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The Journal of Public Accountability

Issue 1, February 2002

Part 1. Mapping Public Accountabilities
Part 2. Articles on Accountability


Part 1. Mapping Public Accountabilities

In this first edition of the Journal we set out, borrowing from the examples in the Citizen’s Guide, broad responsibility areas for which public answering is missing or inadequate. The purpose is to stimulate readers to identify others; to identify more specific important responsibilities within areas that the Journal maps; and to propose the public answering needed, from whom, for the responsibilities identified.

1. National policy responsibilities

  • protection of a country’s sovereignty over its core policies
  • fairness in medical care and its effective operation
  • full and fair assessment of the implications of privatization/deregulation
  • compliance with the precautionary principle in regulatory responsibilities
  • environmental, water and species protection, to the standard citizens have the right to see met
  • policy-making (explicit ot tacit policy) that does not unfairly affect the rights, aspirations, well-being and environments of citizens in other countries

2. Governance responsibilities

  • executive government compliance with the law and with established policy set under contract with the citizens (a Canadian example would be Medicare)
  • discharging government’s responsibilities diligently and fairly (i.e., economically, efficiently and effectively)
  • effective scrutiny and control over executive government
  • ensuring that statutory powers and duties have the public answering obligation attached
  • exacting full and fair executive government answering in legislative assemblies
  • effective standards for ethics and performance for elected representatives, including:
    • standards for their self-informing (including ensuring that the implications of intended government action -- for example international agreements -- are understood by the legislators and public
    • upholding the precautionary principle
    • elected representatives’ public answering
  • full and fair answering by executive government officials and legislators outside the legislative assemblies ( as prompted by journalists and public interest organizations)
  • reduction of public deception and deceptive language (especially statements by officials being nothing more than unsupported "decrees")
  • public identification of barriers standing in the way of elected representatives’ control of government

3. Justice responsibilities in the processes of the law

  • ensuring an effective legal justice system, which includes prevention of wrongful convictions -- judges, legal profession and responsible ministers
  • in public inquiries:
    • ensuring justice through public inquiries
    • ensuring the adequacy of Inquiries Acts and inquiry mandates
    • decisions, by jurisdiction, on whether audit will be the first option
    • limiting legalistic obstruction to the inquiry purpose
  • understanding the concepts of preventive management control, self-informing by directing minds, and the public answering obligation
  • the usefulness to the public of inquiry commissioners’ reports
  • useful, diligent and honest action on commissioners’ reports

4. Health and safety responsibilities

  • control ensuring safe foods and drugs
  • control ensuring safe workplaces
  • control ensuring safe water5. Performance of civil servants
  • proposing and meeting effective ethics, performance and answering standards for themselves
  • proposing reasonable standards for public answering by executive government6. Governance of organizations
  • adequate self-informing by the organizations’ governing boards (directing minds) to discharge their responsibilities
  • gaining reasonable learning from outcomes and applying it diligently
  • ensuring that the intentions of the organization’s directing minds serve the public interest before (corporate and public sector, including universities and research institutions)
  • upholding the precautionary principle
  • adequate independent audit (validation) of answerings given 7. Responsibilities of military top command
  • setting visible performance standards for top command, for both management control in operations and prevention of deception in public statements of their responsibilities and performance
  • fairness to all members of the Forces

    Readers are invited to help fill in and expand the accountability map.

Part 2. Articles on Accountability

We lead off with two different articles. The first is an example of a recent major American business sector and regulatory disgrace, and the implications for citizens needing to hold to account. The second is an example of missing important answering by Canadian elected and appointed executive government officials under the Canadian system of constitutional government. Both examples have application in other jurisdictions.

 

Response to Enron: Public Answering

Headlines scream profusely about the stunning collapse of Enron -- the fastest plunge to a corporate bankruptcy in U.S. history. Causes are being speculated wildly in the media, and Congressional hearings should add further fuel to the attribution process. Apparently, at this stage of truth, Enron’s management failed to disclose the financial effects of their risky trading transactions. Management may have accounted for them so as to inflate profits, contrary to generally accepted accounting principles (GAAP). Further, allegations indict Enron senior management for selling their shares of company stock before the market fall, while employees and other investors could not, or were not aware of the impending disaster. Rhetoric has heightened such that Richard Cohen wrote in a Washington Post article, "We all know what happened. A bunch of b------- picked the pockets of their own employees. That’s not a scandal. It’s a blinkin’ outrage."

