A Note on the Charbonneau Commission: Focus on Recommendations, Not Facts
Perhaps unsurprisingly media coverage of the Charbonneau Commission report (see my previous post) has focused on facts. Who was blamed — or not blamed — and why not? Why did Renaud Lachance disagree with France Charbonneau’s conclusion that there was a link between political party financing and the awarding of public contracts?
Posing these questions is useful — though most Quebecers made up their minds during the public hearings — but misses the point in two fundamental ways. First, the raison d’etre of a commission of inquiry is to present the facts, not heads on platters, and to give advice on how to move forward. Second, the concrete recommendations are solidly based and deserve serious, sustained attention from attentive Quebecers interested in improving public life in the province.
Commissions of inquiry are designed not to sate popular thirst for vengeance but to shine light on murky areas of public administration. Of course, the lengthy public hearings of the Charbonneau Commission undoubtedly had a cathartic effect, by putting a series of faces on corruption and allowing people to draw their own conclusions about evasive or blatantly false testimony. Distilling the hearings to a final report is only one aspect of a commission of inquiry’s work. People can make up their own minds based on what they saw.
Indeed, the sustained media focus on a semantic disagreement between Lachance and Charbonneau is an unnecessary distraction from the important issue of studying and implementing the 60 recommendations on which the two were in complete agreement.
The recommendations found there draw on expert evidence provided by law enforcement officials, lawyers, sociologists and even philosophers, who explained the social, political, institutional and legal climates that permitted corruption to flourish. Elaborating these recommendations and receiving expert advice happened mostly out of the public eye, but in understanding the recommendations lies the path ahead to a better future for Quebecers.
The recommendations span from the social — increasing public support for whistleblowers — the political — revamping the modes of financing of political parties — the institutional — creating a new government agency to oversee awards of public contracts — and the legal — designing new means to pursue fraudsters. The vast scope of these recommendations is a testament to the breadth of the Commission’s mandate and the scale of the corruption problem they were faced with. Here, the fingerprints of the third commissioner, the late Roderick A. Macdonald, can perhaps be perceived: nominally a law professor, Macdonald’s scholarship ranged over similarly vast areas as the Commission’s recommendations.
Simply put, corruption reached into every corner of public life in Quebec. Rooting it out will require sustained effort by numerous actors, from ordinary people to government ministers, across the spectrum of economic, cultural and community life in the province. Focusing on who blamed who or the precise language contained in the report is a distraction from the hard work ahead.
Some of these recommendations are innovative and deserve careful scrutiny. For instance, Quebec could adopt a version of the federal False Claims Act that has been adopted south of the border, or one of its variants in force in states such as New Jersey and New York. These statutes typically provide that individuals can sue fraudsters, with the bulk of the proceeds going to the government, but a significant share — up to 30% — going to the individual.
Critics have been quick to claim that a Quebec False Claims Act does not fit with the province’s legal tradition. This objection might have had some force in previous centuries but sounds quaint today. We live in a world in which securities laws are enforced by government agencies, but breaches of regulations can also form the basis of private lawsuits; class actions against corporations permit groups of individuals to enforce standards of good practice in the commercial world; and individuals are increasingly given standing to bring government bodies to court to account for illegal action.
Private lawsuits and public regulatory enforcement often work in tandem to serve the public interest. Indeed, a mix of private and public enforcement might well be optimal. Even a well-resourced government agency cannot respond to every tip or every regulatory breach. Calling on a wide group of motivated citizens deepens the resources available for enforcement of the law.
It could also make life better for whistleblowers. One of the cruel ironies of the Charbonneau Commission is that some of its bravest participants — Ken Pereira and Lino Zambito — were rewarded for their courage by personal and professional ruin. In a Quebec with a False Claims Act, the path of the whistleblower would be much less treacherous.
This content has been updated on December 8, 2015 at 22:55.