ARCHIVED - The Financial Administration Act: Responding to Non-compliance - Meeting the Expectations of Canadians

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Footnotes

^[1] The PSSRA has been revised and retitled as part of the Public Service Modernization Act (PSMA). The relevant provisions of the PSMA have not yet come into force.

^[2] Fraser v. Canada (Public Service Staff Relations Board) [1985] 2 S.C.R. 455 at paras. 40 and 43.

^[3] John C. Tait, Q.C., chaired a task force on Values and Ethics, the mandate of which was to examine the relationship between existing and evolving values in the Public Service and to consider ways to align values with current challenges. The resulting report can be found at the following site: http://www.myschool-monecole.gc.ca/research/publications/complete_list_e.html.

^[4] R. v. Hinchey [1996] 3 S.C.R. 1128 at paras. 15, 17, and 18, respectively (per L'Heureux-Dubé).

^[5] Peter Aucoin is a political scientist who has written extensively on public service governance. From: "Comparative Perspectives on Canadian Public Service Reform in the 1990s," page 5, as part of a report of the Auditor General, Public Service Management Reform Progress: Setbacks and Challenge, February 2001.

^[6] The document may be found at the following Web site:
http://www.pco-bcp.gc.ca/default.asp?Page=Publications&Language=E&doc=gdm-gsm/gdm-gsm_doc_e.htm.

^[7] The document may be found at the following Web site:
http://www.pco-bcp.gc.ca/default.asp?Page=Publications&Language=E&doc=mog/cover_e.htm.

^[8] Amendments were made in 1931 to create more centralization in an effort by R.B. Bennett to strengthen the government's capacity to manage public funds. At the time, the positions of financial officers accountable to the Minister of Finance were created. The 1931 House of Commons debates surrounding the Bill to amend the Consolidated Revenue and Audit Act did not reveal any discussions around the liability and offences sections, other than noting that a five-year term was a harsh penalty for failing to report a misdemeanour or fraud. It was thought that this was a good and useful deterrent. After these brief words, the liability and offences sections were carried.

^[9] The Criminal Code was first enacted by Parliament in 1878. In the debates leading to Confederation, there had not been any controversy over whether legislative power over criminal law should be given to the federal government. In parliamentary debates in 1865, Sir John A. MacDonald, then the Attorney General, referred to this as being a matter almost of necessity, where it was of great importance to have the same criminal law throughout the provinces, with the same protection of life and property operating equally in all of British North America. (This stood in contrast to the United States system, where each state could have a Criminal Code of its own.) Based on an excerpt from M.C. Friedlang, "Criminal Justice and the Division of Power in Canada," in
A Century of Criminal Justice (1934).

^[10] Law Reform Commission of Canada. Working Paper 2, infra, note 41.

^[11] Section 126 of the Criminal Code then applies. It provides for a penalty of imprisonment for a term not exceeding two years.

^[12] Financial Management and Accountability Act, 1997.

^[13] Public Finance Act, 1989.

^[14] Financial Intelligence Centre Act, 2001.

^[15] Note that it is not being suggested that this should affect prosecutorial discretion and independence.

^[16]  Hood, Christopher, Colin Scott, Oliver James, George Jones, and Tony Travers. Regulation Inside Government. New York: Oxford University Press Inc., 1999, pp. 20–43 at p. 26: "The notion of compliance costs is familiar in the business world […] but little attention has been paid to these costs in the public sector […] Estimating compliance costs is difficult because they raise complex counterfactual questions of what organizations would do in the absence of any regulation, and because regulatees have an incentive to overstate (and regulators to understate) such costs. […] compliance costs for our purposes is what it costs the regulatee to interact with the regulator, including the costs of dealing with requests for information, consulting the regulator, setting up and acting as guide on visits and inspections."

^[17] Organisation for Economic Co-operation and Development. Reducing The Risk of Policy Failure: Challenges for Regulatory Compliance. Paris, 2000.

^[18] Braithwaite, John. "Restorative Justice and Corporate Regulation." In Weitekamp, Elmar and Hans‑Jürgen Kerner, eds. Restorative Justice in Context: International Practice and Directions. Devon, UK, and Portland, Oregon: Willan Publishing, 2003, pp. 161–172.

^[19] Tyler, Tom R. Why People Obey The Law. New Haven, Connecticut: Yale University Press, 1990, p. 110. In a recent discussion, Prof. Tyler indicated that all of his later research confirms and reinforces the findings he sets out in Why People Obey The Law.

^[20] The United States was examined, but given the large number of federal laws that deal with conduct and discipline applicable to the federal Public Service, we have concluded that a summary at this point would not be useful. Very briefly, some of those laws include the Civil Service Reform Act (1978), which established the Merit Systems Protection Board (a quasi-judicial agency designed to ensure that federal Employees are protected against abuses by agency management) and the Office of the Special Counsel (independent federal investigative and prosecutorial agency); the Ethics in Government Act(1978) which establishes the Office of Government Ethics; the Hatch Reform Amendments of 1993, which restricts the political activities of Federal Government Employees. Other relevant laws include Government Performance and Results Act (1993), Government Management Reform Act(1994), Federal Acquisition Streamlining Act(1994), Federal Acquisition Reform Act(1996), Information Technology Management Reform Act(1996), Whistleblower Protection Act(1989).

 

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