, in each of those election calls there was a significant amount of staging,
a significant amount of manipulation that took place in advance of those elections. One could
say that it was a manipulation of the electorate (Wiseman 2004).
Similar sentiments were expressed in Ontario when Liz Sandals addressed
fixed election date legislation in 2004. According to Sandals:
The significance of this [fixed election date legislation] is that politicians, the Premier, will no
longer be able to play games with the election date. As we’ve seen over a number of years,
Premiers do in fact play games with the public and with the political process in trying to
choose an election date to their best advantage. We’re fixing this election date so that the
election will be at the convenience of the public, not at the convenience of the Premier,
whoever that Premier might happen to be (Sandals 2004: 3215).
These quotes show that policy makers were aware of the public’s growing
democratic malaise and of the effect that an unchecked election timing
power could have on deepening this malaise. Indeed, it may be that federal
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and provincial politicians and policymakers turned to fixed election date
legislation not because the public demanded it per se, but because they
saw it as a useful way to address an amorphous public unhappiness with
democracy in the public realm (Dodek 2010; Milner 2005). With this general
democratic malaise rising to the top of the policy agenda, the conditions
were ripe for coupling this stream with an appropriate solution, given the
political will to do so.
The policy stream
The policy stream determines which policy solutions are chosen to
address the problems raised in the problem stream. Policy ideas are
generated by a group of specialists in a specific policy area and can
include “researchers, congressional staffers, people in planning and evaluation offices and in budget offices, academics, interest group analysts”
(Kingdon 2003: 116). The people who make up these communities generally know each other’s ideas and proposals fairly well and are generally
united by their interest in the issues, although the degree of fragmentation
varies across policy areas. Numerous ideas and proposals are churned out
by this community but the actual subset that eventually receives serious
attention is much smaller.
Kingdon emphasizes that the content of ideas is central to which policy
solutions gain favour. Well-reasoned and detailed arguments can help in
the adoption of particular policy options but do not guarantee success
(Kingdon 2003: 127). More important is that the idea is “technically
feasible, meaning it is likely to achieve what it is intended to accomplish.
It must also be compatible with the dominant values of the policy community” (Henstra 2010: 244). Technical feasibility refers to whether
policymakers think that a proposal can actually be implemented and
whether they think it will deliver on its goals. Value acceptability refers to
how closely the proposal fits in with the belief system of the participants,
such as in terms of their liberal-conservative orientation, their attitudes
towards big government versus small government, or their notions of
equity and efficiency. If a proposal has too high a cost, if the public may
be hostile to it, or if politicians are likely to reject it, then it will probably
not receive serious attention, even within the policy community (Kingdon
2003: 138–139).
In the context of the problem and policy streams, fixed election date
legislation fits these criteria very well, because it directly and effectively
addresses the undemocratic use of the election timing power while at the
same time respecting the values and goals of the affected policy elites. For
some policy elites, such as those from marginalized political parties, fixed
election date legislation is an effective and accomplishable step in the right
direction towards addressing the democratic deficit (Green Party of
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Canada 2008; Green Party of Manitoba 2004; Green Party of Saskatchewan
2007). Similarly, the legislation is compatible with the interests of elites
from the dominant political parties, who generally want to protect as much
of the status quo in Parliament as possible, but also realize that the
democratic deficit and the election timing power are problematic. Indeed,
it is important to re-emphasize that fixed election date legislation in
Canada allows policymakers to address the undemocratic nature of the
election timing power on a public relations level while at the same time
maintaining the limited discretion of first ministers as mandated by
constitutional conventions. This finding is confirmed by the secondary
literature and Hansard transcripts that show that policymakers believed
that such legislation would be effective and congruent with their goals and
values (Antle 2004: 5; Aucoin, Jarvis, and Turnball 2011: 131; Byrne 2004;
Grimes 2004; Harris 2004; Sandals 2004: 3215, 3216; Sugimoto 2005; White
2005: 176–177; Wiseman 2004). Gilles Bisson (2005: 1607), NDP MP from
Timmins-James Bay, for instance, has said during the debates in Ontario
that “I don’t think it’s [fixed election dates] a bad idea. We recognize this
is the British parliamentary system. Governments can still fall by the way
of a non-confidence motion.” John O’Toole (2004: 3221), PC MPP for
Durham, initially opposed the legislation, arguing that it was “destroying
the traditions of the Canadian parliamentary system.” Yet, at the end of the
debates, all of the parties supported the legislation, with 67 MPPs from all
three parties voting in favour of the legislation and 6 voting against it.
These results suggest that Ontario politicians from all three political parties
saw this legislation as something that would not only address perceptions
of a democratic deficit, but also maintain some of the fundamental principles inherent in Westminster parliamentary systems.
In effect, the legislation addresses an important aspect of
the democratic deficit problem without fundamentally
altering the electoral system or the principles of responsible government.
Indeed, a variety of research has shown that the push for electoral
system reform in Canada has generally been unsuccessful because many of
these elites oppose electoral system reform. They oppose this type of
reform because their organizations and members benefit substantially from
the single-member plurality system, while also making it difficult for new
political parties to enter the system and form the government or official
opposition (Courtney 2005: 154; Massicotte 2005: 90–91; Mendelsohn and
Parkin 2005: 141; Pilon 2006). Fixed election date legislation, on the other
hand, does not threaten the existing electoral system, and so the dominant
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political parties continue to reap the benefits conferred on them by the
single-member plurality system.4
An examination of the legislation confirms that fixed election date
legislation was the logical instrument to adopt in the context of the
problem and political streams described above and below. All of the fixed
election date legislation that has been passed addresses two goals. First,
they set the general election date to occur on a specific day and month
every four years, thus removing the election timing power from the hands
of the first minister (British Columbia 2001: ch. 36, s. 1; Canada 2007: ch.
19, s. 2; Manitoba 2008: ch. 43, s. 6; New Brunswick 2007: ch. 57, s. 1;
Newfoundland and Labrador 2004: ch. 44, s. 1; Ontario 2005: ch. 35, s. 1;
Prince Edward Island 2008: ch. 9, s. 2; Québec 2013: ch. 13; Saskatchewan
2008: ch. 6, s. 4).5 Second, the legislation allows elections to occur outside
of these dates, but only if the government loses the confidence of the
House or if the Crown exercises its royal prerogative of dissolution; the
latter scenario happened at the federal level in 2008 and in Québec in 2014
(Alberta 2011: ch. 19, s. 2; Canada 2007: ch. 10, s. 1; Manitoba 2008: ch. 43,
s. 6; New Brunswick 2007: ch. 57, s. 1; Newfoundland and Labrador 2004:
ch. 44, s. 1; Ontario 2005: ch. 35, s. 1; Prince Edward Island 2008: ch. 9, s.
2; Québec 2013: ch. 13; Saskatcehwan 2008: ch. 6, s. 4).6 In essence, the
principles of responsible government are maintained because the House of
Commons can continue to hold the government responsible throughout the
four-year term. In effect, the legislation addresses an important aspect of
the democratic deficit problem without fundamentally altering the electoral
system or the principles of responsible government. This point is important
because electoral reform in general is very much affected by the willingness of the dominant political parties to support and implement it
(Courtney 2005: 154; Massicotte 2005: 90–91; Mendelsohn and Parkin
2005: 141).
Political stream
The third, and in our view most relevant stream for understanding the
timing of fixed election date legislation, refers to activities or events that
“are electoral, partisan, or pressure group factors” (Kingdon 2003: 145); all
of which exert pressure on policymakers to engage in policy change.
Change can be brought about by “shifts of important participants (e.g., a
change of administration or the influx of new legislators), or as a response
to shifts in national mood or interest group configurations” (Kingdon 2003:
146). The national mood refers to public opinion, which government
officials and policymakers take seriously when considering policy change.
The turnover of key administrative, congressional, or bureaucratic actors
can also lead to policy change by bringing in new issues, reconsidering
dormant ones, or keeping some off the table. Kingdon (2003: 154) points
266
out how under the Reagan administration issues like cuts in domestic
spending and school prayer were prioritized while the subject of comprehensive national health insurance languished mainly as a result of
turnover.
In terms of the passage of fixed election date legislation in Canada, the
key elements in this stream are: i) the presence of an incumbent political
party that has won consecutive mandates as the government (which in
turn contributes to the notion that democratic alternation is not occurring
regularly enough) (Massicotte 2005: 69); ii) an opposition party that adopts
fixed election dates in its party platform prior to defeating the incumbent
government in an election; and iii) once in power, the winning opposition
party, now the government, introduces and passes the legislation in their
respective jurisdictions. Although all three streams are important for
explaining the passage of fixed election date legislation, it is these factors
in the political stream that are crucial for explaining the timing of legislation across jurisdictions. Columns three, four and five of Table 1 summarize
these factors as they relate to the various jurisdictions.
In sum, in all of these jurisdictions, the main opposition
party promised to legislate fixed election dates prior to
their electoral victory over the incumbent and multiterm governing party.
In British Columbia, for instance, the New Democratic Party formed the
government for ten years, winning majority governments in 1991 and 1996
before being defeated by Gordon Campbell’s Liberals in May 2001. The BC
Liberals’ platform for that election promised to “establish a fixed provincial
election date under the BC Constitution Act, to ensure provincial elections
must be held on a fixed date every fourth year, or immediately if any
government loses a confidence vote in the Legislature” (BC Liberals 2001: 4).
In Newfoundland and Labrador, the provincial Liberal party ruled for 14
years, forming majority governments in 1989, 1993, 1996, and 1999, until its
defeat by Danny Williams and the Progressive Conservative Party in
October 2003. Much like Gordon Campbell’s Liberals, the Newfoundland
and Labrador PCs also promised to pass fixed election date legislation and
quickly did so in December 2004 (Canadian Press Writers 2004: A5). In
Ontario, the Progressive Conservative party governed for eight years,
winning majority governments in 1995 and 1999 before suffering defeat
in October 2003 at the hands of the Ontario Liberal Party under the
leadership of Dalton McGuinty. The 2003 Ontario Liberal platform promised
to introduce “fixed dates for elections” (Ontario Liberals 2003: 4). At the
federal level, the Liberal Party of Canada was able to win three majority
267
governments and one minority government, dating back to 1993, before
losing to the Conservative Party of Canada in January 2006. During the
election campaign, Conservative leader Stephen Harper promised to introduce fixed election dates to “make sure that government is responsive and
accountable to Canadians” and he did so in 2007 (Conservative Party of
Canada 2004: 6; see also Conservative Party of Canada 2006: 44). In New
Brunswick, the Progressive Conservative Party ruled for seven years,
winning majority governments in 1999 and 2003, before losing to the
Liberals in September 2006. During the election, Liberal leader Shawn
Graham promised to “provide fixed dates for Provincial Elections [sic]”
(New Brunswick Liberals 2006: 32). In Saskatchewan, the New Democratic
Party won consecutive elections beginning in 1991, totalling sixteen years in
power, before being defeated by the Saskatchewan Party in September 2007.
As in the other provinces, the Saskatchewan Party promised to establish
fixed election dates should they be elected to govern the province
(Saskatchewan Party 2007: 39). Similarly, in Prince Edward Island, the
Progressive Conservative Party governed for eleven years, capturing majority governments in 1996, 2000, and 2003, before suffering defeat at the hands
of Robert Ghiz and the Liberal Party of PEI. During the election, the Liberals
promised to pass fixed election date legislation after it had conducted full
public consultations on the idea (Thibodeau 2007: A4). Finally, the Parti
Quebecois’ (PQ) 2012 victory in Québec created the conditions for legislative
change. Fixed election date legislation was part of the PQ’s election platform
leading up to its autumn 2012 electoral victory. Following three consecutive
Liberal governments, the PQ came to power and, with this change in the
political stream, the three streams were set to converge; in June of 2013,
Quebec became the ninth Canadian province to adopt fixed election date
legislation.
In sum, in all of these jurisdictions, the main opposition party promised
to legislate fixed election dates prior to their electoral victory over the
incumbent and multi-term governing party. Shortly after taking office, the
winning opposition parties, now the government, then passed fixed
election date legislation in accordance with their election promises. Thus,
we argue that the timing of the passage of legislation across jurisdictions
is best explained by factors in the political stream.
The two exceptions to the change in multi-term governments outlined
above are Manitoba and Alberta. In both provinces, fixed election date
legislation was passed under an incumbent government. However, these
outliers may be explained, in part, by changes in key political actors. For
example, in Alberta, the legislation was introduced following a change in
party leadership. During the 2011 Alberta Progressive Conservative leadership race, Allison Redford included fixed election date legislation as one of
her platform promises. Following her party leadership victory, she followed
268
through on this promise, passing fixed election date legislation on 8
December 2011. In many ways, these events fit with our other cases, where
the political stream converges with the problem and policy streams to
produce fixed election date legislation. However, the political stream in
Alberta does not flow from a change in governing party, rather a change in
party leadership. In all other regards, Alberta fits the pattern established
above.7
Manitoba is arguably the only exception to the multiple streams theory
and the evidence we have marshaled. The Manitoba legislation was passed
under the stewardship of Gary Doer, the longstanding leader of the
Manitoba NDP. Doer introduced this legislation in 2008, nearly ten years
after first coming to power in Manitoba. While the problem and the policy
streams in this province resemble the other Canadian cases, the political
stream deviates from the patterns we have observed elsewhere. The most
likely explanation for this outlier reflects a policy actor, namely a
backbench member from the opposition party, who introduced a motion to
adopt fixed election date legislation that died on the order paper after Doer
called the 2007 provincial election (CBC 2012). Following the NDP’s return
to a majority government, Doer reintroduced fixed election date legislation.
Similar to arguments made in other jurisdictions, Doer presented this
legislation as a means of improving democratic accountability, suggesting
that the political stream, whether by design or desire, had converged with
the problem and policy streams in Manitoba.
Discussion
Overall, our findings suggest that fixed election date legislation is likely to
occur when three streams converge. In the problem stream, legislation is
facilitated by a recognition among policymakers that the public is concerned
about a democratic deficit and in particular, the potential misuse of the
election timing power to unfairly advantage the incumbent party. The
secondary literature, news reports, and Hansard transcripts indicate that
policymakers were aware of these problems and that they needed to respond
to them in some way. In the policy stream, fixed election date policies were
chosen because policymakers thought that they would be effective for
addressing concerns about the democratic deficit and the election timing
power. They also chose these options because the ideas behind these policies
were compatible with their goals and values. Finally, in the political stream,
fixed election date legislation was facilitated by opposition parties adopting
this policy idea and then implementing it once they defeated the longstanding incumbent governing party in a general election. This last stream,
in particular, is essential for understanding why different jurisdictions in
Canada passed fixed election laws at different moments in time.
269
Our findings also serve as an important reminder of the challenges
governments face enacting policy. While political problems and potential
solutions may be readily identifiable, without the political will to couple
these streams, policy change is unlikely. In fact, the argument put forth
above may help us to understand why similar policy change has yet to occur
in the province of Nova Scotia, the only Canadian province without fixed
election dates. While the problem and solution are arguably as prominent in
this jurisdiction, sufficient political will has yet to emerge that would
advance fixed election date legislation. This political will, however, may
have increased as a result of the 2013 provincial election, which saw the
Liberal party defeat the one-term NDP government. Prior to its electoral
victory, the Liberal Party adopted fixed election date legislation as part of its
election platform, thus fulfilling an important condition for legislative
change (Liberal Party of Nova Scotia Election Platform, 2009: 31). We do not,
however, anticipate fixed election date legislation in this jurisdiction. The
one significant difference in Nova Scotia compared to the rest of Canada is
that the Liberals did not come to power following a multi-term government
and so although change is possible, it is still unlikely.
Conclusion
This article set out to address the timing of fixed election date legislation
in Canada. We began by presenting a number of possible theories for
explaining these trends. Based on our analysis of the evidence, we found
that Kingdon’s multiple streams theory provided the strongest analytical
leverage for answering our research questions. Specifically, we found that
the timing in which fixed election date legislation was passed in the
Canadian provinces as well as the federal government reflects a convergence of three streams: the problem stream, where democratic malaise and
dissatisfaction with first ministers’ ability to time elections for political
advantage had become a salient issue; the policy stream, where adopting
fixed election date legislation provided a viable solution to address the
problem; and the political stream, a change in government (or leadership
in the Alberta case) that produced the political will to join the problem
stream with the policy stream. It is this third stream that we have argued
is most important in understanding the timing of fixed election date
legislation in Canada.
While we believe this work makes an important contribution to our
understanding of the conditions under which fixed election date legislation
is adopted, there are a number of other questions surrounding this legislation that warrant further study. For example, the problem stream reflects
the belief that citizens were unsatisfied with the practice of first ministers
calling elections when the timing was optimal. A policy solution was put
270
forth to correct this problem. Did it succeed? Are citizens in jurisdictions
with fixed election date legislation less cynical of their political actors and
institutions following this change? As we noted above, and as others have
pointed out (see Desserud 2005), this legislation provides the governing
party with an “escape clause” as per the constitution guiding Canada’s
system of responsible government. Put simply, it is still possible for
elections to occur outside of the fixed election date. Indeed, this was the
case when the minority Conservative federal government called the 2008
and the 2011 Canadian federal elections and the Québec government called
the 2014 provincial election. Given this option, the potential for citizens to
remain skeptical is a very real possibility. It also reinforces the importance
of political agency in Canada, and specifically the ability of first ministers
in Westminster parliamentary systems to circumvent checks on their power
passed in Parliament. We believe exploring the success or failure of this
policy is an important area of future research that warrants further
attention (see Dodek 2010 for some preliminary arguments about how the
legislation has failed to achieve its intended goal of addressing political
dissatisfaction).
Are citizens in jurisdictions with fixed election date
legislation less cynical of their political actors and
institutions following this change?
Another avenue for future study would be to test our model by
comparing two or three jurisdictions using a more inductive, historical
method. It may be that individual political contexts, in the tradition of
historical institutionalism, may temper the effects of the different streams
and perhaps introduce new factors unanticipated by the multiple streams
framework. This small-n comparative approach could be used to study
jurisdictions within Canada, or across countries.
Finally, researchers might apply our model to jurisdictions outside of
Canada. Do our findings hold beyond the Canadian border? While we
expect our framework will travel well, applying this theory to other
countries would advance the conclusions we draw here. Drawing upon
evidence from other countries that have had this type of legislation for a
longer tenure would also provide insight into future obstacles that may
transpire in the Canadian case. For example, as five provinces (Saskatchewan, Manitoba, Ontario, Prince Edward Island, and Newfoundland and
Labrador) and the federal government are set to go to the polls in the fall
of 2015 under current fixed election date legislation, concern of voter
fatigue has been raised. It may be that the solution aimed to re-engage a
disillusioned citizenry turns out to do more harm than good. Indeed, as the
271
Canadian experience with fixed election date legislation is still in its
infancy, the full implications of this legislation are largely unknown.
Notes
1 Our manuscript was accepted prior to the ninth provincial government (Québec) adopting
fixed election date legislation (June 2013). In our original manuscript, we predicted that
Québec would soon pass this type of legislation because all of the factors that we had
identified for the other jurisdictions were in place. We were happy to see our prediction
come true and have updated our paper for publication accordingly.