Arthur Andersen, Enron’s external auditor, is vying almost equally for the main headline of culpability. The audit firm seemingly accepted Enron’s questionable accounting practices as conforming to GAAP. The firm did not require Enron to disclose, nor did the auditors in their audit reports, information that might have warned investors and others that the roof of financial stability was about to cave in. Admissions of document shredding by Andersen partners and staff further paint a dark scenario of possible impropriety. And, the untimely report by the peer review team of Deloitte & Touche, giving a "clean bill of health" to Andersen’s audit operations after Enron went into bankruptcy, raises more eyebrows on the performances of Enron and auditor and their relationship.

The list of players continues with Enron’s Board of Directors apparently shying away from serious challenges to Enron’s management operating decisions and waiving the code of ethics to sanction certain financial dealings involving company officers and outside interests. And, according to Enron’s meeting minutes, their audit committee (all outside members) gave their blessing to transactions between the company and partnerships run by the company’s chief financial officer, thereby acquiescing to significant debt being kept off Enron’s balance sheet.

The SEC has also been thrust into the spotlight by admitting to not tracking developments at Enron closely, nor conducting sufficient in-depth reviews that could have disclosed possible problems. And, members of Congress kept silent, aided and abetted by lucrative campaign donations.

Victims of the collapse

These are many and widespread. First, the market value decline in the company’s stock of over $60 billion affects investors, creditors and employees directly. It is unlikely that many investors will ever recover their investment and creditors will receive nothing like 100% on obligations owed them, even if the present acting CEO can somehow keep the ship afloat. The big hit has been taken by employees who invested their retirement funds in the company’s 401(k), which prohibited investment diversification and, because of lockout provisions, prevented employees from selling stock from the plan. All this while senior management were able to dispose of their stock for gain. Further, many employees have lost or will lose their jobs.
The accounting profession is suffering the blow of reduced credibility and standing from its previous reputation in the business community. Auditing firms will now be second-guessed on whether they are conducting quality audits and using credible GAAP in rendering their independent opinions on financial statements.

Some feel the equity market per se may now be less attractive to investors wary of companies following "aggressive" accounting practices, or who fail to disclose the nature of complex business transactions and of related-party affiliations.

Finally, the American public have seen the height of personal greed and selfishness apparently displayed by Enron senior management, and audit performance by a large, reputable accounting firm that was sub-standard -- or worse.

What should be done?

The many investigative hearings and the ensuing court cases will provide the true picture of what transpired, and which parties are accountable for the harm. When the dust settles, we will see modifications to the private sector accounting and financial reporting system. Our advice to the change agents is this fundamental premise: All accountable parties should be required to answer fully, fairly and publicly for their respective responsibilities and actions -- in other words that principles of public accountability be established and upheld for private sector accounting and financial reporting. This is not motherhood: effective principles and standards have been lacking.

The effects of the Enron disgrace are so pervasive that at stake is the moral accountability of the free market system and especially that of the accounting profession. Public accountability dictates that entities such as Enron’s board and the company’s external auditors, who affect others in society in important ways, must be made to answer publicly for their performance, fairly and completely. This follows from two important appraisals:

First, the list of victims embraces stockholders, investors, creditors, employees, governments, potential investors, taxpayers and the public in general. These victims are really stakeholders in that they have provided resources to accountable parties with the expectation of receiving something in return (in this case, return on investment from Enron). This stakeholder list is so vast that only a public type of answering is appropriate for their diverse needs.

Second, regarding the accounting profession, its professionals acquire special capabilities and intellectual capital to perform a specific kind of service to benefit society. In return, professionals obtain a right, such as monopoly over their areas of expertise, and public status. Generally, regulatory bodies permit professions to regulate themselves. Part of the self-regulation should entail adequate public answering for the processes professionals use in carrying out their responsibilities and for the results produced by their activities. It is through public answering that a self-policing influence emerges for professional conduct that assures that professionals accomplish what they say they will.

Our call for new and meaningful standards of public answering in private sector accounting and financial reporting ought to have the full backing of President George W. Bush, who said in his 2002 State of the Union address, as a result of the Enron disgrace, "Through stricter accounting standards and tougher disclosure requirements, corporate America must be made more accountable to employees and shareholders and held to the highest standards of conduct."

So what might these stricter standards and reporting requirements be? Here are some examples, for starters. One would be the requirement that audit firms report annually and publicly on their management control systems that give assurance that their audit partners and senior management do not "cave in" to the pressure of clients and sign off on clearly questionable accounting practices asserted to comply with GAAP and, most important, accounting practices that simply do not reflect adequate standards of fair and complete disclosure.

