Peter H. Russell is a professor emeritus at the University of Toronto.
In the 21st century, Canadians have raised their expectations about how governments fill important public positions. And rightly so: Under the patronage model, these positions are handed to those who are known to be supporters of the governing party as a reward for political service, whereas merit-based appointment means finding the best-qualified person for the job. Our diminishing tolerance of favouritism is an appropriate raising of standards for a well-educated population.
Canadian governments appear to be getting it, enacting reforms that move the dial toward merit-based appointments and away from ones based on patronage. In 2010, Stephen Harper’s Conservative government established a committee-based process to advise the Queen as to who should serve as governor-general. This committee, chaired by the Queen’s Canadian secretary, two senior public servants familiar with the governor-general’s role and responsibilities, and two individuals from different parts of the country with an understanding of the requirements of the office, would land on David Johnston. Two years after that, Mr. Harper established the Advisory Committee on Vice-Regal Appointments, which used a similar process to search for promising lieutenant-governor candidates by soliciting names from a broad range of people and creating a short list for the prime minister to choose from. This was an important step along the road of moving from patronage to merit-based appointments.
Justin Trudeau’s Liberal government, too, has made its own efforts with two reforms: an independent advisory board for appointments to the Senate and another one for the Supreme Court of Canada. The one for the Senate has three permanent Ottawa appointees, plus ad-hoc appointees from the province or territory where a vacancy is being filled. The one for filling Supreme Court vacancies comprises judges, lawyers, and legal academics, plus at least two laypeople. The mandate of each board is to seek out outstanding candidates, encourage them to apply, then produce a short list from which the prime minister makes his selection.
But The Globe and Mail’s reporting about Justice Colleen Suche – who was rebuked by the Canadian Judicial Council last week for inappropriately giving advice on judicial appointments to her husband, Liberal MP and former cabinet secretary Jim Carr, as well as to the Justice Minister – exposes the halfway house the Trudeau government has built for itself on the road from patronage to merit.
Mr. Trudeau’s vice-regal selections seem pretty good. Over the five years he has been Prime Minister, he has appointed one governor-general in Julie Payette, as well as six lieutenant-governors; only one of these appointments – former Liberal MP and cabinet minister Judy May Foote, as Lieutenant-Governor of Newfoundland and Labrador – has the appearance of being based on political patronage. The appointees include five women, a person of Cree background, and an Acadian, part of the government’s policy of treating the representational quality of an appointment as part of what constitutes merit. And the appointments resulting from the new Senate and Supreme Court procedures have been impressive, even if there may well be ways to improve the process.
But if that all sounds familiar, that’s part of the problem.
When Mr. Trudeau took over as Prime Minister in 2015, he did not use the Harper-era Advisory Committee on Vice-Regal Appointments. He did not make any announcement about this, nor give any explanation. We cannot know which names the committee would have put forward, but one thing is certain: Creating an institutional legacy for that process would have made it more difficult for a potentially reactionary prime minister to move back to the patronage system. And for all these efforts so far, wouldn’t it be a shame if they were discarded by a non-Liberal government simply because they were introduced by the Liberals?
This is particularly unnerving when it comes to the appointment of judges.
Our judicial system has three basic strands. At the top is the Supreme Court of Canada, the highest court of appeal for disputes about every kind of law. At the bottom are the provincial and territorial courts, which is where most cases first go to trial. And in the middle are courts to which the federal government appoints the judges. Some of these are federal courts, maintained and administered by the federal government, and many more are courts maintained and administered by the provinces and territories, their courts of appeal and ones that conduct trials involving the most serious criminal matters and the most serious civil matters. These middle courts comprise the strata for which Justice Suche was sending lists of names to the justice minister.
And while the provinces and territories have adopted patronage-to-merit measures to reform appointments to their courts, and the system for appointing Supreme Court justices has been similarly reformed by the Trudeau government, appointments to this middle layer of courts remain all too vulnerable to patronage.
Efforts to reform the system of making appointments to these middle-strata courts go back to the 1980s, when judicial advisory committees (at least one for each province and territory) were introduced to make recommendations for appointments to vacancies on these courts. Candidates could be “recommended,” “highly recommended” or “not recommended.” The Harper government removed the “highly recommended” option. The Liberals restored it, but – and here’s the rub – they will not commit to appointing only candidates that are “highly recommended.”
And why is that? Well, the lists of the merely “recommended” are very long – a lawyer practically has to be disbarred to not make that list. The government can always find the names of its political friends on the lists of recommended candidates. Jurists such as Justice Suche should confine their advice to the justice minister to candidates highly recommended by independent advisory committees.
Now, with a minority government, is the time for parliamentarians to take a close look at the halfway house the Trudeau Liberals are content in live in, to make sure important positions go to the most qualified people – and to lay out a path that ensures the journey to merit-based appointments can be completed, regardless of which government is in power.
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