2 It is noteworthy that these laws also permit elections to occur outside of these dates, but
only if the government loses the confidence of the House or if the Crown exercises its royal
prerogative of dissolution.
3 The tenure of the previous government is estimated by subtracting the year the party came
to power from the year they were defeated.
4 It should also be noted that fixed election date legislation was not the only possible solution
to the problem stream here. Besides selecting from the broad range of possible democratic
reforms, policymakers could have also chosen to transfer the election timing power to some
sort of independent third party, or enacted a set of stringent rules that the LieutenantGovernor or Governor-General had to follow (see Aucoin, Jarvis, and Turnbull 2011).
5 The one exception is Alberta, whose legislative amendment specifies that a general election
must occur sometime between March 1 and May 31 in the fourth calendar year following
the last general election (Alberta 2011: ch. 19, s. 2).
6 British Columbia’s legislation leaves unaltered s. 23(1) of the province’s Constitution Act of
British Columbia, which reads: “The Lieutenant Governor may, by proclamation in Her
Majesty’s name, prorogue or dissolve the Legislative Assembly when the Lieutenant
Governor sees fit” (British Columbia 1996: ch. 66, section 23(1)).
7 We should note that long-term Alberta PC leader, Ralph Klein, was initially replaced by Ed
Stelmach (2006–11). While this change in leadership provided the conditions for the political
stream to fit our model, Stelmach opposed fixed date election legislation and as such, failed
to achieve the political will necessary to pass this legislation.
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Dennis Baker
The temptation of provincial
criminal law
Abstract: Under s.91 (27) of the BNA Act, 1867, the Federal Parliament has the
exclusive authority to legislate “criminal law.” This has not stopped the provinces
from passing “quasi-criminal” laws that are difficult to distinguish from criminal
law. Recent legislation regarding “public fighting” and civil remedies for criminal
acts suggest there are few legal obstacles to enacting provincial criminal law. This
article identifies such provincial criminal laws, explains how the modern doctrines
of federalism might invite and allow for their enactment, and discusses impacts on
criminal justice policy and administration. It highlights the discretion afforded the
Crown and police in charging individuals under the federal Criminal Code or
similar provincial laws (or municipal by-laws). While provincial or local laws may
allow for more efficient law enforcement, they do so at the expense of the
procedural guarantees associated with the criminal law.
Sommaire : En vertu de l’article 91(27) de l’Acte de l’Amérique du Nord britannique
de 1867, le Parlement fédéral a l’autorité exclusive de légiférer la « loi criminelle ».
Cela n’a pas empêché les provinces d’adopter des lois « quasi-criminelles » qui sont
difficiles à distinguer des lois criminelles. Des lois récentes concernant la « bagarre
en public » et les recours civils pour des actes criminels laissent entendre qu’il y a
peu d’obstacles juridiques à la promulgation de lois criminelles provinciales. Le
présent article identifie de telles lois criminelles provinciales, explique comment
les doctrines modernes de fédéralisme pourraient encourager et permettre leur
promulgation, et traite des incidences sur la politique et l’administration de la
justice pénale. Il souligne la discrétion accordée aux organismes de la Couronne et
aux forces de police qui engagent des poursuites contre des particuliers en vertu du
Code criminel fédéral ou de lois provinciales similaires (ou des règlements
administratifs municipaux). Alors que les lois locales ou provinciales peuvent
permettre une application plus efficace de la loi, elles le font aux dépens de
garanties procédurales associées à la loi criminelle.
On March 27, 2003, York Regional Police stopped Robin Chatterjee for
failing to have a front license plate. Upon discovering that Chatterjee was
in breach of a recognizance order, the police searched his vehicle and found
$29,020 in cash, an exhaust fan, a light ballast and a light socket. All of the
Dennis Baker is an associate professor in the Department of Political Science, University of
Guelph, Guelph, Ontario. The author would like to thank Mike Nicholson and Samuel
Mosonyi for their research assistance and Rainer Knopff and Troy Riddell for their helpful
comments. This research was supported by the Social Sciences and Humanities Research
Council of Canada.
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DENNIS BAKER
items were perfectly legal to carry but suggested involvement in marijuana
production and trafficking. Although there was not nearly enough evidence to sustain a drug charge – no drugs were found, despite the faint
whiff of marijuana smelled by the police – the Province of Ontario seized
Chatterjee’s money and equipment. They were able to do so because they
could prove that Chatterjee was “more likely than not” engaged in criminal
activity and thus subject to Ontario’s Civil Remedies Act (Chatterjee 2009:
para 23). Six years later, on May 27, 2009, Renada Keshane received
unwanted attention from an overly aggressive suitor outside an Edmonton
nightclub. After rebuffing his advances, the suitor slapped Keshane, and
she answered with a kick. The police approached and witnessed the two
exchanging punches for twenty seconds. The officers, deciding that the
fracas did not warrant a criminal charge of assault, chose to fine Keshane
(but not the other party) $500, pursuant to a municipal by-law prohibiting
“public fighting.”
While the alternative charges and penalties provided by
these laws have some attractions – for example, they offer
a seemingly proportionate response to relatively minor
infractions – they raise significant questions about the
federal division of criminal justice powers and may erode
civil liberties in favour of administrative expediency
Both Ontario’s Civil Remedies Act and Edmonton’s public fighting
by-law are intended to allow law enforcement officials to address
offences more expeditiously than if federal criminal charges were laid.
The Edmonton by-law, for example, was explicitly designed to allow
police to deal with fights “on a more efficient basis” because a “bylaw
charge requires the issuance of an offence ticket,” whereas a “criminal
charge involves an arrest, the provision to the accused of their right to
counsel and mandatory report preparation” (Keshane 2010, Groves J.:
para 36). These laws are part of a broader and growing phenomenon of
provincial laws or municipal by-laws that supply criminal justice administrators (police and prosecutors) with an option to impose penalties
other than those provided for the same conduct by the federal Criminal
Code. In this paper, I characterize such enactments, including municipal
by-laws, as “provincial criminal laws.”1 While the alternative charges
and penalties provided by these laws have some attractions – for
example, they offer a seemingly proportionate response to relatively
minor infractions – they raise significant questions about the federal
division of criminal justice powers and may erode civil liberties in
favour of administrative expediency.
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PROVINCIAL CRIMINAL LAW
The article pursues this argument in four stages. First, it documents the
Supreme Court of Canada’s (uneven and uncertain) shift from an approach
to criminal justice issues that maintained discernible distinctions between
the relevant federal and provincial powers to one that increasingly blurs
the lines in favour of intergovernmental collaboration. Second, it reviews
a number of provincial laws and municipal by-laws that show just how
fuzzy the lines between non-criminal and criminal jurisdiction have
become. Although some of these laws have attracted isolated commentary
questioning their criminal law elements (Corbett 2001; Schneiderman 2002;
Esmonde 2002; Gallant 2006), no attempt has been made to link them
together in the context of the general relationship between criminal law
and modern Canadian federalism. Third, the article spells out the problems
with the “provincial criminal law” generated by the collaborative
approach. Finally, the paper’s concluding section proposes an appropriate
judicial role in patrolling more clearly defined boundaries of criminal
justice federalism.
Criminal justice federalism
The federalism issues prompted by Ontario’s Civil Remedies Act and
Edmonton’s public fighting by-law arise because section 91(27) of the
British North America Act, 1867 gives the Parliament of Canada the
“exclusive Legislative Authority” over “the Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure
in Criminal Matters” (emphasis added). What counts as legitimate
federal “criminal law” has, of course, long been a controversial question,
in part because of the federal power’s potential to affect provincial jurisdiction. For example, the traditional judicial definition of criminal legislation – a law that contains “prohibitions backed by penalties,” directed
at “some evil or injurious or undesirable effect” and intended to achieve
a legitimate “criminal” purpose (which includes, in Justice Rand’s oftcited phrasing, “public peace, order, security, health, morality”)
(Margarine Reference 1949: 50) – is potentially limitless (Manning 2002;
Assisted Human Reproduction Reference 2010: paras 43, 240). On its face,
this definition raises questions about the extent to which Ottawa can use
the prohibitory form of criminal legislation to enter such otherwise provincial areas of jurisdiction as intra-provincial commerce, health, or local
environments. The courts have sometimes given very wide scope to
federal criminal legislation (Board of Commerce, 1922; Hydro-Quebec, 1997),
but have also protected provincial jurisdiction by limiting the permissible
reach of federal criminal prohibitions (Margarine Reference, 1949; Assisted
Human Reproduction Reference, 2010). The latter cases make it clear that
the permissible scope of federal criminal-law jurisdiction is defined by
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DENNIS BAKER
some kind of criminal-law substance (especially public order and safety)
and not just by the form of a punishable offence.
One reason that a punishable offence cannot be the defining feature of
federal criminal law under section 91(27) is that the provinces can also
legislate such offences under section 92(15). Under this section, the provinces “may exclusively” enact laws imposing “Punishment by Fine,
Penalty, or Imprisonment for enforcing any Law of the Province made in
relation to any Matter coming within any of the Classes of Subjects
enumerated in” section 92 of the British North America Act, 1867. Both
Ottawa and the provinces, in other words, can impose punishments,
including imprisonment. But just as Ottawa’s punishments can only be
imposed for plausibly criminal law purposes, so provincial punishments
cannot be imposed for such criminal law purposes. Criminal law is
exclusively federal; provincial punishments are limited to enforcing the
kinds of non-criminal law purposes specified by the other provisions of
section 92.
Do the kinds of provincial and municipal laws at issue in Chatterjee
and Keshane cross the jurisdictional line? Former Chief Justice Bora
Laskin would have thought so, certainly with respect to the Edmonton
by-law used to convict Keshane. In Westendorp (1983), Laskin, speaking
for a unanimous Supreme Court, invalidated a Calgary by-law that
attempted to control the “public nuisance” of street prostitution. Maintaining that the by-law allowed the municipality “to usurp exclusive
federal legislative power” (1983: para 21), Laskin concluded with an
expression of disbelief:
If a province or municipality may translate a direct attack on prostitution into street control
through reliance on public nuisance, it may do the same with respect to trafficking in drugs.
And, may it not, on the same view, seek to punish assaults that take place on city streets as an aspect
of street control! (1983: para 21, emphasis added)
Laskin’s exaggerated hypothetical (complete with a rare judicial exclamation mark) is, of course, precisely the Edmonton by-law at issue in Keshane.
Ten years later (1993), Justice Sopinka, also writing for a unanimous
Supreme Court, expressed the same viewpoint. “The guiding principle,” he
wrote, “is that the province may not invade the criminal field by attempting to stiffen, supplement or replace the criminal law . . . or to fill perceived
defects or gaps therein” (Morgentaler 1993: para 55). Sopinka made these
comments in a case that struck down a provincial “invasion of the field of
criminal law” (Morgentaler 1993: para 85). The case arose out of Dr. Henry
Morgentaler’s initiative to follow up his famous 1988 Supreme Court
victory, which invalidated the federal Criminal Code provisions regarding
abortion, by opening new abortion clinics in Nova Scotia. The province
responded with the Nova Scotia Medical Services Act, R.S.N.S. 1989, c.281,
279
which prohibited the performance of abortions outside of a hospital. Given
that health care is unquestionably a provincial jurisdictional prerogative,
one might have thought the provincial case strong, as it simply requires a
medical procedure to be undertaken solely in a hospital setting. However,
while Nova Scotia’s law did indeed have a health-care “aspect,” the
Supreme Court considered its true “pith and substance” to be the
“recriminalizing” of federal prohibitions invalidated four years earlier. Not
only did the Medical Services Act prohibit “traditionally criminal conduct”
(Morgentaler 1993: para 49), but excerpts from Hansard demonstrated that
“all parties in the House understood the central feature of the proposed
law to be the prohibition of Dr. Morgentaler’s proposed clinic on the basis
of a common and almost unanimous opposition to abortion per se”
(Morgentaler 1993: para 32). Relying on Westendorp (and also on Scowby
1986), Justice Sopinka concluded that Nova Scotia’s legislation was invalid
as an “indivisible attempt by the province to legislate in the area of
criminal law” (Morgentaler 1993: para 24).
This paper defends the Laskin-Sopinka position against the growing
trend of provinces (and municipalities, acting under provincial authority)
to “invade the criminal field,” in effect to enact “provincial criminal law,”
but without the liberty-enhancing procedural protections required of official (that is, federal) criminal law. Since Sopinka’s unanimous “judgment of
the Court” struck down Nova Scotia’s law in 1993, the courts have upheld
numerous provincial laws and municipal by-laws that “invade the criminal
field” as much or more than the Nova Scotia Medical Services Act, including
the laws at issue in Chatterjee and Keshane. This more relaxed approach to
provincial criminal law reflects a judicial preference for “collaborative
federalism” over “constitutional federalism,” one that favours intergovernmental accommodation over assertions of jurisdiction (Simeon and
Robinson 2004: 115–122).
While the jurisprudence of “collaborative” federalism
makes good sense in many policy areas, it is troubling in
the criminal justice context, where we should prefer the
“constitutional federalism” espoused by Laskin and
Sopinka. Unfortunately, courts have recently been facilitating the increased scope of “provincial criminal law”
The collaborative approach favours shared jurisdiction or practical concurrency, allowing both orders of government to contribute to policy areas
having both federal and provincial “aspects” (Hodge 1883; General Motors
1989: 670; Leclair 2003: 417–8; Oliver 2011: 173; Lederman 1963). Although
laws with such “double aspects” may look alike, they will both be
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DENNIS BAKER
constitutionally valid if the federal law is directed in “pith and substance”
to a federal aspect (for example, criminal law) and the provincial law is
directed in pith and substance to a provincial aspect (for example, health
or highway safety).2 Only if the laws directly clash, in the sense that one
must disobey one law in order to obey the other, will it be necessary for
one of them (typically the provincial version) to give way under the
principle of paramountcy.
Collaborative, double-aspect jurisprudence has a long history in Canada
(dating back at least to Hodge v. The Queen 1883) and certainly pre-dates the
judgments in Westendorp, Scowby, and Morgentaler. Indeed, these three
decisions are departures from the “dominant tide” of modern federalism
jurisprudence in Canada (OPSEU (1987): 17; Canadian Western Bank (2007):
para 36). Nevertheless, they are justified and necessary departures. While
the jurisprudence of “collaborative” federalism makes good sense in many
policy areas, it is troubling in the criminal justice context, where we should
prefer the “constitutional federalism” espoused by Laskin and Sopinka.
Unfortunately, courts have recently been facilitating the increased scope of
“provincial criminal law.”
Provincial criminal laws
Do Ontario’s Civil Remedies Act and Edmonton’s public fighting by-law fit
Sopinka’s category of illegitimate attempts to “supplement or replace the
criminal law . . . or . . . fill perceived defects or gaps therein”? Allison
Thornton, counsel for the Canadian Civil Liberties Union, described Ontario’s law as enacting “criminal law through the back door” (Todd 2009: 4).
As Laskin’s hypothetical in Westendorp makes clear, the same can be said
of the Edmonton by-law used to charge Keshane. Nor are Chatterjee and
Keshane the only examples of this phenomenon. Chatterjee concerned one of
seven provincial laws and Keshane one of seven by-laws since Justice
Sopinka’s 1993 Morgentaler judgment that have been plausibly challenged
as intrusions on federal criminal-law jurisdiction.3 With one exception, all
were upheld by the highest court that considered them. Table 1 briefly sets
out these 14 laws.
The courts have upheld such laws, moreover, despite
ample evidence that the governments enacting them
conceived of them as criminal justice initiatives
As the first column of Table 1 shows, all seven of the provincial laws
were upheld. Justice Sopinka’s 1993 Morgentaler judgment represents the
last time a provincial law was judicially invalidated for “invad[ing] the
281
Table 1. Cases challenging “Provincial Criminal Law” since 1993
PROVINCIAL LAWS
MUNICIPAL BY-LAWS
Manitoba’s Domestic Violence and Stalking
Prevention, Protection and Compensation Act,
C.C.S.M., c., D93, as upheld in R. v. Fairchuk (2003)
225 D.L.R. (4th) 38 (Man. C.A.), permitting civil
“protection orders” to be obtained by targets of
stalkers; if such an order is breached, the perpetrator
breaks the Criminal Code offence of violating a court
order (s.127(1)).
Vancouver’s by-law prohibiting “obstructive
solicitation” (aggressive panhandling) on city
streets, including within 10 metres of bank
entrances or ATMs, found intra vires in Federated
Anti-Poverty Groups of British Columbia v.
Vancouver (City) [2002] B.C.J. No. 493. This
by-law regulates the same activity as Ontario’s
Safe Streets Act, 1999, suggesting that such
regulation can be undertaken at either the
provincial or municipal level.
British Columbia’s Insurance (Motor Vehicle) Act,
R.S.B.C. 1996, c.231, s. 42.1(2)(b) as found intra vires
in R. v. Eurosport Auto Co. (2003) 225 D.L.R. (4th) 277
(B.C.C.A.) substantially duplicates the Criminal Code
provisions regarding fraud, by making it an offence
for service providers to make a false or misleading
statement to the corporation administering the
provincial automotive insurance regime.
Oshawa’s licensing by-law for second-hand
goods dealers (46-2004, April 24, 2004), found
intra vires in Cash Converters Inc. v. Oshawa
(City) 35 M.P.L.R. (4th) 161 (O.C.A.), facilitates
police investigations by requiring pawn shops
to send an electronic registry of transactions,
including identity information about the vendor,
to the police on a daily basis.
British Columbia’s Victims of Crimes Act, R.S.B.C.
1996, c. 478 was upheld in R. v. Wucherer [2005]
B.C.W.L.D. 4971 (B.C.C.A.) on the grounds that the
statute, which introduces a surcharge for victims on
fines levied upon the offender, specifically restricts
the surcharge to infractions of provincial laws and
not Criminal Code offences.
Surrey’s Parks, Recreation and Cultural
Facilities Regulation By-law, s. 42, found ultra
vires in Skinnydipper Services Inc. v. Surrey (City)
(2007) 287 D.L.R. (4th) 514. The by-law required
“proper bathing attire” for all pools rented by
the city. Since the Criminal Code only prevents
nudity in public view (not at issue here since
the pools were privately rented and beyond
public view), Judge Williamson ruled “it is not
open to a municipal council to extend a
definition of something criminal to include
circumstances excluded by Parliament.” This is
the only post-1993 “provincial criminal law” in
this table that was struck down.
Ontario’s Safe Streets Act, 1999, S.O. 1999 c.8, upheld
in R. v. Banks (2007) 275 D.L.R. (4th) 640 (O.C.A.). The
Act prohibited “aggressive solicitation,” solicitation of
captive audiences (including solicitation of a stopped
or parked vehicle), and approaching a motor vehicle
for the purpose of “offering selling or providing any
commodity or service” to a driver. In short, it
outlawed the practices of “squeegee kids” and other
forms of begging.
