Lori Turnbull is the director of the School of Public Administration at Dalhousie University and the deputy editor of Canadian Government Executive magazine.
There are many factors, both institutional and cultural, that contribute to the concentration of power in the Prime Minister’s Office, with party discipline, brand obsession and a party leader’s influence over candidate nomination processes being central. Among the assortment of carrots and sticks at the prime minister’s disposal, the most effective carrot of them all has always been the power to make appointments, whether it be to cabinet, to the Senate, to a Crown corporation, to a diplomatic post or to the judiciary.
Party loyalists throughout Canada’s history have toed the party line in the hopes that their devotion would be rewarded with one of these appointments – all of them relatively prestigious, lucrative and coveted.
Given that partisan and patronage appointments have been woven into our political fabric, the news that, over the past several years, politicians, party members and party volunteers have been throwing their two cents into discussions on judicial appointments will come as a shock to absolutely no one.
But it is 2020, and cultural attitudes with respect to politics, democracy, accountability and transparency have changed.
Partisanship in appointments is seen increasingly as unfair and even an abuse of power. And, in the case of the current Liberal government, patronage is decidedly against brand. In 2015, Justin Trudeau, leader of the then-third-place Liberal Party, campaigned on broad and deep institutional reforms, several of which depended on a revamped approach to appointments that took partisanship out of the equation. Under Prime Minister Trudeau’s leadership, even Senate appointments, which have been reserved almost exclusively for partisan loyalists, are to be made on merit. So, while not exactly shocking, the e-mail chain revealing a partisan infrastructure around judicial appointments is difficult for the Liberal government to explain away.
To be clear, no one is saying that any laws, rules or regulations were broken; so those looking for a true scandal will likely conclude that there’s not much to see here. However, for those nostalgic for a throwback to the SNC-Lavalin story that captured Canadian political discourse just a year ago, the appointments story might offer some appeal.
The e-mails exchanged between ministerial staffers, obtained by The Globe and Mail, shed a new light on how the Liberal government operates on the inside. Like the SNC-Lavalin story, this one reveals friction between the Prime Minister’s Office (PMO) and the office of the minister of justice, both of which have key roles in judicial appointments. The minister of justice at the time was Jody Wilson-Raybould.
The appointments process works like this: federal judges are appointed by the prime minister on the advice of cabinet, following a recommendation from the minister of justice. It sounds straightforward.
The e-mails refer to a clash between the office of Ms. Wilson-Raybould and the PMO when the latter was seeking access to the results of caucus consultations on judicial appointments. Further to this, there was an exchange in which Ms. Wilson-Raybould and then-minister of natural resources Jim Carr disagreed on candidates for appointment in his home province of Manitoba, a disagreement that risked causing delay to judicial appointments there.
Again, there is no corruption here. Just politics. But the story speaks to the record of the Liberal government and the extent to which they’ve fulfilled their promises.
At the swearing-in ceremony in 2015, which unveiled the country’s first gender-equal cabinet, Prime Minister Trudeau told reporters that “government by cabinet is back.” The comment suggests a commitment on his part to let ministers be ministers and to grant them the space to make decisions within their portfolios and to be identified as responsible for them. It is possible that former minister and attorney-general Wilson-Raybould interpreted his comment in this way, which would explain her resistance to what she has described as pressure with respect to a deferred prosecution agreement for SNC-Lavalin, not to mention her incredulity that the pressure was coming at all.
To be clear, the role of the attorney-general in relation to judicial independence is wholly different from the role of the minister of justice when it comes to appointments. The former is to be exempt from political imperatives in ways that no other minister is and there is a clear public purpose to this exemption. However, the same narrative courses through both the SNC-Lavalin story and the e-mails related to judicial appointments: one of unabashed partisanship on the part of a government that promised to do things differently.