PARLIAMENT ON THE BRINK
Sheila Fraser has a quality of dependability about her, of solidity—she seems like a person who would always show up with the heart medication on time, take care of the phone bill, remember to let the cat in.
It could be her roots. The eldest of six children, five girls and a boy, Fraser grew up on a farm in Dundee, Quebec. Life on a dairy farm includes a lot of chores, few of them optional. In those circumstances, it might be thought that getting an education would have been difficult for the future auditor general of Canada. In fact, just the opposite was true. The Frasers, who had worked the land for generations, valued education. Fraser’s parents, Ken and Lily, both had high school diplomas. Her father had always wanted to be a lawyer, and he satisfied his unrealized professional desires by entering politics, serving as a member of the Quebec legislature from 1966 to 1976. Meanwhile, the five Fraser daughters benefitted from the duties of their lone male sibling, Ken. It was the men in the family who were expected to stay on the land, freeing the Fraser women to pursue higher education.
One of Fraser’s aunts, Doris Fraser, earned a doctorate from McGill University, setting the example for Sheila and her siblings. All six, including her farming brother, became professionals—three accountants, two doctors, and a lawyer. Fraser’s path to McGill began in a three-room rural schoolhouse, Dundee Consolidated, and passed through Huntington High. She decided to take mathematics in university, but it ended badly. Fraser contracted mononucleosis as a sophomore and failed her second year. She was “devastated.” On the advice of her family physician, Dr. Kenneth Cameron, she decided to try accounting. “The normal path then for a woman was a teacher or a nurse. Being an accountant and a woman was a very rare thing,” she told me. “While other kids were demonstrating against the war in Vietnam, I was learning to be an accountant.”
Today people talk about the glass ceiling restraining female executives. When Fraser was looking for a job after McGill, the problem was the front door. Women were simply not hired for what was considered to be a man’s profession. Fraser made a strategic adjustment. When applying for interviews, she began leaving out her first name and gender. “So when I walked into the room, you could see the shocked expressions.” The one firm that wasn’t averse to taking on female accountants was Clarkson Gordon, later Ernst & Young. When Fraser sat down at her desk in the firm’s Montreal offices, she wasn’t quite sure what she was getting herself into: the 150-person operation was overwhelmingly staffed by males. She became the first woman on the company’s audit team.
Things worked out well for both parties. Fraser joined the firm in 1972, and was promoted to manager four years later. Five years after that, she became a partner, only the second woman in the country to hold that position in a major accounting firm. Another first awaited her in 1983. Fraser was the first female partner in the accounting business in Canada, the United States, and the United Kingdom to have a child. The professionals who were accustomed to toting up beans now had to take babies into account. The worldwide maternity policy for the accounting industry was kickstarted by the woman whose work would later run the Liberals out of office in the notorious Quebec sponsorship scandal.
Fraser stayed with Ernst & Young at the Quebec City office until the then auditor general of Canada, Denis Desautels, called with an invitation for her to come to Ottawa. After listening to his pitch, she made the jump from the private sector to government. Two years later, Fraser was approached by other staff in the auditor general’s office to let her name stand for the top job. Although the position of auditor general (AG) was rarely filled by anyone currently serving in the office, Fraser applied. She was quizzed by the then president of the Treasury Board, Madame Lucienne Robillard. The interview, which began in French, was supposed to last an hour. It ended after a mere thirty-five minutes. Sheila didn’t know if she had impressed her formidable interviewer or bombed. It would be two months before she was informed by the Privy Council Office that she had landed the biggest auditing gig in the country.
In her career as AG, Sheila Fraser worked with three prime ministers. The first was, Jean Chrétien, whom she never met in person—though she told me that their relationship was “professional.” Given the deep shadow cast by the sponsorship scandal over Chrétien’s last government, that is something in the order of a small miracle. Although Canadians would come to admire and trust “Sheila”1 for her exposure of the Liberals’ stunning abuse of public funds, few understood just how difficult it was for an auditor general to hold any government to account. The decision to take such a risky step depends as much on the mettle of the office holder as on the statutory powers of the office itself.
For one thing, politicians constantly try to use the auditor general’s office as a weapon in their partisan wars. That’s why Fraser did not generally accept the frequent requests from individual politicians for audits. She wanted to maintain the independence of her office, which ideally meant that the AG decides which audits to undertake. But when it came to requests from cabinet ministers or parliamentary committees, it was Fraser’s practice to look into the matters they raised. Conducting full-blown audits was tough enough; with all the power and ego of politics thrown in for good measure, it made an already thorny task even trickier. With a strategic adjustment of her famous bifocals, Sheila Fraser had a way of winning most of the staring contests. “Every audit begins with two lies,” Fraser explained to me. “They say ‘Glad to see you’; we reply ‘we’re here to help.’”
When it came to the ad sponsorship program, it was Liberal Dan Boudria in his capacity as minister of public works who requested the audit. Persistent questions had been raised in the House of Commons about two contracts with a Montreal firm called Groupaction, each worth $500,000. Fraser thought that the minister’s request was transparent: “I have always believed that the political motivation was to take the subject off the radar.” But if Boudria thought that the sponsorship scandal would disappear into a bureaucracy that moved at geologic speed, he was in for an unpleasant surprise. Fraser got his request for the audit in March 2002. She called her audit team together and set it an ambitious agenda; she wanted the investigation completed in the current parliamentary session.
Just over two months later, the AG must have thought she was reading a thriller by her favourite author, Louise Penny, rather than a government report. Her team confirmed two very dodgy contracts, and came up with a third one the opposition hadn’t known about. It was the stuff of fiction: the sponsorship scandal had tendrils everywhere. Sheila immediately ordered a government-wide audit. In her report to the Chrétien government, she notified Minister Boudria that she had also referred the matter to the RCMP.