Ottawa By-law 2004-353 respecting the
regulating, licensing and governing of adult
entertainment parlours, as upheld in Adult
Entertainment Association of Canada v. Ottawa
(City), (2007) 283 D.L.R. (4th) 704 (CA). This
by-law, designed by adopting the best practices
of similar by-laws in Toronto, Mississauga and
Windsor, prohibited touching between dancers
and customers and required all services to be
conducted in open designated entertainment
areas. The Ontario Court of Appeal effectively
clarified and endorsed the ability of
municipalities to regulate such establishments
(even though they were also subject to Criminal
Code provisions regarding obscenity).4
Ontario’s Christopher’s Law (Sex Offender Registry),
2000, S.O., ch. 1, as upheld in R. v. Dyck (2008) 90
O.R. (3d) 409, established Canada’s first sex offender
registry and differs substantially from the
subsequently enacted Federal Sex Offender
Information Registration Act. Convicted Ontarians
must comply with both registries. Ontario remains
the only province with duplicative sex offender
registries, while other provinces rely solely on the
Federal system.5
Chatham’s “excessive fortification” by-law (June
23, 2003), upheld in Bondy v. Chatham-Kent
(Municipality) (2008) 168 C.R.R. (2d) 221. This
by-law, enacted specifically to deal with one
particularly notorious motorcycle clubhouse in
the city, prohibits the “excessive fortification of
land” and allows for City building inspectors to
search the premises.
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Table 1. Continued
PROVINCIAL LAWS
MUNICIPAL BY-LAWS
Ontario’s Remedies for Organized Crime and Other
Unlawful Activities Act (“Civil Remedies Act”), 2001,
as upheld in Chatterjee v. Ontario (Attorney General)
[2009] 1 S.C.R. 624, allows the province to seize
assets likely to have been involved in crime, even
where no Criminal Code conviction has been
entered.
Moncton’s by-law, upheld in 613742 N.B. Inc. v.
Moncton (City) (2009) 186 C.R.R. (2d) 205. This
property zoning by-law, which prohibited adult
entertainment in some areas, did not “legislate
morality” and thus could not be considered
criminal law beyond the power of the province.
Saskatchewan’s Profits of Criminal Notoriety Act,
2009, as upheld in Saskatchewan (Minister of Justice) v.
Thatcher [2010] 75 C.R. (6th) 354, diverts profits
derived from a retelling of a crime to the victim
instead of the accused. (This “Son of Sam” law, as
they are known in the U.S., was provoked by the
impending publication of notorious murderer Colin
Thatcher’s book).
Edmonton’s Public Places By-law, as upheld in
R. v. Keshane [2011] ABQB 525 (Ross, J), permits
police to fine for “public fighting” where
conduct does not warrant a Criminal Code
charge.
criminal field.” With one exception (Skinnydipper), the municipal by-laws in
the second column of Table 1 have withstood challenges just as well as
their provincial law counterparts.
Nor does this list of fourteen provincial laws and by-laws exhaust the
category of laws that might qualify as “criminal law through the back
door.” Each of these laws is representative of a number of laws and
by-laws across the country. While Chatterjee only concerns the Ontario Civil
Remedies Act, similar acts have been passed in other provincial jurisdictions
(BC, Alberta, Manitoba and Quebec), a process accelerated by the Supreme
Court’s endorsement of the Ontario law. The same is true of Saskatchewan’s Profits of Criminal Notoriety Act, versions of which exist in four
other provinces (Manitoba, Alberta, Ontario and Nova Scotia). As for
by-laws, Oshawa’s pawn-shop reporting requirement has led to kindred
municipal regulations in many other cities, and the validation of Ottawa’s
by-law in Adult Entertainment effectively answered dozens of similar challenges in other Ontario municipalities (and perhaps beyond). Anecdotal
evidence also suggests that municipalities across Canada, emboldened by
the Keshane decision, are considering similar public fighting by-laws (Baker
& Mosonyi 2012). Given the near-absolute win rate for the provinces and
municipalities when such laws are challenged, there is good reason to
believe that the phenomenon of provincial criminal law will increase.
The courts have upheld such laws, moreover, despite ample evidence
that the governments enacting them conceived of them as criminal justice
initiatives. Recall that in Morgentaler 1993, Justice Sopinka determined that
Nova Scotia’s Medical Services Act was in pith and substance an invasion
of federal criminal jurisdiction in part because the evidence showed that its
enactors saw it as a criminal prohibition directed at “traditionally criminal
283
conduct,” and intended it to replace the federal prohibition struck down in
Morgentaler 1988. Similar evidence failed to persuade the courts in any of
the post-1993 cases considered here.
Take the Safe Streets Act, 1999, for example. Restrictions on begging
have been part of the Criminal Code since its enactment in 1892 (easily
“traditionally criminal conduct”) and, like abortion, begging was substantially decriminalized (in 1972) only to be re-criminalized by the province (Corbett 2001). Significantly, the policy was recommended by
Ontario’s “Crime Control Commission” and Premier Harris explicitly
called the behaviour criminal: “We’re going to call them what they are
– they’re crimes” (Boyle 1998: A9; Birdsell and Rosenthal 2005: 9–10).
Harris suggested the Act was a response to “the concerns of police
officers in urban communities” and would allow them to “crack down
on aggressive panhandlers and on squeegee people who harass and
intimidate motorists” (Ontario Hansard, 1st Session, 37th Parliament, 7
Dec. 1999: 44). That the law is saved by a prominent road safety
“aspect” was belied by its application to parked cars and by the province’s failure to offer any evidence that the prohibited behaviour threatened traffic safety.
Consider the Manitoba Stalking Prevention Act, where the Minister of
Justice recognizes “that this government cannot enact criminal penalties for
domestic violence or stalking, those being matters within the exclusive
jurisdiction of the federal government,” but continues by noting that “this
bill . . . will provide victims with the ability to seek a wide range of
meaningful civil remedies . . . that will supplement the criminal penalties
and strengthen the remedies available to victims of domestic violence and
stalking” (Manitoba Hansard, May 13, 1998: 2978). “Supplement[ing] . . . the
criminal law” was, of course, one of Sopinka’s illegitimate ways for
provinces to “invade the criminal field.”
And what about the Civil Remedies Act, where the Chief of Police
testified that he supported the Act because it “would enable us to effectively disrupt and dismantle the entrenched and sophisticated organized
crime enterprises” in contrast to “measures taken at the federal level . . .
[that] have been, mostly, ineffectual” (Ontario Standing Committee on
Justice and Social Policy, Bill 155, February 20th, 2001: 1450)? Was not the
attempt to “fill perceived defects or gaps” in the federal criminal law
another of Sopinka’s unconstitutional invasions?
Similarly, in defending Edmonton’s public fighting by-law, the City
Solicitor suggested “[i]t is complementary to the criminal law, not part of
the criminal law” (Blais 2010), obviously paying no heed to Justice
Sopinka’s injunction against “complementing” (a synonym for Sopinka’s
“supplement[ing]”) the criminal law. In the same vein, the minutes of the
Edmonton Council, which observe that one of the chief benefits of the law
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is that it will “close the gap and allow the police to issue a violation ticket
in situations where the Criminal Code would not apply” (Keshane, 2010:
para 37), contravene Sopinka’s directive against filling “perceived defects
or gaps” in the criminal law.
Instead of using such evidence to strike down provincial “attempt[s] to
legislate criminal law,” however, the courts in all but one of the fourteen
post-1993 cases in Table 1 found the laws valid because they were related,
in pith and substance, to a legitimate provincial aspect. The result is a
worrisome growth in provincial criminal law.
The trouble with provincial
criminal law
The growing phenomenon of provincial “criminal law through the back
door” is problematic for a host of reasons. Most fundamentally, it is
incompatible with the functional division of federal and provincial responsibilities over criminal justice established by the Constitution Act, 1867.
While this division gives Ottawa power to enact criminal law and procedure, it gives the provinces considerable power to administer the criminal
justice system. Section 92(6) gives provinces power over the “Establishment, Maintenance, and Management of Public and Reformatory Prisons in
and for the Province.” Such provincial institutions can, of course, house
those imprisoned for non-criminal offences by virtue of section 92(15), but
they mostly hold inmates convicted of federal criminal offences (where the
sentence is less than two years). Recall also that under section 91(27)
Ottawa cannot constitute “Courts of Criminal Jurisdiction.” These courts
fall under Section 92(14) of the Constitution Act, 1867, which gives the
provinces power over “The Administration of Justice in the Province,
including the Constitution, Maintenance, and Organization of Provincial
Courts, both of Civil and of Criminal Jurisdiction” (emphasis added). Moreover, “The Administration of Justice in the province” not only “includes”
the establishment of criminal courts, but has traditionally grounded the
power of provinces in prosecuting federally-enacted Criminal Code
offences (compare with Carter 2007). At the same time, the provincial
prosecution of crime in provincially constituted courts remains subject to
the federal power to define not only the substance of crime but also
criminal justice procedures. Clearly, the Constitution Act, 1867 establishes
a finely balanced division between enacting criminal offences and procedure (federal) and administering criminal justice (provincial).
Notably, criminal justice is the only subject matter in ss. 91 and 92 that
is divided according to function in this way (Bakvis, Baier, and Brown
2009:11). While such “horizontal or administrative federalism” is common
in some federal systems (for example, Germany), it is otherwise alien to the
285
Canadian approach. Given this unique functionalism, the doctrines of
federalism that apply to all other powers must be applied with caution to
the criminal justice context. In particular, double-aspect jurisprudence,
which allows the different orders of government to overlap in enacting very
similar laws seems particularly ill suited to a functional division (in which
one order administers what the other enacts). The logic of the functional
division, and the particular balance of powers it establishes, is undermined
not only if Ottawa enacts substantively provincial legislation using the
form of criminal prohibition under s. 91(27) but also – and centrally for
purposes of this paper – if provinces enact “criminal law through the back
door.” This logic strongly supports Justice Sopinka’s 1993 insistence that
the provincial offences and punishments enacted under section 92(15)
cannot “supplement or replace the criminal law . . . or . . . fill perceived
defects or gaps therein.”
We should also worry about provincial and municipal laws that impose
supplementary penalties not only on those who have been convicted of a
Criminal Code offence, but also on those who might be guilty of the
offence. For example, because Saskatchewan’s Profits of Criminal Notoriety
Act extends to those “charged with a designated crime,” not just to those
“convicted of” one, it creates the potential for an innocent person to be
unable to profit from a retelling of a failed prosecution or as the victim of
police misconduct. Similarly, Ontario’s Civil Remedies Act allows the
province to impose civil penalties on people “likely to have committed” or
“suspected of” or “investigated” for Criminal Code offences. In Chatterjee,
the Court saw the triggering mechanism for the property deprivation, that
one must have likely committed a criminal offence, as only peripheral to
the true provincial “pith and substance.” It is difficult, of course, to
conceive of the law without the triggering element of criminal behavior,
which it is surely the entire reason the property deprivation is in any way
justifiable. Nevertheless, the law makes it possible to confiscate the property of those who have not have not faced criminal prosecution and
perhaps not committed any crime.
The problem of penalizing possibly innocent individuals is compounded because conviction and punishment under provincial offences
is not subject to the well-known procedural strictures of acknowledged
criminal law, including the right to counsel and the right to be presumed
innocent until proven guilty beyond a reasonable doubt. For example, it
was easier to conclude that Chatterjee was “more likely than not” to be
engaged in criminal activity under the provincial Civil Remedies Act
than it would have been to prove him guilty “beyond a reasonable
doubt” under the federal Controlled Drug and Substances Act. Or consider the Manitoba Stalking Prevention Act, where in some cases there
may not be enough evidence to get a peace bond for Criminal Code
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intimidation or harassment, but a more easily obtained provincial protection order might be available and, since it is criminally enforced by
virtue of the Criminal Code provisions regarding the breach of a court
order (s.127), it may be just as effective as the peace bond. Similarly, it
was possible under the Edmonton by-law to issue a simple ticket for
“public fighting” to Keshane, whereas pursuing the criminal charge of
assault would have been procedurally more onerous.
Applied to criminal law, one might wonder what
exactly is the “job” and who is served by “efficiency”?
One troubling answer is that efficiency serves primarily
the convenience of criminal justice administrators
It is true, of course, that the Charter applies to provincial legislation as
rigorously as it does to federal law: the legal rights of s.11 (which are
engaged when “one is charged with an offence”) are “available to persons
prosecuted by the state for public offences involving punitive sanctions,
i.e., criminal, quasi-criminal and regulatory offences, either federally or
provincially enacted” (Wigglesworth: para 25). However, the broad applicability of Charter protection has been qualified by the decision in R. v.
Wholesale Travel Group (1991), where Justice Cory held that “a Charter right
may have different scope and implications in a regulatory context than in
a truly criminal one and that constitutional standards developed in the
criminal context cannot be applied automatically to regulatory offences.”
The current state of the law suggests that, by portraying their laws as
something less than “truly criminal,” provinces may be able to avoid the
most robust forms of Charter protection.
Some citizens will be charged with assault, while others
are ticketed for “public fighting” or “aggressive solicitation.” Some individuals will be charged under provincial or municipal offences when it is unlikely they
would have been charged criminally, creating a potentially net-widening effect
Moreover, the shift in focus from federal criminal law (where rights,
due process and liberty are usually at the forefront of the debates) to
provincial offences may elevate justifications related to administrative
expediency. In an oft-cited article critical of the Supreme Court’s expansive interpretation of federal powers (including the criminal law power),
Jean Leclair argues “[t]he dominant understanding” of federalism by
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Canadian courts privileges “efficiency” at the expense of other values
(2003: 412). “Put bluntly,” Leclair writes, “it is a simple inquiry into
which level of government can best get the job done” (2003: 412).
Applied to criminal law, one might wonder what exactly is the “job”
and who is served by “efficiency”? One troubling answer is that efficiency serves primarily the convenience of criminal justice administrators. Criminal justice concurrency can exacerbate the “pathologies of
criminal law” that criminal law professor William Stuntz warns against:
forum shopping by law enforcement actors, reduced protections for civil
liberties and ever-broader criminal liability (2001). Duplicative provincial
criminal laws provide law enforcement officers with a greater range of
discretionary choices in addressing anti-social behaviour. Some citizens
will be charged with assault, while others are ticketed for “public fighting” or “aggressive solicitation.” Some individuals will be charged under
provincial or municipal offences when it is unlikely they would have
been charged criminally, creating a potentially net-widening effect (Lab
et al. 2011: 155–6). These consequences may not always be inherently
problematic – indeed, they may ultimately help ensure the state response
is appropriate to the level of harm and disruption – but the establishment of such “options” must be done with care to ensure essential
protections and qualifications are not removed without consideration.
In testimony before the Standing Committee on Justice and Social Policy,
Niagara Police Chief Gary Nicholls explicitly praised the Civil Remedies Act
for its administrative expediency, noting that “the level of proof is reduced
. . . In addition, the rules governing admissibility of evidence in civil matters
are reduced, resulting in a more level playing field for police and prosecutors” (Ontario, Bill 155, February 21, 2001: 1050). Not only is the overall
burden of proof reduced, evidence – perhaps even evidence that would be
inadmissible in a criminal trial – can be used to reach the conclusion that the
property was the proceeds of crime. One can see why police and prosecutors
(and perhaps other criminal justice administrators) might favour the civil
option and it may help explain why “no case” drug seizures – where the
police legally search a marijuana grow-op and seize the equipment but lay
no formal charges – are on the rise (Garis 2009: 3). When asked about the
federal property forfeiture provisions in the Criminal Code (which apply
only once a conviction has been established), then-Chief of Police Julian
Fantino said “[w]e do use it . . . But that’s a criminal process and there are
a lot of complications there . . . it’s labour-intensive, and there are all kinds
of issues of liability and being able to effectively and quickly seize the assets
before actual due process is concluded” (Ontario Standing Committee on
Justice and Social Policy, Bill 155, February 20th, 2001: 1510). If Fantino is
correct, and the federal system is too burdensome to perform the task, then
the federal system should be directly reformed, not “supplemented”
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(or perhaps ‘short-circuited’) by a provincial system that provides administrators with the same result for less effort.
Another difficulty with provincial criminal laws is their potential to
circumvent the traditional criminal law restraints on investigations. Consider the administrative maneuvers involved in Chatham’s “excessive
fortifications” by-law: targeting a specific motorcycle clubhouse, the City
passes a regulation prohibiting the fortifications visible from outside the
property. This gives the City’s building inspector “due cause” for a search
warrant, allowing him to enter the premises and report anything he sees
(regarding other offences) to the police, who can use that information as
probable cause to obtain a new, broader search warrant.6 Such investigative
use of provincial laws is not unknown; in Brown (1998), the Ontario Court
of Appeal accepted the Durham police’s systematic use of a provincial
Highway Traffic Act provision to establish stops to check “mechanical
fitness” (s.216(1)) of motorcycles in order to obtain intelligence about the
Paradise Riders Motorcycle Club (if the bikers had been pulled over
without the “mechanical fitness” pretense, it would have constituted an
arbitrary detention). Similarly, Oshawa’s by-law recruits the active assistance of pawn shop operators in criminal investigations by requiring them
to report all transactions directly to the police.
The actual punishments imposed by provincial criminal laws also raise
difficulties. Because such laws must formally deny that they are true
criminal laws, they tend to rely on fines and property seizure rather than
imprisonment7 – indeed, none of the laws discussed above carry a sentence
of imprisonment upon first conviction. This does not always make them
less punitive than their Criminal Code counterparts, however. Even
modest fines can quickly escalate and the failure to pay them can lead to
serious legal consequences. With respect to property seizures, it should be
recognized that such penalties can be life altering – think of the state
seizure of a house suspected of being used (perhaps only in part) for the
production of marijuana. Some property-deprivation penalties could be
even more punitive than the correlative criminal law penalty; one might
prefer, for example, a federal drug diversion program to the loss of a home.
Moreover, laws like Manitoba’s Stalking Prevention law may be explicitly
formulated to ensure that the breach of a civil order can be enforced by
s.127 of Criminal Code (“disobeying order of court”), essentially transforming a provincial civil remedy into a federal criminal offence backed by
criminal penalties.
Finally, to the extent that provinces can “supplement or replace the
criminal law . . . or . . . fill perceived defects or gaps therein,” they may be
able to criminalize what the federal government has chosen not to
criminalize. This is most problematic when provinces recriminalize what
has explicitly been decriminalized as a matter of federal criminal law. This
289
was precisely the situation in the 1993 case that prompted Justice Sopinka’s
injunction against provincial supplementation or replacement of criminal
law. Similarly, the federal decriminalization of “begging” in 1972 has been
at least partially overturned by Ontario’s Safe Streets Act and municipal
by-laws like Vancouver’s “obstructive solicitation” regulation. If “decriminalization” is to have any meaning, it must surely prevent some forms of
provincial “recriminalization.” Similar considerations may count against
provincial criminalization of something Ottawa has abstained from prohibiting in the first place. Judge Williamson ruled in Skinnydipper that a
municipality could not “extend a definition of something criminal to
include circumstances excluded by Parliament” (see Lederman 1963:188 on
the “so-called doctrine of abstinence” and its negative implication for
provincial law). As we have seen, however, Skinnydipper is a modern
anomaly, one that runs against the “dominant tide” of collaborative,
“double aspect” federalism.
