There is no job description for a member of parliament. Political scientists,
civil servants and politicians themselves have long struggled to define
the complex combination of moral and ethical obligations that make up the
relationship between constituents and elected politicians. This article
examines the concept of responsibility or duty as it is owed by members
of the House of Commons to constituents. It outlines the concept of a fiduciary
relationship and fiduciary duty, and provides a brief summary of how, in
law, fiduciary relationships have expanded beyond the original application
to trustees and beneficiaries. It also reviews the obligations attached
to our elected representatives, and then outlines the case for extending
fiduciary duty to elected members of parliament. Finally, it examines the
consequences of the application of fiduciary duty, referring specifically
to the advantages and disadvantages of such a change. This approach provides
an opportunity to probe deeper into the relationship that exists between
a member of parliament and a citizen, to look at the foundation of this
relationship, and to find through the concept of fiduciary duty a minimum,
legal threshold of accountability to which all members of parliament must
Fiduciary duty is a concept that evolved from Equity, an area of the law
that was once distinct from, but is now combined with the Common Law. Equitable
principles and remedies were administered by the old Court of Chancery,
and fiduciary duty first appeared in the 1689 English judgment
As the equitable maxim goes, equity is equality and the underlying values
of equity are considered to be simple good conscience, reason and good
faith. Equity was used to supplement the common law, where the strict
application of the existing law would in fact do more injustice than justice.
In the words of Lord Denning, equity was introduced to mitigate the rigour
of the law. This conception of equity is one which Chief Justice Beverley
McLachlin has stated that Canada has embraced with enthusiasm.1
In its origins, the word fiduciary means trust-like. Fiduciary duty
is the duty of loyalty that is owed by the powerful party to the vulnerable
party when the two are in a fiduciary relationship. The fiduciary relationship
can also be characterized as a vehicle used to impose duties on individuals
who hold power over the interests of others. As Leonard Rotman writes,
beneficiaries are vulnerable to the misuse or non use of power, and fiduciaries
[ought to] act with honesty, selflessness, integrity, fidelity and in the
utmost good faith (uberrima fides) in the interest of the beneficiary2
Fiduciary obligation has been described as a blunt tool for the control
of discretion and is viewed by many scholars as the way in which social
norms or mores are captured within the law, and the way by which law transmits
its ethical resolve to the spectrum of human interaction.3 The result
of fiduciary law is that obligations, in the form of a standard of conduct,
are imposed to regulate the way in which the opportunities that often
arise from being in a position of power can be utilized4.
The Frame Indicia for Fiduciary Relationships
Though the concept of fiduciary duty, stemming from a fiduciary relationship,
is one with which courts still struggle, and though it has been described
as having an innate resistance to definition and an inherent malleability,
a guide has been developed through jurisprudence to aid in the determination
of at least the institutional category of fiduciary relationships.5 In
Frame v. Smith Justice Wilson outlined a rough and ready test which captures
basic characteristics of the fiduciary relationship. First, the fiduciary
must have scope for the exercise of discretion or power. Second, the
fiduciary must be able to unilaterally exercise that power or discretion
so as to affect the beneficiarys legal or practical interests. Third
and finally, the beneficiary in a fiduciary relationship must be peculiarly
vulnerable or at the mercy of the fiduciary holding the discretion or power.6
This test has been accepted and acknowledged in several important cases
that have followed, including Hodgkinson v. Simms. In Hodgkinson the court
acknowledged that the test is most useful when seeking to develop a whole
new class of fiduciary relationship. Furthermore, the court clarified
that the test consists of important indicia that help us identify the presence
of a fiduciary relationship, and should not be taken as spelling out a
list of essential ingredients7.
Can the relationship between a member of parliament and constituents become
a new class of fiduciary relationship?
Once a fiduciary relationship has been found, equity will then supervise
the relationship by holding [the fiduciary] to the fiduciarys strict standard
of conduct.8 This standard of conduct gives substance to the conceptualization
of loyalty found in the fiduciary doctrine, and demands at least that
the fiduciary not act where there is a conflict between the duty to the
beneficiary and the interest of the fiduciary, and prohibits the fiduciary
from making a profit as a result of being in a fiduciary position. A breach
of fiduciary duty is found where there has been unauthorized conflict
or benefit, where fiduciaries privilege their own interests over those
of the people they are obligated to serve.9
The Application of Fiduciary Duty to Members of Parliament
How could it be argued that a member of parliament is in a fiduciary relationship
with his or her constituents? The expansion of institutional fiduciary
relationships to realms beyond the primary fiduciary relationship of trustee-beneficiary
has happened over the course of many years in the Canadian courts. For
instance, fiduciary duty was extended by statute to company directors,
requiring them to act in good faith and in the best interest of the company,
and parents have been found to have a fiduciary obligation to their children
in certain respects.
