FOR THE SAKE OF ARGUMENT

We need a new defense against so-called justice

DONALD C. ROWAT January 7 1961
FOR THE SAKE OF ARGUMENT

We need a new defense against so-called justice

DONALD C. ROWAT January 7 1961

We need a new defense against so-called justice

FOR THE SAKE OF ARGUMENT

DONALD C. ROWAT

The twentieth century has seen such a tremendous growth in the size and power of the executive side of government that it is quite possible nowadays for a citizen’s rights to be accidentally crushed by the juggernaut of the government’s administrative machine. In this age of the welfare state, thousands of administrative decisions affecting the lives of individual citizens are made each year, sometimes by lowly officials. And if some of these decisions are arbitrary or unjustified, there is no easy way for the citizen to gain redress.

It is true that, in the past, the courts were the bulwark of individual rights. But the common law has lost its flexibility and is no longer an effective instrument for remedying the wrongs of modern administrative action. The courts are too costly, cumbersome and slow, and the vast majority of administrative decisions carry no formal right of appeal.

Of course an aggrieved citizen might be able to take his case to his member of parliament. If the member happens to be sufficiently interested and belongs to the opposition, he might use it as a device for embarrassing the government in the question hour, or might even press for an investigation. But the celebrated Crichel Down case of 1954 in Britain — in which a landowner was a victim of the bungling of Ministry of Agriculture bureaucrats and upset their rulings only after years of effort — proved that if a British subject is to have his case investigated by this means, he must be rich, well educated anti persistent.

Let’s turn to Scandinavia

In short, our existing devices for protecting the rights of average citizens against executive power are inadequate, if not actually defective. Where can we turn to for help?

I suggest that we turn to the Scandinavian coundies, long regarded as models of democratic government. In social experiments, industrial relations and penal reform they have often been in advance of other democratic countries. The Scandinavian countries have a special parliamentary officer known as the Ombudsman, which might be translated loosely as citizens’ defender, grievance man. or public watchdog. His job is to receive complaints from citizens about the way in which they have been treated by government officials. to investigate these complaints if he thinks them justified and, where he finds that they are justified, to seek a remedy. Sometimes this involves no more than explaining fully to the bewildered citizen the reasons for the decision of which he has complained, and warning the government office in question that in future it must explain the reasons for its decisions more ful-

ly. Sometimes it involves directing a department to discipline one or more of its officers, or in more serious cases prosecuting in the courts an officer who has taken unlawful action. And on important questions of principle it might even involve recommendations to amend the regulations or the law.

In Canada we tend to be complacent because most of the cases that require remedy never come to light. Yet the few that do are sufficiently shocking to show that something must be done. Two notorious examples are:

□ The case of the Doukhobor children of British Columbia who were hunted down by police and placed in “educational concentration camps” because their parents’ religious beliefs prevented their going to public schools.

3 The case in which a sane young man named Robert Sauvé was incarcerated for three years, and others for shorter periods, in a Montreal prison madhouse amid unspeakable conditions of filth and squalor.

The Sauvé case came to light only because an unofficial volunteer Ombudsman, Jacques Hébert, wrote a book about it and persistently publicized Sauvé’s plight in a newspaper. The case of the Doukhobor children is one that graphically points up the need for Canadian Ombudsmen, because of Canada’s division of authority between federal and provincial governments. The children’s parents were admittedly breaking the province’s school attendance law. The wrong lay in the harsh and inhuman manner in which the law was enforced by the province while a higher power, the federal government, looked on from the sidelines, reluctant to act or even to comment because the case lay in the delicate area of provincial rights.

The Scandinavian Ombudsman is appointed by and is responsible to parliament and reports to a special committee of parliament. But he is entirely independent of the executive and even of parliament in his decisions on individual cases. His work is followed closely by the newspapers, and they often report and discuss his decisions.

Proof that even in democratic countries like Sweden supposedly responsible officials do indeed abuse their power is that over the years some very senior officials, including heads of royal boards and even five cabinet ministers, have had to be prosecuted by the Swedish Ombudsmen. (The Swedes have three Ombudsmen — one for civil affairs, another for military, and a third, the monarch’s legal adviser, who is responsible to the King and the government rather than to parliament.) A recent example of the civil Ombudsman’s work was the prosecution of a police chief and the public prosecutor of CONTINUED ON PACE 82

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For the sake of argument continued from page 10

In Sweden, the public watchdogs tackle courts and governments

a county for illegally confiscating a fisherman's boat.

Coming to mind as examples of a similar abuse of office in Canada are the theft of materials by soldiers at Petawawa a few years ago. the acceptance of a bribe by a B. C. cabinet minister recently, and the many recent cases in which civic officials have used their offices for personal gain. Most of these cases came to light only through public agitation ant! special arrangements for investigation. Their detection would have come much sooner — and no doubt others would have been detected — had Ombudsmen been on the scene.