Resisting the temptation
It is not surprising that the provinces would want to play a role in shaping
criminal law. Providing protection against crime is a core function of
government and one that citizens naturally expect of all levels of government. The fiscal dimension of criminal justice – where the provinces pay
75% of all criminal justice costs (Canada 2002: 4) – provides an additional
incentive. “Each level of government bears a portion of the costs of
criminality,” Justice Binnie reasons in Chatterjee, “and each level of government therefore has an interest in its suppression” (para 15). Moreover,
the functional divide of the criminal justice powers may itself encourage
provinces to legislate in the criminal sphere. Federations that routinely
divide powers functionally, like Germany, also have strong intra-state
mechanisms that allow the sub-units to participate in national law-making.
Without such intra-state mechanisms, the Canadian provinces are left
administering criminal justice legislation (like the Criminal Code of
Canada) whose substance they cannot formally and explicitly control.
Absent any intra-state mechanism and given the political pressure to
address the always-salient issue of crime, it is not surprising that the
provincial governments, formally denied the hammer of substantive criminal law, would search their toolbox for other means of hitting the same
nail. Nevertheless, the problems of provincial “criminal law through the
back door” recounted in the previous section are too serious to ignore. The
temptation of provincial criminal law should be resisted.
Resisting the temptation will be difficult, not least because it runs
directly counter to the “dominant tide” of Canadian federalism jurisprudence, which favours federal-provincial collaboration and accommodation
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in contrast to the (now unfashionable) constitutional theory of “watertight
compartments.” In the criminal justice context, we need to lean a little
more in the direction of watertight compartments. Yet, while calls for a
return to a more textual division of powers are periodically heard from
political actors (Stephen Harper’s “Open Federalism,” for example), the
Supreme Court appears wedded to more collaborative approaches (see, for
example, the Court’s decision in Canada (Attorney General) v. PHS
Community Services Society (2011) and Reference re Securities Act (2011))
despite the occasional defence of provincial autonomy (Reference re Securities Act (2010)).
The difficulty of resisting and reversing collaborative jurisprudence in
the criminal justice sphere is compounded by the fact that the federal
government itself sometimes fails to resist it. Indeed, Ottawa is sometimes
an active accomplice of provincial criminal law. With respect to Ontario’s
Civil Remedies Act, for example, the Federal government supported the
provincial legislation and even intervened on its behalf in court (Makin
2008). Similarly, a recent discussion paper by the Federal Department of
Justice suggests downloading a number of crimes to the provincial level to
allow for “the assurance of lower penalties or no time in jail in exchange
for reduced protection under the Charter” (Kari 2013). Such federal acquiescence in provincial criminal law minimizes jurisdictional conflict and
gives the courts little reason to reconsider the jurisprudence of collaborative federalism.
the “modern tide” of “collaborative” federalism jurisprudence in the criminal justice realm risks inducing a
multi-level reduction of liberty while simultaneously
muddying the lines of accountability
In the criminal justice context, however, intergovernmental collaboration
is better viewed with suspicion than as the welcome comity it brings to
other policy areas. Laskin was alive to this possibility when he ruled in
Westendorp that the “double aspect” doctrine would have to be narrowly
applied in the criminal justice context, lest the provinces and municipalities
enact a wide variety of criminal legislation on the basis that it furthered
their objective of regulating public spaces. Laskin understood that allowing
a vast concurrency in criminal law power radically undermined the federal
exclusivity of s. 91(27). The Court has abetted this concurrency by finding
provincial objectives such as “maintaining public order,” “deter[ring] crime
and compensat[ing] victims,” and “suppressing conditions calculated to
favour the development of crime” to be legitimate provincial justifications
for legislation under section 92 (Bedard, 1923: 684; Chatterjee, 2009: para 3;
291
Manning 2002: 316–20). With these objectives considered part of the
province’s mission, it is not difficult to find a “double aspect” to most
matters of criminal justice policy. It should be more difficult. Simply put,
the “modern tide” of “collaborative” federalism jurisprudence in the
criminal justice realm risks inducing a multi-level reduction of liberty
while simultaneously muddying the lines of accountability.
If Canadian lawmakers are overburdened by Charter
considerations and police are hampered by excessive due
process, this problem should be confronted directly and
with due regard for constitutional values
This does not mean that all of the concerns underlying provincial
criminal law – concerns about efficiency, for example – are necessarily
misplaced or wrongheaded. It simply means that the government formally
responsible for criminal law should address them directly and openly.
Police workloads, “minor” criminal behaviour and overly burdensome due
process regimes are legitimate topics of criminal justice administration and
could be potential objects for reform. If Canadians want looser criminal
laws, less due process and more “effective” policing then they may be
entitled to them, but, at the very least, they should be enacted forthrightly
as criminal law by a clearly accountable decision-maker. The federal Justice
Department may be right to want “lower penalties or no time in jail in
exchange for reduced protection under the Charter,” but it should seek this
outcome through reform of federal law rather than by downloading to the
provinces. Edmonton’s “public fighting” by-law, for example, could have
easily been enacted in the Criminal Code as a “de minimis” assault
provision. As Laudan (2008) argues in the American context, criminal
offences that result in such small penalties warrant a streamlined
prosecutorial and judicial process.
If Canadian lawmakers are overburdened by Charter considerations and
police are hampered by excessive due process, this problem should be
confronted directly and with due regard for constitutional values. If this is
a direction Canadians wish to take their criminal justice system then so be
it, but to do so largely as a jurisprudential artifact of federalism provides
little accountability and no assurance of deliberation.
Notes
1 Municipal by-laws are passed under the constitutional authority of their respective
province.
2 In cases like Rio Hotel (1987), the Court even allows for otherwise jurisdictionally suspect
provisions if they can be construed as part of a “comprehensive regulatory scheme” that
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3
4
5
6
7
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is, as a whole, directed to provincial purposes (a precedent followed in Keshane, where
the public fighting by-law is nestled within a larger set of by-laws regulating public
property).
To identify provincial laws and municipal by-laws that have a quasi-criminal character, the
Canadian Abridgment (Carswell) was surveyed. Six headings were reviewed (CRM II.2.b,
CRM II.2.e, CRM II.2.g, MUN X.1.e.i.A, MUN X.1.e.ii.B and MUN X.1.e.ii.D) for cases where
the law (or by-law) was expressly challenged on criminal justice federalism grounds. In
total, 334 case summaries were reviewed. To limit the scope of this project, only cases where
the final judicial determination was made in the past decade (2001–2012) were included. In
addition, only the highest court judgment to address a particular issue in a jurisdiction is
included (see footnote 4).
Prior to this Ontario Court of Appeal judgment, a number of Ontario trial court decisions
divided on the question of whether the regulation of adult entertainment parlours was intra
vires municipalities: (1) Mississauga’s Body-Rub Parlour Licensing By-law 3-01 found intra
vires in Theofilaktidis (2004); (2) Markham’s by-law was found intra vires Musiej (2003)
(reversed on other grounds in [2004] O.J. No. 1936); (3) Niagara Falls’s by-law regulating
body-rub parlours found intra vires on summary judgment by motions judge in 1515545
Ontario Ltd., reversed in part by (2006) 78 O.A.C. (3d) 783 (CA); (4) Brampton’s by-law was
found ultra vires in Pimenova (2004).
The dual sex-offenders registries raise issues of provincial criminal law, but the intricacies
of their development deserve a separate paper. Petrunik (2003) offers some federalism
comparisons using the United States and Canada.
Judge Rogin in Bondy dismisses this possibility, reasoning that, if it were to occur, the
building inspector would be working as an agent of the police and subject to the same
constitutional rules. This is only correct if it can be proven that there was collusion to this
effect between the inspector and the police. If it were to occur by “happenstance,” the
traditional search and seizure rules may be circumvented as described.
Section 92(15) does permit provinces to impose lengthy prison sentences, but such sentences seem most appropriate to the kinds of criminal-law purposes that provinces cannot
explicitly acknowledge.
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nuisance law.” Guelph Mercury, 22 November 22: A9.
Bakvis, Herman, Gerald Baier, and Douglas Brown. 2009. Contested Federalism: Certainty and
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Birdsell, Mary, and Peter Rosenthal. 2005. Appellant’s Factum in Banks v. The Queen, Ontario
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Blais, Tony. 2010. “City fighting to retain fighting bylaw,” Edmonton Sun, 22 September.
Boyle, Theresa. 1998. “Tougher stance urged against squeegee kids.” Toronto Star, 25 July.
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Carter, Mark. 2007. “Recognizing original (non-delegated) provincial jurisdiction to prosecute
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Cambridge University Press.
Leclair, Jean. 2003. “The Supreme Court’s understanding of federalism: Efficiency at the
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Makin, Kirk. 2008. “Do provinces have a right to ill-gotten gains?” Globe & Mail, 8 November.
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Oliver, Peter. 2011. “The busy harbours of Canadian federalism.” In Public Law at the McLachlin
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Petrunik, Michael. 2003. “The hare and the tortoise: Dangerous and sex offender policy in the
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Stuntz, William J. 2001. “The pathological politics of criminal law.” Michigan Law Review 100
(3): 505.
Todd, Robert. 2009. “SCC backs Civil Remedies Act.” Law Times April 27, 2009.
Cases Cited
613742 N.B. Inc. v. Moncton (City) (2009) 186 C.R.R. (2d) 205.
Adult Entertainment Association of Canada v. Ottawa (City), (2007) 283 D.L.R. (4th) 704 (CA).
Bedard v. Dawson [1923] S.C.R. 681.
Bondy v. Chatham-Kent (Municipality) (2008) 168 C.R.R. (2d) 221.
Brown v. Durham (Regional Municipality) Police Force, (1998) 43 OR (3d) 223.
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Canada v. PHS Community Services [2011] 3 S.C.R. 134.
Cash Converters Inc. v. Oshawa (City) 35 M.P.L.R. (4th) 161 (O.C.A.).
Chatterjee v. Ontario (Attorney General) [2009] 1 S.C.R. 624.
Federated Anti-Poverty Groups of British Columbia v. Vancouver (City) [2002] B.C.J. No. 493.
Fredericton (City) v. Re-Purchase Shop Inc. (2003), 2003 CarswellNB 668, Cumming Prov. J. (N.B.
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Mississauga (City) v. Theofilaktidis [2004] O.J. No. 5968.
OPSEU v. Ontario (Attorney General) [1987] 2 S.C.R. 2.
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Rio Hotel v. New Brunswick (Liquor Licensing Board) [1987] 2 S.C.R. 59.
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R. v. Dyck (2008) 90 O.R. (3d) 409.
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Skinnydipper Services Inc. v. Surrey (City) (2007) 287 D.L.R. (4th) 514.
Westendorp v. The Queen, [1983] 1 S.C.R. 43.
Kenneth Kernaghan
Digital dilemmas: Values, ethics
and information technology
Abstract: In writings on public administration, the subject areas of values and ethics
and of information technology (IT) have received substantial, but largely separate,
attention. The public administration community can benefit by drawing on scholarship in the field of information and computer ethics and developing its own body
of research with a view to sensitizing public servants to the effects of changes in
IT on values and ethics. This article focuses on developments in the use of IT (for
example, self-service technologies, Big Data, the Internet of Things) as a basis for
assessing their implications for public sector values and ethics. Research is needed
on the extent to which the values and ethics regimes of public organizations take
account of the impact of changes in IT; the degree to which the various components
of these regimes can foster sensitivity to the implications of these changes; and the
significance for the public sector of such emerging ethical issues as robot ethics.
Value conflicts and dilemmas arising from advances in digital technologies argue
for vigorous measures to alert public servants to the technologies’ impact.
Sommaire : Le domaine de l’administration publique n’a pas suffisamment prêté
attention aux valeurs et à l’éthique qui sont associées aux questions émergentes de
l’information et de la technologie numérique. Les praticiens et les chercheurs en
administration publique peuvent s’appuyer sur des travaux de recherche dans le
domaine de l’information et de l’info-éthique pour mettre au point leurs propres
modèles et cadres d’applications. Cet article passe en revue des exemples de
progrès clés dans l’emploi de la technologie de l’information (TI) (par exemple, les
technologies du libre-service, les méga données, l’Internet des objets) et évalue les
implications pour les valeurs et l’éthique du secteur public. Il faudra une recherche
plus approfondie pour voir dans quelle mesure les organismes publics contribuent
aux changements en TI dans les régimes de valeurs et de déontologie, l’importance
de telles questions émergentes comme l’éthique de la robotique, et pour voir si de
vigoureuses mesures sont nécessaires pour mettre en garde les fonctionnaires
contre des conflits de valeurs et des dilemmes découlant de l’adoption de diverses
technologies numériques.
In the scholarly literature on public administration the subject areas of
values and ethics and of information technology (IT)1 have received
substantial, but largely separate, attention. A rapidly growing volume of
literature explores the effects of IT advances on particular values (for
Kenneth Kernaghan is professor emeritus of political science and management, Brock University, St. Catharines, Ontario. He acknowledges the helpful comments of the anonymous
reviewers and the Journal’s editor.
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KENNETH KERNAGHAN
example, transparency, privacy), but few studies have examined the broad
implications of these advances for the field of public sector values and
ethics in general.
There is extensive writing in the field of information and computer
ethics that informs policy and management in all forms of organization.2
This field of applied or practical ethics has flourished, especially since the
late 1990s, from the realization that advances in IT have raised important
ethical issues. “[T]he field of information/computer ethics . . . is becoming
one of the most important fields of applied ethics” (Himma and Tavani
2008: xxxi). The public administration community can benefit by drawing
on scholarship in this field and expanding its own body of research with
a view to sensitizing public servants to the impact of changes in IT on
values and ethics.
This article introduces one aspect of the large field of information and
computer ethics, namely public sector values and ethics issues arising from
developments in IT. Space constraints require the discussion here to be
illustrative rather than comprehensive. The first section outlines selected
current and anticipated developments in IT affecting public organizations.
The second section notes “milestone” contributions to the evolution of the
information and computer ethics field as well as writings on values/ethics
and IT in Canada’s public sector. Section three discusses the implications
of IT developments for selected public service values. Section four
describes government efforts to deal with these implications, and the final
section outlines an agenda for further research. The primary focus is on
Canadian experience but reference is made to other countries as well.
The public sector IT environment
This section examines the rapidly increasing use of self-service technologies to deliver government services, the Open Data and Big Data movements, and the anticipated growth of machine-to-machine communications
(M2M) and the Internet of Things (IoT). In recent years, self-service
technologies and open data have been high research priorities for Canada’s
Public Sector Service Delivery Council and Public Sector Chief Information
Officers Council, reflecting widespread concern about these developments.
A larger, more comprehensive study would give greater attention than can
be given here to such IT issues as social media, surveillance technologies
and digital inclusion.
Self-service technologies
Technological advances have enabled a vigorous movement away from
traditional service channels (for example, surface mail and in-person
service) to self-service technologies (SSTs). These SSTs are commonly
VALUES, ETHICS AND INFORMATION TECHNOLOGY
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described as self-service channels or, less commonly, as self-service modalities. They are “technological interfaces that enable customers to produce a
service independent of direct service employee involvement” (Meuter et al.
2000: 50). Thus, in the public sector, self-service delivery can be defined as
“a process by which citizens access government services without direct
assistance from or direct dealings with government personnel” (Kernaghan
2012: 7). But there is also “assisted self-service” that involves “government
personnel who facilitate citizens’ self-service by providing some level of
enabling assistance” as, for example, when public servants guide citizens
to a computer at a service centre. There are also many cases of “self-service
plus” with part of a service available through self-service (for example, an
online application) and the rest provided through a traditional channel (for
example, a personal interview) (Kernaghan 2012).
SSTs are examined in four categories – the Internet, mobile devices,
electronic kiosks, and telephone Interactive Voice Response (IVR) – but
there is rapidly emerging overlap among these categories. For example,
smart phones rather than just desktop and laptop computers are used for
Internet access, texting, e-mailing, and IVR.
The Internet
Self-service via the Internet includes the use of websites and virtual service
agents. High-quality websites are critical to effective self-service, including
assisted self-service. For example, because the web pages of the City of
Kamloops, British Columbia, include the information that citizens request
most frequently, front counter staff can direct citizens, either by phone or
in person, to the City’s website, thereby minimizing in-person service and
providing 24/7 access.
Virtual service agents (or automated online assistants) are a form of
chatbot (or chatter robot) – a software program that simulates human
conversation through artificial intelligence. Virtual agents can carry on an
intelligent online conversation with a human partner in natural language.
They are widely used by private sector organizations (for example, Canada’s Scotiabank) and, less frequently, by a variety of public organizations
around the world. For example, ameli.fr, one of the largest public service
websites in France, has an animated virtual agent to provide information
on public health insurance.
Mobile devices
Websites and virtual agents are increasingly accessed by mobile devices,
notably smart phones and tablet computers as well as by desktop and
laptop computers. While computers are tied to a particular location, mobile
devices can be used anywhere at any time and offer such additional
benefits as greater personalization, cost savings, and digital divide
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solutions. The 2012 United States Digital Government strategy asserts that
both the public and public servants “should be able to access government
information and services on demand and on any device” (United States
2012: 21). Mobile devices do, however, present risks such as a greater
chance of theft or loss, authentication challenges and security threats.
Several developments flow from the rapid expansion in the use of
mobile devices. First, many governments are seeking to ensure that mobile
users can effectively access government websites. There is greatly increased
emphasis on “responsive web design” (Foster 2012) involving building a
website that provides good quality access for both desktop computers and
the growing variety of mobile devices. The State of Texas, for example, has
a mobile-friendly website that automatically adjusts its content to the
appropriate screen size when accessed through a smart phone.
Second, public organizations are expanding the use of mobile devices to
give employees remote access to field data and Intranet, enabling quick
access to relevant information and minimizing the need for physical access
to the office. In the City of Nanaimo, British Columbia, employees in the
field use an application that provides inspection information on properties,
captures data, reports findings, and prints reports.
Third, public organizations are obliged to manage the bring-your-owndevice challenge: employees seeking to use their personal mobile device
(for example, smart phone, tablet) in the workplace, connecting it to the
organization’s network and accessing official data. Among several policy
and management issues is the increased security risk arising from public
servants using a single mobile device for personal and professional purposes, especially if lost. Smart phone manufacturers have responded by
enabling users to switch easily between separate profiles for their personal
and professional activities and to wipe lost devices clean of all data.
Public servants increasingly represent their organization
online by such means as managing social media pages,
responding officially to online posts, and writing blogs
A fourth development is the rapidly growing use of mobile devices to
pay for government services. Mobile or digital “wallets” enable contactless
payment as users “tap and go” with mobile phones equipped with Near
Field Communication (NFC) or with smart cards. The UK Post Office will
install contactless payment terminals in all of its 11,000 branches to permit
customers to pay by NFC-enabled phones or by smart cards (United
Kingdom 2013). Smart Cards can serve a variety of purposes beyond use
as credit or debit cards: telecommunications (for example, telephone
payment cards); healthcare (for example, portable medical records cards);
299
and secure identity (for example, driver’s licences) (Smart Card Alliance
2012). A pilot project at Singapore’s Land Transport Authority (LTA) uses
the country’s contactless fare system to provide information on the LTA
website as to how crowded each bus route is (Africa 2012).
A final development is the rapid growth in the extent to which public
organizations integrate information and services on websites to social
media, such as Facebook and Twitter. Public servants increasingly represent their organization online by such means as managing social media
pages, responding officially to online posts, and writing blogs.