What made the situation “extremely offensive” to Fraser was that internal audits had already revealed problems with ad sponsorship contracts, yet nothing had been done. And that was despite the fact that the person in charge of the program was the prime minister himself. An estimated $100 million had been funnelled to government-friendly ad agencies in Quebec, for which the public got little or nothing in return. “I was really shocked that all this was happening in an era of cutbacks,” Fraser told me. “Money was being spent, millions of dollars, for nothing. Even the RCMP was in on it.”2
TV Cinq in France picked up the story, and it was quickly shared with French-speaking countries in Africa. At an international conference of supreme auditors in Budapest, African auditors general approached Auditor General Fraser with questions and deprecating comments about the sponsorship scandal. There was considerable embarrassment, she recalled, because “we were supposed to be a world model of good governance.”
The sponsorship scandal marked the bitter end for the little guy from Shawinigan, and a rocky start for his successor. Sheila Fraser may never have met Jean Chrétien, but she and Prime Minister Paul Martin kept running into each other by “happenstance.” At one such chance meeting in Europe, Martin quipped, “Sheila, we’ve got to stop meeting like this.” Although she noted that Martin and his people could be “quite nasty” (Martin’s president of the Treasury Board, the late Reg Alcock, had tried to cut the AG’s budget), Sheila described her relationship with the new prime minister as “polite and correct.” That rapport was remarkable, given that the AG’s final report on the sponsorship scandal landed on Martin’s desk just two weeks after he assumed office. “It caused an enormous flurry,” Fraser recalled.
Indeed. The report left the newly minted prime minister faced with one of the deadliest dilemmas in Canadian political history: whether to hold a public inquiry into an episode so sleazy that it threatened the foundational credibility of the Liberal Party, or to brazen it out. If Martin went ahead with an inquiry, it also stood to overshadow his laudable stewardship of the economy as minister of finance, which had included taming Canada’s deficit, paying down the debt, and recording seven straight budget surpluses.
Martin did the right rather than the political thing. He went with an inquiry and left it to Mr. Justice John Gomery of the Quebec Superior Court to lift all the rocks in the sponsorship affair—a decision that blighted his prime ministership and mortally wounded his party. But it also gave the country a degree of closure on one of the low points in Canada’s national life—and garnered respect for Martin on the long hours of the historical clock.
Rather than shooting the messenger—in this case, Sheila Fraser—Martin’s approach was to deal with issues outside of the scandal fairly, and as they arose. Fraser wanted to see, for example, what the Liberals had done with huge surpluses Martin had built up after reducing dangerously high deficits from the Mulroney era. Ten billion dollars had been moved into special “foundations” such as the Innovation, Millennium, and Scholarship funds. The oddity about these transfers was that the government did not control the money. Instead, it was administered by a board of directors. If the fund failed, the remaining money in it did not go back to the government but rather to those who had been receiving it. The auditor general wanted that changed. Following her recommendation, the prime minister agreed to put the finances of these cash-rich foundations back into the financial statement of the Government of Canada. Although Fraser concluded after investigating that the board of directors had actually done a “pretty good job” of managing the money, the funds were now more accountable and transparent.
Despite the devastating impact of Fraser’s work on his government, Prime Minister Martin actually increased the powers of the auditor general. After the scandal, the AG was given access to all Crown corporations, including Canada Post, whose boss, André Ouellet, had famously refused to cooperate with her office. The only exception under Martin’s reforms was the Bank of Canada. “There is some preoccupation with the independence of central banks,” Fraser told me with a wan smile.
Shortly after the 2006 election, Sheila Fraser had a personal meeting with the third prime minister of her public service career, Stephen Harper. It took place in his office in the Langevin Block. For the most part, the relationship was “fine.” One difference the AG noticed was that while she still worked closely with senior bureaucrats, Harper ministers were less accessible. From the very beginning of their dealings, Harper also tried to persuade Fraser to modify the powers of the auditor general. As stated in the Conservative election platform, the PM planned to grant the AG power to audit all loans and grants over a million dollars. On the surface, it looked like a responsible means of keeping a sharper eye on taxpayers’ money. But was it also a clever way of usurping the AG’s options, and more important, her independence? Would it turn an auditor into an exalted management consultant?
Fraser demurred. For one thing, accepting the PM’s reforms would mean that her office would be inundated with an avalanche of small audits—something she didn’t think was an appropriate task for the auditor general. It was up to agencies such as the Economic Development Corporation and the Federal Business Development Bank to devise their own financial administration systems, which would then be audited by the AG. The prime minister was “very courteous” in climbing down from his suggested reforms—though, as a lot of people would learn about him, he had a way of circling back until he got what he wanted. But the auditor general is a powerful player. “They didn’t want to mess with me,” Fraser recalled.
Inevitably, Harper did take her on. Fraser doggedly stood her ground. The collision took place over the interpretation of the order-in-council that laid out the rights of the auditor general to information—a confrontation she attributed as much to overzealous justice department lawyers as to politics. In those early days, Fraser perhaps underestimated the degree to which information control would become the central obsession of the Harper government. The Conservatives wanted virtually everything to be a cabinet confidence, a demand that would have placed the government’s actions beyond the scrutiny of the auditor general. (As it is, the Ministries of Information Technology and National Security enjoy that status.) Even though the Treasury Board Secretariat had a role in Information Technology programs (the auditor general’s meetings with the Treasury Board and the Secretariat were important because both briefed cabinet), even that body wanted to refuse all documents to the AG, including emails between bureaucrats.3
Sheila Fraser eventually got the Harper government to adopt a new order-in-council clarifying the access rules from the 1980s in her favour. Perhaps there was a soft spot for the AG’s office in certain quarters of the Conservative administration. John Baird’s stepmother had once worked in the office and the future Treasury Board president had “read AG reports as a kid.” But soft spot or not, Fraser didn’t get everything she wanted from Stephen Harper. Although the AG had the right to see cabinet directives, for example, she was shown only the final decision, not the drafts. The distinction is significant. Only the drafts of those decisions contain the reports and the rationale upon which cabinet has acted. Holding those drafts secret, Stephen Harper’s decision-making process was still opaque. The struggle over access to information taught Fraser that the AG’s office had “always” to be vigilant on matters of interpretation with the Harper government.
