Independence of the Commissioner: for Independence in Legal Terms

As promised, this week, I am going over the reasons why the independence of the Commissioner is essential to provide him with independence in legal terms.

As I mention in my 2011-2012 Annual Report, as a government agency, and because it is not independent, the Commissioner’s Office cannot, in theory, seek independent external legal advice other than from the Attorney General of Ontario because it is not independent.

The Attorney General’s lawyers are trained to provide solid and objective legal advice and to respect the rule of law. Indeed, I have received such advice that has turned out to be quite useful.

That being so, however, to dispel any possible perception of a lack of independence from government – including on legal matters – I arrived at a Memorandum of Understanding with the Office of the Attorney General that allows me to seek external legal advice on matters concerning the interpretation of the French Language Services Act.

This agreement, however, is not foolproof. In fact, it can be cancelled at any time by one of the parties, in which case the Commissioner would no longer be able to seek external legal advice and would therefore lose the appearance of acting independently from the government.

If the Commissioner were to report directly to the Legislative Assembly, the situation would be quite different because the Commissioner would then possess the full manoeuvring room required to request external and independent legal advice.

Next week, I will go over the financial accountability and ability to act that relate to the independence of the Commissioner.