Another standard would have corporate boards of directors assert annually and publicly that they have comprehended the nature and financial significance of all major company transactions and dealings, and that they have no consulting arrangements with the company.

A third would have Congress stating publicly that its management control system for oversight assures that the Securities and Exchange Commission and other regulatory agencies having authority over corporations are protected in not permitting corporate executives to frustrate the regulatory process through lobbying and other questionable influencing tactics.

These are only examples of the profound changes needed to alter financial reporting in "corporate America." The changes in standards must articulate specifically and clearly the responsibilities, actions and reporting rules that all accountable parties involved must follow in an open and transparent environment. The accountable parties for which standards need to be set include: senior management and boards of directors of corporations, independent auditing firms, the Financial Accounting Standards Board (FASB), the Auditing Standards Board (ASB), the SEC and the U.S. Congress.

Citizens’ Accountability Panels as oversight for reporting

We cannot rely on government playing the oversight role. This is because Congress and the SEC did not set the conditions and public trip-wires that would have prevented the Enron debacle, and we have no evidence of real intent to change current tendencies and probabilities.

We urge citizens to form Citizens’ Accountability Panels (CAPs) -- groups of citizens who are interested in creating an oversight review process based on common sense. The Panels would review the regular public assertions of each accountable party that those with the responsibilities claim to be adequate answering for the discharge of their responsibilities.

The results of the CAPs’ reviews would be made public through the media so that all can assess the adequacy of the answering. Those not meeting the general public standards would be subject to public opinion pressure -- and possible stigma -- to make the needed changes.

One approach would be to have three separate CAPs. One would review and report on the accountability assertion reports of senior management, boards of directors and the independent auditing firms. Another would review the accountability reports of the FASB and ASB, answering for the professional standards attained. A third would review and report on accountability reports of the SEC and Congress, as answering to the public for the discharge of their oversight responsibilities. Each of these panels could have networks of sub-panels for regional coverage of cities housing major corporations, and for particular industry specialization. This initiative converges with the President’s encouragement for citizen involvement. We might even call the Panels part of the USA Freedom Corps!

Summary

Our proposal is a departure from the existing complacent and ineffective arrangements for financial reporting, audit attestation and corporate regulation. But the Enron experience requires solid change, achievable only through an innovative approach that creates genuine accountability. Not only is this public involvement novel; it fits with our free enterprise system and the idea that effective scrutiny is a tenet of American democracy. We can start with network-based citizen-to-citizen dialogue on feasible arrangements for the framework and process. We can also identify possible public interest organization sponsors for the Panels’ operations. We can work out how they can be established as a new way to produce effective checks and balances in the financial and business reporting system. "Let’s roll" fits.

Ernest J. Pavlock, Ph.D, CPA
ernestpavlock@accountabilitycircle.org

Dr. Pavlock of Reston, Virginia is Professor Emeritus, Virginia Tech


***

Strengthening the Oaths of Office
Sworn by our MPs, MLAs, Ministers, Public Officers, and Judges

Canadians probably think the oaths of office taken by their MPs, ministers of the Crown, and public servants contain explicit commitments that the MPs, ministers, and public servants uphold the Constitution and comply with the law. They don't. They should. And it's time they did. Compliance with the spirit and letter of the law is the first safeguard against public officers misusing their powers.

In English law, The Coronation Oath Act, requires the kings and queens of England to take an oath at the times of every of their coronation. The Coronation Oath has changed over time, but recently (1902) was, in part, as follows.

"Archbishop. Will you solemnly promise and swear to govern the People of this United Kingdom of Great Britain and Ireland, the Dominions thereto belonging, according to the Statutes in Parliament agreed on, and the respective Laws and Customs of the same?

King. I solemnly promise so to do.

Archbishop. Will you to your power cause Law and Justice, in Mercy, to be executed in all your Judgments?

King. I solemnly promise so to do…." [Emphasis added]

In North America, when the founding fathers framed The Constitution Of The United States Of America in 1778, they provided in the last paragraph of Section 1 of Article II dealing with the President, in whom the Constitution vests Executive Power, that the President take the following oath or affirmation before assuming office:

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Further in Article VI they provided in part,

Section 2. This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.

Section 3. The Senators and Representatives before mentioned, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound, by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

Ninety-eight years later when the fathers of confederation framed the British North America Act, 1867, they provided in §§9, 10, 11, 61, 69, 71, 91, 92, 128, and The Fifth Schedule, in part, are as follows.

