The Appointment Process for Public Office Holders – Fixes Needed

The way governments appoint judges and tribunal members is mostly mysterious – we know the general framework but not the inner workings of the process. It is only when the appointment process fails that we learn of some of the weaknesses in the system. In this column, I want to focus on recent examples of a particularly serious gap in appointment processes – the lack of a robust screening mechanism.

My purpose in highlighting these recent examples is not to suggest that the people appointed did not deserve to be appointed but rather that the government was surprised by information that came to light after the appointment. As we have learned from political scandals – often it’s not the “crime” that is serious, it’s the cover-up. What these examples further illustrate is a failure of the vetting process for important public positions. And a failure to properly vet people for positions of power can only lead to a weakening of public trust in our institutions.

Generally, candidates for judicial or tribunal appointments go through an application process, a selection interview, and then a criminal record and a credit check. Reference checks are commonly done as part of the selection process but as with regular employment practices those are of references provided by the applicant.

The most recent example is a founded complaint against a Federal Court judge. As part of the appointment process, all candidates for judicial appointment are asked the following questions on the application form:

• Are you aware of any current outstanding complaints, investigations, or insurance claims against you?
• If appointed, is there anything in your past or present which could reflect negatively on yourself, the judiciary, or the government?

The judge failed to report a harassment complaint against her (and others) at her former workplace. The complaint filed with the Canadian Judicial Council (CJC) by the individual who had filed the harassment complaint alleged that the now-judge had “improperly interfered with the outcome of the investigation” and that she had failed to report the complaint in her application form. The investigation of the complaint concluded after the judge’s appointment.

At the first stage of the complaint review process, the CJC found no evidence of harassment by the judge or interference in the investigation process but ordered a further inquiry on the failure to include the existence of the harassment complaint in the application form.

In a letter to the CJC, the judge acknowledged that she did not disclose the harassment complaint and provided some context for her decision not to include a reference to it:

• The harassment investigator told her that the investigation “would not involve any … measures against her personally, or anyone else” and she therefore viewed the complaint as not being against her “personally”
• She believed that the complaint would have no negative reflection on herself, the judiciary or the government because the complaint “did not present even a remote risk of such a finding”.

The CJC review panel started with the guidance from the Supreme Court of Canada on pre-appointment conduct of judges, Therrien (Re), [2001] 2 S.C.R. 3 (the failure of a judge to disclose a criminal conviction). In that decision, the court said that the appointment of a judge is a sign of confidence in that individual personally. The Supreme Court also stated that the failure to disclose undermined the judicial appointment process. The review panel also noted that the integrity principles set out in Ethical Principles for Judges do not distinguish between conduct that precedes or follows a judge’s appointment.

The review panel was quick to point out that there was no indication that the judge deliberately set out to give misleading answers on her application form. However, that was not enough to warrant dismissing the complaint. The review panel stressed the importance of the assessment process for applicants to the federal judiciary: “[s]uch assessment must be stringent given the important role judges play in Canadian society and how difficult it is to remove them from their position once they have been appointed”. The panel agreed that the accuracy of answers on the application form was “essential to the integrity of the appointments process”. It also stressed that applicants for judicial office “must be absolutely forthcoming and candid in answering all questions”.

The review panel also noted that it is the role of the Judicial Advisory Committees (JAC) to assess whether matters might reflect negatively on the applicant or the judiciary – not the applicant. The review panel stated that by failing to disclose the ongoing workplace investigation, the judge “undermined to a certain degree the integrity of the JAC vetting process”. She should have left it to the JAC to consider the investigation (and any context provided by her) and to come to its own conclusions.

The review panel noted that there were two purposes behind the questions on the application form:

• to determine whether the judicial applicant has a complaints history as a means of assessing their career to date; and
• to assess whether the applicant is open and honest about what may be negative aspects of their professional life.

By not mentioning the harassment complaint, the judge deprived the JAC of the opportunity to assess how she responded to it.

The review panel also stated that “it can be argued” that choosing not to disclose that one is subject to an investigation “however frivolous” it might seem, “is a type of behaviour that reasonable members of the public would expect judges to avoid”.

The review panel did not dismiss the complaint, but noted the following mitigating factors in assessing any sanction:

• She was sincere in her beliefs
• It was not clear that she had been informed that the investigation could have led to a disciplinary process
• There were no negative findings concerning the judge while she was employed
• She disclosed other complaints in her application form
• Her belief that the investigation was not about her personally was a reasonable one and acting on that belief should not cause any loss of public confidence in the judiciary
• There was no deliberate attempt to mislead the JAC

The review panel chose the sanction of “a public expression of concern” which it said recognized “the serious nature of the conduct and the undermining of the judicial selection process, along with the mitigating circumstances…”.

Another high-profile case involving pre-appointment activities was the appointment of the Chief Commissioner of the Canadian Human Rights Commission. The issue in that case mostly revolved around social media posts made by the appointee. The application form for Governor in Council (GIC) appointments has similar questions to those posed to judicial appointment candidates: “is there anything in your personal or professional background, whether current or past, that could, if it were to become known, bring disrepute to the Government of Canada?”

If a candidate is screened in for an interview with a selection panel, these questions are also asked at the end of the interview:

1. Do you have, or do you think you might have, any actual, potential or perceived conflicts of interest with respect to serving in this position?
2. Is there anything in your personal or professional background, whether current or past, that could, if it were to become known, bring disrepute to the Government of Canada?
3. Are there any activities you are currently undertaking that are registered under the Lobbying Act?
4. Have you ever had to deal with a harassment complaint, or a formal grievance made against you?

If yes, describe the situation and how it was resolved.

Although there was an independent review of the circumstances of that appointment, the investigator’s mandate did not include a review of the vetting policies or procedures for Governor in Council positions. An official of the Privy Council Office, responsible for the screening of potential appointees, said there had been “an administrative oversight” in this case.

Lessons learned

From these two recent examples, it is obvious that the vetting process for candidates for public office (other than criminal record checks or credit checks) mostly rests on the disclosure by the candidate. The success of that strategy depends on two weak reeds: the honesty of the applicant and their judgment of their past activities.

In these two recent cases, we can accept that both candidates did not see their prior activities as leading to any public disrepute. However, the subjective belief of a candidate is not sufficient to protect institutions from public perceptions of reputation – the reputation of the candidate, of the appointment process and the court or tribunal.

There are some reforms that governments could explore to significantly reduce (although perhaps not eliminate) any surprises after the appointment of a judge or tribunal member:

• A reference check with a human resources officer at the most recent employer of a candidate – which should reveal ongoing investigations or potential disciplinary actions.
• A more detailed investigation of online activities by candidates, perhaps using forensic tools or Artificial Intelligence.
• A professional investigation – like the one done for receiving a “secret” or “top secret” classification in government.

A robust vetting process is in the best interests of the administration of justice. It assures the public that screening of candidates who exercise public functions is taken seriously by the government. It enhances the reputation of all public office holders, by providing significant assurance that all those appointed are of the highest integrity. And it significantly reduces the embarrassment and damage to the reputation of the justice system by alerting the government of potential issues prior to appointment.