2.1 The Rise of Consultative Processes in Canadian Governance

Public consultation is the process by which the elected government seeks or incorporates input from citizens, including corporations and civil society, on policies and projects.^{Footnote 16} Consultations come in two types: permanent and ad hoc. Permanent consultations are held during certain parliamentary processes, especially the committee phase of lawmaking, when parliamentarians or senators invite stakeholders to comment on proposed legislation, regulations, or amendments.^{Footnote 17} A similar process is observable in the trade arena: successive governments have routinely run hearings and encouraged written submissions to solicit public commentary about proposed trade deals.^{Footnote 18} Many of these permanent forms of consultation—parliamentary committees, government commissions, and industry lobbying—are quite old, dating back to the early days of Confederation.

Large-scale ad hoc consultations, often ones that include new or marginalized voices, are a newer form. Launched in the 1960s and 1970s, this type responded to demands by environmental activists who sought government action—including ongoing consultation—in response to new research on environmental damage and toxicity.^{Footnote 19} So effective were these new processes that the rich history of environmental activism has played a direct role in shaping much of Canada’s environmental legislation; Ontario’s Environmental Bill of Rights and the Canadian Environmental Protection Act, for example, contain permanent avenues for public participation in environmental regulation.^{Footnote 20}

Public consultations are now fixtures in Canadian governance, with both permanent and ad hoc forms regularly operating across a range of fields. The rapid spread of consultations is due to their dual quality: they are both symptom of and remedy for the increases in scope and scale achieved by government over the course of the twentieth century.^{Footnote 21} As the Canadian population grew and the franchise was extended, the gap between representative and represented widened enormously. In the early twentieth century, each Member of Parliament represented roughly 4,800 voters;^{Footnote 22} today that number is 47,800—a ten-fold increase.^{Footnote 23} A mechanism for countering the dilution of representation was needed to preserve the essence of a democratic state.

Consultations were devised to this end, providing representatives and citizens the opportunity to dialogue on issues of public import. By bringing together diverse actors in a forum for collective deliberation, consultations counter the disenfranchisement endemic to governments of scale, while also enhancing the legitimacy of decision making, or so say the proponents.

2.2 Not All Consultations Are Created Equal

Support for consultative processes was articulated in a Privy Council Office report on Canada’s democratic institutions and practices;^{Footnote 24} the public is eager to be involved in governmental decision making.^{Footnote 25} Paradoxically, the report also uncovered important levels of public disengagement from political processes, including consultations. One possible explanation of this contradiction is the public’s self-confessed scepticism toward the consultative process: “To the extent that they perceived the government consulting the public, participants did not perceive the consultation as genuine.”^{Footnote 26} Faux consultations produce scepticism, even cynicism, because of the absence of meaningful government action following many of these exercises. This paradox is especially relevant for trade consultations.

During the early days of Canada’s foray into free trade, including the Auto Pact and the Free Trade Agreement, the government implemented public consultation mechanisms alongside trade negotiations. From town hall meetings to commissions, successive governments experimented with different forms of consultation, each of which sought to solicit public opinion on the agreement under consideration. While the variety has been scaled back, a pattern of public involvement continues until today. This past year, for instance, citizens wishing to consult on CETA could participate via online submissions to the Department of Foreign Affairs and Trade and testimony before the Standing Committee on International Trade.

So positive were these efforts that the Standing Committee singled out the Canadian government’s trade consultations, describing their mechanisms as “inclusive” and open to a range of opinions.^{Footnote 27} Others, however, call the consultations disingenuous. At the core of this rebuke is the perception that governments only consult with groups that already support their policies. MP Don Davies, Official Opposition Critic for International Trade and the Vice Chair of the Standing Committee, explains:

Michael Hart, formerly a negotiator for the Department of Foreign Affairs and Trade, sees logic in the partisanship of consultations: the government is seeking to “elicit information from the people they really want to reach.”^{Footnote 29} These people include the Canadian Council of Chief Executives, the Canadian Chamber of Commerce, and other representatives of transnational commerce, who, Hart posits, can aid negotiators in their efforts.^{Footnote 30}