9. The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.

10. The Provisions of this Act referring to the Governor General extend and apply to the Governor General for the Time being of Canada, or other the Chief Executive Officer or Administrator for the Time being carrying on the Government of Canada on behalf and in the Name of the Queen, by whatever Title he is designated.

11. There shall be a Council to aid and advise in the Government of Canada, to be styled the Queen's Privy Council for Canada; and the Persons who are to be Members of that Council shall be from Time to Time chosen and summoned by the Governor General and sworn in as Privy Councillors, and Members thereof may be from Time to Time removed by the Governor General.

61. Every Lieutenant Governor shall, before assuming the Duties of his Office, make and subscribe before the Governor General or some Person authorized by him Oaths of Allegiance and Office similar to those taken by the Governor General."

69. There shall be a Legislature for Ontario consisting of the Lieutenant Governor and of One House, styled the Legislative Assembly of Ontario.

71. There shall be a Legislature for Quebec consisting of the Lieutenant Governor and of Two Houses, styled the Legislative Council of Quebec and the Legislative Assembly of Quebec.

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,…. And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, ….

128. Every Member of the Senate or House of Commons of Canada shall before taking his Seat therein take and subscribe before the Governor General or some Person authorized by him, and every Member of a Legislative Council or Legislative Assembly of any Province shall before taking his Seat therein take and subscribe before the Lieutenant Governor of the Province or some Person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act; and every Member of the Senate of Canada and every Member of the Legislative Council of Quebec shall also, before taking his Seat therein, take and subscribe before the Governor General, or some Person authorized by him, the Declaration of Qualification contained in the same Schedule….

The Fifth Schedule

Oath of Allegiance

"I A.B. do swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria. [Note. The Name of the King or Queen of the United Kingdom of Great Britain and Ireland for the Time being is to be substituted from Time to Time, with proper Terms of Reference thereto.]"

These provisions, plus those of Part VII - Judicature, give effect as well to the constitutional principal of the separation of powers as to the division of powers. By powers, I mean power, function, and sphere of activity. The principle of the separation of powers means that different institutions or entities or persons:

  1. make laws (legislative power) in the sense of enacting statutes, which is making one kind of law;
  2. execute the laws (executive power) — execute in the sense of carrying out the applicable laws, putting the applicable laws into effect, administering those laws, and accomplishing their purpose and objectives i.e. governing us; and
  3. construe and apply the laws (judicial power) including both enacted statutes and judge made common law, which is another kind of law.

I believe that in Canada the principle of the separation of powers is often confused with the division of powers between the Federal and provincial levels of authority made in §§ 91 and 92. For that reason the principle of the separation of powers is not widely or well understood in Canada. The division of powers between Canada and its provinces, is entirely different from the principle of the separation of powers, which applies equally to each of the Federal and provincial levels. It is this separation of powers at each level that results in the checks and balances, under our Constitution, on the due exercise of power by any one of the institutions or entities or persons exercising a power.

What is also sometimes confusing is that our Constitution allows the same person to hold more than one office. Thus a person occupying more than one public office, who is about to do an official act, must be clear about the capacity in which they will act, and must be satisfied that what he or she proposes to do is within the authority and powers of the relevant office.

From an accountability point of view, it is also important to keep in mind the capacity in which a public officer acted, when he or she did what he or she is subsequently called upon to account for. It is that capacity which the person must account for what they did, and not any other. For example, a minister of the Crown is also a member of a legislature. He or she may not avoid responsibility and accountability for what they did in their capacity as a minister of the Crown, on the basis of some privilege they enjoy in their capacity as a member of the legislature.

So far as making laws is concerned, Her Majesty acting by and with the advice and consent of the Canadian Senate and House of Commons in relation to the subjects listed in §91 of the Constitution Act, 1867 may make Laws for Canada; and Her Majesty acting by and with the advice and consent of the respective provincial legislatures in relation to the subjects listed in §92 of the Constitution Act, 1867 may make Laws for the relevant province.

