Review of the Statutory Offices of Newfoundland and Labrador: Reconsidering Oversight Structures
Statutory officers hold an essential role in the Canadian parliamentary structure, but one that has been described as operating in a “constitutional twilight zone” underscored by their largely ad hoc development. In this article, the author describes a chaotic series of events in Newfoundland and Labrador which prompted the province’s Minister of Justice and Public Safety to launch a review of the operations of statutory offices. As a researcher for retired Justice Robert Fowler, the person tasked with conducting this review, the author explains how greater definitional clarity, added oversight, and processes for managing conflicts and independently evaluating officers seeking reappointment were among Justice Fowler’s general recommendations. Although the author notes the effectiveness of the team’s proposed recommendations nor their implementation cannot and should not be presumed, the Review of Statutory Offices hoped to reaffirm the role of statutory officers in promoting good governance. This article is based on the author’s analysis of the cited publicly available materials.
Gala Palavicini
Gala Palavicini is an MA candidate in Political Science at Dalhousie University. She holds a BA in Political Science and Russian Studies from Memorial University of Newfoundland.
In describing the role of statutory officers in the Canadian parliamentary structure, Paul G. Thomas provides what is perhaps the best description. Statutory offices, he argues, “occupy a kind of ‘constitutional twilight zone’.”1 Certainly, these parliamentary bodies constitute a strange category of their own, functioning independently from government. They are often responsible for key tasks of the political system, such as elections, as well as protecting individual rights, such as privacy and bilingual services, by ensuring the government policies and programmes comply with the law. Yet, despite the gravity of these functions, such statutory officers are also rarely properly defined; rather, they develop pragmatically to solve issues as they arise. Consequently, a recurrent challenge emerges – the absence of a legislative-defined role in a coherent oversight structure.
In Newfoundland and Labrador, these challenges were underscored by a lengthy and chaotic administrative and political saga of seemingly separate, but interrelated events. Starting with what was, at the time, an isolated incident involving a Minister of Municipal Affairs and Environment, the investigation trigged a series of inquiries that extended over four years, culminating in the controversial 2021 provincial election. Called in the middle of the pandemic, the election had the lowest turnout in provincial history, despite being the longest and costliest, as it struggled with mail-in-ballots. The election then drew additional concerns, resulting in whistleblower allegations targeting the Chief Electoral Officer (CEO), and a subsequent investigation by the Citizens’ Representative. These events ultimately resulted in the decision to not renew the CEO’s term, precipitating the need for an extensive review of statutory offices and their governing structures.
In December 2022, the Minister of Justice and Public Safety announced the appointment of retired provincial Supreme Court Justice Robert Fowler to conduct a review of the statutory offices and report to the Department of Justice and Public Safety with recommendations. The review, defined by its terms of reference, was designed to re-examine recruitment and competencies, appointment, tenure, re-appointment, compensation, reporting, conflict management, administrative oversight, and the possible amalgamation of duties and/or resources. The Review of Statutory Offices officially began in January 2023, after the research and legal teams were assembled, and lasted for nine months. Over this time, the research team conducted more than 30 interviews and received more than two dozen written submissions. The final report, with its 57 recommendations, was submitted to the Minister of Justice and Public Safety on October 5, 2023.
To understand the review and the circumstances that led to it, in this article I briefly provide a background on the statutory offices of Newfoundland and Labrador. Then, I examine the events that precipitated the need for this legislative review. Finally, I discuss a summary of recommendations proposed within the review, emphasizing the measures designed to refine and strengthen the oversight and management of statutory offices in Newfoundland and Labrador.
What are the statutory offices of Newfoundland and Labrador?
Although Newfoundland and Labrador is unique in its use of the term “statutory office,” the term “Officer of Parliament” is often employed to refer to a parliament’s independent, statutory offices. The federal Glossary of Parliamentary Procedure, for instance, defines an “officer of Parliament” as “a position responsible to one or both Houses of Parliament for the carrying out of duties assigned by statute.” The label, however, is used loosely and inconsistently, with no legal or federal statutory definition2. In fact, the term is used interchangeably with “Agents of Parliament,” which broadly defines agencies of Parliament, to distinguish them from other officers such as the Clerk of the House of Commons or the Sergeant-at-Arms. Essentially, the consensus in the literature indicates that no established or unifying definition has been reached, and that their identity and nature remain confusing in parliamentary politics.3 Considering the focus is Newfoundland and Labrador, and to avoid complications, I will only refer to these as statutory offices.