The first question is to whom is the loyalty of a member of parliament
owed? There are countless completely expected and unavoidable obligations
owed by a member of parliament. Obligations are owed to the riding association,
to the party, to supporters, to the country as a whole. For instance, every
member of parliament, in becoming a nominee for that party at the beginning
of the electoral process, makes a pledge sometimes implicitly and sometimes
explicitly to follow party rules. Though the appropriate degree of party
discipline is a matter of continual debate, the concept of team play and
the various debts that accompany an elected member to Ottawa are a natural
part of our political scene. However, these obligations large and looming
in the day-to-day reality of the lives of members of parliament are only
in addition to at least three other seminal duties at the heart of our
democratic system: the duty to the Crown, to the rule of law and to constituents.
To the Crown
Canadas status as a constitutional monarchy is evident in the oath of
office sworn by members of parliament at the beginning of every term. As
the Queen is the Head of State, parliamentary actions are carried out in
her name. However, as Eugene Forsey points out, the authority for those
actions flows from the citizens the constituents as we will discuss
shortly. The oath, contained in the Fifth Schedule of the Constitution,
requires that the member be faithful and bear true allegiance to the
Sovereign, and was implemented in order to guarantee the supremacy of the
British Sovereign over anything else.10 The oath of office is a formal,
and essentially mandatory, manifestation of an obligation central to our
system of government: the obligation to be faithful to the Sovereign.
The presence of the Sovereign in the oath does not mean that loyalty is
required to the Queen personally, but rather serves to evoke the Queen
as the symbol of personification of the country, its constitution and
traditions, including concepts such as democracy. As James Robertson writes,
elected members are assuming positions of public trust and with the oath
of office they promise to conduct themselves patriotically, and in the
best interests of the country.11
This oath is clearly central to Canadas political status as a constitutional
monarchy. Nevertheless, it should be noted that the workings of the oath
also emphasize the importance of the citizenry. As Robertson writes, Beauchesnes
Rules and Forms of the House of Commons of Canada states that the object
of the oath is to allow members to take their seat in the House12. However,
in order to take the oath an individual must first be duly elected. It
can therefore be argued that it is not the oath itself which bestows on
an individual the role of member of parliament; rather the oath is what
makes it possible for members, after a popular election, to adequately
fulfill their duties. After all, without the oath members are not able
to sit in the House and are therefore not able to participate in Parliament.
The oath is a requisite and logical part of the undertaking of a member
of parliament, and the allegiance to the Queen therefore an essential part
of the job. But it must be noted that without the oath the elected individual
is still considered a representative of his or her constituents.
To the Rule of Law
The importance of the Rule of Law to our society and system of governance
has been made clear in several important court cases. In Reference re Manitoba
Language Rights, a case referred to by influential judgments such as Reference
re Secession of Québec and British Columbia v. Imperial Tobacco Canada
Ltd., the Supreme Court of Canada wrote as follows:
[The mention of Rule of Law in the preamble to the Constitution Act, 1982]
is explicit recognition that the rule of law [is] a fundamental postulate
of our constitutional structure (per Rand J., Roncarelli v. Duplessis,
 S.C.R. 121, at p. 142). The rule of law has always been understood
as the very basis of the English Constitution characterising the political
institutions of England from the time of the Norman Conquest (A.V. Dicey,
The Law of the Constitution (10th ed. 1959), at p. 183). It becomes a postulate
of our own constitutional order by way of the preamble to the Constitution
Act, 1982, and its implicit inclusion in the preamble to the Constitution
Act, 1867 by virtue of the words with a Constitution similar in principle
to that of the United Kingdom.13
When members of parliament are elected to the House of Commons, they become
participants in, and in a sense instruments of, our system of governance.
Commitment to upholding the rule of law, to abiding by the regulations
imposed on parliamentarians and to generally maintaining and supporting
the democratic system by fulfilling the job requirements of representative
and responsible democracy are commitments demanded of all elected members
of parliament. This duty to the system is owed by all members of parliament.