The Ombudsman has a special responsibility for all questions concerning the liberty of the citizen -— in particular arrest and detention, since the detention of citizens in the bewildering variety of modern state institutions, such as jails, prisons, correction and welfare homes and mental hospitals, may easily involve the wrongful deprivation of liberty. For instance, in 1955 the Swedish Ombudsman had to prosecute a county governor for wrongfully detaining a chronic alcoholic. Anyone deprived of his personal liberty is entitled to address a written communication in a sealed envelope to the Ombudsman. In Canada, the previously mentioned Montreal madhouse case could easily have come under investigation in this way.

The Ombudsman may also investigate a situation on his own initiative, without first receiving a specific complaint from a citizen — for example, by following up criticisms made in the press, or by personally inspecting barracks, prisons, mental homes and hospitals. In Sweden such investigations in 1958 turned up 23 cases requiring remedy or explanation by government officials.

Examples of the cases the Ombudsman has investigated in Denmark (where the title is Ombitdsnunui) show the wide variety of citizens' complaints that arise out of modern government activity, and the great need for such an office; similar grounds for complaint arise every day in Canada but never sec the light of day. Typical examples: the complaint of a mental patient that a male nurse had assaulted him: that inadequate consent had been given for mental patients to undergo shock treatment and brain operations; that handcuffs had been used unjustifiably; that an elderly woman had been arrested in the middle of the night by policemen who wouldn't let her dress properly; that the authorities had unjustifiably refused to remove a complainant’s photographs and fingerprints from police files. The Ombudsman has also on his own initiative visited and reported on conditions in prisons and other penal institutions, and has given prisoners a chance to talk to him with no prison officials present.

Aside from cases such as these, directly involving personal liberty, there are a large number of less serious, yet important, complaints of various kinds. As might be expected, many of these involve unnecessary delay by government departments. The Ombudsman has taken a strong line on this question and has insisted frequently that the time required to deal with cases be shortened. For example, the Danish Tax Appeal Board was criticized in the press for its leisurely operations, so the Ombudsman investigated

its procedure and proposed desirable changes.

Another type of case involves failure to give adequate information to the citizen •—either on the current state of his case, on his right of appeal, or on the reasons for a decision. For example, in 1956 a citizen complained that he could get no answer to an application for a license he had made to the customs department. The reason, it turned out, was that the department was reconsidering the rules in question and felt it should not issue further licenses until a new policy had been decided. The citizens' defender concluded that the department should have informed the applicant of this. Similarly, the next year he held that an applicant to the trade ministry should have been informed that the reason for the ministry's delay was that it was preparing new legislation on the subject in question.

In another case an unsuccessful applicant sent a letter to (he Industrial Injuries Directorate protesting against a decision. The directorate did not answer the letter. When a complaint was sent to the Ombudsman. he held that the letter ought to have been regarded as a request for an appeal and been forwarded to the Ministry of Social Affairs, as the appellate body. In any case, the applicant should have been informed that there was a right of appeal. The Ombudsman similarly criticized a tax board that decided a case to the disadvantage of an applicant without giving him a chance to argue the case.

Another procedural type of case involves the possibility of bias on the part of officials. For example, as a result of an investigation in 1957 the Ombudsman asked the minister of finance to consider a change in the tax legislation to avoid the situation whereby some tax officials were members of appeal bodies hearing cases that the same officials had decided in the first place.

What is remarkable about this great variety of cases investigated and errors criticized is that many of them are not ones that would have come before the ordinary courts of law, either in Scandinavia or in common-law countries like Canada. Many of them involve questions

of what may be called a denial of natural justice in administrative procedure, which the courts find difficult to attack — even when a determined and wealthy citizen does manage to get a case before them— for lack of clear principles and rules in new administrative situations.

The Americans have tried to solve this problem by having Congress lay down procedural rules for administrative agencies to follow. But many people criticize this approach as being too rigid, as putting the administration in a legalistic straitjacket, since each type of administrative action requires a different set of rules, depending upon the importance of the action and the degree of formality required.

This is why the device of citizens’ defender should he explored carefully. It allows each department and agency to follow its own rules and at the same time ensures that in its procedures the general principles of natural justice will be followed.

Not all Scandinavian countries have had an Ombudsman for an equal length of time. Sweden has had one for more than 150 years, beginning in 1809. (Another Swedish grievance man, the monarch’s legal adviser, has functioned for at least 240 years.) Finland copied the institution from Sweden in 1919, but not much was known about the office in the Flnglishspeaking world until Denmark adopted il under its new constitution of 1953. The first Danish Ombudsman was appointed in 1955. Norway is now adopting the scheme, though it appointed a military Ombudsman as early as 1952. Not long ago. West Germany appointed a military Ombudsman, known as the commissioner of the armed forces. And in recent years the subject has been widely discussed in Great Britain.

The investigatory powers of the Swedish Ombudsman were an extension of the unusual Swedish practice whereby all government files and papers, except a few secret documents, are open to inspection by any citizen. Hence it was originally argued that the institution could not be successfully grafted onto the British parliamentary system because of the latter's

long tradition of official secrecy. But in this respect the institution was as much an innovation in Denmark as it would be in Britain or Canada. And its success there indicates not only the need for it but also its probable success here.