Vigilance was also the order of the day when it came to how the Harper government tried to piggyback on Sheila Fraser’s universal reputation for probity. When the Conservatives hosted the G8 and G20 Summits in Ontario in the summer of 2010—spending $1.1 million on posters and even using taxpayers’ money to construct a fake lake—they faced a firestorm of opposition criticism. The event was notorious in its own right, with mass arrests and the kettling of innocent bystanders by overly aggressive police, who were later found to have abused their authority. In an odd way, the over-the-top Liberal ad showing troops in Canadian cities that appeared on the party’s website during the 2006 election found its haunting echo over that weekend in Toronto—some ten thousand uniformed police and another thousand private security guards were deployed.
But the self-styled prudent managers of the Harper government had also burned through nearly a billion dollars of taxpayers’ money in hosting the planet’s potentates. It was ten times the amount anyone else had ever spent on these events—and ten times the deplorable financial waste resulting from the sponsorship program. The Harper government’s largesse included $50 million for widespread and unauthorized rural renewal of cabinet minister Tony Clement’s Muskoka riding (site of the G8 Summit)—monies lifted from the Canada Border Services budget and never separately approved by Parliament. Sheila Fraser was not impressed. “Look at the fuss over $900 for an honour guard the RCMP had to repay and it makes the point,” Fraser told me. “Yet $50 million blown in Tony Clement’s riding didn’t get a hearing. It was completely unacceptable from a financial administration point of view.”
Given her feeling about “Gazebo Tony” and public washrooms built 20 kilometres from summit venue sites, “unacceptable” was about to become “outrageous.” At the height of opposition attacks, the Harper government reported to Parliament that the auditor general herself had praised its summit spending. “I never said that,” she recalled thinking when she read the false report. “What the hell are they talking about?” In fact, the quote used by the Conservatives had been uttered by Fraser—but in praise of a former Liberal government initiative from years earlier. Outgoing Harper cabinet minister Stockwell Day later apologized to the AG, who graciously accepted the government’s claim that the misleading quote had not been issued intentionally. “Still,” Fraser told me, “you would think someone might have checked before making that kind of public blunder.”
Other attempts were made to exert control over Fraser’s office. The Harper government tried to force the auditor general to seek approval from the minister of finance for any expenditure over $5,000, a gauche attempt to remind Fraser’s office who was really in charge. Fraser took the battle straight to the clerk of the Privy Council, Wayne Wouters. “There was no way we were going to have an expenditure of the office okayed by politicians or ministers.” The “offensive section was removed”—with one exception. Harper refused to permit the auditor general to run recruitment ads for her office bearing Canada’s coat of arms—a practice adopted by Fraser expressly to assert independence from the government. As an item of “communications policy,” Harper insisted that any advertising from the AG’s office had to be accompanied by the Canada logo.4 On the issue of branding, this was a Conservative priority carried to outlandish and, some have argued, improper lengths. Harper never budged, the AG never blinked, and the ad never saw the light of day.
But after winning his majority, Harper did succeed in making a major change to the role of the auditor general that diminished the office and reinforced the government’s chokehold on public information. In the previous Conservative minority governments, the auditor general had been actively engaged with parliamentary committees—in particular, the Public Accounts Committee. After the 2011 election, Fraser made written offers to continue the practice but was greeted with a terse “No thanks.” As the committee system and the bureaucracy became steadily more politicized, Fraser thought that her independent input was needed more than ever. Invited or not, she decided to do something about it, especially when politicized bureaucrats began stretching the truth. “There were a number of committee meetings where deputy ministers were called in but not the auditor general,” Fraser told me. “I would have to put up my hand as an observer to ‘clarify’ what the deputy ministers were claiming as fact.”
If Sheila Fraser was becoming skeptical of the Harper government’s commitment to openness and transparency, the list of reasons was long and growing. She had watched as colleagues such as the information commissioner tussled with the Treasury Board over budget requests. Fraser herself was turned down when she wanted to do a major audit across the entire government. “No one in government wants a ‘systemic audit across government,’ which would reveal how the broader system is working and what best practices might be,” she commented. “You can’t pick them up with a transactional audit. But the government refused funding.”
As her experience with the Harper government accumulated, Fraser became increasingly aware of a much graver development— the breakdown in parliamentary traditions and safeguards. It was evident in things both large and small. At the Public Accounts Committee, the practice had always been for the Opposition to ask the first question. That privilege was usurped by the government. The Harper government also worked assiduously to shut down debate as quickly as possible. It moved committee proceedings behind closed doors, where members could not talk about the content of the in-camera sessions. The intention was information control, and the first casualty was public debate. And another big blanket was used to suffocate the free flow of information: the shadow of the PM’s department, the Privy Council Office, fell across every decision. In Stephen Harper’s Ottawa, all roads led back to the prime minister. Those who worked most closely in the system, including Sheila Fraser, were appalled. “This government has the worst record on time allocation issues5 of any government I have seen. It is becoming a charade,” Fraser told me. Time allocation, limiting debate to a specific period of time, reduces the role of the opposition in debate and puts more power in the hands of senior management in the PMO. The executive gains more control at the expense of parliamentary debate. Even government members are silenced if they have questions about a particular measure.
The Harper PCO also vets all government decisions, even ones that were once made by individual government departments. Fraser said, “There are very few things where a decision gets made without vetting by the Privy Council Office. There was a time when individual departments could decide certain matters on their own. The Harper government has replaced that with a system where everything must now be vetted by the PCO.”