So far as executing laws is concerned, §§9, 10, and 11 of the Constitution Act, 1867 provide that the Executive Government of and over Canada is vested in the Queen, that the Queen governs Canada through the agency of the Governor General and the provinces through the agency of the Lieutenant Governors of the respective provinces. The Queen is advised on the Executive Government of Canada by the Queen's Privy Council for Canada, but by convention on the advice only of those members of Council who are the incumbent Ministry, and governs in relation to the said matters through the agency of the public service of Canada. Similarly, in each province, the Queen is advised on the Executive Government of the province in relation to the matters set out in §92 of the Constitution Act, 1867 by Her Executive Council for that province, but by convention on the advice only of those members of Council who are the incumbent Ministry, and governs in relation to the said matters through the agency of the public service of that province. In every case, Her Majesty governs us in accordance with the common law and applicable statutes in accordance with the advice of Her Majesty's incumbent ministers.

Thus Parliament (The Queen, Senate, and House of Commons) and the provincial legislatures (The Queen and the relevant Legislature) do not govern us. They are the forums in which we, through our elected representatives, consent to the enactment of the statute laws that apply to us, and as well to The Queen, in her Executive Capacity, acting through her Ministers and public services, who govern us. Further they are the forums in which we agree on how much public money, which The Queen, in her Executive Capacity, acting through Her Ministers and public services, has collected from us as taxes and paid into the several consolidated funds, to supply moneys back out of the relevant consolidated fund to the Queen, in her Executive Capacity, to spend on Her respective public services in governing us. These legislative forums also serve to inform us about matters of public importance, through published reports of the debates among, or questions asked by, our elected representatives. This information enables us to tell our representatives what we think about those issues.

We are governed by Her Majesty in right of Canada and in right of its several provinces, acting in accordance with the advice,

  1. at the Federal level, of the elected leaders in the House of Commons, of the party electing a majority of members, who are sworn of Her Majesty's Privy Council for Canada, and
  2. at the provincial level, by the elected leaders in each of the legislatures of the several provinces, of the party electing a majority of the members, who are sworn of Her Majesty's Executive Council for the relevant province.

In each case, they constitute the incumbent Ministry which advise Her Majesty, in Her Majesty's Executive capacity, on how to execute the applicable laws and thus on how to govern us. It is the relevant Minister or Ministry that is responsible for how Her Majesty governs us, and consequently it is the responsible Minister or Ministry that is accountable for the act or acts done to us collectively or individually in the name of Her Majesty by that part of the public service which the Minister or Ministry controls.

Since the Crown in its Legislative Capacity has made every statutory enactment, the Crown in its Executive Capacity cannot complain about the laws and must necessarily act in accordance with them. In other words, ministers must comply with the law.

In governing us, Her Majesty conducts the Executive Government of Canada only through the agency of the public service (comprising the civil service and the military) and, as described above, normally in accordance with the advice of her incumbent Ministers. In this way there is always an agent who is responsible and accountable for what they do or allow to be done in the name of the Crown. While in office, Ministers and public servants are politically accountable to the nation, as represented by our elected representatives in the House of Commons, and in the relevant legislature, as applicable. Ministers are also accountable for what they do, at all times, legally, in the relevant court, for compliance with the law.

The standard to be applied in evaluating the conduct of Ministers of the Crown and public servants is that expressed in Her Majesty's Coronation Oath, which is a part of the Constitution of Canada. I believe that the terms of Her Majesty's Coronation Oath are not sufficiently well known in Canada.

The law of principal and agents is an important but underwritten part of the Constitution of Canada. An agent is a person employed to act on behalf of another. Agency is the legal relationship between one person, the agent, having the authority to act, and having consented to act, on behalf of another person, the principal, usually with a view to bringing the principal into a contractual relationship with a third party. Most people will be familiar with a real estate agent, who helps people buy and sell their home. That is a common form of agency. Once an agent has brought his, her, or its principle into a contractual relationship with a third party, then it is as if the principal had made the contract directly with the third party, the agent ceases to be involved so far as concerns the third party, and the principle may sue or be sued on the contract directly. The agent, however, remains accountable to his, her, or its principal.

Likewise, since the Crown in its Legislative Capacity has made every statutory enactment, Her Majesty's judges, in doing justice by deciding disputes submitted to the courts, must construe and apply the law in deciding those disputes. Again, the standard to be applied in measuring the conduct of Her Majesty's judges is that expressed in Her Majesty's Coronation Oath.

§10. of the Supreme Court Act provides, "Every judge shall, before entering on the duties of the office of judge, take an oath in the following form:

"I, ..........., do solemnly and sincerely promise and swear that I will duly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as Chief Justice (or as one of the judges) of the Supreme Court of Canada. So help me God. "

Similarly §9.(1) of the Federal Court Act provides, "Every judge shall, before entering on the duties of the office of judge, take an oath that he will duly and faithfully, and to the best of his skill and knowledge, execute the powers and trusts reposed in him as a judge of the Court."

