‘There seems to be a paralysis’: Trudeau government has backlog of more than 300 appointments

2016/10/18 Leave a comment

Almost a year in, one would expect more vacancies to have been filled, given the overall policy – greater diversity – is clear. But I can also see the wish to ensure that the details of the policy and its implementation are addressed first.

One of the key things to look for is the degree of transparency in political appointments, with comparable employment equity reporting to the public service and federally-regulated sectors (telecoms, banking, transport). Currently for judges, only gender is tracked. For other GiC appointments, while gender has been tracked comprehensively for 25 years (as has official languages), there has been little systemic tracking of the other groups (visible minorities, Indigenous peoples, persons with disabilities).

And in some cases, there has been backsliding: the GiC appointment index (top view) has less information than previously, requiring more looking at the individual organizations than before.

For my baseline study, see my short ebook, “Because it’s 2015 …” Implementing Diversity and Inclusion, available either in an iPad/Mac version (iBooks) or Windows (pdf) Version.

Prime Minister Justin Trudeau and his cabinet have accumulated a backlog of more than 300 appointments that are due to be filled, a CBC News investigation has found.

Almost 20 per cent of governor in council (GIC) appointments, which include roles with Crown corporations, port authorities, agencies and tribunals, are currently vacant or occupied by a Conservative appointee whose term is past its expiry date.

Overall, 170 GIC positions are listed as vacant. Another 116 are past their appointment’s expiry date but the incumbent has been allowed to remain in the role until he or she is either replaced or renewed.

Currently, 61 federally appointed judge positions are vacant, including one seat on the Supreme Court of Canada.

In the Senate, 20 per cent of the 105 seats are empty. The government has pledged to fill the 21 spots “by the end of the year.” Three more senators are due to retire in January.

Taking a toll

In some cases, incumbents have been temporarily renewed only a day or two before their appointments were set to expire because the government had not yet launched the process to find a replacement.

For example, Graham Fraser’s appointment as commissioner of official languages, which was set to expire Sunday, was extended Thursday for two months. The government has yet to issue a job posting to find his successor.

The backlog has taken a toll on the operations of some boards and government bodies.

The CRTC hasn’t been able to hold a planned hearing on French music since November because it doesn’t have the necessary three French-speaking commissioners.

The parole board, where 21 per cent of positions are currently vacant, says it’s being stretched, with its remaining part-time board members putting in additional hours to ensure the work is done.

Alberta judges warned a Senate committee in late September that the 61 vacant judge positions could affect court proceedings, saying the province’s justice system is so backlogged they are now setting trial dates for 2018. Last week, an Edmonton judge stayed a murder charge against Lance Matthew Regan, citing delays in bringing the case to trial caused in part by the backlog in Alberta’s justice system.

‘Overwhelmed’

Liberal government insiders privately point to the Prime Minister’s Office and the Privy Council Office as the source of the problem, saying “the centre” has been “overwhelmed.”

The government is confident the problem will be resolved soon. It says the backlog was caused in part by the decision to overhaul the appointments process and bring in a more open, balanced, merit-based system. The new system is now up and running and vacancies are being filled, officials say.

Source: ‘There seems to be a paralysis’: Trudeau government has backlog of more than 300 appointments – Politics – CBC News

Sean Fine of the Globe focusses on the impact on the court system:

While Prime Minister Justin Trudeau is considering his first appointment to the Supreme Court of Canada – a vacancy became available on Sept. 1 – the shortage of lower-court judges may make it difficult for some jurisdictions to meet constitutional guarantees of timely criminal trials.

In July, the Supreme Court of Canada set a deadline of 30 months in superior courts (such as the Court of Queen’s Bench) from the time a charge is laid until the trial is completed. In Calgary, the wait is now just short of 15 months – 63 weeks – to schedule a trial of five days or more. (It can take months from the time a charge is laid until a trial is scheduled.) The situation is about the same in Nova Scotia, where the Supreme Court is now booking criminal trials of five days or more for next fall.

Civil trials, too, face long delays, which Chief Justice Wittmann said is especially hard on families seeking resolutions to legal problems. The lead time to schedule a civil or family trial of five days or more in the Court of Queen’s Bench in Calgary is now 138 weeks – bookings are being accepted for April, 2019. The Court of Queen’s Bench is Alberta’s top trial court, and it has seven vacancies and 59 full-time judges in office, according to the Office of the Commissioner for Federal Judicial Affairs. The province’s Court of Appeal has two vacancies and 12 full-time judges in office.

In Nova Scotia, the Supreme Court (the top trial court) has five vacancies and 31 full-time judges in office. The Court of Appeal has one vacancy and seven judges in office.