There is nothing presumptively questionable about consulting corporate actors; in fact, failing to consult them would be an important omission. What is at issue here is a perception of governmental bias in the treatment of stakeholders. Testifying before the Standing Committee, Jacques Pomerleau, the president of Canada Pork International, was glowing about CETA consultations: “We really appreciate having been consulted since the very beginning of the negotiations and being kept [apprised] of all the latest developments pertaining to our products.”^{Footnote 31} Throughout the negotiation of CETA, many formal and informal sessions were held between corporate actors and the government in which they discussed how best to proceed.^{Footnote 32}

Stuart Trew of the Council of Canadians, an NGO involved in the trade debate, describes a different experience.^{Footnote 33} After some rounds of the CETA negotiations, the Department began consulting with non-business NGOs. During one of these sessions, Trew remarked that the officials were neither taking notes nor logging minutes. When pressed on the matter, officials admitted that the participants’ queries and comments would not be forwarded to the negotiators or to the PMO, leading Trew to conclude that rather than being consulted, they were being “briefed.” Such a stratified approach toward stakeholders does little to quell scepticism.

Next, the charge of disingenuousness also applies to the consultations’ timing: excluding the above-referenced briefings, the government only carries out public consultations once the agreement has been finalized. We return to Davies: “Why would we be asking people what they think now that the agreement has been reached [and] there is pretty much no ability to influence anything at this point?”^{Footnote 34} His concern is warranted, particularly in light of a statement by Canadian Prime Minister Stephen Harper who, shortly after CETA was signed, declared: “The agreement as it now stands is not going to change.”^{Footnote 35}

Insincerity is also observable in the materials upon which consultations are based: more and more, consultations are carried out with less and less information. By convention, the texts of agreements are usually final once made public. This catch-22 allows cynical government actors to justify keeping the public in the dark and prevents those actors who would like to share the text from doing so. Accordingly, it has become common to hold consultations without the agreement in hand, forcing participants to rely only on select information voluntarily disclosed by the negotiators.^{Footnote 36} Also worthy of mention is the government’s refusal to engage in any form of post-consultation reporting, leaving participants to guess what was taken on board and what was disregarded.

Davies’s and Trew’s observations suggest that the government lacks faith in the public’s ability to contribute. This attitude has been documented in other countries, such as France, where government officials rarely seek informed input from citizens on issues that are considered “technical.”^{Footnote 37} Before accepting this as the only explanation for an impoverished trade consultation process, however, we evaluate other potential arguments.

2.3 Challenges to Consulting the Public on Trade

Three main arguments are advanced in support of the current model of trade consultations: constitutional, procedural, and technical. To the first, the issue is one of the separation of powers doctrine. By a complex admixture of the Constitution, British statutes, the common law, and historical convention, treaty making in Canada falls within the competencies of the executive branch. Historically a form of diplomacy, the prerogative naturally sat within the ambit of heads of state. With few exceptions, the executive alone negotiates and signs agreements that are binding under international law, including the regulation of international trade and commerce. Parliament need not be involved until the end of the process, when they may be required to vote on the agreement’s implementation. Why would the public participate in trade consultations when representatives are denied authority?

The second criticism is an extension of the first: the combined characters of the executive prerogative and the trade narrative produces a climate of secrecy across the entire process that, according to participants, negates much of the value of consultative efforts. In Canada, a parochial view of trade dominates: trade’s role is to stimulate economic growth.^{Footnote 38} It is a means–end relationship. Through this lens, secrecy is the preferred strategy, for it aids the swift negotiation and settlement of agreements in two ways. First, parties are more likely to be forthright if not under the looking glass. Second, disclosing trade positions would compromise negotiating power. Negotiating parties see themselves as competitors, vying for the best deal. In a zero-sum game, public consultations simply get in the way.