One hundred and fifteen years after Confederation, the Canadian Senate and House of Commons "patriated" the Constitution of Canada. They did so by causing the Parliament of the United Kingdom to enact The Canada Act, 1982 (U.K.). Schedule B to that Act is the Constitution Act, 1982. Part 1 of the Constitution Act, 1982 is the Canadian Charter of Rights and Freedoms. Our Charter provides in §§15(1), 32(1), and 52(1) and (2) as follows.

"15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination....

"32. (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament....

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province

"52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

(2) The Constitution of Canada includes

(a) the Canada Act 1982, including this Act;

(b) the Acts and orders referred to in the schedule;...."

These constitutional provisions repeat in writing the principle of the supremacy of law that has applied in England since 1607, when Chief Justice Coke said to King James I that the King was subject to no man, but was subject to God and the law, in the case Prohibition del Roi. This principle has applied in Canada since 1760, when the laws of England were extended to here. The Charter, other than Section 15, came into force in Canada on April 17, 1982, and §15 came into force on April 17th, 1987. §52(1) of the Charter is comparable to Section 2 of Article VI of the Constitution of the United States of America. Part V of the Canada Act, 1982, being the Procedure for Amending Constitution of Canada tends to make Canada's Constitution more rigid, and so somewhat more like the Constitution of the United States of America than before, although, since the Constitution Acts 1876 to 1982 are not a complete statement of the Constitution of Canada, the two provisions probably cannot be equated.

Returning to oaths of office, the counterpart in Canada of §3 of Article VI of the Constitution of the United States of America is found in §128 and Fifth Schedule of the Constitution Act, 1867, which are set out above.

Since Her Majesty the Queen swears in her Coronation Oath to govern the People of Canada according to the Statutes in Parliament and the legislatures agreed on, and the Laws and Customs of Canada and its provinces, it follows that the advice tendered to Her Majesty in her Executive capacity by Her Majesty's respective Canadian and provincial Ministries must ensure that Her Executive government of us meets that standard. So also her judges.

We require our public officers to swear oaths of office before they assume their duties. They are considered below.

Governor General's Oaths

When a person is appointed Governor General to represent Her Majesty in Canada, before assuming his or her duties the person swears the following oaths.

Oath of Allegiance

I , .......................... , do swear that I will be faithful, and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successor, according to Law.

So help you God.

Official Oaths

I do swear that I will well and truly serve Her Majesty Queen Elizabeth the Second in the office of Governor General and Commander-in-Chief of Canada and duly and impartially administer justice therein.

So help you God.

I do swear that I will well and truly serve Her Majesty Queen Elizabeth the Second in the Office of Keeper of the Great Seal of Canada.

So help you God.

Prior to assuming their duties §61 of the Constitution Act, 1867 provides the Lieutenant Governors must swear or make a similar oath or affirmation.

Privy Councillor's Oaths

When one of our elected representatives is deemed a leader in the House of Commons or Legislature, before assuming his or her duties as a minister of the Crown the person is sworn of Her Majesty's Privy Council for Canada or of Her Majesty's Executive Council for a province. Persons sworn of Her Majesty's Privy Council for Canada are believed to swear the following three oaths.

Oath of Allegiance

I, .......................... , do swear that I will be faithful, and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successor, according to Law.

So help you God.

The Oath of the Members of the Privy Council

You, ........................, do solemnly promise and swear that you will serve Her Majesty truly and faithfully in the Place of Her Council in this Her Majesty's Dominion of Canada, you will keep close and secret all such matters as shall be treated, debated and resolved on in Privy Council, without publishing or disclosing the same or any part thereof, by Word, Writing, or any otherwise to any Person out of the same Council, but to such only as be of the Council, and yet if any matter so propounded, treated and debated in any such Privy Council, shall touch any particular Person, sworn of the same Council upon any such matter as shall in any wise concern his Loyalty and Fidelity to the Queen's Majesty, you will in no wise open the same to him, but keep it secret, as you would from any Person, until the Queen's Majesty's Pleasure be known in that behalf. You will in all things to be moved, treated and debated in any such Privy Council, faithfully, honestly, and truly declare your mind and opinion to the honour and benefit of the Queen's Majesty, and the Good of Her Subjects without partiality or exception of persons, in no wise forbearing so to do from any manner of respect, favour, love, meed, displeasure, or dread of any Person or Persons whatsoever. In general you will be vigilant, diligent, and circumspect in all your doings touching the Queen's Majesty's affairs; All which matters and things you will faithfully observe and keep, as a good Councillor ought to do to the utmost of your power, will and discretion.