“On rare occasions in the past we’ve had to cancel matters. However, this is the first time we’ve had to send out multiple letters the month before suggesting that trial dates be rescheduled due to the shortage of judges,” Jennifer Stairs, the communications director for the Nova Scotia judiciary, told The Globe in an e-mail.

“That’s very difficult on the lawyers and on the litigants who are anxious to have their matters heard.”

B.C. has eight vacancies and 82 judges in office on its Supreme Court, and three open spots and 12 judges in office on its appeal court. Five-day criminal trials are available in January, 2017, while five-day civil trials, other than motor-vehicle actions, can be booked from August, 2017, onward. Dates for five-day motor-vehicle action trials are fully booked for the next 18 months, according to Superior Courts communications officer Bruce Cohen.

The Canadian Bar Association, representing the country’s legal profession, is also upset at the delays in appointing judges.

“We are very concerned. Ongoing judicial vacancies have created significant delays in the court system. These delays have a serious impact on separating families and their children, on criminal justice, on business in Canada,” CBA president René Basque said in an e-mail.

Canadian courts languish as vacancies on bench remain unfilled

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Liberal government’s new public appointment process fails to improve system, says Conacher

2016/06/07 Leave a comment

Like many such changes, the proof will only become apparent after a few years, when over 50 percent of GiC positions have been renewed or replaced.

From my perspective, the application of the diversity and inclusion agenda to appointments, hopefully accompanied by annual reporting, will help judge whether Duff Conacher or Alex Marland are correct in their initial assessments.

My take, given my focus on diversity issues, is that we will see an increase in women, visible minorities and indigenous peoples, along with other aspects of diversity, although the “values” of appointments will be largely aligned to the Liberals, just as the previous appointee values were aligned to the Conservatives.

For the baseline of current GiC appointments, see my article, Governor in Council Appointments – 2016 Baseline, or my book, “Because it’s 2015 …” Implementing Diversity and Inclusion, available as a free download (iPad/Mac version (iBooks), Windows (PDF) Version):

“The Conservatives, for most appointments, put an ad up on that website, sometimes put an ad in a newspaper, usually had a headhunter firm, for lack of a better term, do the search for candidates … the Conservatives kept on claiming ‘we’re doing this new way of appointments,’ but the key is the headhunting firm or whoever did the search would just put a list that was a completely advisory list to cabinet and cabinet or the prime minister could choose whomever they wanted,” said Mr. Conacher.

On Feb. 25, 2016, the Liberals quietly announced a new approach to governor in council appointments, which will “apply to the majority of non-judicial appointments, and will make hundreds of part-time positions subject to a formal selection process for the first time.”

“We are committed to raising the bar on openness and transparency in government to make sure that it remains focused on serving Canadians as effectively and efficiently as possible. Government must serve the public interest, and remain accountable to Canadians,” reads a quote from Mr. Trudeau on the release (there is no corresponding event or actual in-person announcement indicated).

As indicated online, the “new approach will” require all GIC opportunities to be advertised online, as well as in the Canada Gazette, and GIC candidates will complete an online profile of their personal background (including language and identity group) in order to try to ensure diversity in appointments.

“Additional online and/or print media may be used in some cases,” reads the website. “Each rigorous selection process will be based on advertised selection criteria developed for the position, and assessment of candidates against the criteria,” it reads, adding this assessment is then provided to the minister responsible.

Members of these selection committee “will be chosen to represent the interests of those who are responsible for decision-making on appointments (the minister, the prime minister), as well as individuals who bring a perspective on the specific interests and needs of the organization,” reads the frequently asked questions section.

The February release indicates this “will be” the new process for GIC appointments, and “the Governor in Council appointment process does not require the approval of Parliament,” said PMO press secretary Cameron Ahmad, when asked what’s required to formalize the new process posted online.

“The process is currently being implemented and applies to Governor in Council appointments. It was made public in February,” he said, adding “the Privy Council Office supports the prime minister with respect to governor in council appointments” when asked which department drafted the new process.

The Liberal government’s new “rigorous approach to appointments is based on the principals of open, transparent and merit-based selection processes that will support ministers in making appointment recommendations for positions in their portfolio,” said Mr. Ahmad, when asked why ultimate discretion to recommend to the GG lies with cabinet and the PM.

“The new approach raises the bar on openness and transparency in government and supports accountability to Canadians,” his response continued.

Mr. Conacher said the Liberal government’s new GIC process is ultimately “no different than what the Conservatives did,” and by allowing ministers or the PM to ignore selection committee recommendations it’s “maintained the patronage crony system.” He said he thinks the Liberals are reluctant to fully take decisions out of the hands of government because “the Liberals have a whole bunch of people who volunteered for 10 years while they lost three elections and some of those people want a reward.”