Nor had Sheila Fraser ever seen an administration so willing to use the crushing power of incumbency against individual civil servants who traditionally operated at arm’s length from government. Distinguished public servants, from former Statistics Canada chief Munir Sheikh, to former parliamentary budget officer Kevin Page, had felt the lash of the government’s public displeasure after speaking out to oppose certain measures. And other victims had been on the receiving end of the government’s political wrath. Fraser knew the backstory of what really happened to the former chair of the Nuclear Safety Commission, and was alarmed at how Linda Keen, an exceptionally able public servant, had been driven out of office in January 2008. “What happened to Linda Keen put a chill through the federal system. This was not about Chalk River. This was about a government flexing its muscles at the ‘independent’ head of an agency,” she said.
Beyond individual cases of abuse, Fraser was concerned about the clear and present danger that the Harper government’s legislative approach represented to Canada’s democracy. A striking assault was being mounted on the traditions of Parliament, which was actually paralyzing the institutions by which Canadians were governed. Though Fraser had seen many improvements in the AG’s situation over her career—including increased powers, better audit personnel, and personal immunity from lawsuits—the authoritarian reflex of the Harper government was as unmistakable as the deliberate suppression of public information. “Parliament has become so undermined it is almost unable to do the job that people expect of it,” Fraser asserted. “A glaring example is the budget bill, where there was no thoughtful debate or scrutiny of the legislation. And the legislation was massive, much of it with little to do with the budget.”
The government had pushed through omnibus budget bills containing non-budgetary measures such as overhauls to employment insurance, old age security, food safety, immigration, fisheries, and environmental assessment laws with little or no scrutiny or debate. Many people saw this as dismantling the progressive state and social safety net that had been built over the last forty years. Bill C-38, introduced in March 2012, amended sixty different laws, repealed six, and added three more, including a rewritten Environmental Assessment Act. It drew protests even in Calgary.
The government used the bill to cut the budget to Environment Canada and gutted the regulations. The Navigable Waters Protection Act (NWPA) of 1882, considered Canada’s first environmental law, was changed to the Navigation Protection Act (NPA). The focus now is to protect navigation rather than navigable waters. Under NWPA, roughly thirty-two thousand lakes were protected. Under the new NPA, just ninety-seven lakes are protected, most of them in Conservative ridings. (Sixty-two rivers and three oceans are also protected under the NPA.) The rest of the waterways, an estimated 98 percent of the rivers and lakes in Canada, no longer have federal protection.6 Under the new act, construction of dams, bridges, and other projects would be permitted on unprotected waterways without prior environmental approval. The National Energy Board is now responsible for the oversight of navigable waters and fish related to pipeline and international power line crossings. Grassroots Conservatives at the riding association level wrote letters of concern to their members. The list of protected species was shortened, and the Kyoto Protocol Implementation Act was abolished. Parliament in effect rubber-stamped the Harper government agenda by passing the 425-page bill after a marathon session on June 13, 2012. Bill C-45, introduced in the fall, was more of the same.
The former farm girl from Dundee was not the only parliamentary insider who was beginning to worry about the direction Canada’s democracy was taking.
AS IDYLLIC RETREATS go, Peter Milliken’s cottage on Hurds Lake is something special. The lake itself is deep, spring-fed, and crystal clear. The cottages that dot the heavily wooded shoreline are well spaced and private, but the one belonging to the longest-serving Speaker in the House of Commons history is splendidly aloof. A fifteen-minute boat ride gets you from the mainland to Milliken’s Island, where the owner is the lone human inhabitant. All along the route, Milliken relatives wave from their docks, tanned and relaxed as characters from an F. Scott Fitzgerald novel.
The vintage cottage in the heart of Greater Madawaska near Renfrew is a transplant. Set back from its wooden wharf, encircled by trees, it was “pulled over the ice” from its original location 2.5 kilometres down the lake after Milliken bought it in 1971. Milliken asks me to carry a box of wine to the cottage. A quick peek at the labels makes me choose my steps very carefully—any one of the bottles could have caused excitement at Sotheby’s. Inside the building is an enamel and stainless steel woodstove that vents through the roof. The musk of family history is as strong as the old-wood smell of the cottage itself.
The walls are festooned with Milliken’s grandmother’s oil paintings, many of them depicting Peter frozen in the childhood of long-gone summer days. While my host gets me a beer, I stop for a moment in front of one painting where he is again the subject—a cosseted boy of seven or eight lounging in bright blue pajamas. Resting in the rafters is a gleaming red canoe—symbol of Milliken’s lifelong passion for extended paddling expeditions in Canada’s Far North. Outside, down a path through the woods, is the privy—on its door, a hand-carved sign that always wins a smile from visitors: “The Leaker of the House.”
Like Sheila Fraser, Peter Milliken came from a large family— the eldest of seven siblings. His father was a doctor in Kingston, and the family had roots going back to the United Empire Loyalists. From the beginning, politics intrigued him. At sixteen, he was already a subscriber to the official record of the House of Commons, Hansard. His route to public life followed a rigorous path of higher education, with stops at Queen’s, Oxford, and Dalhousie Universities. While at Queen’s, there were intimations of his future: he served as Speaker of the Student Government’s Assembly. In 1973, he was called to the bar and eventually became a partner in the well-known Kingston law firm Cunningham Swan Carty Little & Bonham.
The Liberal Party could not have found a better candidate to run against Progressive Conservative legend Flora MacDonald in the 1988 “free trade” election. Milliken’s community credentials were blue-chip—respected lawyer, trustee in his church, a governor at Kingston General Hospital, and member on the board of the Kingston Symphony. Although the Mulroney Conservatives won a majority that year against John Turner’s Liberals, Milliken bested MacDonald by nearly three thousand votes and became his party’s critic for electoral reform.
