So asks the Toronto Star in this editorial.
Why indeed?
I have argued that even though administrative tribunals in Canada, such as the Canadian Nuclear Safety Commission, are entitled only to as much institutional independence as their enabling legislation grants them, given the language in the Nuclear Safety and Control Act, S.C. 1997, c. 9, including the fact that the legislation refers to that tribunal as a “court of record”, the CNSC is entitled to a great deal of independence from interference by government.
Where a tribunal is given that kind of independence, the members of the tribunal have a corresponding duty to defend that independence.
Ms. Keen’s decision not to testify before the parliamentary committee set up to inquire into the events giving rise to her dismissal is unfortunate. It is, in my view, an abdication of her responsibility to defend the independence and integrity of the tribunal on which she continues to sit. In addition, it deprives Canadians of the opportunity to hear and be educated on the functioning of administrative tribunals which occupy a growing part of the justice system in Canada. Finally, it sweeps under the rug some questionable behaviour on the part of this government.
I agree with the writer in this editorial that if need be, she should be summoned to appear. I do, however, hope that it does not come to that. I hope that Ms. Keen will continue to do what she had done so well up to this point, and defend the independence of her tribunal.
2 Comments
Is it possible that she was given legal advice not to testify as it could be prejudicial to an upcoming lawsuit? The lawsuit will certainly be a high-profile affair. However, how long could it take to come to trial, and could a settlement require silence? Given the above, an unfortunate decision indeed.
It’s entirely possible that Ms. Keen was advised not to appear at the hearings of the parliamentary committee unless summoned.
If there is a lawsuit brewing, it could take years to come to trial. The problem is that Ms. Keen’s testimony before the parliamentary committee would be recorded and transcribed. Transcripts like can be used as fodder for cross examination at any subsequent trial, which can sometimes present difficulty.
I continue to maintain that all members of the CNSC, as adjudicators sitting on an administrative tribunal entitled to a significant degree of institutional independence, have a duty to safeguard and defend that independence against political interference in specific cases before it.
The interesting ethical question is how far that duty goes, and the manner in which it must be reconciled against the members’ right to procedural fairness in any litigation that arises involving the government.
Basically, Ms. Keen’s interest in avoiding testimony before the parliamentary committee conflicts with her duty to protect the independence of the CNSC. How is that conflict to be reconciled?
I don’t have an answer, but it will definitely make for some interesting blog material once I’ve had a chance to do some research and reflect on the question.
Thanks for posting!