Electronic kiosks
Compared to their widespread use in the private sector, kiosks are much
less prevalent in the public sector and less popular than other self-service
channels. They do, however, have considerable growth potential, unless
undermined by burgeoning use of mobile devices, and if their security
challenges can be minimized. They are increasingly used for such purposes
as simplifying vehicle registration and driver’s licence renewal, facilitating
payments and promoting more efficient border control. For example, an
Automated Border Clearance system successfully piloted at the Vancouver
International Airport and then extended to other airports uses documentreader kiosks to expedite the processing of returning Canadians.
Telephone IVR
IVR systems can bring about cost savings and improve service by extending service hours, responding to frequently asked questions, and providing
assisted self-service from specialists when callers need additional information. Public organizations use the systems for such purposes as delivering
information to citizens and employees, having an auto-attendant answer
main office numbers and sending licence, tax and other reminders for
payment.
Open Data and Big Data
The Open Data movement involves governments making many of their
datasets publicly available, preferably in structured machine readable
format. The hope is that individual citizens, the private sector and nongovernmental organizations will, on a self-service basis, access and
exploit these datasets, in part to improve the design and delivery of
government services. Following Open Data initiatives in the US and the
UK and in such Canadian municipalities as Vancouver, Edmonton and
Toronto, Canada’s provincial and federal governments joined the Open
Data movement (Kernaghan 2010: 57–60). The federal government’s
Open Data Portal (www.data.gc.ca), launched in March 2011, is a onestop shop for a huge number of data sets from departments and
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KENNETH KERNAGHAN
agencies (Canada 2012). Canada is also working with governments
around the world in the Open Government Partnership created in 2011
– an international initiative dedicated to fostering more openness and
transparency in government.
The volume of data to be managed by governments will
be greatly expanded by the advent of the IoT, enabled by
the escalation of M2M communications
The Open Data movement is closely related to the Big Data (or Big Data
analytics) movement dedicated to developing and exploiting data sets so
large and complex that it is difficult to capture, store, manage and analyze
them with typical database software. Governments are challenged to
develop Big Data technologies to handle and disseminate a torrent of data
from such sources as the Internet, mobile devices, social media, and sensor
networks and to make these data available to the public. The major trends
include the increasing migration of social and economic activities online;
the strong decline in the cost of data collection, storage, transportation and
processing; the increasing deployment of “smart” ICT applications such as
smart grids and smart transportation based on M2M communication; and
the continued expansion of mobile communication (OECD 2013). Big Data
advocates predict such benefits as improved service, lower costs, fraud
detection and evidence-based decision making.
Internet of Things (IoT) and
Machine-to-Machine (M2M)
communications
The volume of data to be managed by governments will be greatly
expanded by the advent of the IoT, enabled by the escalation of M2M
communications. The IoT is envisaged as “a future in which everyday
objects such as phones, cars, household appliances, clothes and even food
are wirelessly connected to the Internet through smart chips, and can
collect and share data” (European Commission 2012:1). M2M communications are “those that are actively communicating using wired and wireless
networks, are not computers in the traditional sense and are using the
Internet in some form or another” (OECD 2012: 5). The number of M2M
devices is expected to increase from about 5 billion in 2012 to about 50
billion over the next ten to fifteen years. The OECD captures the M2M and
IoT developments with the term “smart networks” in which “smart” is
defined as “an application or service that is able to learn from previous
situations and to communicate the results of these situations to other
301
devices and users” (2013: 8). Smart networks are driven by three distinct
developments in the evolution of the Internet: “machine to machine
communication to transmit the information, cloud computing to process
and display data and big data analysis to correlate and interpret the data”
(OECD 2013).
While the mobile devices described above facilitate providing government service anywhere at anytime for anyone, M2M communications
promise connectivity for anything. International organizations (for example,
the European Commission 2009; OECD 2012) and several countries have
begun to examine the policy, regulatory and service impacts of IoT
developments and position themselves to exploit the anticipated substantial benefits in service quality and cost efficiency, especially to such policy
fields as transportation, the environment and health care.
To provide a basis for examining the implications of these IT advances
for public service values, the next section reviews the intellectual development of the field of information/computer ethics as well as writings on
IT, values and ethics in the Canadian public sector.
Values, ethics and IT: The scholarly
foundation3
Scholarly writings on the relationship between ethics and IT date back to
the mid-1940s when Professor Norbert Wiener of MIT began to lay the
foundation for what is now described as information and computer ethics.
In three books (1948, 1950, 1964), he examined with remarkable prescience
ethical issues that he believed would result from using information and
computer technology, including issues associated with artificial intelligence, robotics, computers for disabled persons, and the responsibilities of
computer professionals.
In the mid-1970s Professor Walter Maner of Old Dominion University
proposed a new branch of applied ethics that he described as “computer
ethics.” In 1978 he developed a Starter Kit on Teaching Computer Ethics
that was widely disseminated in colleges and universities and in philosophy and computing conferences and workshops. Among the Kit’s topics
were privacy and confidentiality, computer crime and professional codes of
ethics. In 1985, Deborah Johnson, a colleague of Maner’s at Old Dominion,
published a textbook on Computer Ethics, arguing that computers “pose
new versions of standard moral problems and moral dilemmas, exacerbating the old problems, and forcing us to apply ordinary moral norms in
uncharted realms” (1985: 1). In the same year, James Moor published his
classic “What is computer ethics?”, suggesting that computing technology
raised more ethical questions than other technologies because it is “logically malleable”—that is, computers can be “shaped and moulded to do
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any activity that can be characterized in terms of inputs, outputs, and
connecting logical operations . . .” (1985: 269).
In 1991 Donald Gotterbarn argued in an article on “Computer ethics:
responsibility regained” that too little attention was “paid to the domain of
professional ethics—the values that guide the day-to-day activities of
computing professionals in their role as professionals.” He subsequently
engaged in a variety of activities promoting codes of ethics and professional responsibility.
Wiener and many other scholars (for example, Johnson, Maner) have
focused on the “human-values approach” to computer ethics that reflects
their concern for protecting such core human values as life, health, security,
and happiness. In the late 1990s, a new approach to computer ethics called
“value-sensitive computer design” held that potential computer-ethics
issues would be preventable if, when new technology is developed,
attention is directed at the very beginning to avoiding harm to human
values. Also in the late 1990s, Luciano Floridi and colleagues offered a new
general ethics theory they termed Information Ethics that differed from,
and was intended to supplement, the traditional human-centred theories of
utilitarianism, deontology and virtue ethics. Floridi acknowledges the
various interpretations of the term information ethics, but he suggests that
what is strongly needed is the development of “an information ethics that
can treat the world of data, information and knowledge . . . as a new
environment, the infosphere, in which humanity is and will be flourishing”
(Floridi: 2008: 3).
The foregoing theoretical and conceptual contributions were supplemented by the founding of such learned journals as Ethics and Information
Technology (1991), the Journal of Information, Communication & Ethics in
Society (2003) and the International Review of Information Ethics (2004).
Several books (for example, Rudinow and Graybosch 2002, Tavani 2004,
Schultz 2006) treat a broad range of issues in information/computer ethics.
A review of these journals and books reveals little material focused on
the public sector, but many of the topics discussed, especially privacy
and digital inclusion, have important implications for public policy and
management.
During the past decade, such issues have received greater attention in
Canada’s public administration community. However, research and writing
on values/ethics and IT have largely proceeded in separate streams. There
was a rise of concern about public sector ethics in the late 1960s and early
1970s and a similar rise of concern about public sector values in the
mid-1980s. Values and ethics considerations are now a prominent element
of public administration—as manifested, for example, by the proliferation
of values statements, codes of ethics, values and ethics offices, values and
ethics training, and emphasis on values- and ethics-based leadership.
303
While computers were first developed in the late 1940s, and personal
and home computing took off with the invention of the microprocessor in
the 1970s, the use and study of IT in public organizations were transformed
in the 1990s by the advent of the Internet. In 1997, David Brown observed
that “[t]here is no doubt that the new electronic information technologies
are having a profound effect on Canadian public administration” (108). In
2004, Kernaghan and Gunraj emphasized the growing importance of IT as
a public sector resource and argued that both academics and practitioners
have underestimated its current and potential effects (528). Borins et al.
(2007) supported this view with a comprehensive analysis of the application of IT in the public sector. By 2010, Brown (532) was able to assert that
“[f]ew, if any, areas of public service work have been untouched by the
introduction of technology and the move to knowledge-based government.
All public service desktops are connected to internal electronic networks
and through them to the Internet.”
The accelerated pace of change in IT has not been
reflected in contemporary textbooks on Canadian public
administration, and scholarly writings examining the
links between IT and values/ethics in public organizations remain in short supply
The accelerated pace of change in IT has not been reflected in contemporary textbooks on Canadian public administration, and scholarly writings examining the links between IT and values/ethics in public
organizations remain in short supply. However, a few scholars have made
the connection (for example, Kernaghan, Marson and Borins 2000; Oliver
and Sanders 2004; Roy 2006), along with a large volume of studies from
Canada’s freedom of information and privacy commissioners.4 Among the
ethical issues examined in these latter studies are the use of surveillance
technologies, the safeguarding of electronic health records, and the deployment of unmanned aerial vehicles.
In scholarly publications linking public service values and IT, the main
values discussed are service, innovation, fairness/equity, political neutrality, openness, accountability, honesty/integrity, and, increasingly, privacy.
Except for privacy, which is often described as a right or a claim rather
than a value, these are among the key values espoused by public organizations in Canada (Canada 1990:13; Kernaghan 1997: 48–9). These values
are often classified into the four “families” of democratic, ethical, people,
and professional values (Canada, Task Force on Public Service Values and
Ethics 1996, 2000: 53–8, Kernaghan 2003: 711–12; Pollitt 2003: 135–6;
MacCarthaigh 2008: 17–18; Dimock et al. 2013: chapters 5–7).
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KENNETH KERNAGHAN
This classification provided the organizing framework for the 2003
federal Values and Ethics Code, appears in modified form in the 2012 Values
and Ethics Code for the Public Sector, and is included in the Public Service
Values element of the federal Management Accountability Framework. The
Government of Australia (2003) clustered the list of values in its Public
Service Act into four groups similar to the Canadian four “families.”
Christopher Pollitt, a leading international scholar, describes the classification as helping “us to discuss the different domains of ethics that may be
involved in the day-to-day work of the public manager” (2003: 133). The
Toronto Computer Leasing Inquiry (Bellamy 2005: 32) recommended it as
a basis for refining the City’s code of conduct. This four-fold classification
serves as the framework for the latter part of this article.
This paper can make only brief reference to the large and complex issue
of privacy and IT. However, privacy has become a major feature of
values/ethics and IT dialogue and literature not only in Canada but around
the world. To date, few codes of conduct for Canada’s public servants have
included reference to privacy protection, and privacy did not even appear on
Jorgensen and Bozeman’s “stock of the public values universe” (2007: 354).
Yet IT now impacts privacy in many ways, including, for example, through
questionable surveillance, data matching and data sharing. “In the wake of
9/11, the desire to make intelligence gathering systems more effective has
led to information sharing and data matching initiatives across agency and
even jurisdictional or national boundaries, raising issues of consent, data
reliability, the appropriate use of identifiers (e.g. social insurance, passport,
driver’s licence numbers and more comprehensive identity cards) and
security of the linked data” (Kernaghan and Langford 2014).
Values and IT
This section examines the impact on public service values of the technological advances noted above. By way of illustration, two values are drawn
from each of the four families of public service values.
Democratic values
Political neutrality. Public servants are expected to meet the needs of their
political superiors in a politically neutral fashion by avoiding activities that
impair or seem to impair their impartiality or the impartiality of the public
service. Political neutrality is a constitutional convention and a public
service value that includes, for example, the components of anonymity and
public comment, both affected by advances in IT. One reason for the
ongoing decline in public service anonymity is the rapid increase in online
engagement between public servants and citizens, in part through social
media tools. For example, public servants in Canada’s federal Department
305
of Foreign Affairs and International Trade (DFAIT) have officially countered the arguments of seal hunt critics in online forums and through social
media (Lambert 2010).
Public comment in the form of criticism of government policies, programs and personalities will likely become more frequent as public servants expand personal and professional communications through social
media and increasingly through a single mobile device. An example of
questionable comment is the case of the DFAIT employee disciplined for
making disparaging comments on Facebook about government policy and
the prime minister (Weston 2009). The kinds of practical questions to be
considered are what types of things a government employee should
consider before posting personal comments about a government policy or
decision, and the risks associated with an employee acting as a political
advocate on his or her personal blog. The more fundamental question is
the extent to which public servants should be permitted to exercise the
democratic right of freedom of expression in the information age.
Openness and transparency. The public service value of openness is used
here in the sense of transparency, defined as effective citizen access to
government information. The Internet, mobile devices and social media
enable governments to foster greater openness by providing effortless
access to information, and developments in data analytics allow governments to manage larger volumes of information. Transparency of government information is commonly viewed as a moral good, but the Open Data
and Big Data movements present large management issues. Open Data has
greatly increased the pressure for easy and full access to government
information, including information widely perceived as unduly restricted
under access to information laws and public service practices. Moreover,
Big Data will require a substantial number of skilled analysts who can
extract useful insights from the data. There will be an explosion of data
resulting from M2M and the IoT and a need to determine how much data
should be released and in what form. The demand for openness has to be
reconciled with the demand for privacy that has become a dominant
concern in public sector management of IT.
Ethical values
Accountability. The values of openness and accountability have become
more tightly linked as Open Data policies and practices give citizens more
substantial access to government information. The related development of
Big Data analytics enables organizations to pursue stricter accountability by
providing them with substantial data on employee performance (for
example, on resource allocation, absenteeism). In the private sector this
development has been termed “accountability creep” to signify that “[t]he
more data organizations gather from more sources and algorithmically
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analyze, the more individuals, managers and executives become accountable
for any unpleasant surprises and/or inefficiencies that emerge” (Schrage
2013).
The quest for accountability has also been complicated by the growing
need to ensure horizontal accountability: “the mutual accountability of
collaborators, partners or co-producers of policy and services to each other,
and the accountability of each to citizens and users” (Howard and Phillips
2012: 315–6). The expansion of horizontal governance in the form of
collaborative arrangements among departments, governments and/or
sectors raises difficult questions as to who is accountable for what.
Advances in IT have facilitated many of these arrangements, especially
those involving the integration of services and service channels. The
anticipated growth of digital connections and data sharing between public
organizations, the private and third sectors, and citizens suggests that
collaboration—and consequent concerns about accountability—will continue to increase. Among other IT-driven accountability issues is the extent
to which public servants should—and can—be held accountable for
privacy and security lapses involving government’s electronic records.
In their zeal to improve service and cut costs through
innovative use of new technologies, public servants
should be sensitive to fair treatment of the technologically disadvantaged
Honesty and integrity. Governments are increasingly obliged to deal with
values and ethics concerns arising from public servants’ use of their
organization’s electronic networks for such purposes as social networking
and accessing or contributing to blogs, wikis and podcasts. The ethical
problem-areas include surfing the Web for personal enjoyment or personal
business, accessing pornographic and other questionable materials, deliberately or unintentionally releasing confidential information, engaging in
prohibited political activities, and criticizing government policies, programs and personalities. The nature and extent of the problem are suggested in a government report (Cribb 2010) disclosed by a whistle blower
asserting that public servants in a Canadian province were involved in:
•
•
•
Tens of thousands of hits to sites with content described as “illegal or
questionable,” “drugs,” “racism and hate,” “militancy and extremist.”
More than 40,000 attempts . . . to circumvent the province’s computer
security system.
As many as 145 million hits a month on websites focused on sports,
entertainment, travel, shopping, games and real estate.
•
307
Up to 15 million monthly visits to streaming video sites including
nhl.com, tsn.ca, ctv.ca, msn.com, Google Videos, entertainment site
ebaumsworld.com and other large Internet services that carry television
and video content.
Moreover, each month there were dozens of investigations “into computerrelated fraud, extortion, disclosure of confidential information and
‘operating a business’.” Punishment ranged from suspensions and fines to
dismissals and requests for a police investigation.
People values
Fairness. In their zeal to improve service and cut costs through innovative
use of new technologies, public servants should be sensitive to fair
treatment of the technologically disadvantaged. The underlying principle is
that citizens should be able to use the channel of their choice to access the
level of service they require regardless of their technological circumstances.
This is especially important in respect of obligations (for example, submitting tax returns) that governments impose on their citizens. There are,
however, steadily increasing pressures to achieve cost savings by migrating
users to one or more of the self-service channels. The Canada Revenue
Agency is encouraging online tax filing by eliminating its routine mailing
of income tax forms, its Telefile service permitting many citizens to file
returns by telephone, and its in-person payment and inquiry counter
services in its field offices. The Danish public sector is replacing its surface
mail communications with a digital mailbox for each citizen and business
while promising to continue in-person service for those who need it. The
UK government is implementing a “digital by default” system that aims to
make online services much more attractive than alternative channels, while
recognizing the need for “assisted digital” for citizens unable or unwilling
to access online services.
Fairness is a key value for the digital inclusion of persons whose access
to online services is limited because of such factors as physical disabilities,
low income or age. Canada’s Federal Court of Appeal ruled in 2010 that the
federal government must provide effective access to its websites for blind
and visually impaired persons, stay abreast of changing accessibility standards and update its web content to keep up with advances in assistive
technology (Johdan v. Attorney General [2010] F.C. 1197 (CanLII)). For both low
income and elderly persons, governments must ensure that the traditional
digital divide does not widen as more and more services move online.
Responsiveness. Fairness is closely linked to the value of responsiveness
in the sense of the commitment of public servants to engage citizens in
developing and delivering government programs in a sensitive, caring
manner. Public organizations are expanding their use of social media and
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self-service technologies to enhance citizens’ input on policy development
and access to government information and services. For example, health
care organizations are examining how social media and other data can be
mined for research and treatment purposes. Kiosks are increasingly used to
permit patients to check in at hospitals and other health care facilities. IVR
applications are helping to improve service in health care as, for example,
in New York State’s Department of Health which allows residents to use
IVR to conduct background checks on health care providers (PlumVoice
n.d.). The expansion of M2M and IoT is enabling patients to use wearable
or implanted sensors to monitor themselves and to allow health care
providers to monitor patients’ vital signs remotely and continuously,
avoiding hospitalization and possible infection.
Technological initiatives to improve responsiveness to citizens can have
care benefits and ethical costs. For example, advances in robotics can foster
improved care for the elderly by monitoring their health and safety and
providing companionship (such as robot pets), but robot applications can
have such adverse effects as reducing the extent of human contact, individual privacy, and personal liberty (Sharkey and Sharkey 2012: 27).
Professional values
The 1996 Task Force on Public Service Values and Ethics noted the
increased importance of certain “new” or “emerging” professional values,
including, most notably, service and innovation (Canada, 54–6). These two
values have been inextricably linked since the mid-1980s when the New
Public Management movement and public demands for new and better
services fostered improved service delivery, and budgetary constraints
encouraged or required public servants to seek innovative ways of delivering services. By the early 2000s, a Service and Innovation Sector had been
created in the federal Treasury Board Secretariat and the Institute for
Citizen-Centred Service established to promote citizen-centred research,
service and innovation. References to service as a central public service
value began to appear in values and ethics documents, sometimes linked
to service improvement through technological innovation. For example, the
Province of Manitoba’s Value and Ethics Guide asserts in a section on
citizen-centred service that the public service is “continually reviewing
ways to improve our programs and services in response to the public’s
changing needs. Whether it is through the use of new technology, forging
new partnerships, or streamlining our processes, we will ensure we are
flexible and adapt quickly to change” (2007).