“This is one of the greatest areas of cabinet power,” said Mr. Conacher.

Mr. Conacher said instead, there should be a new process introduced federally similar to Ontario’s judicial appointments committee which has 13 members, six of whom are members of the public—though he said the “flaw” is seven members are from the ruling party. Mr. Conacher said with a minority of members from the ruling party and a majority from opposition parties, or require membership to be approved by all House leaders. This committee would “come up with a short list” of candidates and then cabinet would “have to choose from the short list.”

As well, he said all positions should be advertised widely online, including on popular public job sites (like Monster Jobs, for example).

Alex Marland, associate professor of politics at Memorial University, said if the “composition of the group of people making the [GIC appointment] recommendations have deep Liberal connections” it’s hard to “put a lot of faith that this is any more than window dressing.” But he also said he doesn’t worry about cabinet or the PM having discretion over such appointments.

“I actually think that’s necessary, because ultimately cabinet is accountable to Parliament, and ultimately cabinet has to run the government, so how could the government function if somebody is being recommended to a position and cabinet is bound to appoint someone who they realize the can’t possibly work with or who will undermine what they’re trying to do,” said Prof. Marland.

Prof. Marland said more transparency is good, and the fact that the process is publicly available “does reduce the possibility” for cronyism and at the end of the day, “you have to trust that these groups take their jobs seriously and will actually make recommendations that they believe are the right ones.”

The Liberals have also committed to review the judicial appointment process and in an email response to questions from The Hill Times, including on timing, Justice Minister Jody Wilson-Raybould said she “will work with interested stakeholders, including the judiciary, and Canadians on these appointments.”

“In the interim, our Government is moving forward on measures that will facilitate appointments to fill highly pressing judicial vacancies as soon as possible,” reads her response. There are currently about 46 vacant seats on the benches of federally appointed superior courts across Canada.

As well, back in December, the Liberals announced the creation of a new Senate appointment process with the Independent Advisory Board for Senate Appointments.

Source: Liberal government’s new public appointment process fails to improve system, says Conacher |

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The Government Could Be Appointing Indigenous Members To Canada’s Pipeline Regulator – BuzzFeed News

2016/04/30 Leave a comment

What diversity and inclusion means for Governor in Council appointments, an early example:

The Canadian government is signaling that it’s going to appoint Indigenous members to the board that decides on pipeline projects.

The move would shake up the composition of the National Energy Board, which is dominated by former oil and utility company executives.

As was first reported by Blacklock’s Reporter, Natural Resources Minister Jim Carr told a committee last week that the NEB “has to be composed of individuals who better reflect the diversity of Canada.”

CPAC / Via cpac.ca

“The National Energy Board should be more reflective of the diversity of the country, including and particularly Indigenous cultural background and perspective,” Carr told the Indigenous and Northern Affairs committee.

Carr said the same applies to the temporary members the government plans on appointing to help review the Energy East proposal.

“Through the appointment of new temporary members to the board [we know] that Indigenous background issues are important,” Carr said.

Carr was speaking in the context of the Liberal government’s promised reforms of the NEB. Before the federal election, Justin Trudeau promised to “put some teeth” back into the regulator, the Canadian Press reported.

Carr’s ministerial mandate letter instructed him to reform the NEB so that its members have better knowledge of Indigenous issues, among other things.

The NEB has been criticized for its lack of diversity and failing to sufficiently consult the communities, including Indigenous ones, that would be affected by proposed pipelines.

“We’re opening up the important reform of the National Energy Board and environmental assessments in Canada generally speaking to what we hope is a robust, important Canadian chat about that,” Carr said.

He said the government will be announcing the permanent reform process “in the next while.”

Source: The Government Could Be Appointing Indigenous Members To Canada’s Pipeline Regulator – BuzzFeed News

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Trudeau government asks for ideas on open government

2016/04/02 Leave a comment

Where do I begin?:

The Liberal government is asking Canadians for their ideas on making government more open.

Treasury Board President Scott Brison announced the national consultation today.

Brison says the transparency bus has left the station.

The minister says he believes that an open government is a more effective government.

Beginning today, people can go to open.canada.ca to offer their views on what should be in the next federal strategy on open government.

Officials will also hold in-person discussions across the country and the resulting plan is to be released this summer.