Part of the difficulty of defining statutory offices in Canada has resulted from the ad hoc development of these public bodies. Frequently, both at the federal and the provincial level, the establishment of these offices have followed a sudden interest to increase parliamentary oversight, or as a result of government scandals that have damaged public trust. Inevitably, every statutory office has a different mandate, oversees a different area of government, and requires different powers to carry out their duties and responsibilities. For instance, transparency or ombud statutory offices, usually responsible for ensuring government services comply with the law, require quasi-judicial roles. In Canada, at the federal level, one can think of the Commissioner of Official Languages and the Information Commissioner. These offices differ greatly, however, from democratic or legislative statutory offices, which are more involved in the operations of the legislature or the overall political system. For instance, at the federal level, the CEO and the Conflict of Interest and Ethics Commissioner, better fit this classification.
Notwithstanding variations or their improvised development, statutory offices serve the primary function of holding the executive and its bureaucracy accountable. This oversight is further designed to protect individual rights, by ensuring that public services are provided in compliance with the law. To carry out their duty of oversight, appointed officers are also expected to behave in a non-partisan, objective, and independent manner.4 Accordingly, statutory offices – irrespective of their mandate or the extent of their legal powers – share unique structural features that set them apart, and which safeguard their independence, namely:
- The establishment of statutory offices is codified through a parliamentary process, rather than a ministerial or cabinet order. This enabling legislation defines the specifics of their mandates, as well as their appointment, term of office, removal, and suspension.
- The appointment and removal of statutory officers requires parliamentary resolution, irrespective of how a parliamentary majority is defined by the act.
- Statutory officers serve for a fixed term, delineated within legislation. This fixed tenure ensures continuity and shields them from abrupt changes.
- As parliamentary bodies, statutory offices are directly answerable to the legislature and are mandated to report annually to parliamentarians through the Speaker.
- The process for determining budgets and staffing is legislated, and often requires an order from cabinet. However, statutory offices operate independently, both in their decision-making and the management of their own office.
In Newfoundland and Labrador, there are seven statutory offices, established by a separate legislation, and led by an appointed statutory officer: the Office of the Auditor General, the Office of the CEO, the Commissioner for Legislative Standards (CLS), the Office of the Citizens’ Representative, the Office of the Child and Youth Advocate, the Office of the Information and Privacy Commissioner, and the Office of the Seniors’ Advocate. The Auditor General was not within the scope of the review and is generally considered separate from the rest of the offices.
Like other jurisdictions, the positions of Office of the Child and Youth Advocate and the Office of the Seniors’ Advocate, are advocacy roles, with differing degrees of investigative powers. The Office of the Citizens’ Representative, on the other hand, serves the position of ombud, while the Information and Privacy Commissioner, serves a quasi-judicial role. A unique aspect of statutory offices in Newfoundland and Labrador is that the CEO and the CLS have shared the same appointed officer for most of the period since the CLS was first appointed in 1993. They are, nevertheless, considered to be separate offices, and are currently held by two separate officers in an acting capacity.
Reporting chaos: the events leading to the review
The issues addressed by the Review of Statutory Offices are best understood in the context that led to the review itself. Indeed, the events that preceded the review underscore the lack of role definition and the absence of appropriate oversight mechanisms.
In 2018, the dismissal of then-Minister of Municipal Affairs and Environment, Eddie Joyce, from cabinet and the Liberal caucus following a complaint filed with the CLS, Bruce Chaulk, marked the beginning of what would be a long saga in a whirlwind of reports. The complaint alleged inappropriate behaviour, prompting an investigation into Joyce’s actions, and culminating in the “October 18 Joyce Report” and the “October 19 Joyce Report.” While allegations of bullying and intimidation were dismissed, Joyce was found to have breached the Code of Conduct by unduly influencing a friend’s government hiring process.5 This prompted Chaulk to recommend Joyce be reprimanded. Suspension was proposed in an amendment on the floor during debate, but it did not pass. Another amendment – that Joyce complete respectful workplace training did pass. Therefore, the result was that he was reprimanded by the House of Assembly, he apologized, and he was required to complete and did complete respectful workplace training. Joyce was re-elected as an independent member in the subsequent 2019 election.