Service. While a broad range of factors (for example, employee engagement, partnerships and organizational forms like service agencies) is
driving improved public sector service delivery, the focus here is on
improvements facilitated by new IT. Enabling self-service through various
309
technologies has become a major component of the broad notion of service,
evident in the surge of migration from the traditional service delivery
channels to self-service ones. While SSTs enable citizens to help themselves,
they also promote cost savings through the pursuit of another professional
value—that of efficiency. As noted above, however, there is growing
tension between enhancing service and reducing costs by encouraging or
requiring migration to the self-service channels and ensuring fairness by
preserving access to the traditional channels.
Improved service is also being sought by governments’ increasing use of
social media to transmit information to citizens and, to a lesser extent, to
receive citizen input on service design and delivery. As noted, Open Data
is making substantial volumes of data available to the public so that
citizens and businesses can use the data to develop new services and better
modes of delivery. Moreover, Big Data analytics is expected to provide
governments with information and actionable insights that will spark
innovations in service design and delivery. While each of these technologies can bring substantial benefits, they also pose very tough challenges to
the preservation of individual privacy.
Innovation. The public administration community is acutely aware that
since the mid-1980’s IT advances have driven countless innovations in
public policy and management, especially for service delivery. Current and
emerging technologies such as those described above - and others on the
horizon - will accelerate the pace of innovation. Some public organizations
have innovatively and effectively integrated social media and digital
applications into their operations, but many others are falling behind. The
latter “need to catch up with the nearly decade-old social media revolution,
not only to benefit now, but also to be prepared for innovations to come”
(Partnership for Public Service 2013: 3). The ubiquity of electronic devices
and the massive increase in the volume of data will both oblige and enable
public organizations to adopt innovative initiatives to improve service and
efficiency, and support and strengthen other public service values. But
adopting innovative technologies can have adverse implications for public
service values, including political neutrality, fairness, accountability, integrity, and privacy.
Values and ethics guidelines
Many governments have taken steps to foster sensitivity to the values and
ethics implications of their increasingly complex technological workplace
and, thereby, to respond to some of the concerns noted above. These
initiatives followed the historical pattern of focusing initially on drafting
ethical guidelines, supplemented by a scattering of training opportunities
and instances of public service leadership. Several governments in Canada
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have provided guidance on appropriate use of Web 2.0 tools by adopting
dedicated guidelines. The Province of Alberta has a policy on the use of
“freely accessible online (social media or web 2.0) tools used to produce,
post and interact using text, images, video, and audio to communicate,
share, collaborate, or network. This includes blogs, social networks, videos
and photos file sharing, folksonomic tagging, podcasting and vodcasting,
wikis and other similar tools” (2010: 1). The policy includes a long list of
risks for public servants to keep in mind when using Government 2.0 tools
and warns:
In their capacity as private citizens, GoA employees have the same rights of free speech as
other citizens, however they may not represent the Government of Alberta on their own
personal social media sites, and they are reminded that they are bound by the official Oath
of Confidentiality, the Code of Conduct, the Communications policy, the Freedom of Information and Protection of Privacy Act and the Internet and Email Use policy and must not
disclose any GoA information or content that they are not specifically authorized to disclose.
Similarly, the federal Guideline for External Use of Web 2.0 (Treasury Board
of Canada Secretariat 2011) gives detailed practical advice to supplement
the Public Sector Values and Ethics Code and other official documents. In
addition to coverage of the key managerial considerations of governance
and oversight, planning and design, rules of engagement, and evaluation
and measurement, the Guideline provides advice on such matters as web
accessibility (for example, for persons with disabilities), workplace Internet
abuse, political neutrality, privacy, and confidentiality, and encourages
departmental training on the use of Web 2.0 tools and services.
Individual departments have taken measures to support governmentwide rules and guidelines. Several federal departments, for example,
have amended their codes of ethics to deal with the implications of IT
advances. Fisheries and Oceans Canada’s code has sections on Use of
Social Networks and on Electronic Networks Access and Use, and Environment Canada’s code warns against “conflicts of interest that may
arise from messages and information transmitted via the Internet and
other media.”
Conclusion: A research agenda
Rapid developments in IT suggest more research to underpin an understanding of the nature and extent of its impact on values and ethics in the
public sector, and to anticipate likely effects of future IT developments.
Academics and practitioners, separately and collaboratively, need to
examine the theoretical, conceptual, empirical and practical elements of
this subject. An inclusive analytical framework for examining issues in
public sector values, ethics and IT would assist the efforts of both groups.
311
A team of academics, government officials and business practitioners have
proposed a framework for the ethical assessment of new and emerging
technologies called DIODE (reflecting the five methodological stages of
definitions, issues, options, decisions and explanations). The framework
aims to address basic ethical concerns, to be appropriate and manageable
in its scope and inclusive in its coverage, and to provide “practical help
while remaining rooted in the philosophical and theoretical concepts of
ethics” (Harris et al. 2011).
Another framework has been developed to assess the ethical impact of
IT for any policy, service, project or program (Wright 2011). It provides
several sets of questions for policy and technology staff as well as ethical
tools and procedural practices for conducting the assessment. Still another
approach examines social consequences and ethical issues arising from
emerging information and communication technologies within a framework of “responsible innovation” defined as “an attempt to provide a
broader and more holistic framework in which ethical, social and legal
issues can be addressed” (Stahl 2011: 150). Among the eleven ITs identified
are artificial intelligence, cloud computing and robotics, and the ethical
issues include current ones such as privacy and digital divides, and
emerging ones such as the invisibility of technology and direct links
between humans and technology.
While the effective management of values fosters high
performance, a focus on values also provides a useful
analytical tool for examining public sector issues and
developments
A less inclusive but more manageable framework focused solely on
the public sector could be built on the four-fold values classification
used in this paper, but other values classifications could be considered
(for example, Hood 1991; Van Wart 1998). Values are central to the study
of public administration and pervasive in public organizations
(Kernaghan 1997, 2003; Van Wart 1998; Heintzman 2007; Jorgensen and
Bozeman 2007). While the effective management of values fosters high
performance, a focus on values also provides a useful analytical tool for
examining public sector issues and developments. A values framework
would encompass a larger number of public service values which could
be applied to a broader range of information technologies than the
selected values and technologies discussed above. Moreover, the framework’s development and application would be informed by research on
the values and ethics implications of specific technologies. For example,
the report on Technologies for Transparency and Accountability examines the
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effects of social media, geo-mapping and several technology platforms
on accountability, transparency and participation (Kuriyan et al. 2011),
and the report on The Ethics of Big Data (Davis 2012), geared to the
private sector, provides a framework of decision points applicable to
public organizations. The values framework would also be informed by
research on the impact of overall changes in IT on specific public service
values (for example, service, accountability). The most relevant values
should be considered early on when adopting new technologies.
Research is also needed on the extent to which the values and ethics
regimes and, more broadly, the policy and legislation of public organizations take account of the effects of changes in IT. Studies are also needed
on whether and how other components of values and ethics regimes (for
example, training, ethics audits) are used to foster sensitivity to IT’s
impact. Similar but separate attention should be paid to the ethical
challenges facing public sector IT professionals, many of whom belong to
professional associations with public and private sector members. The
Code of Ethics and Professional Conduct for CIPS (the Canadian
Information Processing Society) (2005), which describes itself as Canada’s
Association of IT Professionals, contains principles very similar to those in
public sector values and ethics documents, namely, protecting the public
interest and maintaining integrity, demonstrating competence and quality
of service, maintaining confidential information and privacy, avoiding
conflict of interest, and upholding responsibility to the (IT) profession.
Members of Canada’s Association of Public Sector Information Professionals (DPI), which fosters professional development and effective information management and technology in the federal and other public sector
jurisdictions, can become associate members of CIPS.
In addition to such practical concerns, IT developments raise or complicate certain theoretical and philosophical issues that deserve attention.
For example, values such as fairness, accountability, transparency, collaboration, and participation are emphasized in the increasingly popular postNew Public Management (NPM) approach known as Public Value or
Public Value Management (PVM) (Moore 1995; Stoker 2006, O’Flynn 2007).
Gerry Stoker, in a widely cited article, notes that emphasis on a new public
service ethos distinguishes PVM from NPM: “[M]anagement for public
value requires that all those involved share certain ethical values and
commitments” (2006: 49). Scholars (for example, Harrison et al. 2012) are
beginning to examine values and IT in relation to the PVM framework.
Scholars are also examining the ethical, social and legal implications of
advances in robotics. Near-future concerns focus on the values and ethical
standards of those responsible for designing, developing and deploying
“service” robots in such policy fields as health care and aging. Longer-term
concerns focus on the possibilities and ramifications of what is widely
313
termed “machine morality.” As robots take on more responsibility (for
example, controlling electrical supplies, providing homecare for the elderly,
driving cars) they must be programmed to make ethical decisions (Wallach
and Allen 2009). “The increasing complexity of computer technology and
the advances in Artificial Intelligence . . . challenge the idea that human
beings are the only entities to which moral responsibility can or should be
ascribed” (Stanford 2012). This will complicate the already contentious
issue of how willing public servants are to bear personal moral responsibility for their decisions (Kernaghan and Langford 2014). Wallach (2011)
argues that those who design, market and deploy robots and complex
technologies should be held responsible for the results. Moreover, some
philosophers assert that many algorithms implemented in computers are
value-laden. For example, Felicitas Kraemer, van Overveld, and Peterson
(2011) suggest that “if people who design algorithms cannot avoid making
ethical judgments about what is good and bad, then it is reasonable to
maintain that software designers are morally responsible for the algorithms
they design.”
Value conflicts and dilemmas arising from developments in digital
technologies argue for vigorous and ongoing measures to alert public
servants to the technologies’ impact. Public organizations need to review
regularly their values and ethics documents to ensure inclusive and
up-to-date coverage. Some governments are not significantly revising
values statements and ethics codes because the general provisions on such
matters as integrity, political neutrality and fairness apply just as well to
public servants’ use of electronic media as to earlier channels of communication. These documents do, however, need to be supplemented by rules
and guidelines dealing specifically with issues arising from IT developments. Moreover, initiatives need to go beyond written rules and guidelines to embrace other ways to integrate values and ethics considerations
into IT policies and decisions. Since rules and guidelines are of limited use
in helping or teaching public servants to deal with difficult dilemmas,
governments must ensure adequate learning opportunities through such
means as workshops and day-to-day values and ethics discourse and
leadership.
Notes
1 Information technology is defined here as “[a]ny equipment or system that is used in the
automatic acquisition, storage, manipulation, management, movement, control, display,
switching, interchange, transmission or reception of data or information” (Treasury Board
of Canada Secretariat 2009).
2 Some scholars distinguish between the fields of information ethics and computer ethics.
This paper follows the recommendation of the editors of The Handbook of Information and
Computer Ethics (Himma and Tavani 2008) to treat the two fields as one.
3 The historical introduction to this section is based mainly on Bynum (2008).
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4 See, for example, studies for the federal privacy commissioner at http://www.priv.gc.ca/
information/research-recherche/sub_index_e.asp
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K. Langhorn
Encouraging entrepreneurship
with innovation vouchers: Recent
experience, lessons, and
research directions
Abstract: Innovation vouchers are widely used internationally by governments to
support emerging small business. Traditionally, vouchers were used to subsidize
social benefits such as food, education or health services, but are increasingly used
to stimulate entrepreneurial effort. Innovation vouchers are usually given to small
firms to subsidize the cost of business or technical services from external providers.
This enables the company to have more control over their development activities,
while sustaining the external service providers. International and Canadian experience suggests considerable congruence in program design but, in some settings,
special features have been devised to address local business needs and development priorities. A largely untapped body of evidence could be used to assess the
impact of this tool and opportunities for refinement and application.
Sommaire : Les coupons pour l’innovation sont largement utilisés par les
gouvernements à l’échelle internationale afin de soutenir les petites entreprises
émergentes. Traditionnellement, les coupons étaient utilisés pour subventionner les
avantages sociaux comme les repas, l’éducation ou les services de santé, mais ils
servent de plus en plus à stimuler l’effort entrepreneurial. Les coupons pour
l’innovation sont habituellement donnés à de petites entreprises afin de
subventionner les coûts d’affaires ou les services techniques des fournisseurs
externes. Cela permet à l’entreprise de mieux contrôler ses activités de
développement, tout en maintenant les fournisseurs de services externes.
L’expérience internationale et canadienne laisse entendre une remarquable congruence dans la conception des programmes, mais dans certains milieux, des
caractéristiques spéciales ont été conçues pour répondre aux besoins des entreprises
locales et aux priorités de développement. Un ensemble de données disponibles
essentiellement non exploité pourrait être utilisé pour évaluer l’impact de cet outil
et les possibilités d’amélioration et d’application.
Innovation vouchers – current use and
further promise of a market-driven
approach to enabling entrepreneurship
Encouraging greater entrepreneurship continues to be a challenge for
government policy makers. In Canada, and elsewhere, many national
and regional programs have been set up to support company creation
Ken Langhorn is an advisor on Indigenous Enterprise Development in Lethbridge, Alberta.
INNOVATION VOUCHERS – SUPPORTING ENTREPRENEURSHIP
319
and growth. Various programs are intended to help generate new knowledge, enrich human talent, create research facilities, share expertise, or
aid business financing. Support can involve some mix of direct mechanisms (that is, grants, loans, procurement) targeted at specific entities,
and indirect approaches (that is, tax credits, regulatory incentives, infrastructure) aspiring toward more general outcomes. Governments can
emphasize supply-side or demand-side interventions, and pursue
overall systemic enhancements, or focus on mission-oriented priorities.
Finding the right tools and policy mix can be a complex, ever-shifting
challenge.
A more novel approach in recent times involves the use of governmentfunded innovation vouchers, given to small firms toward payment of external expertise or support services. This policy tool has been widely
embraced and could play a greater role once the strategic value is further
appreciated. The purpose of this research note is to introduce and call more
attention to vouchers as a policy instrument, review the origins and
adoption of the voucher concept, including international and Canadian
experience, and consider lessons learned and design implications for
achieving desired policy outcomes. This research note seeks to encourage
additional, more systematic research on vouchers used in Canada and
internationally.
Vouchers: A closer look
Vouchers have emerged as a popular type of financial support for start-ups
and small business inside and outside Canada. They are not a tax credit,
a contract, a grant, a loan, or any form of direct ownership or investment—
more common forms of government involvement. Innovation vouchers are
essentially a credit note that covers full or partial payment of external
services for companies. However, vouchers do introduce some novel and
noteworthy aspects in terms of encouraging the collective dynamics of
entrepreneurship.
New entrepreneurs and emerging firms are by nature very resource
constrained. They lack many or all of the requirements to create and grow
a business. Small size alone means little time or attention for getting
anything done. Even if needs are well understood, there may be limited
awareness of where and how to get external help. And service providers
may be reluctant to deal with unknown or not-yet-credible entities. For the
majority of start-ups, money is the most constant and pressing issue:
personal drive and commitment are the most vital and vulnerable
resources available at the early stage.
As an indirect subsidy, the obvious benefit of a voucher is to lower the
cost of support services. Furthermore, transaction costs (that is, finding
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K. LANGHORN
service providers, negotiating work) may also be reduced if the overall
program has been promoted and communicated well. This also assumes
that the administrative burden for participating is minimized. For example,
some programs in the Netherlands and UK have distributed vouchers
using a simple random lottery system. Flexibility in the types of service
available and the size of vouchers can be more attuned to varying needs
at progressive stages of business growth. When pooling of vouchers is
allowed, groups of firms can mutually leverage external knowledge and
technical support.
Using vouchers: International
experience
Historically, the voucher concept has been a common mechanism to
provide social benefits for disadvantaged groups. Vouchers have often
provided full or partial subsidy for obtaining food, housing, education or
other public assistance. Using vouchers to support entrepreneurship has
emerged out of efforts to assist developing countries. In 1993 vouchers
were used in Peru to finance training for microenterprises, although results
were not very positive because of flaws in design and implementation. In
1994 the World Bank launched a voucher program for training established
Small to Medium Enterprises (SMEs ) in Kenya; it included setting aside
20% of awards for women entrepreneurs. After piloting a program in
Paraguay in 1995, the Inter-American Development Bank replicated the
effort in many other countries throughout Latin America. USAID ran a
pilot voucher program in Ukraine in 1999; turning again to vouchers in
2011 with a reincarnated program to aid “last-step-to-market” activities of
local SMEs.
As early as 1995, the Committee of Donor Agencies for Small Enterprise
Development (a broad consortium of major international and national
agencies) began defining guidelines for a more market-driven approach to
providing business-development services to emerging firms; acknowledging the inadequacy of outcomes from the previous supply-side emphasis
which tended to only fund service providers. Research included an assessment of voucher programs implemented in nine developing countries for
the purpose of subsidizing business training for smaller firms. The attributes, processes, and results of different programs varied considerably. The
survey concluded, however, that vouchers could play a significant role as
a market-oriented intervention that encourages greater awareness and
learning within local small enterprise communities. (Goldmark and
Fitzgerald 2001).
Over the last decade, innovation vouchers have gradually become
a small business support mechanism used by regional and national
321
governments almost worldwide. Limited pilot programs in the Netherlands during 1997 and 2004 evolved into a national offering for all SMEs,
soon emulated throughout many European regions (Koskenlinna et al.
2007). A 2009 European Union survey of 23 programs used in 21 different
administrative jurisdictions found significant differences in process and
principles, yet also identified a core of common practices (Schade and
Grigore 2009). Among overall benefits, the innovation voucher is appreciated as an effective method for breaking down barriers to cooperation
between small firms and large research institutions, often causing first time
contact. A UK study observed that vouchers can encourage creativity and
overcome the perceived “risk aversion, status quo bias, and myopia”
characteristic of many smaller firms (Potts and Morrison 2009: 3-5). Several
past program evaluations (for example, Netherlands, UK) concluded that
vouchers can induce incremental job creation, revenue growth, product
development and interaction between industry and academia; making
good returns on government investment. Innovation vouchers have now
spread widely with programs introduced in Singapore (2009), New
Zealand (2010), Australia (2011), and several US states, adding to growing
recognition as global good practice.
Vouchers are now widely understood. For example, a broad assessment
undertaken by the European Commission’s Enterprise and Industry Directorate in 2010 culminated in the Riga Declaration of principles for the
design and management of innovation voucher programs. This report
strongly advocated broader dissemination and continued experimental
adaptation. Although voucher programs everywhere share some common
elements, there is also evidence of unique variations corresponding to local
setting or policy priorities.
Canadian experience
In 2008, the provincial governments of Alberta and Nova Scotia launched
the first innovation voucher programs in North America. These programs
emulated successful programs in the Netherlands and Ireland, while
incorporating some novel aspects as well. Alberta’s Innovation Voucher
scheme has been well received by both companies and service providers.