So help you God.

Oath of Office

You, ........................................, do solemnly and sincerely promise and swear that you will truly and faithfully, and to the best of your skill and knowledge, execute the powers and trusts reposed in you as

................................................................... .

So help you God.

The Public Service of Canada

§3. of the Public Service Employment Act establishes a commission called the Public Service Commission, consisting of a President and two other members to be appointed by the Governor in Council. Commissioners hold office during good behaviour for ten years and are eligible for re-appointment to a further term not exceeding ten years. Each commissioner has the rank of a deputy head of a department and may not hold any other office in the Public Service or engage in any other employment. Before assuming office, each commissioner must swear the oath or make the solemn affirmation set out in Schedule I.

Schedule I

(Section 3)

Oath or Solemn Affirmation of
Office of Commissioner

I , ...................., do solemnly and sincerely swear (or affirm) that I will truly and faithfully, and to the best of my skill and knowledge, execute and perform the office of (Commissioner or President, as the case may be) of the Public Service Commission. (In the case where an oath is taken, add "So help me God").

§ 23. of the Public Service Employment Act provides that every deputy head and employee shall, on appointment from outside the Public Service, take and subscribe the oath or solemn affirmation of allegiance and the oath or solemn affirmation set out in Schedule III. Accordingly they swear or affirm as follows.

Oath of Allegiance

I , .......................... , do swear that I will be faithful, and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors, according to Law.

Schedule III

(Section 23)

Oath or Solemn Affirmation of
Office and Secrecy

I , ...................., solemnly and sincerely swear (or affirm) that I will faithfully and honestly fulfil the duties that devolve on me by reason of my employment in the Public Service and that I will not, without due authority in that behalf, disclose or make known any matter that comes to my knowledge by reason of such employment. (In the case where an oath is taken, add "So help me God").

 

British Columbia (as a provincial example)

Oath of Office for Members of the Executive Council (Ministers)

Allegiance

I,______________________, affirm that I will be faithful and bear true allegiance to Her Majesty The Queen of Canada, Her Heirs and Successors, according to law.

Office

I,______________________, affirm that I will serve Her Majesty duly and faithfully, and to the best of my ability fulfil the responsibilities and trust granted to me as a Member of the Executive Council of British Columbia.

Confidentiality

I,______________________, affirm that I will keep confidential all matters dealt with in the Executive Council, and I will not disclose any of the same to any person other than a Member of the Executive Council except as authorized by it or as required in the lawful discharge of my duties as a Member of the Executive Council.

Affirmed before me at Victoria, British Columbia
this___ day of________, AD 20____

_______________________________
Lieutenant Governor of British Columbia

 

The Public Service of British Columbia

The Public Service Act of British Columbia provides in §21 that persons appointed to the public service in British Columbia under §15 are to take the prescribed oath. The Public Service Oath Regulation provides the oath is the form set out in Item 1 or 2 of below.

Item 1:

I, ......................................................................, do swear/affirm that

1 I am/am not a Canadian citizen and all facts and representations made by me for the purpose of becoming a public servant are true to the best of my knowledge and belief.

2 I will truly and faithfully, according to my skill, ability and knowledge, execute the duties, powers and trusts placed in me as a servant of the Crown.

Sworn/Affirmed by me, at
..................................................,
........................................[date]."
.................................................. .....................................
Person administering Oath Deponent

Item 2:

I, ………........................................................................, do swear/affirm that

1 All facts and representations made by me for the purpose of becoming a public servant are true to the best of my knowledge and belief.

2 I will truly and faithfully, according to my skill, ability and knowledge, execute the duties, powers and trusts placed in me as a servant of the Crown.

3 I am a Canadian citizen and I will be faithful and bear true allegiance to Her Majesty and Her Successors.

Sworn/Affirmed by me, at
..................................................,
........................................[date].
.................................................. .....................................
Person administering Oath Deponent

A comparison of these oaths used in Canada to the Coronation Oath, made by Her Majesty, and to the Oath of Office, made by the President of the United States of America, shows that the oaths of office we use here in Canada are weak and unsatisfactory from the viewpoint of accountability. Strengthening ministerial and public service oaths (if only from the point of view of underlining how officials are expected to conduct themselves) would help to make public officers and public servants in Canada more aware of their responsibility to comply with the law. I believe that ministers’ and public servants' oaths would be strengthened by using the words indicated by boldface in the texts below.