While obligations to the Crown and to the Rule of Law are central and essential,
it is in the obligation to constituents where fiduciary law could play
a role. The obligation members have to represent the interests of their
constituents is truly at the heart of the mandate of a member of parliament.
Without constituents to represent there would be no role for MPs to play
in our current system of government, there would be no need for an oath
of office, there would be no system of representative democracy to uphold,
there would be no need for parties to effect change or safeguard the status
quo. The obligations members have flow from the power they gain from the
citizenry. Though the member is dependent on the electoral power held by
the constituents, once elected the constituents are completely dependent
upon the member to exercise the power of office in a responsible manner,
and in such a way so as to preserve the principles of representative democracy.
What is the duty owed to constituents and how is it fulfilled by a member
of parliament? How does a member represent constituents by doing exactly
as constituents wish or by making his or her own assessment on each issue?
What are the interests of constituents and how would you define what
is in the best interests of that group? When speaking of a members duty
to represent constituents we encounter immediately the various models of
representation possible between members and constituents, each of which
in turn informs how the duty is to be fulfilled. That is, how a member
chooses to come to a decision on what is in the best interests of his or
her constituents is dependent on the model of representation the member
chooses to follow.
David Docherty refers to three main models of the representative role:
first, the Trustee Model applies to legislators who believe they are sent
to Ottawa to exercise their personal judgment on the issues that come before
them. Second, the Delegate Model, most often associated with populist politics
such as that embodied by the rise of the Reform Party in 1993, asserts
that members are delegates of their constituents and are trusted with making
decisions in keeping with what a majority of their constituents would prefer.
A middle ground is found with the Politico Model, preferred by members
who look to their constituents for guidance when possible but believe that
guidance is not always possible or preferable.14
However, underlying these models of representation and ongoing debates
about how constituents should be represented is an important sentiment.
In his book The Parliament of Canada Professor C.E.S. Franks quotes a
speech by Edmund Burke which Franks characterizes as the most widely quoted
statement in the English language on the functions of an elected representative.
Burke stated: It is [the members] duty to sacrifice his repose, his pleasures,
his satisfactions, to [his constituents]; and above all, ever, and in
all cases, to prefer their interest to his own.15 I envision the underlying
duty owed by members one which I would elevate to the level of fiduciary
duty as that captured by Burke: the duty to represent constituents, in
keeping with whatever model of representation the member chooses, in an
honest, selfless and transparent manner. Fiduciary duty, the obligation
to act in the interests of the beneficiary, can be seen to underscore any
of the models of representation. In other words, what the concept of fiduciary
duty could do is to ensure that however a member decides to view their
job in the scheme of representational government, there are certain underlying
duties in place to ensure that the decision making process (not the decision
itself) is beyond reproach.
The strictness in the fiduciary approach is necessitated by the centrality
in our democratic system of the members obligation to his or her constituents.
The importance of maintaining our democratic system requires that constituents,
the 32 million Canadians who are not among the 308 sitting in Parliament,
have adequate representation. Our system of representative democracy means
that that citizens interests are considered at Parliament only through
their elected representative, and it follows that there must be some minimum
(which does not entail low or lax) standards for the behaviour of the members
of parliament. There are standards in place which seek to guarantee the
integrity of the decision making process, but I would argue that adequate
representation is best guaranteed by formalizing the accountability structure
in keeping with the requirement of a fiduciary relationship. Ultimately,
the proper representation of a constituency and its inhabitants should
be forefront in the minds of members of parliament even if only in the
sense that every member should vow to do their job to the highest possible
ethical standard, as mandated by fiduciary duty, in order to preserve the
sanctity of this relationship.
The Frame Indicia and MPs
How exactly can it be argued that the relationship between a member of
parliament and constituents is fiduciary in nature?
The first indicator in the Frame test is that the fiduciary has scope for
the exercise of discretion or power. This applies to members of parliament
without question. Members have some of the most important discretion and
power in the country, as their votes, arguments and participation affect
the rules that shape our society. This exercise is an inalienable aspect
of the job of a member of parliament, to the point where discretion can
be seen as a hallmark of the job of a member of parliament.