In 2020, nearly two years after the original complaint was lodged, Joyce filed a defamation lawsuit against several individuals, including former Premier Dwight Ball, the Speaker of the House, and Chaulk, as CLS, for the management of the investigation. Parallel to this lawsuit, Chaulk tabled the “November 3 Joyce Report,” recommending that Joyce be suspended for continued non-compliance in the disclosure of his financial records. The tabled report was perceived by the media as rooted in an escalating conflict between Joyce and Chaulk. The CLS claimed Joyce had tried to condition the disclosure of his records on the CLS answering questions about the 2018 reports and the investigation, while Joyce cited distrust of Chaulk for his refusal.6 The 2020 Joyce report was not dealt with prior to dissolution for the 2021 election. In 2022, following the tabling of the “April 12 Joyce Report,” which was substantively the same as the 2020 report, the Speaker appointed Gail Hamilton as a mediator. On May 18, 2022, Hamilton advised that Joyce had met his statutory obligations to report under the House of Assembly Act within the period stipulated by a motion adopted the Assembly adopted early that month.
As mentioned earlier, a unique feature of statutory offices in Newfoundland and Labrador is that the CEO and the CLS share the same appointed officer. As a result, while Joyce’s lawsuit against the CLS continued, Chaulk, as Chief Electoral Officer, was responsible for the management of the 2021 provincial election.
While it is not the point of this article (nor was it the point of the review and its report) to evaluate the management of the election itself, it is critical to note the election was marred by scandal to understand the context of what followed. Unexpectedly called in the middle of the COVID-19 pandemic, the 2021 election was the longest and costliest in provincial history, as challenges with mail-in ballots led to a historically low voter turnout. There were allegations, according to the CEO, that a candidate in the district of Humber Bay of Islands, where Joyce was running, had attempted to intercept special ballot kits. The allegation, however, went no further.7
The contentious election prompted an Opposition- led motion to investigate the 2021 electoral proceedings and proposed the suspension of Chaulk from his role as CEO. The motion, however, was defeated by a vote of 21 to 17.
The 2021 elections would, nevertheless, resurface when a whistleblower report was filed with another statutory office, the Citizens’ Representative, Bradley Moss, outlining allegations of misconduct within Elections NL. These allegations, made against CEO Bruce Chaulk, spanned issues of bullying, harassment, gross mismanagement, and nepotism. Among the 39 allegations, 10 were substantiated and presented in the Citizens’ Representative’s final report.8
The ensuing investigation into the 2021 elections led to a second saga of further reports. After Moss submitted the final report to the Speaker, confusion ensued as to what was the appropriate process for reports where one statutory office had investigated another. Bypassing the legislature in its entirety and often staying silent on its existence, the report was transferred from the Speaker’s Office to Cabinet, to the House of Assembly Management Commission. There, it was decided the report should be referred to a third-party, retired Justice Derek Green, for review. Meanwhile, Chaulk was suspended both as CEO and CLS.9
Justice Green’s assessment of the Citizens’ Representative investigation into Chaulk and the 2021 elections, found that seven out of the 10 allegations made against Chaulk warranted further action and the three allegations of pre-election planning and nepotism could warrant removal. However, Green also deemed the Citizens’ Representative investigation to be “unreliable” and “procedurally unfair.”10 Not only had Chaulk not been provided with an opportunity to question or challenge the evidence, but the Citizens’ Representative refused to provide Green with the identity of the key complainants in the report, despite Green guaranteeing confidentiality.
Following Green’s review, Chaulk was reinstated as CEO, but his suspension as CLS continued. On December 12, 2022, only 10 days before the judge dismissed Joyce’s lawsuit and awarded Caulk costs, the provincial government announced Chaulk would not renew his term as CEO and CLS despite being eligible for a second term.11
With these unprecedented events in mind, only now can we return to the event that immediately preceded the review of statutory offices. On November 8, 2022, the recently appointed Acting CLS, Ann Chafe, filed a final report alleging the Citizens’ Representative, Bradley Moss, had committed gross mismanagement in the course of his investigation against Chaulk, by intentionally disclosing confidential information and following procedures from other jurisdictions. She also recommended that Moss apologize in writing to Chaulk, the Speaker and the Clerk of the House of Assembly, for providing information to whistleblowers that caused reputational damage and stress. The Citizens’ Representative not only denied all allegations but refused to apologize, arguing apologizing would undermine his independence as a statutory officer.12
The Review of Statutory Offices and its recommendations
The undoubtedly chaotic nature of these events was reflected in the comprehensive framework of the review’s terms of reference. In trying to understand what could have prevented these issues or what could have ameliorated them, the Minister’s mandate of the review took an overarching approach. Areas included recruitment and competencies, appointment, tenure, re-appointment, compensation, reporting, conflict management, administrative oversight, and the possible amalgamation of duties and/or resources. The general structure of the review appeared to play a double role, seemingly suggesting that in finding solutions, the review would also successfully identify the problems that had caused the chaos in the first place. Could a “better” appointment process have prevented situations of mismanagement or procedural issues? Could conflict between statutory offices be managed and prevented? And, was the whirlwind of reports, which had caused so much confusion, necessary?