Canada/Province:

Senators and Members of the House of Commons/Legislatures

Oath of Office

You, .........................................., do solemnly and sincerely promise and swear (or affirm) as a member of the Senate/House of Commons/Legislative Assembly of ...................., that you will truly and faithfully and to the best of your skill, knowledge, and ability, fufil your responsibilities and duties, and use the powers and trusts reposed in you, in accordance with the Constitution and the laws of Canada and its provinces,

So help you God

Federal Ministers (Privy Councillors) and their deputies

Oath of Office

You, ........................................, do solemnly and sincerely promise and swear (or affirm) that as Canadian [Deputy] Minister of ................... you will truly and faithfully serve Her Majesty and to the best of your skill, knowledge, and ability, fulfil the responsibilities and duties to which you are subject, and will use the powers and trusts reposed in you, in accordance with the Constitution and the laws of Canada and its provinces,

So help you God

Provincial Ministers (Executive Councillors) and their deputies (based on B.C. Example)

Office of Office

I ,______________________, do solemnly and sincerely promise and swear (or affirm) that I will serve Her Majesty duly and faithfully, and, as a Member of Her Executive Council for British Columbia, to the best of my skill, knowledge, and ability will fulfil the responsibilities and duties to which I am subject, and will use the powers and trust granted to me, in accordance with the Constitution and the laws of Canada and its provinces.

Federal Public Servants

I, .................................................., solemnly and sincerely promise and swear (or affirm) that I will faithfully and honestly fulfil the responsibilities and duties, and use the powers and trusts, that devolve on me by reason of my employment as a servant of the Crown in accordance with the Constitution and the laws of Canada and its provinces, and that I will not, without due authority in that behalf, disclose or make known any matter that comes to my knowledge by reason of such employment. (In the case where an oath is taken, add "So help me God").

Provincial Public Servants [e.g. British Columbia]:

Item 2:

I, ......................................................, do solemnly and sincerely promise and swear/affirm that

1 All facts and representations made by me for the purpose of becoming a public servant are true to the best of my knowledge and belief.

2 I will, as a servant of the Crown, truly and faithfully, according to my skill, knowledge and ability fulfil my responsibilities and duties, and use the powers and trust placed in me, in accordance with the Constitution and the laws of Canada and its provinces.

3 I am a Canadian citizen and I will be faithful and bear true allegiance to Her Majesty and Her Successors.

Sworn/Affirmed by me, at
..................................................,
........................................[date].
.................................................. .....................................
Person administering Oath Deponent

Judges

"I, ..........., do solemnly and sincerely promise and swear that I will honourably, faithfully, impartially, and conscientiously serve Her Majesty, and fulfil my judicial responsibilities and duties to the best of my skill, knowledge, and ability, and use the powers and trusts reposed in me as Chief Justice (or as one of the judges) of the [here name Court] to administer law and justice in mercy to all persons alike without fear, favour, or prejudice, in accordance with the Constitution and the laws of Canada and its provinces.

So help me God."

Twenty years have passed by since we "patriated" the Constitution Acts 1867 to 1982 including the Charter, which makes the Constitution of Canada the supreme law of Canada. So far as I am aware, however, no jurisdiction in Canada has, in those intervening twenty years, updated the oaths of office to reflect the reality of these new constitutional provisions. It is time that the Federal and provincial legislatures strengthened these oaths. Stronger oaths would tell the public officers making them what we expect from them. Producing common oaths in each jurisdiction would further strengthen them. Without the element of compliance with the law formally placed in the oaths, and without officials’ reporting of their compliance, we cannot tell how seriously they regard that compliance. The response, "Well, all that is surely implied in the oaths" won’t do.

At the outset of a person's assumption of public office, his or her oath serves at least as a useful personal mission statement. The oath of office ceremony makes officials’ acceptance of their obligations all the more visible to the public. But regardless whether legislators strengthen the oath wordings, in my opinion officials have a natural duty to comply with the Constitution and laws of Canada, and are bound to act in accordance with the Constitution and the laws of Canada and its provinces, as if they had taken the oaths proposed here. They can reasonably be asked to report publicly and regularly whether they have so acted.

G.F. Windsor,
Barrister and Solicitor
georgewindsor@accountabilitycircle.org