The second indicator of fiduciary duty is that the fiduciary is able to
unilaterally exercise that power or discretion so as to affect the beneficiarys
legal or practical interests. Unilateral exercise of power or discretion
can be seen in the way in which members take their individual decisions
on legislative issues, for example. This is not unilateral exercise of
power in the sense that legislative decisions typically involve all members
of parliament, but it is certainly unilateral exercise of the part of the
individual member. Though members may feel constrained by their party,
they always have the option of voting as they wish, an indicator of their
capacity for the exercise of their power and discretion however they see
fit. The legislative decisions members make, made through the exercise
of power and discretion, can certainly affect the interests of the constituents.
Furthermore, when looking at other examples of the exercise of members
power and discretion we can also look to the work they do directly for
their constituents. Be it a passport issue, an immigration issue or a pension
issue, constituents come to their members in various positions of difficulty
that can be remedied by the exercise of the members discretion and power.
In this sense, even the preliminary decision as to whether or not to help
a constituent is an exercise of discretion and power that affects the interests
of the beneficiary.
Finally, the beneficiary the constituents in this case must be peculiarly
vulnerable or at the mercy of the fiduciary holding the discretion or power.
The vulnerability of constituents in relation to their members can be seen
both theoretically and in everyday reality. In terms of the theory of democratic
representation, could there be anything more vulnerable than having to
rely on one individual, who likely does not know you personally and who
you may not have voted for, to represent your concerns, your interests?
To be your sole voice in the institution that makes the laws that govern
every aspect of your life? In terms of the more direct reality of the vulnerability
of citizens, there are issues that fall squarely into the ambit of federal
politicians, such as those related to passports or immigration, where members
of parliament can be a citizen's only hope when problems arise, that citizens
have to rely on their member to help them with, such as when problems arise
with passport or immigration issues.
In the relationship between members of parliament and their constituents
we find all three of the Frame indicia. It is illuminating to the see this
relationship put in the context of this classic fiduciary test, as it serves
to highlight the power and discretion members have and to emphasize the
power imbalance that exists between the two parties. Seen in this context,
the requirements of selfless action and conflict-free decision making are
clearly absolute and unequivocal necessities.
I would argue that the relationship between a member of parliament and
constituents should become a new class, in the institutional fiduciary
category, of fiduciary relationship.
The category of institutional fiduciary relationships, which includes trustees
and company directors, should not be considered closed. As Lionel Smith
writes in his commentary on Hodgkinson v. Simms, institutional fiduciary
relationships arise automatically, as a result of the law, and when an
individual enters into an institutional relationship he or she relinquishes
self interest by operation of law, even if not voluntarily. Smith notes
that the creation of a new category could be done for communitarian reasons,
those that are so important as to outweigh the potential harm done to individuals
who would find themselves in strictly controlled relationship.16 The extension
of the fiduciary concept to cases involving injuries that are not financial
has been called conceptually sound by Robert Flannigan, and is in keeping
with the finding that parents owe some fiduciary responsibilities to their
children or that a doctor has some fiduciary obligations to a patient.
In this case, the relationship between a member and his or her constituents
is one that requires the utmost loyalty and integrity and appears to have
the classic characteristics of a fiduciary relationship as outlined in
the Frame test. 17
Existing Support for Fiduciary Duty
An examination of the duties and ethics behind the role of member of parliament
is especially apt at this point in time, given the defeat of the Liberal
government in the wake of the Sponsorship Scandal, and with the adoption
of the Federal Accountability Act (FAA). With respect to their roles as
representatives, members of parliament are subject to the provisions in
the Criminal Code and the Parliament of Canada Act, as well as applicable
provisions of the Elections Canada Act. The FAA has brought in the Conflict
of Interest Act, which puts into statute form many of the provisions in
the previous code governing the actions of public office holders, though
this affects only slightly the code in place to govern the behaviour of
regular (i.e. non-ministerial) members of parliament.
This latter code, The Conflict of Interest Code for Members of the House
of Commons (Code), was reviewed by the Standing Committee on Procedure
and House Affairs (PROC) in its 54th report tabled in June 2007 and governs
the decision making behaviour of members of parliament. The PROC report
represents the latest in over three decades of wrestling with how best
to regulate the interests of parliamentarians, a process that started with
Members of Parliament and Conflict of Interest report tabled in 1973. The
PROC report recommends changes to the Code with regard to the FAA and the
need for further clarity and better interpretation. In all, the Code outlines
requirements for disclosure, for publication of some of the disclosure
information, for recourse to be undertaken in the event of a conflict,
and for inquiries into situations that have, or could, compromise a members
credibility. These requirements emulate what would be required of someone
hoping to fulfill fiduciary obligations, and a more in-depth study of the
appropriateness of these regulations and whether they meet the high standard
required for a fiduciary relationship could be illuminating.