Soon afterwards, Milliken was named to the parliamentary committee that dealt with elections, privileges, procedures, and private member’s business. He came into public life with an extensive knowledge about parliamentary procedure dating back to his boyhood fascination with Parliament; after just a few years as an MP, he became a formidable expert. In January 2001, after five gruelling ballots, Milliken was elected Speaker of the House by a vote of all MPs. It was the beginning of a remarkable four terms in the Speaker’s chair. On October 12, 2009, he officially set the record for the longest-serving Speaker of the House of Commons in Canadian history.
From their first meeting, Milliken found Stephen Harper to be distant and taciturn, traits the Reform MP shared to a degree with Pierre Trudeau but without the Liberal icon’s engaging intellect. “Harper wasn’t a big personality and didn’t make much of an impression,” Milliken told me. “The truth is I can’t remember him very well. He was not a friendly guy, he was standoffish and aloof. He was not one of those guys who wanted to be friends.” Even after Harper became prime minister, Milliken observed that he was almost never seen outside the House of Commons: “You rarely see him at parties. He doesn’t drink and that may be part of it.” In Milliken’s experience, about the only place you might “run into Harper” was at state functions—Rideau Hall, military awards, or foreign receptions. When Milliken was sworn in as a privy councillor, the prime minister and the deputy clerk of the PCO showed up. It was something of a Quaker meeting. No personal conversation took place and no congratulations were offered. “I had good office-to-office relations with him,” Milliken recalled, “but no personal relationship. Zero.”
There was another oddity. As Speaker of the House of Commons, Milliken had become concerned over the bitter atmosphere in Parliament. In an effort to temper the often crude political jousting, Milliken thought it would be a good idea to provide a forum where the contact between MPs could occasionally be social rather than political and adversarial. So every Tuesday evening in the Speaker’s dining room, Room 216, Peter Milliken hosted get-togethers. “I held Speaker’s dinners for all MPs and leaders,” Milliken told me. “The idea was to get people to know each other, to not be so partisan. . . . The tenor in the House of Commons today is more caustic than it has ever been in my experience. . . . Harper never accepted one of those invitations.”
The prime minister was no better at extending invitations than he was at accepting them. The Speaker of the House of Commons is the fifth-highest officer in Canada’s parliamentary pecking order, yet when Prime Minister Harper entertained at home, Peter Milliken was never among his guests. “As Speaker, I was never invited once to a reception at 24 Sussex. In fact, there are not many parties at this PM’s house. That’s a real departure from Chrétien and Mulroney. Once or twice a year, they did major entertaining at the PM’s residence.”
One of the things that Speaker Milliken had become famous for was hosting lunches at Foreign Affairs whenever a departing ambassador was in need of an official farewell. His speeches were erudite, his toasts witty, and the man who could also sing like an angel from years in two choirs in Kingston was much sought after in the diplomatic community—at least until Stephen Harper moved into 24 Sussex. Milliken found it “amazing” that the prime minister showed no interest in diplomatic matters, an aversion he expressed by sending junior officials to host those lunches on the upper floor of the Pearson Building. Milliken observed that Harper’s comfort levels were highest with people who often had the least experience and the least to offer: “I find it shocking these people have been at times so inexperienced and incompetent, but seem to enjoy telling seasoned public servants with decades of experience what to do.”
In a career full of drama and history-making events, including casting more tie-breaking votes in Parliament than any other Speaker (five of the ten such votes since Confederation were his), Peter Milliken will go down in history for a series of rulings he made that went to the heart of the powers of Parliament and so to the heart of Canadian democracy. Yet remarkably it was met with public indifference. In the first one, rendered on April 27, 2010, he addressed a point of privilege, having to rule whether Parliament had the right to send for persons, papers, and uncensored records, and whether government had the obligation to provide them. The Opposition had demanded documents on the transfer of Afghan detainees into the hands of local authorities who may have tortured them; the government had stonewalled. Milliken decided that parliamentary privileges had been breached.
But in typical Milliken fashion, the grave process unfolded with a light touch and an appeal to compromise. In making his ruling that the government indeed had an obligation to produce documents to Parliament, the Speaker deftly handed the issue back to the politicians, asking that all House leaders, ministers, and MPs work out a collective solution to hand over the required documents, but without compromising national security. Although the MPs took longer to work out a compromise than Milliken’s ruling had stipulated, a solution of sorts was produced. An all-party committee would examine the documents to determine which could be made public without violating security or confidentiality requirements. If the committee disagreed, a special panel of three judges, including two former justices of the Supreme Court, would consider the matter. The NDP did not participate in the committee because they did not have confidence in the document vetting process. The party accused the government of trying to suppress the truth by keeping the vast majority of the forty thousand documents about prisoner transfers from Canadians. Instead, the NDP demanded a full public inquiry.
Less than a year later, Peter Milliken made a historic ruling, finding Stephen Harper’s government in contempt of Parliament—the first time in the British Commonwealth that a sitting government had been so judged. Milliken’s finding was sent to the Procedure Committee, which agreed with the Speaker’s ruling. On March 25, 2011, the full House of Commons voted non-confidence in the Harper government, triggering an election. Milliken remains convinced that the government had earned the ultimate rebuke in the Canadian system of government: “Harper deserved to be found in contempt of Parliament. Committees of Parliament have the right to demand the production of documents; the government didn’t oblige. The PM seems to have forgotten that the government is the servant of the House. And that is all governments.”
If it was a historic procedural defeat for a government whose first instinct was to flout the rules, it didn’t resonate with the Canadian people. In the ensuing election, Harper won his previously elusive majority government. One of the first things he did in June 2011 was to kill the all-party panel looking into the Afghan detainee issue.7 The NDP had been right about one thing: Canadians would never learn the facts about the detainee issue under the flawed process that had been set up. The end came in the form of a declaration by Harper cabinet minister John Baird that the work of the all-party panel was over. Baird made two claims in his announcement: that the accusations of wrongdoing by Canadian forces had been “unfounded” and that the process had cost $12 million.