Finally, the poor quality of trade consultations is also a product of the discipline. As observed by Irvin and Stansbury, trade is a lousy field in which to involve laypeople: it is complicated, interests are diverse and diffuse, and there is little popular motivation to oversee trade agreements.^{Footnote 39} Robert Wolfe, a former negotiator with the Department of Foreign Affairs and International Trade, points to the technicality of the issues under consideration as a disincentive for mass-participation: “[In] relatively technical issues such as trade, having a large, open, public consultation where everyone can come in doesn’t actually prove to be useful.”^{Footnote 40}

2.4 Anachronism in the Trade Consultation Debate

The validity of these arguments is undeniable. Both constitutional law and global political economy are powerful considerations. There are implications to their alteration, none of which should be taken lightly. There is also, however, an anachronistic quality to them.

First, the treaty-making prerogative traces its roots back to the establishment of the Canadian Confederation, a temporality used to buttress its supposed inviolability. Yet, over the years, aspects of Canada’s constitution have been revisited, formally and otherwise, to account for new circumstances. Consultative mechanisms are an excellent example for there is no constitutional requirement to consult the public at all. These mechanisms have developed to account for increases in the scope and scale of government and are seen as potentially effective measures in reinvigorating public confidence in government and public participation in political processes. Consultations are informed not by legal duty but by political wisdom: concerns about good governance and democratic legitimacy. In short, the constitutionality of the executive prerogative is more red herring than compelling rebuttal.

The second and third arguments are weightier. The pre-Uruguay rounds of the General Agreement on Tariffs and Trade (GATT) were indeed technical arrangements, denoted by sub rosa dealings on tariffs and dumping. Through a technical lens, Wolfe’s doubt about the value of public consultations is persuasive:

Hart concurs, though through a less politically correct frame. To him, public consultations double as a safety valve for the “kooks” and a promotional tool for the government.^{Footnote 42} Since “you can always count on ‘kooks’ being against [a trade agreement],” the government needs to ensure that they always have a “chorus of supporters.”^{Footnote 43} According to Hart, consultations can shore up public support for controversial trade agreements by highlighting sympathetic voices. While the two former colleagues disagree on the precise purpose of consultations, we note that Hart and Wolfe share a common reticence.

While valid, their respective arguments are dated. Since the Uruguay round, trade agreements have become more expansive, developed into instruments for the harmonization of global regulation and, seemingly, global culture. Called “comprehensive,” the new generation of trade agreements includes chapters on a wide cross-section of everyday living, ranging from labour rights to food safety standards to access to medicines, topics that reach far beyond tariffs and subsidies. Common to these agreements is the identification of preferred regulatory standards and the imposition of restrictions to this effect upon member states. They also create both a technical and an ideological architecture conducive to neoliberal trappings such as the privatization of public services. Finally, they codify varied forms of investor privilege. Each of these elements provides added gravitas to the authority of private actors—often foreign—over that of elected officials, gravitas that manifests as legislative influence. While the aim appears to be the facilitation of the cross-border movement of goods, services, and capital, consent to supra-national standards impinges on aspects of a state’s governing authority.

A form of substitute legislation,^{Footnote 44} comprehensive agreements are heavier on ideology—neoliberalism and corporate-centrism—than on terms of trade.^{Footnote 45} Proponents of neoliberalism presume the supremacy of proprietary rights over goods, services, and social relations, all of which should be freely exchangeable through legal contract. These same individuals are often also motivated by corporate-centrism: the belief that legal structures should be adapted to support the activities of corporations. Since sending commodities across borders requires adjustments to account for legal and cultural differences, national legal standards produce supplementary costs for transnational business. As harmonizing instruments, comprehensive trade agreements neutralize these costs, treating national standards as obstacles rather than expressions of sovereign preference.

For instance, some of the more familiar culprits—CETA and the Trans Pacific Partnership Agreement (TPPA)—are expected to impact key aspects of Canadian society including how health, education, labour, culture, and municipalities are regulated, yet none are brought before either Parliament or the public. In fact, much effort has gone toward preventing disclosure of the terms of the agreements and, in the case of ACTA and CETA, opposition persisted even after the terms had been finalized. As trade evolves to engulf wider aspects of Canadian society, the contentions that topics are too technical for oversight and that dissent is too emotive to warrant a response acquire an anti-democratic character.