For our purposes here, it is important to recognize that members are already
obligated to take steps to ensure the integrity of their decision making
process, and that their duty to make decisions in the interests of those
other than themselves and their family is highlighted to a certain degree.
Furthermore, the purposes and principles stated in ss.1-2 of the Code speak
to the importance of maintaining public trust in elected representatives,
in ensuring members put the public interest ahead of their personal interests,
and emphasize that the interests of members should be subject to strict
public scrutiny. These sections embody the purposes and principles I see
behind the proposed imposition of fiduciary duty. Of course, my contention
is that these principles and purposes can only be appropriately fulfilled
with the weight and legal status of the regime of fiduciary duty, but ss.1-2
of the Code and to a large degree the requirements on members in the
body of the Code do show that a desire to hold members to a strict, minimum
standard of behaviour is present and elaborated quite extensively.
Advantages and Disadvantages
Many possible consequences could flow from the recognition of a fiduciary
relationship between members of parliament and their constituents. According
to Shepherd, a conflict of interest exists where a fiduciary is faced with
a choice between the interests of the beneficiary and anyone elses interests,
including his own. The member would be obligated to make any decisions,
whether in caucus meetings, the house, or the office, in a transparent
and selfless manner to ensure first that there is not conflict and second
that any conflict would be visible and subject to scrutiny. This is the
minimum, exacting and essential standard that should be applied to all
members however they conceptualize their role (delegate or trustee, for
example) and however they choose to interpret the interests of their constituents.
The power of a member and the vulnerability of the constituents requires
that decisions are made not to further the member or his or her family
personally, but rather done strictly in his or her role as a representative.
Some of the direct consequences would include the detailed disclosure on
the part of the member of parliament of personal financial information,
as well as that of close family members. Possible conflicts would have
to be disclosed, and if it is impossible for a decision to be made free
from any perception of impropriety, there should be a recusal.
The advantages are many, and speak to the need for further consideration
of this debate.
First, recognition of a fiduciary relationship between members and their
constituents would better emphasize the obligation members possess, flowing
from their great power, to behave in a selfless manner. If we believe
in the importance of democracy (which we certainly do) and representative
government (again, which we do without doubt), we have to do our utmost
to ensure that the job of representative is conducted with the utmost
integrity, honesty and generally ethical behaviour. Though there already
are requirements that regulate the conduct of members such as those found
in the Code, these do not seem formalized enough to do justice to the crucial
principles that the requirements are in place to safeguard. As does exist
to some extent now, the conflict of interest regime should have as its
basis a solid conception of the loyalty, honesty and selflessness central
to the duty of a member of parliament. This creates a minimum, yet exacting
standard, to underpin the duty of representation taken on by all members
upon their election. Unlike the case with the current Code, fiduciary duty
is accompanied by centuries of jurisprudence and legal philosophy that
would lend credence to any modern application to members of parliament,
and brings with it the weight of a long standing legal regime which does
much to emphasize the importance of the attendant requirements. It would
institutionalize the divestment, disclosure and recusal requirements in
a way that a Code which can be changed by parliament seemingly at will
could not do.
There are some practical manifestations of a greater emphasis on selflessness
that I would welcome. Above all, a stricter and more emphasized regime
of selflessness and loyalty would reinforce the reality that the job of
providing adequate representation to tens of thousands of people does not
allow for constant campaigning, something seen often in minority parliaments.
Members are elected to represent their constituents as faithfully as possible
for a term. For the health of their continued political career members
can always hope that they will make enough widely felt and publicized decisions
in the course of their representation of their community to secure their
re-election. However, ideally I do not believe there should be an expectation
that their own re-election should take even the slightest priority in the
course of day-to-day business. Members should help supporters and non-supporters
alike, and should make time to meet with various groups even if those groups
will not help them politically.
Second, a fiduciary regime would not only highlight the details of the
obligations members have to their constituents, but would also highlight
the unique and essential role played by members in the grand scheme of
things, in our democratic system. A strict, legal obligation on members
to divest themselves of inappropriate influences and to recuse themselves
where necessary would help the public place greater trust and confidence
in their representatives, in the decisions they make and ultimately in
government as a whole. Furthermore, fiduciary duty is a way to highlight
in the minds of members the obligation of trustworthy representation, and
of setting that obligation apart from the many other duties members have.
