PPAL 6120
Ethics, Privacy and Access to
Information
March 3, 2009
Ian Greene
Introduction to Administrative Law, Ethics,
Privacy and Access to Information
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Schedule for tonight:
Brief Introductions
Course expectations
Electronic resources
Discussion about readings assigned for this
evening
Course Expectations
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Assignment on public sector ethics (15%)
Short paper on public sector ethics (25%)
Assignment on administrative law (15%)
Short paper on privacy and access to information
(25%)
Seminar participation (10%)
Seminar presentations (10%: 2X5%)
Alternative mark breakdown
Avoid Plagiarism
Introductions
• Name
• How does your work (current or past) relate to
ethics, privacy or access to information?
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Democracy, ethics, administrative law,
privacy and access to information
Democracy is government based on the principle of mutual respect, which implies:
– Social equality
– Deference to the majority
– Minority rights
– Freedom
– Integrity
These principles imply ethical duties for public officials: impartiality, fiduciary
trust, and accountability & responsibility. The 5 principles and 3 ethical duties are
supported by the legal principles of the rule of law, and the doctrine of fairness.
Ethics principles in the public sector are derived from mutual respect
Administrative law helps to promote the 3 ethical duties, supported by the rule of
law and the doctrine of fairness
Legislation and case law surrounding privacy and access to information are
derivatives of the principle of mutual respect, especially the principles of equality,
freedom & integrity, the ethical duties of fidiciary trust, and accountability and
responsibility. The case law surrounding privacy and access to information
provides examples of the application of the principles of administrative law.
Presentation: Chapter 1, Greene &
Shugarman
• Peter Skrypka
• Discussion
Presentation: Chapter 1, Kernaghan
and Langford
• Victoria van Hemert
• Discussion
Mullan Chapter 1
• What is administrative law?
– Admin law is one aspect of public law (others: constitutional
law and criminal law)
– The principles by which courts supervise supervise the
functioning of persons and bodies that derive their powers from
statute or the Royal prerogative. These persons and bodies
must respect the limits of their authority
– Abuse of power is acting outside legal authority
– Two concepts are central
• Procedural fairness (including natural justice)
• Jurisdiction (public persons and bodies must act within jurisdiction)
– Courts (superior) have jurisdiction over administrative tribunals
to ensure procedural fairness and intra vires
Boundaries of administrative law are
fuzzy
• Sometimes private organizations are regulated
by administrative law – eg membership (even
in religious organizations)
– Contracting out to for-profit or nonprofit agencies
• Dicey’s definition of the rule of law includes
“the equality of all before the law including
the subjection of administrative officials “to
the ordinary law of the land administered by
the ordinary law courts.”
The players, roles & limits
• Government:
– Formal head of government is the monarch, who has delegated authority to
the governor-general (federal order) and lieutenant-governors (provincial
orders)
– By convention, most royal “prerogative” powers are exercised by the first
minister and cabinet (executive)
– Many of the powers of the executive are prescribed by statutes
– The monarch and her representatives retain the “reserve power” – power to
act against the advice of the first minister to protect the constitution, written
and conventional
– Conventions are enforced by the political process, not by the courts
-Responsible government
-cabinet responsible to the legislature
-Ministerial accountability
-Cabinet solidarity
– Constitutional principles of the rule of law, and judicial independence, are
enforced by the courts.
• Public servants
Other players
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Administrative tribunals
Regulatory agencies
Crown corporations
Bodies created by statute, such as universities and
hospital board, professional organizations (eg. the Law
Society of Upper Canada), Indian band councils,
municipalities
• Sometimes affects foreign bodies such as visitors to
Canada, or foreign corporations doing business in
Canada. (Federal laws have extraterritorial effect)
• Those involved in gov’t procurement
Roles
• How much discretion should a statute give a
public servant?
– Dicey: none
– Jennings: in the age of social welfare, experts working
for government require discretion
– Mullan: “discretionary executive powers are at the
heart and sole of modern legislation.”
– Discretion involves choice, but according to the
relevant laws and regulations, and limited by the
constitution and procedural fairness/natural justice
Natural Justice & Fairness
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Natural Justice
– Nemo judex in sua causa (impartiality)
– Audi alteram partem (hear both sides)
Functions of Admin. Agencies:
– Legislative (eg. CRTC)
– Administrative (no discretion)
– Executive (discretion)
– Judicial or quasi-jud. (determine rights and
obligations)
Judicial review
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Judicial review
– Jurisdictional
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Division of powers
Charter of rights
Limits in relevant statute and regulations
If outside jurisdiction, “ultra vires”
– Abuse of power: public official acting without legal authority
– Natural justice: applies to judicial or quasi-judicial tribunals
– Doctrine of fairness: natural justice applied to all public
decision-makers where relevant
– Patently unreasonable decisions are ultra vires
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Privative clauses
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No appeal of the substantive issue to a court, but they can’t stop judicial
review
– Tribunal can’t hide behind privative clause if there is a const
issue, or if it is claimed a decision is patently unreasonable