We observe in Wolfe’s and Hart’s remarks an implicit denial of trade’s evolution beyond the tariff levels of dairy products. Investor-state dispute settlement (ISDS) mechanisms provide another salient example. Common to comprehensive agreements are ISDS provisions that permit corporations to pursue compensation for lost profits engendered by existing laws.^{Footnote 46} Claims are brought before an extra-judicial arbitration panel operating outside domestic judicial systems. So extensive is the authority granted to these panels that billions in damages have already been awarded to claimants. Claims also have a chilling effect on regulatory development, as governments seek to avoid liability by altering the controversial laws. Whether a nineteenth century executive prerogative established to support international diplomacy grants the PMO unchecked powers—including authority to develop a parallel system of dispute resolution without public assent—is debatable.^{Footnote 47}

We further note that public support for ISDS provisions is mixed. The European Commission carried out consultations regarding the inclusion of ISDS provisions in the Transatlantic Trade and Investment Partnership (TTIP), a comprehensive free trade agreement between the European Union and the United States.^{Footnote 48} The site was flooded with submissions leading to a network-wide crash. According to the report, the commission received nearly 150,000 submissions and was forced to extend the consultation period to account for continued interest.^{Footnote 49} Not unlike the testimonials cited in the Privy Council report, the European public seems eager for involvement in trade deliberations, and citizens are not deterred by the technicality of these topics.^{Footnote 50} We can only speculate that Canadians would react similarly. We can conclude, however, that technicism only provides debatable support for a preservation of the status quo in consultations.

Over the past three decades, we have witnessed a modernization of trade agreements to account for the globalization of economic activity. They now operate not as mechanisms for the harmonization of tariff levels but for the harmonization of regulatory standards—some might even say of societies. Yet, the rationales for rejecting improvements to trade consultations are trapped in a bygone era, appearing anachronistic, unconvincing, and undemocratic. Wolfe counters that “[y]ou can’t have 33 million Canadians participating in [trade] negotiations.” Straw man aside, Wolfe’s riposte raises an important question: Is it possible to meaningfully involve Canadians in trade deliberations?

2.5 The Place of Public Participation in Trade Consultations

The issue is less of possibility than of responsibility. As per the Privy Council report, the public desires greater involvement in governmental decision making. International trade, with its modern catchall character, is a prime target for public enthusiasm (and opprobrium). The obvious argument in support of meaningful public engagement in trade deliberations has been inferred throughout the article and made elsewhere: democracy would accept nothing less.^{Footnote 51} Few are eager to slow trade negotiations but the nature of democratic governance compels some level of public accountability.

Next, an efficiency argument also supports the proposition. ACTA only came to light following a series of revelations from Wikileaks. These alerted—and alarmed—Internet users about the possible criminalization of many widespread activities, prompting mass civil disobedience. Despite years of negotiations and widespread agreement among the executives of signatory states, the European Parliament ultimately voted against it, nullifying the effort that had gone into its production. A lack of understanding about public sentiment toward trade regulatory issues can have dire consequences.

The same was nearly true of CETA: in July 2014, the German government recorded its opposition to the Canada-EU agreement, placing CETA’s future in peril.^{Footnote 52} It was the German public’s animosity toward ISDS provisions, expressed via a large public mobilization campaign, that prompted Germany’s intervention. Eventually, in November 2014, Germany dropped its official objection, indicating that Germany was not prepared to be the only EU member opting out of the agreement.^{Footnote 53} This close call holds an important lesson for all governments: scuppering public participation may seem expedient but ultimately proves costly.^{Footnote 54}

Comprehensive trade agreements presuppose a connection between all forms of economic activity, precipitating a holistic approach toward their regulation. We concur with this claim but take it a step further. Adopting a comprehensive outlook requires the location of trade agreements within a nation’s wider economic policy. For instance, pharmaceutical patents, a key issue in CETA, can hardly be decided without considering demographics, access, and even long-term citizen wellbeing. By extending the reach of trade agreements beyond tariffs and subsidies, comprehensive agreements provoke important political questions about national priorities, most of which cannot be resolved with a calculator. As agreements have evolved, there is a commensurate need to update the government’s consultative efforts. Instead of a 33,000,000-person negotiating table, we propose a restructuring of public consultations.