As of January 2013, after twelve competitive application rounds, over 600
vouchers have been awarded for a total value of $15.7 million. Individual
vouchers are available in the amount of $15,000 for strategic business
development efforts, as well as $50,000 for substantive technology development work. Recipient companies in diverse industry sectors have come
from large and small communities throughout Alberta. The original pilot
program has since been refined: vouchers are available more regularly
throughout the year; companies can work with any legitimate public or
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K. LANGHORN
private agency as their service provider; vouchers can be applied to
services acquired outside of Alberta when justified; the application process
and approval criteria are more explicit.
Since 2008, Nova Scotia has defined its program to provide innovation
and productivity vouchers. As of January 2013, the program has provided
204 vouchers to companies awarding a total amount of $3.3 million in
funding. In 2010, the basic $15,000 voucher was supplemented with a
second tier offer worth $25,000. Programs elsewhere tend to emphasize
only the innovation aspect; focusing on creating new companies or building new products. For example, the Alberta program defines relevant
services and activities, but rules out paying for training courses, software,
and equipment purchases. Productivity improvement may present different challenges, involve a wider assortment of companies, and require other
support mechanisms. However, this specific goal is aligned with the
broader goal of better economic outcomes and can be furthered by using
vouchers, under proper program conditions, when designed well.
Many Canadian provinces have created voucher programs to assist small
emerging businesses including: Newfoundland and Labrador (in 2009),
British Columbia (in 2012), New Brunswick (in 2013), and Ontario (in 2013).
Use of vouchers has been explored in other provinces, such as Quebec and
Saskatchewan, and the tool has frequently been recommended in various
think-tank reports urging greater support for innovation in Canada.
Practical lessons and design
considerations
Innovation vouchers are only one of the policy tools or program mechanisms available to support growth of emerging businesses. Although the
basic voucher concept is hardly new, their use in economic development
has gained global momentum only over the last decade. Most programs
appear to have been favourably received by entrepreneurial firms, service
providers, and government policy-makers alike. There are potential weaknesses, however, that may need to be addressed through thoughtful design
and implementation of voucher schemes.
Creating a “market” for vouchers
Typically, government support of new entrepreneurs follows a “providercentric” delivery model. Intermediary agencies are funded to provide
relevant assistance to business start-ups and SMEs. Most services are
subsidized or free. In principle, these agencies are held accountable for
their performance in program delivery. This model can be ineffective,
though, if agencies view the government funding sponsor as the true
client, are preoccupied with their own sustainability, and are insensitive to
323
actual SME requirements. An alternative is a “market-oriented” delivery
model, whereby business services are available on a more commercial
basis. (Knopp 2001: 1–5).
The innovation voucher, given directly to start-ups and SMEs to help
cover their support costs, is a market-oriented policy approach. A key
premise is that true entrepreneurs can better determine their own needs,
and decide more efficiently how to obtain the right help. Rather than
relying upon the uncertain favour of service agencies, the entrepreneur is
in the driver’s seat determining what, where, how and when a particular
business or technical challenge might be addressed with external
assistance.
Vouchers are particularly appealing for their market-driven characteristics. Obviously they recognize and reward entrepreneurial initiative. At
the same time, the quality and delivery of business support can be
sharpened by having service providers compete for the clients and associated revenues channeled through an open voucher program. Vouchers
can become a significant stream of income for service agencies that
choose to participate. In some regions private business consultants have
also been qualified as service providers; either acting on their own, or
sub-contracted through established agencies. A market dynamic can be
further encouraged when government widely promotes its voucher
program and the support service options available to business. Rather
than pushing out government support through various agents with
varying degrees of efficiency and success, business service delivery is
more likely pulled forward by the needs of intended clients, through use
of directly distributed vouchers.
Scaling and shaping program support
Concern that vouchers may be a paltry one-off attempt at support could be
overcome by positioning them within a broader lattice of program support
reflecting progressive stages of business growth. For example, the Alberta
scheme offers a $50,000 voucher available only after requirements of the
smaller $15,000 voucher have been realized. Another argument may be that
available funding momentum is diffused among a wide array of small
business ventures, including many with uncertain or unlikely prospects. A
small, early stage voucher (for example, $5000 or less) to prove business
concept feasibility might be a less costly way to avoid later misadventures.
Care should also be taken to ensure that only capable service providers
are allowed to participate in an innovation voucher program. Research
institutes, non-profit organizations, and private agents are potential contributors of expert assistance to small business. Some program oversight is
desirable to ensure service standards are acceptable and not subject to
abuse.
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K. LANGHORN
Extending the global reach of
entrepreneurship
A critical challenge for many emerging firms is finding a path to, and
position within, a globally networked economy. Small companies tend to
identify with a local sense of place. But, they must connect virtually to
wherever business knowledge and opportunity originates. The need for
external collaboration is important at all stages of development: researching ideas, creating products, partnering in business, serving customers.
Innovation vouchers can stimulate such wide-ranging interaction.
For programs sponsored by government agencies, use of vouchers may
be geographically restricted within an administrative region. But, the
potential interaction space of companies is practically unbounded. Permitted voucher services and service providers may also be strictly defined for
program accountability and assurance. Yet, vouchers are an excellent tool
for overcoming distance and time, particularly if the entrepreneurial
venture is free to select its external partner for accessing expertise,
resources, or markets. Broadening the service scope and geographic scale
of a voucher program internationally can facilitate entry into the global
economy. Various trans-regional voucher programs are now in place within
Europe at municipal, state and national levels, allowing companies to seek
support services beyond their nominal locale. The Alberta voucher
program now allows companies to get services from anywhere if they
cannot reasonably be obtained within provincial boundaries. In a direct
attempt to attract new business, a regional innovation centre in Brno,
Czech Republic issued a Europe-wide call in April 2011 for applications for
innovation vouchers: successfully attracting companies from a number of
other countries to engage with local Czech research organizations.
Accelerating economic development
priorities
There are good reasons for refining the scope of voucher programs. Soon
after its success with general innovation vouchers, Ireland added a sector
specific voucher for the value-added agriculture and food industry, reflecting a national economic growth priority. An earlier UK pilot involved
“Creativity Credits,” a business-to-business voucher for purchasing media
and design services. More recently, the national Technology Strategy Board
introduced a wide range of sector-oriented vouchers (cyber security, space,
open data, water and waste, and so on). France, Austria and Finland
collaborated in a voucher program for renewable energy service innovators. Within Canada, the non-profit Tecterra organization, funded by the
federal and Alberta governments, launched a “Commercialization Support
Services” program, which reimburses 75% of business service expenses up
325
to $50,000 to any qualified company within the Geomatics technology
sector. Ontario’s recently announced program offers four different innovation vouchers (that is, productivity, commercialization, E-business, R&D).
Upfront criticism of innovation voucher programs may suggest that
non-entrepreneurial businesses do not enjoy similar support, or that some
industry sectors are favoured at the expense of others. Almost any government initiative risks similar detraction. However, the voucher mechanism has evolved over time to become a very flexible and selective tool that
can be custom refined to best serve a variety of local requirements and
priorities. Although the predominant program focus continues to be on
emerging sectors and technologies, there is little reason the voucher
concept cannot be expanded to enhance more traditional industries and
business activities.
Conclusion: Vouchers and future
research
Vouchers clearly have a role to play as a policy mechanism. They may have
some potential drawbacks, but they can also avoid deficiencies in other
types of support programs. Tax incentives, grant programs and subsidized
loans can directly impact business, although benefits may be offset by
resultant costs of government bureaucracy and business compliance. With
proper consideration, vouchers can be deployed to target support to
different industry sectors, varying stages of company growth, and for a
range of development activities. They can deliver complimentary add-on
support to other major programs or project initiatives. Or they can be
offered in more general fashion. Significantly, voucher schemes reflect the
development process they are intended to support, encouraging entrepreneurs to take initiative in bottom-up fashion, rather than being subservient
to top-down institutional directive. So far, vouchers have been used
primarily to encourage knowledge sharing, networking and collaboration;
building positive social capital not only for individual firms, but also in
forming successful economic clusters integral to most regional and national
innovation policies.
Although the innovation voucher has origins in the developing world,
this policy instrument has become widely used in developed countries. The
modern proliferation of programs in diverse settings has generated a large
body of evidence that could be used to better understand and enhance
actual economic benefits. Some promising areas for investigation include
the following.
•
Analyzing results can validate how well innovation voucher programs
support real business requirements. The number of voucher applications,
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•
•
K. LANGHORN
successful awards and funding amounts, as well as the character of use
(industry sector, company size, product type, business need) can provide
informative measures of performance.
Exploring other potential applications of the voucher concept could
realize similar levels of support benefits, such as targeted training,
productivity upgrades, design services, global marketing, transformative Internet use, green technology adoption, or engaging in social
enterprise.
An international voucher funded by global aid organizations could
deliver technical support and business mentorship to micro-enterprises
in developing countries, which would assist knowledge transfer, technical training, academic exchanges, joint research, building supply
chains, encouraging private sectors, or payment for ecosystem services.
Further research in the proposed direction could enhance and broaden the
utility of a policy instrument that has already gained broad acceptance.
Vouchers are not a solution for every policy challenge. There is still need
for some balance between supply-driven and market-led government
support to encourage a favourable environment for company creation and
growth. The voucher concept, however, should attain a more prominent
position in the overall program tool kit, given the novel advantages and
beneficial impact represented.
References
Goldmark, Lara, and Linda Fitzgerald. 2001. “Vouchers: from practice to principles.” Paper
prepared for the U.S. Agency for International Development, Bureau for Global Programs,
Center for Economic Growth and Agricultural Development, Office of Microenterprise
Development.
Knopp, D. 2001. “The brave new world of business development services.” Journal of
Development Alternatives 7: 1–4.
Koskenlinna, M., W. Polt, C. Gil, A. Furlani, and P. Tekneci. 2007. “ Better innovation policy
governance – a toolbox for innovation policy makers.” Paper prepared for Pro-Inno
Europe, Brussels: European Commission.
Potts, Jason, and Kate Morrison. 2009. “Nudging innovation: fifth generation innovation,
behavioural constraints, and the role of creative business – considerations for the NESTA
innovation vouchers pilot.” Brisbane, Australia: Centre for Creative Innovation, Queensland University of Technology.
Schade, Sven, and Corina Grigore. 2009. “Availability and focus on Innovation Voucher
schemes in European regions.” Paper prepared for the Enterprise and Industry Directorate
General, Brussels: European Commission.
COMPTES RENDUS
327
Canadian Public Budgeting in the Age
of Crises: Shifting Budgetary Domains
and Temporal Budgeting
By G. BRUCE DOERN, ALLAN M. MASLOVE, and
MICHAEL J. PRINCE. Montreal & Kingston:
McGill-Queen’s University Press, 2013. Pp. xi, 282,
bibliographic references, index.
In the introduction to their 1988 book on budgeting1, the same three authors
lamented the absence of any “general books on Canadian budgeting emanating
from the political science or public administration disciplines” and that any related
books focused on explaining the economics of budgeting with politics and management usually given subsidiary treatment (p. xi). Since that time, with the notable
exceptions of Donald Savoie’s The Politics of Public Spending in Canada and David
Good’s The Politics of Public Money, there has been little progress in filling that gap.
As its name suggest, Canadian Public Budgeting in the Age of Crises is no mere update
to their 1988 work and, although it might not fit in the category of a general book
on budgeting, it does retain the earlier work’s broad interplay among politics,
economics and public management.
The current book examines the evolution of budgeting and fiscal policy in the
context of a broad definition of crises over the last thirty years. It does that through
the lens of a two-part analytical framework. The first part examines budgetary domains
defined as “complex realms of fiscal content, choice and governance” characterized
by “multiple political-economic structures of power, policy, choice, inertia and
governance” (p. 6). The second part places budgeting in the context of crises defined
as “a form of political-economic reality, discourse, analysis and advocacy” (p. 7). It
is in the second part of the framework that readers with a more literal turn of mind
will need to accept the book’s departure from a strict dictionary use of “crisis.” That
part of the framework is constructed to go beyond “a speedy, unexpected period of
disorder or shock in a short time period” to include “slow developing crises arising
from continuous failure to recognize and act” and “senses of continuous crisis in
some persons’ lives compared to others” (p. 7). This broadening is fundamental to the
approach taken by the authors who argue that the current budgetary crisis that has
its beginnings in the 2008–12 period needs to be examined in the context of the larger,
thirty-year “age of crises” covered by their book.
The authors use their analytical framework to address five central issues: i) the
causes and consequences for Canada of the 2008–12 budgetary, banking and
sovereign debt crisis; ii) how those causes and consequence play out in selected
budgetary domains; iii) the competition for attention and resolution within budgetary domains between normal policy challenges and crises together with the
capacity of Canada’s democratic, budgetary, and policy systems to deal with them;
iv) how temporal varieties of public budgeting impact on budgetary institutions
and decision processes; and, v) how Canada’s system of public budgetary governance needs to change to deal democratically with budgeting in an age of crises.
328
BOOK REVIEWS
Taken together, the first four chapters provide both context for and considerable
explanatory detail on the analytical framework described in the introduction.
Chapter 1 provides a comprehensive survey of the broadly based politicaleconomic literature in the three academic fields from which the framework draws:
the macro political economy of public budgets; budgetary governance in a networked world; and, crises, uncertainty and risk. The following three chapters take
a more applied approach. Chapter 2 discusses the recent fiscal, banking and
sovereign debt crisis and the initial political-economic response to it. Chapter 3
provides both an historical overview of Canadian macroeconomic policy as well as
a focus on recent dynamics. Chapter 4 provides a useful examination of Canadian
budgetary institutions and the power structures in which they are enmeshed.
Particularly welcome is a more nuanced treatment of prime ministerial power that
goes “beyond a purely formal and hierarchical conception of such power, to
consider the prime minister as operating with a complex and multi-layered
political-economic power structure of interest, issues, choices, constraints, and
governance” (p. 115). Although application of that line of analysis to the present
Prime Minister might not yield any significantly different conclusion than one
based on hierarchy, it nonetheless reminds the reader that the tendency for
centralization of power inherent in a Westminster-based system is one of degree. It
even raises hope that Canada’s trend line in that direction might reverse at some
point in the future.
From that base, the authors then apply the analytical framework to crises in
three budgetary domains: social; microeconomic and industrial; and a “green”
budgetary domain that brings together energy, climate change and “green” industry. The penultimate chapter addresses what the authors rightly identify as “a much
needed greater academic and conceptual focus on temporal budgeting” (p. 3) and
their view that the “current literature on the overall political economy and
management of public budgeting does not probe the diverse temporal features of
budgeting deeply or comprehensively enough” (p. 226). By integrating temporal
concepts with other parts of their analytical framework through an examination of
a combination of the health care and health spending crisis and the education and
daycare crisis, the authors achieve a degree of comprehensiveness. On the “depth”
front, however, I found myself wanting a more extended and focused analysis of
the concept itself, but that perhaps is an unrealistic challenge for a single chapter
and would more realistically be the subject of a separate book. The final chapter
summarizes key findings under six headings that cover the book’s five central
issues (identified above).
The authors identify the core audience for the book as including “students and
academics interested in the politics, economics, and institutions of public budgeting,” while keeping in mind “a larger diverse audience . . . that includes those
governmental and business readers who follow budgeting on a regular basis, as
well as citizens and interest group participants who may too often feel that their
part of the budgetary world is given short shrift” (p. 3). There is one sector of that
broadly cast audience for which this book should prove particularly valuable. It is
said that good policy poorly implemented is, in effect, bad policy. So too is policy
that fails to attract sufficient funding. In my relatively short career as an instructor
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COMPTES RENDUS
in an MPA program, I have noticed a tendency on the part of some students in their
exploration of public policy to neglect or downplay the fiscal and budgetary
context in which it is developed. Whether or not that tendency is widespread, I
would make, if not the whole book, then at least the introductory chapter and the
chapters on the three budgetary domains and temporal budgeting, required
reading for graduate students pursuing public policy issues in any depth.
Note
1 G. Bruce Doern, Allan M. Maslove and Michael J. Prince. 1988. Public Budgeting in Canada:
Politics, Economics and Management, Ottawa: Carleton University Press.
Mike Joyce is a former senior federal public servant and currently Adjunct Professor in
the School of Policy Studies at Queen’s University, Kingston, Ontario.
330
BOOK REVIEWS
Negotiating the Deal: Comprehensive
Land Claims Agreements in Canada
By CHRISTOPHER ALCANTARA. Toronto: University
of Toronto Press, 2013. Pp. xii, 181, notes, bibliographic
references, index.
Having served eight challenging and ultimately frustrating years as a chief federal
negotiator in the BC comprehensive land claims process, I sat down to read this
book with some anticipation. The claim for this volume is that it “provides the first
systematic and comprehensive analysis of the factors that explain both completed
and incomplete treaty negotiations between Aboriginal groups and the federal,
provincial and territorial governments of Canada.” While the focus is on two
successful and two unsuccessful negotiations in both Yukon and Newfoundland
and Labrador, I was looking forward to discovering lessons from these negotiations
that spoke to the experience I shared with First Nation, provincial and federal
negotiators in British Columbia.
This book is divided into an introduction, conclusion, short postscript (covering
events after 2009) and four substantive chapters. The latter explore, in turn, the
context of modern treaty negotiations in Canada, the negotiations with the Innu
and Inuit in Labrador, the negotiations with the Kwanlin Dün First Nation and the
Kaska nations in Yukon and, finally, the options and alternatives for negotiations in
the future.
The introduction sets out the analytical framework used by the author. Drawing
on the “theoretical assumptions of rational choice institutionalism” (p. 5) to examine
the evidence from four negotiations, he argues that “variation in negotiation
outcomes can be best explained by taking into account the preferences, incentives,
and strategies of the negotiating parties, all of which are influenced by the
institutional framework governing the comprehensive land claims process” (p. 5).
The relative power of the actors is a key feature of the institutional framework with
the governments (labeled by the author as “veto players”) obviously having a huge
power advantage and, in particular, the capacity to force Aboriginal groups “to adopt
the official discourse, to negotiate only those issues that the governments want to
negotiate, to avoid confrontation, and to acquire particular types of expertise” (p. 8).
The author doesn’t dwell on the pressure this often places on Aboriginal groups to
contract with expensive negotiators, lawyers and consultants (financed by government loans) with a natural incentive to keep an Aboriginal group at the table and the
per diems flowing. One odd aspect of this framework from an ex-government
negotiator’s perspective is the treatment of the participants as “unitary actors when
specifying their preferences and incentives to negotiate” (note 6, p. 146). Anyone
familiar with the different and often competing agendas which federal departments
such as Justice, Fisheries and Oceans, National Defence and Finance bring to the
negotiating table would wonder at the author’s contention that the minister and
deputy minister of Indian and Northern Affairs (as it then was) “ensure” that these
other players adhere to the Cabinet-approved negotiating mandates (p. 18).
