The Nature of the Integrity Commissioner Investigative Function

Six Minute Administrative LawyerMarch 1, 2017

Janet Leiper, C.S.

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Context

Foundations: Legislation, Codes and Policies

Process Powers and Responsibilities

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An Integrity Commissioner provides advice and education to Members of Council under Codes of Conduct and enforces Codes of Conduct at the municipal level

The investigative function arises from the enforcement piece—involves inquiring into formal complaints and reporting to Council on recommended sanctions or remedial action.

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“Miss Manners” “Integrity cop” “God?” “Liberal hack” “Watchdog”

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“[Member of Council] wants integrity chief’s resignation”

“… County mayors feel they’re being watched from the ‘principal’s office’”

“Watchdogs should be eliminated, Mayor says”

[City] paying more than $10K for integrity commissioner report

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The Municipal Act and the Public Inquiries Act, 2009

January 1, 2007: The Municipal Act, 2001 allows for the establishment of Integrity Commissioners by municipalities.

January 1, 2007: The City of Toronto Act, 2006 proclaimed. COTA requires Toronto to establish a Code of Conduct and to hire an Integrity Commissioner.

December 15, 2009: Municipal Act, 2001 amended to permit Integrity Commissioners to exercise the powers under sections 33 and 34 of the Public Inquiries Act, 2009

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Integrity Commissioner223.3 (1) Without limiting sections 9, 10 and 11, those sections authorize the municipality to appoint an Integrity Commissioner who reports to council and who is responsible for performing in an independent manner the functions assigned by the municipality with respect to,(a) The application of the code of conduct for members of council and

the code of conduct for members of local boards or of either of them;

(b) The application of any procedures, rules and policies of the municipality and local boards governing the ethical behaviour of members of council and of local boards or of either of them; or

(c) Both of clauses (a) or (b)(Emphasis added)

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The Code of Conduct: Principles and Rules for Councillor Conduct—Sanctions and Remedial responses

The Complaint Protocol: Jurisdiction, Timing, Reporting, Classification, Referral, Complaint Processing and Resolution

Toronto Municipal Code: Chapter 3: selection, office staff, audit, appointment, removal, resignation, independence, accountability

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Integrity Commissioner given deference on review in his/her interpretation of Code of Conduct and Complaint Protocol (“home statutes”); judicial review applies the lens of the “statutory scheme”

Clarification of jurisdiction over complaints that involve allegations of criminal conduct

Michael Di Biase v. City of Vaughan, Integrity Commissioner City of Vaughan 2016 ONSC 5620

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Disclosure of every aspect of the investigation to subject is not required, not required to disclose witnesses or provide documents obtained: Baker factors apply to question of meaningful right to respond to complaints;

Expression of judicial reluctance to review a decision by an Integrity Commissioner to commence an investigation

Michael Di Biase v. City of Vaughan, Integrity Commissioner City of Vaughan 2016 ONSC 5620

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“The detailed manner in which the Divisional Court effectively dispensed with each and every allegation of impropriety and error made against the Integrity Commissioner in Di Biase v. City of Vaughan should send a strong signal that municipal codes of conduct, complaint protocols, Integrity Commissioners and their investigation processes will be given a status commensurate with their importance within the municipal ethical and accountability framework.”

“Municipal Codes of Conduct, Integrity Commissioners and the Investigative Process” 7 D.M.P.L. Mascarin & Dean

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Municipal Act: Cooperation from the Municipality Public Inquiries Act: Summons Powers, Evidence

Under Oath Code of Conduct: Anti-reprisal, obstruction Complaint Protocol: Opportunity to Comment Investigative Best Practices◦ Neutrality and Administrative Fairness◦ Clarity on jurisdiction, role, tools, framework, time

constraints ◦ Functional Investigative Attitude: “flexible, curious,

courteous”◦ Use of Chronology and Case Management tools

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“The Commissioner is entitled to have free access to all books, accounts, financial records, electronic data processing records, reports, files and all other papers, things or property belonging to or used by the municipality or a local board that the Commissioner believes to be necessary for an inquiry”

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Commissioner required to “preserve secrecy’ with respect to matters under the provisions dealing with inquiries (223.5(1))

Commissioner may disclose (in reports of contraventions of the Code) such “matters as in the Commissioner’s opinion are necessary for the purposes of the report (223.6(2))

Integrity Commissioner reports must be made available to the public (223.6(3)

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Inquiry by Commissioner223.4 (1) This section applies if the Commissioner conducts an inquiry under this Part,(a) in respect of a request made by council, a member of council or a member of the public about whether a member of council or of a local board has contravened the code of conduct applicable to the member; or(b) in respect of a request made by a local board or a member of a local board about whether a member of the local board has contravened the code of conduct applicable to the member. 2006, c. 32, Sched. A, s. 98.Powers on inquiry(2) The Commissioner may elect to exercise the powers under sections 33 and 34 of the Public Inquiries Act, 2009, in which case those sections apply to the inquiry. 2009, c. 33, Sched. 6, s. 72 (1).

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(2) The Commissioner may elect to exercise the powers under sections 33 and 34 of the Public Inquiries Act, 2009, in which case those sections apply to the inquiry.

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Inquiry means “a determination, examination, hearing, inquiry, investigation, review or other activity to which this section is applicable;” (Section 33, Public Inquiries Act, 2009)

Inquiry includes an inquiry or other activity to which this section is applicable. (Section 34, Public Inquiries Act, 2009)

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Section 33 applies “where another Act or a regulation confers on a person or body the power to conduct an inquiry in accordance with this section or certain provisions of this section.”

Section 34 applies to “an inquiry conducted under subsections 223.4 (2) and 223.12 (2) of the Municipal Act, 2001;”

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Conjunctive? Disjunctive?

Section 33◦ Summons witnesses◦ Summons documents◦ Evidence under oath◦ Witness protection (CEA)◦ Admissibility of unsworn

evidence◦ Stated case for contempt◦ Objections◦ No employee discipline

Section 34◦ Public inquiry section◦ Notice provisions◦ Ability to hold portions

not in public◦ Direction over process◦ Ability to state a case

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