The structural review, entrusted to retired Justice Fowler, dealth with precisely the heart of the issues noted earlier in this article: statutory offices are established, perhaps too often, without sufficient role definition and with a significant lack of oversight mechanisms. These issues, which become engrained in ambiguous enabling legislation, not only lead to chaotic episodes as the one described before, but they can weaken statutory offices’ independence, complicate their ability to assist the legislature, and damage public trust. More importantly, however, legislative shortcomings related to statutory offices, threaten the functioning of the legislature itself and perhaps even the political system, if one considers the delicate tasks of statutory offices, such as the Chief Electoral Officer and the Commissioner for Legislative Standards. In many ways, the 2023 Review of Statutory Offices was the first attempt at understanding the overall role of these offices within the legislature, and whether the existing mechanisms ensured statutory offices remained independent from the executive. This type of review is not unique to Newfoundland and Labrador, however; according to a jurisdictional scan prepared by the provincial Legislative Library, similar reviews have been carried out in New Brunswick and the Northwest Territories.
Because the review was not a fault-finding mission, there would be little reason to hypothesize how the recommendations of the review would redress the issues that led to it. Instead, in its 57 recommendations, the review tried to primarily address the multiple areas raised by the terms of reference by attempting to better define the roles of statutory offices and by proposing accountability mechanisms. In doing so, however, the review did not prescribe what these roles should be, nor the specific mandates of each office, with a few exceptions. Rather, it primarily focussed on defining the role of statutory offices in relation to the legislature and members of the House of Assembly, through a standing committee, that could ensure their independence while emphasizing their subordinate role to the legislature.
Statutory offices, per their enabling legislation, are unequivocally accountable to the legislature, which is responsible for ensuring the appropriate performance of these offices. The creation of a standing committee is also designed to prevent confusion surrounding reports, including where they should be directed and how they should be processed. In effect, the intention of the review was not to direct legislature on what ought to do in every possible circumstance, but rather to provide a flexible framework upon which it could address arising issues.
The proposed “Statutory Offices Standing Committee,” whose membership reflects that of the House of Assembly Management Commission, would entail a new framework for overseeing and managing statutory offices. First, the committee would be empowered to create postings and advertisements for statutory officer positions, and control the recruitment, evaluation, and recommendation process for candidates to the House. The recruitment process would involve consultations with a variety of relevant entities to shape an inclusive and informed selection process. This proposal represents a significant shift in the appointment process. At the time of writing, statutory officers are appointed through a simple majority vote at the House of Assembly, after Government, on the approval of Cabinet introduces a motion for resolution in the House, to approve its preferred a candidate. The candidate is previously selected by Cabinet, from a list of potential candidates prepared by the Cabinet-appointed Independent Appointments Commission (IAC). It should be noted that the list prepared by the IAC is not binding.
The committee would also be empowered to create contingency plans in collaboration with existing statutory officers for situations involving resignations, incapacity, illnesses, or removal. In particular, the committee would have the ability to temporarily suspend an officer under specific conditions, including situations of incapacity or allegations of breach of conduct. As such, complaints related to officers’ behaviour or capacity would be routed through the Clerk for evaluation, and the committee would be informed accordingly to take appropriate actions, which may involve dismissal, caution, or a hearing for potential removal. For managing conflicts, the Standing Committee may also appoint an independent referee.
Finally, the Standing Committee would be responsible for conducting performance reviews, prior to re-appointment for a second term, ensuring confidentiality and the completion of reviews prior to the House’s next sitting. This process could involve the engagement of external services to ensure unbiased assessments. Similarly, the committee would assume the primary role in handling, receiving, and scrutinizing any reports tabled by statutory officers. Consequently, the Standing Committee’s mandate would involve the examination and evaluation of these reports, ensuring they align with prescribed standards of compliance, ethical practices, and statutory responsibilities. Moreover, the committee would have the authority to convene meetings or hearings where the reports can be presented, enabling statutory officers to clarify and contextualize their findings or concerns, as well as ensure that pertinent issues are brought to the attention of the House of Assembly.
The review also made additional recommendations, mainly focused on the specific mandates of each office, with the objective of better framing the scope of their mandates. Importantly, the review also recommended separating the roles of the Chief Electoral Officer and the Commissioner for Legislative Standards, as their combined responsibilities could lead to conflicts of interest. The recommendation included the expansion of the role of Commissioner for Legislative Standards to handle whistleblower and harassment complaints in both legislative and executive branches, in a role more akin to that of the federal Ethics and Integrity Commissioner.