Neither statement was true. In the end, the government had released only four thousand of the forty thousand requested documents, and even those were censored—hardly the warrant to dismiss the serious allegations of Canada’s number-two diplomat in Afghanistan, Richard Colvin. And Baird’s $12-million figure was not just for the work of the all-party Afghan panel. It also included the costs of finding and redacting documents for two proceedings of the Military Police Complaints Commission, which the government had also stonewalled.
Andrew MacDougall, the then PMO director of communications, provided another slant to shift blame from the government over the fact that the panel was being disbanded long before its work was completed. MacDougall told reporters that the opposition parties had actually been responsible for killing the process, by supporting a non-confidence motion to defeat the Harper government. Like so many other things coming out of the PMO, this was simply not true. “I’ve never heard what happened on the [all-party Afghanistan] panel,” Peter Milliken told me. “I’ve asked Stéphane [Dion] but he’s been sworn to secrecy. As far as I know, the documents have never been produced. I guess some might think that the whole process was dissolved when Parliament was dissolved for the last election. That’s not so. The panel was not created as a committee of Parliament. It was set up by Order of the House. It still exists.”
Outside the cottage, we take a path to the point of land where Milliken’s small guest cabin sits. He talks about institutional developments that endanger Parliament as it has never been threatened before. At the top of his list is the steady, disturbing, and pernicious growth of the power of party leaders in Canada, most especially the prime minister. Milliken notes that other prime ministers, such as Pierre Trudeau, certainly expanded the powers of the PMO and diminished the role of MPs. But Stephen Harper has become the “leader” of this democracy-killing centralization. This centralization is leading to a “qualitative” change in Canada’s governance model, Milliken told me. For every increase in the power of leaders and the prime minister, a corresponding reduction occurs in the status of MPs. “They are far less important today than they once were,” said Milliken. “I don’t think that’s the way it’s supposed to be. MPs are supposed to represent their constituents. They’re supposed to be free to speak on their behalf. They’re supposed to have diverse views within the party. Harper does not encourage that conversation. It used to be speaking in the Parliament and answering questions was an MP’s prerogative. . . . There are actually Conservative backbenchers who literally haven’t spoken for years in the House.”
In fact, until Milliken’s successor, Speaker Andrew Scheer, ruled differently on the matter, the Harper PMO decided who would speak in debate in Parliament, drawing up lists of Conservative MPs who were authorized to speak.8 It was also the leader who unilaterally threw members out of caucus, and retained the dubious ability to trump the decisions of riding associations on candidates. “Another extraordinary thing that Harper did was to throw Helena Guergis out of caucus,” Milliken recalled. “She was kicked out by a party leader. I feel strongly that this should be a caucus decision. I also strongly believe that no leader should have the power to veto a candidate who is chosen by their riding association. Leaders should never be allowed to choose candidates.”
Milliken, like Sheila Fraser, was appalled by the government’s extensive use of omnibus legislation. Loading huge amounts of unrelated legislation into one indigestible bill not only made it impossible for opposition MPs to discharge their fundamental task—the scrutiny of the government’s legislation program—it also turned the budget process into a farce. Scores of bills that had nothing to do with the budget were being tacked on with one purpose in mind: to introduce radical change without debate, scrutiny, or financial information. From Peter Milliken’s perspective, the practice could collapse Parliament unless reforms are brought in to regulate how omnibus legislation is used. His misgivings were nicely expressed in an intriguing question: “What are we going to do when a private member brings in a bill that amends fifteen or twenty pieces of legislation?”
When Milliken retired after serving ten years as Speaker of the House of Commons, he received accolades from both sides of the House. One of the highest came from the then government house leader, John Baird. Stephen Harper’s right-hand man recounted how the Speaker of the British House of Commons had told him that he and Speakers from around the Commonwealth saw Milliken, six times elected MP and favourite son of Kingston, as their leader and model. That day on Hurds Lake, the consummate parliamentarian and passionate Canadian offered an appraisal of his own about the government in which Baird plays so central a role: “Parliament can hardly be weakened any more than it already is. Harper can’t go much further without making the institution dysfunctional. He is trying to control every aspect of House business. In fact, it will have to be returned to its former state by someone if we are to have a democracy.”
DUNN’S FAMOUS DELI at 220 Elgin Street was a good place to meet the man who just can’t seem to retire—Robert Marleau. Dunn’s is just a hop and skip across the street from his latest office: he is now the integrity ombudsman at Ottawa City Hall. During his thirty-one years in the federal public service, Marleau has faced plenty of problems, but a lack of job offers has not been one of them.
In fact, he may hold the record in Ottawa for paths not taken. Consider the posts that were offered and declined: clerk of the Ontario legislature, 1986; privacy commissioner, 2003; ethics commissioner, 2004; access to information commissioner, 2005; and the Senate seat of retiring franco-Ontarian Senator Robert Gauthier. Marleau did accept an offer of Senate ethics commissioner from the then government leader in the upper chamber, Jack Austin, but doubt crept in. “A few days later, just before the motion for appointment went on the notice paper, I withdrew. Sober second thought . . . narrow escape in hindsight,” Marleau told me.
But all the refusals did not stop Marleau from becoming one of the legendary figures of the federal public service. He is a kind of commissioner of important nouns, having served in the country’s top job in Privacy and also Information at the federal level— after initially turning the posts down. Marleau was also clerk of the House of Commons for thirteen years, making him one of the keenest experts on parliamentary practice in the country. (A manual he published is now a reference book on house procedure in many parts of the Commonwealth.) Ironically, he never applied for the post that came his way in 1987. “I was called in one day and told I was now the Clerk [of the House of Commons].”