This serves to ensure that constituents receive adequate representation,
characterized by a minimum standard of ethical behaviour. This greater
emphasis is necessary because amidst the realities their jobs, members
could easily lose sight of the role they play in our parliamentary democracy,
especially as the House of Commons can at times seem to be an institution
in which the effect of one member is quite insignificant indeed. There
is no disputing that the demands on a member of parliament are already
onerous: constant travel, grueling work days and the need to be incredibly
informed on a wide gamut of subjects make the work of an MP daunting. In
addition, the scrutiny devoted to the words and actions of members means
they are virtually always in the public eye. However, we must emphasize
and encourage members to remember the institutional role they play, in
that they are truly the sole vehicle by which every citizen of majority
age is able to participate in the democratic process. By ensuring primarily
that decisions are made in an environment that is conflict-free and transparent,
the relationship between constituents and members is also preserved as
is befitting of such an important connection.
Third, the imposition of fiduciary duty would safeguard the integrity of
the decision making process. In order for the House of Commons to truly
be accountable to Canadians, the decisions made by members must be open
for appraisal. The decisions themselves must be made public, as they are.
However, in order to evaluate those decisions am I being well represented?
Was this a decision that should have been made? Canadians must know not
only what the decision was, but also have a window into the decision making
process. Though the transcripts of most committee meetings and debates
are easily accessed by the public, the discussion surrounding decisions
taken in caucus or cabinet meetings will remain out of our grasp. As a
result, we must trust that our representatives will be thinking of our
interests as they make these decisions behind closed doors, and that they
will make a decision in a way that is not influenced by their own self
interest or in the interest of anyone other than their constituents. The
selfless and exacting standard of conduct required by the member under
fiduciary law, who ideally gives up any self-interest for the duration
of his or her term, should be seen as being as much a part of the job as
voting. That is, the rationale behind the vote is just as important as
the action of voting itself. This does not in anyway remove the prerogative
of the member to make his or her own decision; the definition of best
interests of a constituency can be debated eternally and many different
rationales justified. The imposition of fiduciary duty would simply stipulate
that the interests of the constituency must be served and would emphasize
what a member cannot do that is, make a decision in his or her own interest,
or the interests of a relative for example.
There are also many disadvantages to a finding of fiduciary relationship
between members and constituents. First, it is already difficult to appeal
to talented members of the public to run for public office and the imposition
of fiduciary obligations would make the job technically even more onerous
than it is at the moment. While I believe that this imposition is part
of what is required to ensure the job is done correctly, we should consider
its effect on the pool of candidates. This would no doubt be highlighted
by protests from at least some of the current members of parliament, who
would be able to make compelling arguments that they and their families
are already required to disclose huge amounts of personal information,
much of it for public consumption.
Second, any imposition of fiduciary duty would have to be done carefully
and in keeping with the jurisprudence and doctrine that has evolved through
the centuries. This alone could prove an impossible task, especially as
the difficult nature of fiduciary theory and the struggles our own court
has had with the concept are well documented. It is essential that any
extension of the institutional fiduciary relationship categories be done
on a well founded basis, and this would be challenging to say the least.
Third, there are many logistical issues that would accompany the application
of fiduciary duty to members of parliament that may themselves pose too
significant a barrier to the very idea. These are similar to the difficulties
in administering and monitoring compliance under the existing Code, which
though not by name or legal effect certainly embodies many of the principles
and purposes that would accompany the imposition of fiduciary obligations.
For instance, could the fiduciary obligation of members be officially created
by statute? To do so would be a complicated and messy process, as it would
require the careful codification of the minimum standard all members owe
to their constituents. The risk of codification of such a complex matter,
which involves consideration of historical, philosophical and practical
factors, is not only that it could be impossible to do properly and as
extensively as necessary, but also that the codification of this aspect
of a members job would have an effect on other aspects as well. Other
issues include the determination of who would review the conduct of members,
whether the courts would be able to get involved as a matter of course,
and what the punishment could be for members who breach their fiduciary
duty. Would constituents be able to seek remedies?
Furthermore, the privileges possessed by the House of Commons and its members
may provide a barrier to the recognition of fiduciary duty, or at least
necessitate a parliamentary specific application. Though there are legal
regimes, such as those pertaining to bribery, which affect members and
how they do their job as members of parliament, the imposition of fiduciary
obligation could have the effect of removing from the House the capacity
to sanction members and generally to regulate its own internal affairs.
