Friday, 21 March 2014

Parliament Should Follow the Court's Lead and Assert Its Independence

The aborted appointment of Marc Nadon reaches much deeper than a single failed judicial appointment. Instead it speaks to the worst tendencies in the current government and deep-rooted institutional failures. It is a government that sees the constitution – whether the written text or long established convention – as something to be disregarded when it becomes politically inconvenient. It is a government that fundamentally rejects the federal nature of Canada and, as a consequence, is a government that viscerally rejects the multilateralism and dialogue that such an arrangement necessitates. 

The Nadon reference represents a welcome pushback against these tendencies and a reassertion that, contra Mr. Harper, the constitution and federalism are to be respected whether they serve his immediate purposes or not. It is also a welcome defense of judicial independence, an independence made all the more necessary by the executive’s stranglehold on Parliament.

What is perhaps most ironic about the Court’s decision is that, in many respects, it reflects a former iteration of Stephen Harper: the radical provincial rights advocate decrying the centralizing tendencies of Ottawa and its stranglehold over its provincial counterparts. Here Quebec has asserted its right to representation and, perhaps equally importantly, portends the outcome of the yet-to-be-decided Senate reference, a decision which will likely follow a similar pattern.

This case also sinks a long-held conservative (and Conservative) argument about the nature of judiciary. The familiar rhetoric, so common since 2006, that the Conservative government faced the intransigence of a ‘Liberal Supreme Court’ can be firmly dismissed. This is a court of firmly of Harper’s making. It is a roundly Conservative court whose membership retains only two Liberal appointees. Indeed, it is neither a case of judicial intransigence nor a reflection of the party that appointed its members, but rather of a reflection of Harper’s own intransigence in the face of opposition and common sense.

Yet this is merely one example of many that emphasize this point and reflect not only on the failure of the Prime Minister and his office but ultimately about their failed attempt to reform the appointments process itself. Having come to power on a promise to streamline the Governor-in-Council appointment process, making it more open and transparent, it has instead become even more of a sham. In short, for all the window dressing of open hearings and consultation, Parliament is powerless to oppose, even in the face of damning evidence that an appointment is inappropriate.

More troubling, this extends to those Governor-in-Council appointments in which Parliament itself has a vested and direct interest: the appointment of Officers of Parliament. It, like the process that produced the erstwhile Justice Nadon, is conducted in reverse. In essence the position is filled (or at least the desired candidate is known outright) and the ‘nominee’ (a sham term ill-fitting the actual process) is subject only to moderate scrutiny. The PMO and the PCO seem entirely unconcerned whether or not their chosen ‘nominee’ is even qualified.

The disinterest with such matters is illustrated by the appointment of current Auditor General Michael Ferguson. A unilingual Anglophone, the PCO chose to ignore the Official Languages Act and, in response to pressure from a Senate committee, argued in convoluted terms that an Auditor General is outside the scope of the Act (a private members bill has since come into force mandate what was, until then, clear: an Officer of Parliament must be competent in both languages. What is worse, despite an attempt to defend itself, the PCO went to extraordinary lengths prior to Mr. Ferguson’s ‘official’ ‘candidacy’ to shore up his language skills. In short, they knew that it was both a requirement and the issue would be a problem. Nevertheless, the PCO (along with the PMO and the TBS), moved forward with the appointment.

It is difficult to see what a Parliament dominated by the executive would do even if it did assert itself. Senators and MPs are given a paltry hour each to vet the appointment and are themselves denied access to the basic information they need to do so. Indeed, the list of qualifications for the job is itself kept secret. The full details of the committee who ultimately selects the candidate remains secret and, even more supercilious, the dates they met are not public information.

In short, the criteria used to select candidates, the government’s rationale in selection of candidates, and skills required are unknown to Canadians or to parliamentarians. The entire process is little more than a rubber stamp. Parliament is placed in an unenviable position in which its members are faced with undermining an agency that requires parliamentary legitimacy to operate and, more troubling, one which parliamentarians will rely heavily upon in order to fulfill their accountability role. It’s an impossible catch-22.

The forceful rejection of Marc Nadon’s appointment by the Supreme Court may well be the most high profile case of an appointment process gone awry, yet is it far from the only example. Far from introducing transparency into the process, the Harper government has managed (miraculously) to make the process murkier. Equally problematic, it has reverted to a classic patronage model in other judicial appointments (see Vic Toews’ appointment to the bench) or vitally important federal agencies (see Chuck Strahl’s appointment to the Security Intelligence Review Committee).

What sets the Nadon case apart is that the principals involved – the Court and the provinces – are willing and able to fight back. Parliament, on the other hand, is in no shape to assert itself and challenge Harper or reform the appointments process. It remains to be seen whether this very public flogging will spur proactive (and positive) changes on the part of the government, including fulfilling its own electoral promises, or whether it will resist dire changes to the federal appointment process, whether for judges or for auditors general. Parliament needs to follow the Supreme Court's lead and assert its own institutional independence against a controlling and domineering executive branch

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