Marleau had certainly come up in the world since his student days when he worked at the Central Experimental Farm, Animal Division. His main task was forking manure, a chore he quipped was “good prep” for his future career. As healthy as the work sounded, it was not without its perils. “When we would pass out from methane exposure in the manure pens, Barn Boss would send us up the mow to haul hay bales. I was deadly allergic to hay dust, but I needed the $1.65 an hour.” A strong work ethic was ingrained in the Cornwall native by the francophone family he grew up in. His father, Roland was a dental technician, and his mother worked as a checkout cashier and sometime waitress. Robert attended Cornwall Classical College, where he got what he described as “Jesuit” training from people who “knew how to educate and build strong character.”
He also showed a strong athletic side. Marleau was a hardtackling corner linebacker in college football and was the Most Valuable Player on his team in 1965. He finished off his university days at the University of Ottawa in 1969. After graduating, he joined the House of Commons in 1970, planning to stay for two years. His calculation was slightly off; he left in 2001.
Marleau escapes from the stresses of his high-pressure jobs into his tightly knit family. He met his wife in 1964 on a swimming raft in the St. Lawrence. The girl in the bright orange onepiece made quite an impression. They started “going steady” in 1965. Two sons, four grandchildren, and forty-three years later, they are “still going strong.” For deeper escape, Marleau built himself a wilderness cabin. To this day, it is off the grid and has no running water. Like his former colleague, Peter Milliken, Marleau likes an early-morning canoe paddle.
Information commissioner of Canada from January 2007 to June 2009, Marleau has seen a lot changes, many of them for the worse, over his three decades in public life. He is a firm believer that the quality of a democracy can be measured by the depth of information its citizens hold about their government’s actions. Long-time public servants like Marleau remember a healthier time in Canadian governance: a time when releasing public information was actually done by getting answers to questions on the Order Paper in the House of Commons. A time, before changes brought in by Pierre Trudeau, when the old Committee of Supply went through the budget estimates, or the Blue Book, line by line—no matter how long it took. Now the “guillotine” date of June 30 must be met and, in Marleau’s words, “The House has abandoned its constitutional obligation with respect to reviewing the estimates. . . . There is a very tight hold on information.”
The man who has had a front-row seat to the sea change in Parliament’s traditional morphology thinks the public was better served by the former methods of getting information out. Getting direct answers to direct questions was much better than resorting to the codified provisions of today’s Access to Information Act, freighted as it is with tools for manipulation, delay, and inconvenience. “The federal government used to be the best at sharing information,” Marleau recalls. “Now we are last in our own confederation. Mexico has a better record than Canada.”
Marleau first met Stephen Harper when Harper worked for Calgary MP Jim Hawkes and Marleau was clerk-assistant in the House of Commons. Marleau’s main job was to call votes, so the two men were often thrown together. At the time, Hawkes was the chief party whip for the Conservatives. The “whip” could substitute people on committees by signing a form and giving it to the clerk. Harper’s duties with Hawkes included keeping Conservative MPs who sat on parliamentary committees in line. In those days, Marleau didn’t particularly see Harper as a control freak; working for the whip, control was merely his job. “The idea was to populate committees with friendlies, move in your goons, and get things done,” Marleau told me.
On a personal level, Marleau’s first impression of Harper was that “he did not fill a room with charisma.” But he had a professional demeanor, and was a solid political staffer loyal to Hawkes. He even had an eye for better office space for his boss, or so Marleau suspects. As clerk-assistant, Marleau had a prime, ground-floor office on the west side of Centre Block. After having some dealings with Harper, he coincidentally received notice that he was to move to new quarters—a cubbyhole on the north side of the building. The new occupant of his old office was none other than Jim Hawkes—along with his faithful employee, Stephen Harper.
Suspicions of strategic evictions aside, the working respect between the two men continued after Stephen Harper was elected as a Reform MP. Marleau noted that Harper’s demeanour did not change from his days as a staffer with Jim Hawkes. Marleau regarded Harper as a professional politician reminiscent of Joe Clark—a person whose early experience outside politics was narrow and unremarkable. As for Harper, he must have been impressed with Marleau. Just before the election that made him prime minister, Harper confided in the then-retired Marleau, “I’m having a hard time getting people to fill senior positions.” Marleau advised Harper to “give it some time,” pointing out that while he was still leader of the Opposition, any truly non-partisan candidates for public service positions would be hesitant to commit to him. But all that would change if he became prime minister. Harper made no offer to Marleau, but did probe for his intentions. The man who had retired in January 2001 told Harper he was “content in retirement.”
After becoming prime minister, Stephen Harper continued to court Robert Marleau. The approaches were deft, discreet, and persistent. The first came in the summer of 2006, when senior personnel from the PCO informally asked Marleau if he would participate in an open competition for the job of information commissioner. Marleau respectfully declined. A few weeks later, Marleau received a phone call from Margaret Bloodworth in the cabinet office. She extended a breakfast invitation. Bloodworth explained that she was calling at the prime minister’s request. The offer was straightforward. Harper wanted Marleau to become interim information commissioner for a six-month term under the statute. Administrative “renewal” in the office was needed, along the lines of what Marleau had already brought about as privacy commissioner
It was a tricky matter. Marleau knew better than most that reform was needed in the government’s Access to Information office: he had faced similar issues as privacy commissioner. But he also knew that six months was not enough time, as he put it, “to change anything.” Once other public servants learned of the term of his proposed posting, they would simply wait him out. Marleau was also concerned about Stephen Harper and his relationship with the institutions of government. He remembered how Harper had made clear that he believed the system was against him: a Liberal Senate that would limit his actions as PM, an interventionist Supreme Court that would challenge his policies, and a Liberal-appointed public service that would only reluctantly implement his plans.
