Ralph Heintzman was the head of the federal Office of Public Service Values and Ethics, a vice-chair of the Task Force on Public Service Values and Ethics and the senior public service official responsible for drafting the 2005 Public Servants Disclosure Protection Act. His latest book is The Human Paradox.
Leaks about Chinese interference in Canadian affairs have ignited another public debate about the rights and wrongs of whistle-blowing.
One view, which I will call the “orthodox” view, rejects the suggestion that public servants have any kind of higher loyalty to the public interest. It argues that, in our parliamentary democracy, public servants owe their professional loyalty exclusively to their ministers. Therefore, leakers and whistle-blowers are guilty of breaking their promise to faithfully serve the government of the day.
The orthodox view argues that decisions about the public interest must ultimately be made by elected, not unelected, officials; this is the democratic rule. And so the orthodox view is correct, as far as it goes. But it does not go far enough.
There are and must be exceptions to every rule – the exceptions that prove the rule. Even in the kind of public service the orthodox view aims to protect, circumstances can arise when a public servant might be morally obligated to break the normal rule.
I call this the Nuremberg principle. Some of the defendants in the postwar trials of German officials under the Nazi regime argued they were just good public servants, following the rules and obeying orders. The courts, however, found otherwise. They found that public servants cannot abdicate their own moral responsibility behind the cover of professionalism and neutrality. There comes a time when a line is crossed, and a public servant finds him or herself alone with their conscience, and with a decision to make.
The orthodox view does not allow for these exceptions. It defines public servants’ duty of loyalty simply as loyalty to their ministers. However, this is at odds with an authoritative definition of public service loyalty given by the federal Task Force on Public Service Values and Ethics.
The Tait Report, as it is popularly known, emphasized the “democratic values” of the public service, and its “democratic mission: Helping ministers, under law and the Constitution, to serve the common good.” In that context, it defined the public-service duty of loyalty as “loyalty to the public interest, as represented and interpreted by the democratically elected government and expressed in law and the Constitution.”
This definition is more nuanced than the orthodox version. By recognizing that ultimate public-service loyalty must be to the public interest, the task force’s definition of loyalty reminds public servants of the Nuremberg principle: circumstances can arise in which their duty of loyalty is higher than simply to the government of the day.
What does all this mean for the case of the current CSIS leaker? It is too early to say. We do not yet have all the facts. But the legitimacy of leaks is often determined by the events that follow them. Do the subsequent events and actions seem to justify the exception?
It is noteworthy that, following the leaks, a former director of CSIS, a former chief electoral officer, and all three opposition parties have called for a public inquiry into Chinese interference. The Prime Minister has been obliged to appoint a special rapporteur to advise on the propriety of such a public inquiry. And the entire board of directors and senior management of the Trudeau Foundation have resigned.
While only a public inquiry can confirm this, these consequences to date suggest there is at least an initial, prima facie case that the Canadian public did deserve to be informed about the extent of Chinese intrusion into Canadian affairs, that public debate needed to take place, and that appropriate corrective action may be needed to counter these activities hostile to Canadian democracy.
But the real point here is not – or not yet – whether the leaker was right in thinking a line had been crossed that morally obliged them to act. The real question is whether such a line exists or not. The orthodox view says no: Public servants owe their professional loyalty only to their ministers. But a public service where such a line could never be crossed would not be worthy of the name.
If such a line did not exist, public servants would not have the integrity or moral compass required even to help ministers properly to serve the public good, under law and the Constitution. The defenders of this orthodox view would not themselves wish to serve in that kind of public service.