 Some initial thoughts on my short list:
  • The hardest issue of all: changing the culture and enforcing a default obligation of openness;
  • Provide information in electronic formats that allow manipulation for analytical purposes. The previous government only released public opinion research data tables in pdf format, rather than in spreadsheets. More recently, PCO was unable (or unwilling) to export its database of GiC appointments in spreadsheet format, requiring me to recreate this already public information;
  • Expanded data sets, issued regularly in a timely fashion. My initial list, starting with citizenship:
    • in addition to top 10 (consider top 25)  countries of birth, have complete table or one mapped to IRCC operational regions (top 10 only covers about 50 percent of new citizens)
    • naturalization rate after 6 years of permanent residency, broken down country of birth mapped to IRCC operational regions
    • naturalization rate after 6 years of permanent residency by immigration category, gender and province
    • citizenship test pass (language and knowledge) results by country of birth mapped to IRC operational regions
    For passports, numbers related to:
    • top 25 countries of birth (all)
    • top 25 countries of birth (foreign-born)
    • number of passports issued abroad mapped to IRC operational region (to give sense of Canadian expatriates)
    • breakdown by country of birth of passports issued abroad

    Appointments: regular employment equity type reporting for all GiC appointments.

Source: Trudeau government asks for ideas on open government – Macleans.ca

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Governor in Council Appointments – 2016 Baseline diversity

2016/03/31 Leave a comment

GiC Baseline 2016.010With the overall Government commitment to diversity and inclusion in all appointments, this deck provides a detailed analysis of the more the 1,300 current GiC appointments.

Governor in Council Appointments – 2016 Baseline

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Why won’t the Liberals act on Harper’s overreach on appointments? Baar and Russell

2016/03/29 Leave a comment

Valid points by Carl Baar and Peter Russell (a former and excellent professor of mine):

One of the lingering excesses of the Stephen Harper government has remained largely unaddressed: awarding appointments for positions that would not be vacant until after the Oct. 19, 2015, federal election.

To the astonishment of many of our colleagues in political science and law, 49 order-in-council appointments were adopted by the Conservative cabinet from Nov. 27, 2014, to July 28, 2015 – all before the dissolution of Parliament – even though the effective dates of the orders were after Oct. 19, 2015, and in one case not until Jan. 1, 2019.

Of these, 48 were reappointments of existing members of agencies, boards and commissions, typically for fixed terms of two to five years, paying salaries as high as $200,000 a year or more.

The one new appointment was to the National Energy Board, for a seven-year term that began on Nov. 23, 2015 – a month after the election was over, and continues until Nov. 22, 2022.

We know of no constitutional principle that allows a government to fill vacancies that do not exist until after the end of its mandate – in this instance, when those vacancies occur after an election has been held.

The search for comparable events has been instructive if not troublesome. Last fall, elections in Poland led to the defeat of its previous government. The new government rescinded five appointments made by its predecessor to the country’s Constitutional Tribunal. That tribunal subsequently ordered three of those appointees reinstated, but declined to reinstate the other two because their positions were not vacant until after the new government came into power.

In Florida, the term of a member of its Supreme Court expired on Jan. 1, 1999, the same day governor-elect Jeb Bush was scheduled to take office to replace a Democratic incumbent. The situation was resolved when the two party leaders agreed on a single appointee to fill the vacancy.

Surely in Canada, with a system of government based on principles of responsible government and democratic accountability, this kind of overreach – making appointments that become effective beyond a government’s democratic mandate – is just as unacceptable as in other democracies.

….Our constitutional system is bulwarked by a set of “unwritten” principles or conventions to ensure that official conduct is consistent with the underlying spirit of our written Constitution.

One advantage of having unwritten conventions is that they can change and be adapted to new challenges to our constitutional order. However a disadvantage is that when unexpected abuses of power occur, there is no easily identified convention to apply.

Thus, for example, there is a caretaker convention that requires government to act with restraint between the time Parliament is dissolved and the newly elected parliament meets. Restraint means carrying on with the day-to-day governing of the country but without taking new policy initiatives or making important appointments.

The caretaker convention emerged in 1896 when Conservative prime minister Charles Tupper, after his defeat in the election but before the summoning of Parliament, presented the governor-general, Lord Aberdeen, with a long list of appointments. The governor-general refused to sign the more important appointments, including those to the Senate and the Supreme Court of Canada. When the House of Commons met after the election, the new prime minister, Wilfrid Laurier, supported the governor-general’s refusal and no member of Parliament supported Tupper.

What we need now, in 2016, is for a member of Parliament to challenge the Harper government’s overreach appointments, and get the same kind of support as Laurier received for challenging Tupper’s attempt to make unconstitutional appointments.

In that way, Canada will establish a constitutional convention that a government cannot make order-in-council appointments to positions that will not be open until after an election.

Source: Why won’t the Liberals act on Harper’s overreach on appointments? – The Globe and Mail

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