Canada: government: Ministerial responsiblity compared to the responsibility of 1-man Commission of Inquiry conducted by Judge

About three weeks ago, Russ Kuykendall wrote in his blog Burkean Canuck an entry on the difference between the responsiblities of Ministers of the Liberal Government's Cabinet, in the wake of the Adscam [Le scandal des commandites], and that of the head of the investigating commission, Judge Gomery. Some commentators have gotten the mattern confused. So, with Kuykendall's permission, his remarks are digitally republished here, as the political landscape in Canada shifts toward a campaign and Federal election. Somewhere along the course of events, perhaps in February 2006, Gomery will deliver his final report. In the meantime, what is the responsiblity of the Cabinet Ministers of the Federal goverment who had previously served during the Adscam years, along with then-Minister of Finance, Paul Martin - Liberals all? - Owlb.

Ministerial responsibility
v. responsibility à la Judge Gomery
Guest article by Russ Kuykendall, Burkean Conservative
With respect to Mr. Martin and the current government who includes former members of the Chretien cabinet, Mr. Justice Gomery found:

The Responsibility of Other Ministers

On the evidence there is no basis for attributing blame or responsibility to any other Minister of the Chrétien Cabinet, since they, like all members of Parliament, were not informed of the initiatives being authorized by Mr. Pelletier and their funding from the Unity Reserve. Mr. Martin, whose role as Finance Minister did not involve him in the supervision of spending by the PMO or PWGSC, is entitled, like other Ministers in the Quebec caucus, to be exonerated from any blame for carelessness or misconduct (Mr. Justice Gomery, Who is Responsible? Phase I Report. Ottawa: Gomery Commission of Inquiry, 2005, p. 77).

But before he gets into assigning blame, the judge gives this qualifier:

The Fact Finding Report is not a judgment, and the conclusions do not establish the legal responsibility, either civil or criminal, of the persons and organizations singled out for critical comment or a finding of misconduct (Ibid., p. 73).

Okay -- so even before he gets around to exonerating Mr. Martin and his current cabinet colleagues from the Chretien cabinet, Justice Gomery pointedly eliminates "legal responsibility, either civil or criminal" from the sort of responsibility he does assign.

Justice Gomery was essentially exonerating Mr. Martin and his cabinet colleagues who were members of the Chretien cabinet from . . . what, exactly? Not "legal responsibility, either civil or criminal."

But what about the responsibility that Canadians and Parliament should be concerned about? What about the responsibility that doesn't fall within Mr. Justice Gomery's brief?

What about "ministerial responsibility?"

Yup, the judge has no jurisdiction over ministerial responsibility, even with his terms of reference. Ministerial responsibility is the brief of the House of Commons, and it takes two forms. Yes, yes -- in the words of Preston Manning, "Let's not get mired in minutiae." But this minutiae matters! Now, where was I? Oh, yes . . . as in Responsibility in the Constitution, ministerial responsibility takes two forms: "individual" and "collective." I summarize these two broad aspects of ministerial responsibility as follows:

Individual responsibility which is directed to the Crown and represented in the oath ministers take as they're sworn in to the Privy Council and into responsibility for their ministry;

Collective responsibility which is both directed to the Crown -- ministers are sworn into the Privy Council which is collectively responsible to the Crown -- and to the House of Commons. Under long-standing tradition and under the Standing Orders of the House of Commons, the cabinet is collectively responsible to the House of Commons. This is most explicit in question period ("oral questions") in which ministers answer questions from the opposition and the government backbenches on behalf of the government. The opposition may direct their questions to specific ministers, but the government is only expected to stand someone to speak on behalf of the cabinet (government) collectively.

Let me be Rocky-Mountain-spring-fed-lake-crystal-clear:

For every day that Paul Martin and members of the present cabinet sat on the government front bench -- the cabinet bench, they bear collective responsibility for every decision, policy, statute, regulation, and for all administration of federal government programs under the Chretien Government.

Justice Gomery not only wasn't in a position to assign "legal responsibility, either civil or criminal." Even if Justice Gomery understood ministerial responsibility, he would be in no position to rule on it. That's the House of Commons's job -- specifically, the Opposition's raison d'etre, er, reason for being.

The first time someone tries to tell you that the Opposition shouldn't assign responsibility where Justice Gomery refused, do Canada a public service, and offer an education in the rudiments of ministerial responsibility.

Don't let anyone try to tell you otherwise . . . Prime Minister Martin and every member of his cabinet who were members of the Chretien cabinet from the time the sponsorship program began are responsible.