If the fiduciary regime for members were to evolve by way of jurisprudence,
as opposed to statute, it would also raise the issue of parliamentary privilege
in the context of judicial review.
Overall, what we need is a concept that can operate to bring the idea of
accountability into more concrete terms for members of parliament. Fiduciary
duty is just such a concept.
Fiduciary duty is by no means a straightforward, inflexible construct.
However, the continuing discussions in the courts and by commentators on
the role of fiduciary law, how and when to extend fiduciary duty and the
content of that duty, should indicate that we should not close the door
on the further extension of fiduciary relationships to the public realm,
and to members of parliament in particular. Equity has supported the Common
Law when it has been found lacking and, as I envision it, the concept of
fiduciary duty could support other notions of responsibility and representation
much in the same way that equity has supported the Common Law through the
There are serious and acknowledged obstacles to doing this in both the
law and parliamentary convention, but the discussion should still take
place. By looking at this relationship in greater detail and by examining
and setting forth some of its underlying obligations, we can begin a truly
considered study of this important relationship. Overall, I believe that
members of parliament have a great commitment to their jobs, and to their
constituents. The recognition of a fiduciary relationship will only help
strengthen, emphasize and protect this essential relationship in keeping
with its essential place in our democratic system. Moreover, it helps guarantee
that this relationship one that has a power imbalance and discretionary
power over a vulnerable party at its core will remain one in which citizens
can rest their utmost faith.
1. Leonard Ian Rotman, Fiduciary Law, (Toronto: Carswell, 2005) at 13;
Rt. Hon. Beverley McLachlin, The Place of Equity and Equitable Doctrines
in the Contemporary Common Law World: A Canadian Perspective, in Donovan
W.M. Waters Ed., Equity, Fiduciaries and Trusts (Toronto: Thompson Canada
Limited, 1993) 37 -55 at 39.
2. Lionel Smith, Case Commentary on Hodgkinson v. Simms, (1995) 74 Canadian
Bar Review 714 at 730. [Smith]; Rotman, supra note 1 at 2,18,19.
3. Rotman, supra note 1 at 153, 2.
4. P.D. Finn, The Fiduciary Principle, in T.G. Youdan Ed., Equiry, Fiduciaries
and Trusts (Toronto: Thompson Canada Limited, 1989) 1 56 at 2. [Finn].
5. Smith, surpa note 2 at 717. Rotman, supra note 1 at 2, 6.
6. Frame v. Smith  2 S.C.R. 99 at para. 60. [Frame v. Smith].
7. Hodgkinson v. Simms,  3 S.C.R. 377 at 409.
8. Guerin v. The Queen,  2 S.C.R. 335 at 384, quoting Ernest Weinrib
in his article The Fiduciary Obligation (1975), 25 U.T.L.J. 1 at 7.
9. Matthew Conaglen, The nature and function of fiduciary loyalty, (2005)
121 L.Q.R. 452 at 459 460.
10. Eugene Forsey, How Canadian Govern Themselves, 6th ed. (Her Majesty
the Queen in Right of Canada, 2005) 1.
11. The oath reads: I, A.B. do swear, That I will be faithful and bear
true Allegiance to Her Majesty Queen Victoria. Note: the name of the King
or Queen of the United Kingdom of Great Britain and Ireland for the Time
being is to be substituted from Time to Time, with Proper Terms of Reference
thereto.; James Robertson, Oath of Allegiance and the Canadian House
of Commons, (Library of Parliament, Revised September 2005) at 16,17.
12. Robertson, ibid at 3.
13. Re Manitoba Language Rights,  1 S.C.R. 721 at para. 63.
14. David C. Docherty, Mr. Smith Goes to Ottawa: Life in the House of Commons,
(UBC Press: Vancouver, 1997) 143- 144. See also Jack Stilborn, The Roles
of Members of Parliament in Canada: Are They Changing? (Library of Parliament,
31 May 2002) at 16 17.
15. C.E.S. Franks, The Parliament of Canada, (University of Toronto Press,
Toronto, 1987) p. 57.
16. Smith, supra note 2 at 725.
17. Robert Flannigan, The Boundaries of Fiduciary Accountability (2004)
83 Canadian Bar Review 35 at 72; M(K) v. M(H)  3 S.C.R. 6; Norberg
v. Wynrib,  2 S.C.R. 224.