COMPTES RENDUS
331
The first chapter will be very helpful to readers unfamiliar with the emergence
of the comprehensive land claims issue, tracing its roots back to the Supreme
Court’s Calder decision in 1973, which recognized aboriginal title to land, and on
through the establishment of the complex process (largely designed by the federal
government) to replace undefined aboriginal rights with treaty rights, establish
“certainty” and “finality” with respect to ownership of land and natural resources
in the Aboriginal group’s traditional territories, negotiate a cash settlement and
resource revenue-sharing arrangements and, in most cases, set out both independent and shared governance powers in areas such as constitution building, taxation, economic development, land use planning, resource management, education,
and health and social services. Using the framework of analysis set out in the
introduction, the chapter goes on to discuss the preferences and incentives of the
parties to the negotiation case studies, very effectively drawing attention to the
imbalances of power, the hoops that Aboriginal groups are forced to go through to
get into the process and the governments’ strong incentive to drag their feet if the
First Nations don’t follow the governments’ rule book. He rightly labels the
Aboriginal groups as “petitioners” in the present comprehensive land claims
process (p. 27).
Chapters 2 and 3 provide the reader with detailed accounts of the four
negotiation case studies in Labrador and Yukon, including short histories of each
of the Aboriginal groups and analyses of the “factors that contributed to their
divergent experiences” up until 2009. Success was marked by factors such as an
Aboriginal group’s willingness to compromise, its internal cohesion and commitment to negotiation rather than confrontation, and governments’ perceptions of the
Aboriginal group’s self-governance and negotiation capacity. The author argues
that “other factors such as trust relationships, the attributes of individual government and external negotiators, competition for use of claimed lands, and the
emergence of development pressures can accelerate negotiations, but these factors
have little effect on whether negotiations will in fact be completed” (p. 72). The
overarching conclusion is that “the role of the Aboriginal groups themselves is
critical for explaining settlements and non-settlements in Canada” (p. 33).
The final chapter is entitled “Where Do We Go From Here” and predictably
argues that if there are no significant changes to the treaty process Aboriginal
groups “must be willing and able to accept treaty provisions that are compatible
with the goals of the federal, provincial and territorial governments” especially the
demand that they “cede, release and surrender” their undefined aboriginal rights
and title for the specific rights set out in the treaty (p. 123). They must also eschew
confrontational tactics, demonstrate commitment to negotiate and minimize internal group divisions to enhance their credibility in governments’ eyes – most
effectively by electing and coalescing behind a “charismatic and uniting leader”
(p. 124).
Options to the comprehensive treaty process for Aboriginal groups unable or
unwilling to meet the above conditions are also briefly set out and analyzed in this
chapter. They include negotiating BC-style incremental treaty arrangements (which
bring some benefits to a First Nation but avoid tough issues like “cede, release and
surrender”) and rejecting or exiting the treaty process altogether to concentrate on
332
BOOK REVIEWS
negotiating a self-government agreement, focusing on more control over existing
reserve land by opting into the First Nations Land Management Act or entering
into bilateral economic development agreements with a government, Crown
corporation or private corporation.
At this point, if not sooner, some readers may lose patience with the author’s
claim that his realpolitik approach to this problem is not normative. In this final
chapter he clearly adopts a prescriptive position, advocating principles that
Aboriginal groups “must” follow if they want to achieve a treaty under the existing
comprehensive land claims policy. It may be likely, as the author argues, that this
policy will not soon be changed. But putting the entire load on Aboriginal groups
to get with the program on offer or go home takes all the pressure off governments
to create an institutional framework that works for all potential participants.
The promotion of options to treaty negotiations by these same governments in
recent years represents a clear admission that they have set the comprehensive land
claims bar too high for many of the Aboriginal groups eligible to join the process.
But the author does not counsel the federal, provincial and territorial governments
to amend their negotiating strategy because, as he clearly demonstrates, they have
the whip hand and in many cases see failure to succeed as success. Having been
dragged into the land claims process by the courts, they effectively use available
tools such as barriers to entry, complex processes, inflexible mandates, inadequate
resources and delay to achieve the results they want at the table – of course, with
the accompanying negative impact on the advertised land claims policy goals of
reconciliation and the rebuilding of trust.
In my view, these important goals would have been better served if the author
had explored ways in which all parties to land claims negotiations have to change
their ways and make what has become a grinding bureaucratic process more
flexible, efficient and political. For interested readers, inspiration for a balanced
approach to the reform of land claims negotiations can be found in documents such
as the British Columbia Treaty Commission’s Common Table Report and the more
recent Lornie report on acceleration of BC Common Table negotiations1.
Note
1 British Columbia Treaty Commission. Common Table Report: based on discussions among
Canada, British Columbia and the First Nations participating at the Common Table.
Vancouver August 1, 2008. Accessed at: http://www.bctreaty.net/files/pdf_documents/
BCTC-Common-Table-Report_August-2008.pdf; James M. Lornie, Final Report to the Minister of Aboriginal Affairs and Northern Development with Recommendations Regarding
the Possibility of Accelerating Negotiations with Common Table First Nations that are in the
BC Treaty Process, and Any Steps Required. November 30, 2011. Accessed at: http://
www.fns.bc.ca/pdf/Final_Report_by_J_Lornie_11_12.pdf.
John Langford is Professor, School of Public Administration, University of Victoria,
Victoria, British Columbia.
333
COMPTES RENDUS
Aid on Demand: Delivering CostEffective Technical Assistance in
Developing Countries
Édité par GORDON EVANS. Toronto : IPAC, 2013. Pp.
xxix, 192.
Aid on Demand propose une réflexion sur les projets de coopération développés par
l’IAPC dans le cadre du programme de l’ACDI du Déploiement pour le
Développement Démocratique (DDD). Cet ouvrage décrit de manière sommaire,
mais systématique, 12 cas de coopération choisis et menés par l’IAPC.
L’introduction présente la nomenclature des 12 études de cas et la structure
commune de présentation des cas. Gordon Evans y discute la problématique
générale des initiatives de coopération internationale : gaspillage, indifférence aux
exclusions politiques et économiques, considération opportuniste des enjeux de
développement démocratique, absence de coordination des efforts des nombreux
donneurs, transposition aveugle de meilleures pratiques du Nord qui sont
inapplicables localement, méga-opérations de réformes impossibles à mettre en
place du fait du déficit structurel de capacité locale, etc.
Gordon Evans explique ensuite la logique du programme de DDD : libre de
toute approche théorique, le programme d’assistance technique répond à des
demandes spécifiques que l’ACDI approuve. Le programme se caractérise par la
modestie de ses ambitions, son caractère réactif aux besoins concrets et le succès de
la plupart de ses initiatives. Le DDD s’avère utile pour produire des livrables
particuliers dans le cadre de stratégies plus vastes. Il se situe en rupture avec les
approches traditionnelles en coopération internationale : projets moins ambitieux,
plus concrets, interventions adaptées aux besoins particuliers, respect du contexte
local, souci d’implantation basé sur la demande réelle du client.
Le premier chapitre présente les caractéristiques du programme et en démontre
la méthodologie. De 2007 à 2015, le programme a bénéficié d’un budget de 18,3
millions $ pour mobiliser 160 experts canadiens dans 85 projets (jusqu’en 2013)
d’une durée d’environ 15 mois chacun. L’approche comporte six caractéristiques :
la livraison de produits tangibles, l’intégration des produits à une démarche locale
préexistante (le programme insiste sur le comment plutôt que sur le quoi),
l’engagement continu des clients, l’utilisation maximale du savoir local, le
développement de la capacité locale et enfin, la responsabilisation du client pour
fournir tous les arrangements matériels sur place. Le programme préfère utiliser
comme ressources humaines des cadres des secteurs publics canadiens plutôt que
des consultants professionnels, car les fonctionnaires correspondent mieux aux
ambitions et aux défis particuliers du programme : ils ont une perspective à court
terme, le client fera confiance à un pair, ils ont accès à des aides de leur
département, ils ont l’expérience des processus complexes et lourds d’approbation
gouvernementale et comprennent les incitatifs politiques.
S’ensuit la présentation des 12 études de cas choisies en raison de leur variété
et de leur intérêt intrinsèque :
334
•
•
•
•
•
•
•
•
•
•
•
•
BOOK REVIEWS
Soutenir la mission de l’ex-ambassadeur canadien au sein de la Commission de
vérité et réconciliation au Honduras.
Renforcer la contribution des médias dans la gouvernance en Guyane en
valorisant leur indépendance et leur responsabilité.
Renforcer le bureau de l’ombudsman national du Pérou par le biais de la gestion
axée sur les résultats et la gestion du changement.
Rehausser les habiletés en développement de politiques au ministère des
Affaires étrangères d’Indonésie en fonction des stratégies et priorités
gouvernementales.
Soutenir la réforme de la fonction publique en Mongolie visant à en réviser la
législation.
Implanter une stratégie pour le secteur de l’enseignement et de la formation
technique et professionnelle en Jordanie.
Enrichir l’analyse du budget au Bureau du Président en Ukraine.
Élaborer un Plan de modernisation de la gestion des finances publiques au Mali
comptant sur une approche participative à développer.
Fournir la coordination et le soutien logistique pour permettre des élections
libres et équitables en Guinée-Bissau.
Soutenir le financement du développement en Afrique du Sud par la production
d’un plan stratégique de 5 ans, d’un plan annuel de 2 ans ainsi que d’un cadre
de gestion.
Développer l’initiative africaine des sciences biologiques destinée à combattre
l’insécurité alimentaire.
Promouvoir l’éthique dans la fonction publique de Tanzanie en utilisant le
marketing social.
Chacune des études de cas débute par un résumé bilingue et ambitionne de
respecter le gabarit de présentation : contexte, indicateurs de gouvernance, processus de structuration du projet, méthodes pour réaliser le projet, leçons apprises,
potentiel de transfert des connaissances et des remarques sur la suite du projet. Les
leçons apprises portent sur la prévisibilité des risques politiques, l’improvisation et
la flexibilité nécessaires, ainsi que la nécessité d’oser plutôt que de répéter les
anciennes pratiques.
Les leçons tirées par M. Evans à partir des cas présentés sont : l’importance
d’établir la juste perspective du projet compte tenu des besoins du client et de la
durée du projet; de s’attaquer au « vrai » problème et non pas de se satisfaire des
apparences de problématiques et de solutions; et d’insister sur l’implication et
l’appropriation par les clients. Gordon Evans conseille de formater le produit de
telle sorte qu’il puisse s’arrimer au travail concret et quotidien du correspondant
local et de rechercher des réseaux et alliés. L’insistance de l’auteur sur une
détermination réaliste des coûts est cruciale. On ne saurait trop soutenir sa
recommandation d’être politiquement astucieux, étant donné que les facteurs
politiques interviennent à tous les niveaux. Finalement, M. Evans rappelle la
nécessité d’être créatif en situation d’adversité, car ce type de situation est commun
à l’un ou l’autre stade de tout projet.
En ce qui concerne les remarques de Gord Evans portant sur les principes
fondateurs du programme de l’IAPC, j’apprécie particulièrement le fait qu’il
COMPTES RENDUS
335
souligne les aléas des réformes de très grande envergure et le piège de la capacité
locale. Cependant, il faut savoir rattacher les petits morceaux du casse-tête à
l’image globale de ce dernier. Il m’apparait juste de se fonder sur les succès en
cours, comme l’auteur l’écrit. Il me semble que depuis un certain temps, les
donneurs préfèrent les pratiques « best fit » aux « best practices ». L’enjeu actuel est
de déterminer les critères et la démarche pour apprécier le « best fit » dans le cadre
d’une approche soutenable à long terme. La remarque concernant les résultats
satisfaisants des réformes à « seulement 71,6 % » me semble un peu courte car elle
dépend des attentes des répondants choisis!
Quant aux 12 études de cas, leur sélection vaut par sa diversité, bien que l’on
regrette l’absence de cas concernant des grands pays francophones comme le
Congo, le Sénégal, la Côte d’Ivoire, etc. La présentation des cas m’a paru en général
très bien organisée. J’ai beaucoup apprécié leur documentation et le choix
généralement adéquat de leur contenu, alors que les cas auraient pu s’appesantir
sur des éléments plus marginaux. Les cas sont traités et présentés sous un jour
relativement favorable. Rien n’est dit sur les erreurs commises, leurs raisons et leurs
incidences sur le projet. Néanmoins, la recension des succès nous apprend aussi des
leçons fort utiles. Aucun cas ne lasse le lecteur. Le gabarit de présentation
systématique y est certainement pour quelque chose, mais cette aisance est due à
l’empreinte de Gord Evans qui a lui-même édité chacune de ces études cas.
L’ouvrage aurait probablement mérité un chapitre de conclusion portant sur le
développement ultérieur des projets, et sur la consolidation analytique des leçons
apprises (plutôt que de les voir énoncées au chapitre 1), tant sont riches ces
expériences concrètes dont la présentation se trouve très bien structurée.
J’ai énormément apprécié la lecture de cet ouvrage qui a enrichi par des
exemples concrets ce que je croyais savoir et a surtout mis en lumière tout ce que
j’ignorais, malgré mes modestes expériences et publications en la matière. Ce livre
constitue un référentiel tant pour la nature des projets examinés, pour les contextes
nationaux, que pour l’examen des dynamiques locales et pour revenir sur la
sagesse acquise par les leçons apprises. À partager à des fins d’enseignement, de
recherche, et d’action concrète!
Dr Jacques Bourgault est consultant en gestion publique, professeur associé à UQAM/
ÉNAP et est rapporteur général au Congrès de l’IISA, à Ifrane, Maroc, les 13-17 juin 2014.
Il est vice-président de l’IISA.
336
BOOK REVIEWS
Constituency Influence in Parliament:
Countering the Centre
By KELLY BLIDOOK. Vancouver: UBC Press, 2012. Pp.
xi, 180, index, notes, references.
Across the Aisle: Opposition in
Canadian Politics
By DAVID SMITH. Toronto: University of Toronto Press,
2013. Pp. Xiii; 226, index, notes, bibliography.
We are not living in a parliamentary “golden age.” While both the executive and
judicial branches of the Canadian state have gone from strength to strength, our
Members of Parliament (MPs), constrained by courts, disciplined by leaders and
derided by voters, seem to be easing into irrelevance. What makes this circumstance particularly lamentable is that among the three branches, only the legislature
(or, at least, its lower house) is directly elected by the people. Thus, it behooves
democrats of all persuasions to revive parliamentary legitimacy, if only by replacing the broad brush caricature of legislative impotence with a more nuanced and
subtle appreciation of its virtues. Such is the unspoken mission of both Kelly
Blidook’s Constituency Influence in Parliament: Countering the Centre and David
Smith’s Across the Aisle: Opposition in Canadian Politics.
Blidook’s slim volume centres on the importance of a largely ignored feature of
the House of Commons: Private Members’ Business (PMB). Despite the seemingly
slim chance of adoption (and much depends on the lottery at the outset of each new
parliament), Blidook finds that, on average, about half of MPs introduce a bill or
motion under PMB. Those from Reform, Canadian Alliance, and Conservative MPs
tend to focus on law and order, while those from their Liberal, NDP, and BQ
counterparts emphasize health, immigration, labour and consumer concerns.
Blidook painstakingly explores the motivations underlying PMB and discovers that
despite few MPs enjoying a hefty personal vote, they are driven to heighten their
constituency profile. Some MPs are particularly active. In the 38th Parliament, for
example, New Democrat Libby Davies authored 66 motions. Collectively, MPs
introduced over 6200 PMB initiatives between 1994 and 2008. Did all this activity
matter? The vast majority of private member bills and motions never made it to the
floor of the House of Commons, but amongst those which were debated, the
success rate for bills was over 10 per cent in the Mulroney and Chrétien years and
over 25 per cent during the first Harper minority (with motions enjoying an even
higher frequency of passage). Moreover, all was not necessarily lost even when an
initiative failed. Blidook surveys government bills over three parliaments and
concluded that 13 per cent had their genesis in PMB.
Most of Blidook’s findings are generated by a sophisticated, quantitative methodology. He did interview sixteen MPs in his research, but their insights are not
always incorporated in the analysis. Liberal MP Paul Zed, for example, emphasized
that his personal priorities were constituency specific (such as the cleanup of Saint
John harbour). But when Blidook tests for what animates PMB, he relies on
COMPTES RENDUS
337
aggregate census data as a proxy for general constituency interests. Thus, we learn
that the PMB of MPs in agricultural constituencies is more likely to emphasize
agricultural themes, but we remain in the dark about how often these initiatives
reflect unique constituency interests. And given that the Subcommittee on Private
Members’ Business has the authority to declare a bill or a motion to be non-votable,
some discussion of its practices would have enriched the analysis. These quibbles
aside, Blidook’s book highlights that there is at least one area where MPs enjoy
autonomy and influence.
David Smith also studies the House of Commons, but takes a markedly different
approach. For Smith, the omnipresent focus on government obscures the parliamentary community it shares with the opposition. Even though the overarching
purpose of the opposition has always been to replace those sitting to the Speaker’s
right, the dynamics of their relationship have altered substantially over the years.
Smith deftly traces this evolution, and his focus on the opposition affords a novel
perspective on what would otherwise constitute familiar historical terrain. Thus,
the first two decades after Confederation are not the story of the National Policy
and John A. Macdonald’s leadership, but rather of the inchoate and, at times, all but
leaderless Liberals. The rise of the Progressives after WWI signaled the permanent
end to Canada’s two-party system. The Progressives may have been “in” Parliament, but in Smith’s estimation, they were not “of” Parliament, and they soon
disappeared. The following epoch of Liberal ascendancy all but neutered the
Conservative Opposition, but the extended national unity crisis which began in
the 1960s transformed the oppositional dynamic again. The Official Languages Act,
the FLQ crisis, the Quebec referendum, patriation, Meech Lake and Charlottetown
all generated substantially intra-party cleavages, while moderating inter-party
disputes. This trend (which had been augmented by a series of non-partisan
changes to Canada’s parliamentary and electoral practices) was, however, shattered
by the results of the 1993 election, which brought to prominence opposition parties
who were opposed not merely to governmental policies, but also to basic components of the constitutional order (federalism for the BQ, parliamentarism for
Reform).
Although Blidook and Smith have a common subject, their approaches are very
different. Whereas Blidook is quantitative, focused and linear, Smith is qualitative,
sprawling and elliptical. Smith has been a student of things parliamentary for many
decades, and (happily for the reader) shares his knowledge even on matters not
directly germane to the matter at hand. Who knew, for example, that the matter of
choosing Robert Borden’s successor in 1920 fell not to crown, caucus or convention,
but to the outgoing prime minister and that, moreover, Arthur Meighen was only
awarded the prize after Borden had been rebuffed by his first choice? That said, a
truly alarming number of Smith’s evidentiary snippets seem to centre on the
idiosyncratic figure of John Diefenbaker.
These two volumes have much to recommend them. Both are well-written and
well-edited (which makes the clanger in Smith’s concluding chapter about the
Harper Conservatives coming to power in 2004 something of a jolt). Alas, both
conclude on a somewhat discouraging note. Blidook worries that PMB may become
a victim of its own “success,” that parties will seek, perhaps surreptitiously, to
338
BOOK REVIEWS
exercise increasing control over PMB content. Likewise, Smith frets about parliamentary officers usurping some of the Opposition’s functions and about governments claiming a popular mandate in order to justify parliamentary inflexibility.
Both Blidook and Smith do Canadians a service by shooting a more nuanced
portrait of our legislative branch. But both are fully aware of the executive
behemoth that lurks just off-camera.
Ian Stewart is Professor of Politics at Acadia University in Nova Scotia.
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