3.1 Diversity

Successful consultations seek out different opinions through varied forums.^{Footnote 56} If the federal government is acting on an issue, then both the scope of the problem and its solution must, logically, be national. It thus behoves the government to speak with Canadians likely to criticize or disagree with their views.

Trew, Davies, and MP Peter Julian have observed that Canada’s CETA negotiators were only eager to hear from their industry supporters: “[C]onsultation is a misnomer. … [T]he idea of consultation is really designed to have some sectors that are politically going to support the agreement, or the agenda. And as far as any meaningful public involvement there is none.”^{Footnote 57} Davies puts it more baldly: “Those same [business] groups are consulted on an ongoing basis and are given information, but nobody else. … [B]asically the entire process is driven ideologically and conducted in secrecy with very limited select input from certain limited stakeholders.”^{Footnote 58} In recent years, the government has not so much consulted on trade as permitted itself to be selectively lobbied.

In some areas of policy development, the federal government has done admirable work listening to diverse groups. In the mid-1990s, the National Forum on Health, a special advisory committee established and chaired by the prime minister, consulted with over 1,300 Canadians. While this is far from the largest number of citizens consulted by one program, this public consultation exercise is notable for its commitment to diversity:

Each study circle was organized around a consultation booklet that both informed participants about Canada’s health care system and structured their conversations, a design element of consultations about which we will speak further in the coming section on education. The input gathered from these meetings was verified by calling back many of the circle participants as well as 500 randomly selected Canadians^{Footnote 60}; this design choice ensured that the perspectives expressed were genuinely representative of the public.

Diversity can also be fostered in the methods and modes of consultation. As mentioned in our introduction, the 2002 Romanow Commission offered many ways for getting Canadians involved; these avenues for participation also varied in the level of commitment necessary to participate, ranging from a full day of deliberative workshops to a brief online survey.^{Footnote 61} Offering diverse avenues for participation ensured that the commission gathered broad opinions.

3.2 Education

Seeking out diverse opinions is a valuable strategy because of the reciprocal educative value. While the government learns from well-structured and well-documented public debate, acquiring a more nuanced understanding of their constituents’ views, so too do consultations edify the public in return.^{Footnote 62}

In the mid-1990s, following a series of controversial news articles criticizing immigration policy, public approval of immigration policy—and even of immigrants—dipped dangerously low. This prompted the federal minister of Citizenship and Immigration to instigate a public dialogue aimed at educating Canadians about its immigration strategy. Once consultations began, however, the government learned that they had poorly framed the topic:

Success was possible because the government learned of an unexpected perspective. According to Wyman and colleagues, the deliberative discussions caused immigration officials to shift their focus from the economic impact of immigration to Immigration Canada’s accountability to the public—an outcome that was not evident from earlier, non-educational polls.^{Footnote 64}

We have discussed at length the government’s disinterest in learning from citizens during CETA negotiations, where reciprocity is not a priority. Beyond this, however, is another important criticism of trade consultations: the lack of information available to stakeholders. More than just a general denunciation of secrecy in negotiations, what is at issue is the active dissuasion of citizens’ engagement with trade. Government officials encourage the public to believe that trade deliberations are beyond their understanding. The consequences are significant: today, “people expect that these deals are good for them and they just assume that … there’s going to be jobs and prosperity at the end of the line.”^{Footnote 65} This belief is perpetuated by a lack of trade education.