Conclusion
Statutory officers are indispensable to the Canadian parliamentary system, holding critical positions that ensure the legislature’s proper functioning and safeguard individual rights. Despite their significance, these officers often operate under ambiguous enabling legislation, lacking clearly defined roles and robust structures for accountability and oversight. The risks posed by these inadequacies have been glaringly highlighted amid the tumultuous events in Newfoundland and Labrador politics. Provincial statutory officers grapple with fulfilling their responsibilities, hampered by the inability to present their findings directly to the House of Assembly. Furthermore, the confusion surrounding reports underscores the precarious nature of their independence, while conflicts between statutory offices and Members of the House of Assembly have led to escalating conflicts of interest.
Within this challenging backdrop, the Review of Statutory Offices sought to make recommendations aimed at re-centering the role of statutory officers within the legislature by proposing the establishment of a standing committee. This new parliamentary body is also envisioned as an avenue for ensuring accountability and oversight.
Although the effectiveness of these recommendations nor their implementation cannot and should not be presumed, the Review of Statutory Offices hoped to accomplish a loftier objective – reaffirming the role of statutory officers in promoting good governance. This objective most certainly necessitates the development of more comprehensive legislative structures that appropriately support and oversee these offices.
Notes
1 Thomas, Paul G. “The past, present and future of officers of Parliament.” Canadian Public Administration 46, no. 3 (2003): 288.
2 Ibid.
3 Bell, Jeffrey. “Agents of Parliament: A New Branch of Government?” Canadian Parliamentary Review Spring (2006): 15.
4 Stilborn, Jack A. “The Officers of Parliament: More Watchdogs, More Teeth, Better Governance?” How Ottawa Spends, 2010-2011 (2010): 243-260.
5 Tobin, Stephanie. “Eddie Joyce Crossed Line by Lobbying to Get Friend a Government Job, Report Finds | CBC News.” CBC News (Online). CBC/Radio Canada, October 23, 2018. Last modified October 23, 2018. https:// www.cbc.ca/news/canada/newfoundland-labrador/ eddie-joyce-harassment-report-1.4874918.
6 “MHA Eddie Joyce Should Be Suspended for Withholding Financial Records: Commissioner | CBC News.” CBC News (Online). CBC/Radio Canada, November 3, 2020. Last modified November 3, 2020. https://www.cbc.ca/news/canada/newfoundland- labrador/eddie-joyce-potential-suspension-1.5788010.
7 Roberts, Darrel. “Calls Grow to Make Secret Elections N.L. Report Public, as Government Stays Silent | CBC News.” CBC News (Online). CBC/Radio Canada, May 19, 2022. Last modified May 19, 2022. https://www. cbc.ca/news/canada/newfoundland-labrador/mystery- report-elections-nl-investigation-1.6459883; Butler, Patrick. “Elections N.L. Says Candidate Attempted to ‘intercept’ Ballots at Post Office | CBC News.” CBC News (Online). CBC/Radio Canada, February 8, 2022. Last modified February 8, 2022. https://www.cbc.ca/ news/canada/newfoundland-labrador/elections-nl- voter-interference-allegations-1.6338362.
8 Roberts, Darrell. “Bruce Chaulk Back in as Chief Electoral Officer – but Review Says Further Actions Still Possible | CBC News.” CBC News (Online). CBC/Radio Canada, October 21, 2022. Last modified October 21, 2022. https://www.cbc.ca/news/canada/newfoundland- labrador/bruce-chaulk-reinstated-1.6625132.
9 “Bruce Chaulk Suspended as Chief Electoral Officer; Investigation Underway into Elections N.L. | CBC News.” CBC News (Online). CBC/Radio Canada, June 28, 2022. Last modified June 28, 2022. https://www.cbc. ca/news/canada/newfoundland-labrador/bruce-chaulk- suspension-1.6504112.
10 Roberts, “Bruce Chaulk back in as cheif electoral officer – but review says further actions still possible.”
11 Moore, Mike. “Bruce Chaulk Won’t Return as N.L.’s Chief Electoral Officer | CBC News.” CBC News (Online). CBC/Radio Canada, December 13, 2022. Last modified December 13, 2022. https://www.cbc.ca/ news/canada/newfoundland-labrador/bruce-chaulk- elections-nl-1.6682821.
12 “No Apologies from Citizens’ Rep Following Legislative Standards Commissioner Report.” VOCM News. Last modified November 17, 2022. https://vocm. com/2022/11/17/executive-council-citizens-rep-clash- over-calls-for-apology/.