Because it is such a personal office, its success depends very much, of course, upon the character of the man filling it. Fortunately,' the Danish parliament obtained as its first citizens’ defender the man who had been the main advocate of the office at the time Denmark’s new constitution was adopted — Stephan Hurwitz.

During his first full year in office. Professor Hurwitz received no fewer than 869 complaints. Some of these, of course, were from cranks and troublemakers, but not as many as might be expected. Of the genuine grievances, many did not fall within his jurisdiction, such as cases involving judges and the courts. They were referred to the competent authority. (In Sweden, the civil Ombudsman acts as overseer of the courts. Last year, a Swedish judge was fined $300 for insulting a witness; he had called the witness a liar.) Other cases were not considered serious enough for detailed investigation. (But the complaint of a woman passenger that a bus driver had insulted her for legitimately objecting to smoking by other passengers at the front of a state-owned bus considered serious enough. Result: the authorities promised to enforce the no-smoking rule and made the bus driver apologize.) Professor Hurwitz and his staff of ten — including five lawyers — finally winnowed the 869 complaints down to 432 for full investigation.

Many injustices are prevented

Each year, as the office has become better known, the number of complaints has increased; it is now running well over a thousand a year. But, because of the increasing sophistication of the Ombudsman and his staff in knowing which cases are worthy of full investigation, the number investigated each year has declined to about three hundred. Many of these require no more than a further explanation to the citizen of the reasons for the original decision. But about ten percent are cases of actual injustice requiring remedy, criticism of the officials concerned and often proposals for improved procedures in future. In Sweden, where the Ombudsman’s jurisdiction is wider, the corresponding proportion is thirty percent, or about 150 cases per year.

At first sight ten percent may seem like a small proportion of the total. Yet this means thirty cases of injustice a year that otherwise would have gone unremedied. A democracy should be ashamed of even one substantial abuse of administrative power each year. And as Hurwitz has pointed out, because officials know that any of their decisions may be investigated at any time, the mere existence of the Ombudsman no doubt prevents many unjust decisions that otherwise would be made. This preventive effect is probably more important than the remedies brought about by actual investigation.

in fact, one of the strong arguments put up against the idea of the Ombudsman before its adoption in Denmark— and one that will no doubt be used in Britain and Canada—is that his existence would have such an inhibiting effect upon the administration as to hamstring it. Minor officials would follow regulations and instructions in slavish detail and fear to use common-sense discretion. For this reason many civil servants at first opposed the scheme. Yet experience since 1955 shows that this has not happened. In fact, quite the reverse. Minor officials have found the Ombudsman to be a source of

protection in their own dealings with their superiors, and many of his cases each year are personnel problems within the civil service. Also, since in nine of ten cases the Ombudsman vindicates administrators' decisions, the effect is to holster public confidence in civil servants and cut down the pestering of them by complaining citizens.

It was also feared that the institution would swell into a widespread and costly apparatus involving a double administration. But, as we have seen, the Ombudsman’s staff has remained small, and the office continues to he a personal one.

In discussing this question recently, The Times of London warned that while this may remain true for Denmark and Sweden, countries of only a few million people, in Britain the institution might burgeon into something like the Chinese Control Yuan during the Han dynasty (206 BC-AD 220), which became a parallel branch of government constantly looking over the shoulder of harried officials. Instead of a public watchdog over their acts, the Ombudsman might become a bloodhound sniffing after every decision. And because of the flood of complaints that he would receive, the custodian of the bureaucrats might himself become bureaucratized. But as the Economist replied, this argument is to stand logic on its head. It is tantamount to saying that because the demand would be overwhelming the need should not be met at all.

The need is there and it is urgent. While the office may require considerable adjustment to fit British conditions (e.g., the use of several Ombudsmen for different fields of activity), I believe that it would require very little adjustment to meet Canadian needs.

In the first place, Canada has a much smaller population than Britain. More important, because we have a federal division of powers, the work of the Ombudsman wouid be automatically divided among eleven citizens’ defenders—one for the federal government and one for each province. The one would look after complaints against federal action and the others complaints against provincial action. We might even have additional citizens’ defenders for municipal governments. Hence there would be no danger that the office would become too big, impersonal and bureaucratized.

Fortunately, Canada already has a precedent for the public watchdog in another field—the auditor-general, who is regarded as parliament’s watchdog over government spending. Like the Scandinavian Ombudsman, he is entirely independent of the executive and, like him, he investigates the administration and presents an annual report directly to parliament. In Canada, it would be merely a matter of creating a parallel office with power to audit administrative decisions rather than financial transactions.

One of the main criticisms of the recently adopted Canadian Bill of Rights is that it lacks teeth for enforcing the principles it sets forth. The institution of one or more citizens’ defenders would go a long way toward remedying this defect.

The British section of the International Commission of Jurists recently set up a special study group to investigate the feasibility of such an institution for Britain. 1 believe that the Canadian Bar Association, the new federal commission to investigate government operations, and other competent bodies should similarly give the idea serious study in this country, and that it should be widely discussed by the public.

If it is found that the Scandinavian Ombudsman cannot be adopted directly, then we must develop our own form of citizens’ defender. ^