Contrast this mindset with the attitude common to the early days of free trade agreements, when the public and the media sought debate on trade. One salient example is the Multilateral Agreement on Investment, which collapsed in 1995 when the Canadian public, informed and encouraged by the media, voiced distrust of negotiators and a lack of support for the agreement as a whole. To combat a feeling of inevitability to the negotiations, the Council of Canadians “initiated a cross-country MAI inquiry, A Citizen’s Search for Alternatives.”^{Footnote 66} The consultations contributed to the disruption of the negotiations, achieved this time not through civil disobedience but by educating participants. Presenting the public with information about the agreement and a forum in which to discuss it empowered participants to implicate themselves further.

Much literature extolls the power of deliberation in enhancing the democratic legitimacy of policy choices.^{Footnote 67} Even literature on traditional consultative mechanisms endorses a reciprocal structure, encouraging processes that facilitate genuine interchanges between citizens and government; information sharing ultimately produces better policy feedback.^{Footnote 68}

3.3 Commitment

Both government and citizens must commit to consultations. From the government’s perspective, an excellent example is in the structure of the OEBR (Ontario Environmental Bill of Rights).^{Footnote 69} The OEBR was born of decades of citizen demands for access, transparency, and participation in decision making on environmental issues.^{Footnote 70} The Ontario government responded by legislating permanent avenues of participation in environmental policy. Enshrining participatory rights marks an important pledge from the government: citizens now enjoy stable pathways via which policy can be scrutinized and officials held to account.

For participatory rights for the citizenry to function effectively, their implementation must be followed by citizen participation. Consultative mechanisms are reciprocal, with participation representing the quid pro quo of participatory rights. For example, built on the assumption that citizens are better placed and more motivated to direct government environmental policy, the OEBR requires citizen involvement, without which the oversight mechanisms flounder. The Romanow Commission provides another example, listing mutual commitment to the results of the consultations—the preservation of Medicare—as its first recommendation. The commissioner determined that both the government and the public needed to renew their commitment to accessible public health care in order for the subsequent recommendations to work. The commission proposed a Health Covenant to formalize this pledge.^{Footnote 71}

3.4 Accountability

Accountability is defined by a commitment to follow up. Likewise, ensuring government accountability requires commitment from citizens. Current trade consultation practices are particularly deficient in this regard. Not only is the government not taking notes during civil society interventions, but it can go back on promises and is never required to explain its actions: “The only people they explain themselves to [are] the business sector. … [T]hat’s the only accountability that exists.”^{Footnote 72} Even this relationship does not seem sacrosanct; Davies and Trew recount that Canada’s dairy farmers and municipalities experienced losses under CETA that the government had insinuated would not occur.^{Footnote 73}

Moreover, even celebrated consultations have lacked accountability. The Romanow Commission that we applaud throughout this article consulted with thousands of Canadians through varied forums; the government dedicated millions to the consultations and the commission’s findings are readily available to the public.^{Footnote 74} Yet the government failed to establish a follow-up protocol. In an ideal consultation, accountability mechanisms—next steps—are set out beforehand.

We note, however, that Irvin and Stansbury counsel against tying all consultations to a promise of implementing participant suggestions, for consultations vary in character and aim. For example, some involve brainstorming, which may only require consideration of or response to the ideas presented. Others are beset with potential liabilities: town halls are at risk of poor or unrepresentative turnout. Despite these concerns, they emphasize that, to build trust, consultations must begin with clear expectations.^{Footnote 75}

3.5 Transparency

Transparency is a design feature of the most effective consultations and can be prioritized in several ways. Returning to the Romanow Commission, we observe that the full report is available online, listing all submissions received, including e-mail messages and phone calls, as well as a report of all consultative sessions.^{Footnote 76} Anyone could, for instance, determine whether senior citizens’ interest groups were overrepresented or aboriginal groups involved. Interestingly, the report itself recommends greater accountability and transparency in health care spending.^{Footnote 77}

Transparency stands for the ideal of governance by communication and agreement rather than by command. Roderick Macdonald captures this ideal when comparing modern administrative governance to a call centre:

Democratic governance requires sharing power, information, and respect. Consultations further those habits—even virtues—of good governance, and, when done well, they also embody those virtues.