This past Friday, I heard Jeffrey Simpson of The Globe speak in Ottawa to the 18th Biennial National Conference: New Developments in Communications Law and Policy on “Canada’s Policy Challenges and the Trudeau Government.”
Simpson noted that this was the most talented government he has ever seen, but also the most ambitious. Too much ambition on too many things, Simpson warned, may note bode well in accomplishing anything.
If there’s anything this new government does accomplish, it should be a good hard look at the appointments process.
Andrew Griffith, former Director General for Citizenship and Multiculturalism and author of several books on multiculturalism, released a study on Policy Options this week on the lack of diversity in the judiciary. The federal government publishes statistics on gender, but does not publish any information about visible minorities and Indigenous persons on the bench, so Griffith was forced to use biographies and photos instead.
The diversity in the judiciary is particularly low for visible minorities and Indigenous people, but does continue to grow. However, the number of lawyers of these backgrounds tend to be younger than the general population, meaning many of them are not yet eligible.
As part of its review of the judicial appointment process, the Office of the Commissioner for Federal Judicial Affairs should expand the existing information on the gender of judges and include visible minorities and Indigenous people. With this information, the government could be held to account for its diversity and inclusion commitments, and it would be easier to track its progress over time.
The provinces and territories that do not already do this should do so, and they should use Ontario’s annual reports on appointments as a model, ensuring that the annual reports cover the overall diversity of the entire bench.
Simultaneously, Dean Sossin posted an open letter today to the Prime Minister and the Minister of Justice, calling for scrutiny around the process for appointing and re-appointing chairs and members of federal tribunals. The current process undermines the rule of law due to perceptions of partisanship, the ability to appoint at pleasure through a seemingly arbitrary process, and dismiss chairs and members on arbitrary bases and without cause.
These deficiencies all strike at the heart of the entitlement of Canadians to an adjudication of their rights and obligations by decision makers who are, and are seen to be, independent and impartial. Their nature and justice implications were authoritatively documented in La justice administrative : entre indépendance et responsabilité, the report of a recent empirical study of Québec’s adjudicative tribunals which will serve as an invaluable reference in your planned reform of GIC appointments.
Although much of these deficiencies in the judiciary and around tribunals are attributed to the previous government, the issues have in fact much more long-standing than that. The opportunity that this government has is to ensure that all forms of merit are properly included, and adjudicators are provided greater autonomy.
During my visit to Parliament Hill on Friday morning, I observed first-hand many of the physical, legal, and symbolic changes the new government is introducing. The Victims of Communism monument next to the Supreme Court of Canada has been cancelled, elected members are actively involved in introducing and passing new legislation, and there is an entirely new culture of openness and optimism on the Hill.
But this government, like all governments, will not last forever. The hope is that their legacy will be significant improvements, in particular around the judiciary and tribunals, which will extend far beyond their term. Strengthening the legal system in this manner, which others would argue comes at the expense of their own power, really only strengthens our democracy.