In the end, Marleau signed on for a seven-year term with a mandate to deliver a legislative renewal package for Canada’s Access to Information office. To clean house and come up with something better was no mean task, not with more than five thousand information requests in arrears to work through the system. But the experienced public servant set clear conditions on the deal, some of which were not public at the time. His appointment was to have the unanimous support of the House of Commons and the Senate. It was also agreed in advance that he would not complete a full seven-year term—a detail known to both the prime minister and the PCO. Instead, after putting a legislative proposal to Parliament and arranging a succession plan for a new commissioner that the government “could not easily manipulate,” Marleau would be free to leave whenever he wished: “I always leave posts at the time of my own choosing. . . . Saw too many egos go bust on the steps of the Centre Block.”9
Robert Marleau had many reasons for serving only two years of a seven-year appointment—the principal one being that a partial term had been the plan from the beginning. But other considerations contributed to hastening his departure. Because of the resistance he felt from the Harper government to the kind of change he thought was needed, Marleau came to the conclusion that the remaining years of his seven-year appointment would be “given over to advocacy at a disputatious level, rather than doing the main job.” So what might be in dispute? Playing well with others. Marleau thought “relationships” were needed to improve information flow, including the kind of partnerships he proposed before committee, which I asked him about. “When you mention my committee hearing comments on the need for government to have relationships with Parliament, the public and the media, I have to say there is no relationship under this government. All of those relationships have regressed. House committees are prevented from travelling the country; witness selection for committee appearances is done behind closed doors in in-camera meetings.”
The feeling in the air was that Stephen Harper did not much care for Parliament. As Marleau put it, “When his government was found in contempt, Harper treated it like a minor, partisan irritation. Parliament is now a minor process obstacle.” For a lot of Ottawa’s most experienced deputy ministers, a malaise had set in; it was so intense that many of the most senior public servants opted for early retirement. This was not because of the government’s policies, which they were prepared to implement as professional public servants. It was because of the way the prime minister related to parliamentary institutions. A circling of the wagons had occurred in Harper’s Ottawa that left the impression you had to be onside to be on the inside. Paranoia, not the promised perestroika, ruled.
Remarkably, the very man Stephen Harper courted to become his information commissioner arrived at the conclusion that the prime minister had “done nothing to improve transparency and information flow.” Not that the Liberals had done much better when they were in office, but the Conservatives’ Accountability Act promised better days for access, starting with the duty it created for deputy ministers to “assist” information seekers in their access to information applications. The new rule was supposed to have been “when in doubt, give the requester the benefit and disclose the information.” With few exceptions (the Department of Justice under Deputy Minister John Simms had a five-star access rating), it just didn’t happen.
This was partly because deputy ministers were “very unhappy” with their statutory duty to assist. They feared that if things went south on a request, that part of the legislation would expose them to blame. But the greater reason was that the public service had seen that the Harper government not only lacked a commitment to greater access to information, it was in fact the most secretive information regime the country had ever known. Silence was not just golden; it was Stephen Harper’s platinum standard. Harper said all the right words, but that was where his commitment to making information available came to an end. “It is no longer a trickle of information coming down from the top; it’s shut off,” Marleau noted. “In 2006, it was at first a fog over information in Ottawa, a fog over communications. Now, in 2013, there is a fear over information release and a black hole over communication. A foggy night in Newfoundland has turned into a dark night in Nunavut.”
What troubles Marleau most about the suppression of information under Stephen Harper comes down to four simple words: “Government spending goes unverified”—a stiletto through the heart of Canada’s parliamentary democracy. The Harper government creates new programs but suppresses their costs. It makes substantial cuts at the departmental level, but the details of what services are affected are kept secret. It proclaims policy without white papers or a word of debate. The late finance minister Jim Flaherty would bring in a budget but wouldn’t table the Planning and Priorities report to show how the funds would be allocated. Not even Canada’s parliamentary budget officer can penetrate the darkness. “The Harper government botched the Parliamentary Budget Office by putting it in the [Parliamentary] Library and then not giving it the resources to do its job. In particular, the role of the PBO in the estimates process should have been spelled out clearly in the legislation,” Marleau told me.
It was a subject he had thought about. Marleau had drafted an ingenious system to improve the way agents of Parliament and the Treasury Board worked together. Under the old system, budget estimates went to the Treasury Board and it was “something like going into a black hole.” The estimates came out again as decisions, but the decisions were offered without explanation. Marleau worked out a “preview system” so that the Treasury Board’s agents and officers of the House of Commons could better discuss relevant issues. If the parties couldn’t agree in direct discussions, there was an all-party panel that acted as a kind of dispute-resolution body. Since neither party wanted to end up in front of the panel, the system worked “exceptionally well”—as long as the budgetary demands fit the government’s fiscal framework. Stephen Harper ended the practice. Marleau made a last-ditch attempt to brief the then Treasury Board president, Vic Toews, about the advantages of a better relationship between officers of Parliament and the Treasury Board, but “it went right over his head.”
In conjunction with another development under the Harper government—the clear politicization of the clerk of the Privy Council and the PCO—this lack of cooperation between officers of Parliament and the Treasury Board made for a deadly combination. Canada’s chief public servant, Wayne Wouters, told an officer of Parliament operating under his statute that he couldn’t have budgetary details required to support the work of parliamentarians. Now it was not secretive politicians saying no to a legitimate request for public information; it was the top civil servant in the land. “When the clerk of the Privy Council says to a parliamentary officer, ‘You can’t have public information you need to do your job’ that is a political action,” Marleau told me.
Like his colleagues, Sheila Fraser and Peter Milliken, Robert Marleau sees a quiet and destructive revolution taking place under the nose of a country seemingly in a trance. “I see a government that is dismantling, piece by piece, a Canadian mosaic that in a small way a lot of us here helped to build. It is happening behind people’s consciousness of it, without the knowledge that it is happening. Canadians are sleepwalking through dramatic, social, economic, and political changes surreptitiously being implemented by a government abusing omnibus bills and stifling public and parliamentary debate. . . . We operate under Westminster rules—an honourable understanding that you will play within the rules and by the rules. Mr. Harper has not played within the rules. Having attained absolute power, he has absolutely abused that power to the maximum.”