Peter Russell: Ottawa’s fragile, halting journey away from political patronage

Of note regarding judicial appointments:

In the 21st century, Canadians have raised their expectations of how important public positions are filled by our governments. 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 candidates 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, and 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 bring back the patronage system. And for all his 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.

Source: Ottawa’s fragile, halting journey away from political patronage: Peter H. Russell

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

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

Reframing the debate over expat voting: Russell and Sevi, Globe editorial

Reframing_the_debate_over_expat_voting_-_Macleans_caTwo contrasting views on expatriate voting.

The first, by Peter Russell (a former excellent and insightful professor of mine) and Semra Sevi (who has written before Canadian expatriates should never lose the right to vote), provides useful data on the number of expatriates who actually vote.

The number, as shown above, is minuscule compared to the estimated almost three million Canadian expatriates. The article also has the following international comparisons:

The five-year limitation, as opposed to some other limit, is overly drastic and Canada’s provision is not comparable with similar democracies around the world.

Americans living outside of the country have the right to vote no matter how long they have been abroad providing they pay taxes. The right to vote expires in the United Kingdom after 15 years abroad. To put this into perspective, this is three times longer than what Canada permits even though Canada is part of the Commonwealth.

Australian citizens abroad are allowed to vote so long as they intend to return to Australia within six years. After six years, citizens can renew their status by making an annual declaration of their intention to return “at some point” thereby voting for an indefinite period. In New Zealand, there is a three-year limit but the clock restarts every time citizens visit the country. Moreover, New Zealand extends the right to vote to non-citizen residents from other Commonwealth countries.

The United Kingdom extends similar voting rights to citizens of Commonwealth countries and citizens of the Republic of Ireland. The five-year limit in Canada is an arbitrary number and is unnecessarily onerous. On the surface, it is a year less generous than Australia, but Australians can renew their status by expressing a mere intent to return to the country “at some point” in the future. Canadians, on the other hand, need to resume residency to regain their right to vote abroad.

The right to vote is a fundamental right of citizenship that is protected by the Charter and does not depend on place of residence. The five-year limitation does not conform to the 21st-century demands of globalization. While there is currently an NDP-sponsored bill to repeal the provision that limits voting rights for Canadians abroad as unconstitutional, it is possible that the unconvincing judgment of two Ontario appellate judges could be overturned on appeal to the Supreme Court of Canada—but, alas, not in time to restore democratic rights to the close to a million and a half Canadians living abroad for the fall election.

Reframing the debate over expat voting – Macleans.ca.

Expatriate Voter TurnoutThe Globe editorial takes, correctly in my view, takes the opposite view:

We think the decision is the right one, for three reasons.

First, because our electoral system, based as it is on residence in a particular electoral district, assumes a connection between residence and voting, governors and the governed.

Second, because we live in a world of national borders and laws that do not apply extraterritorially, which means the lives of non-resident Canadians are largely not governed by Canadian law. As Ontario Chief Justice George Strathy put it, “permitting all non-resident citizens to vote would allow them to participate in making laws that affect Canadian residents on a daily basis, but have little to no practical consequence for their own daily lives.”

And third, because reasonable people can disagree, reasonably, over how long a citizen should reside outside of Canada before having her vote suspended. Should the limit be five years? Ten? Two generations? Never? The practical question of setting reasonable limits is best left where the Ontario Court of Appeal left it, in the hands of Parliament.

The Canada Elections Act says that Canadian citizens are entitled to vote in the riding in which they typically reside. However, the Act also says that Canadian citizens living abroad for more than five years cannot vote. There are exceptions for people sent overseas in service to the country, such as members of the Armed Forces.

All of which is not unreasonable. Justice Strathy noted that “residence is a determinant of voter eligibility in all provinces and territories.” If you move from Nova Scotia to Alberta, you can’t continue voting in Nova Scotia in perpetuity.

He also pointed out that “residence is a requirement of the electoral laws of the other Westminster democracies. The U.K., Australia and New Zealand limit the voting rights of non-resident citizens to those temporarily resident abroad.” The maximum time overseas before one loses the vote is 15 years in Britain, six years in Australia and three years in New Zealand. Canada’s current law is fair.

 No, Canadians living abroad shouldn’t get to vote 

Canadian expatriates should never lose the right to vote

The problem with Semra Sevi’s argumentation like that of others is that it relies on anecdotes and generalizations:

Canadians abroad are connected to global networks that Canada can benefit from. Instead of using derogative labels like “Canadians of convenience” or “Foreigners holding Canadian passports,” Canada needs to take a proactive approach to engage Canadians living abroad. People have many different reasons for moving away, and to label them as less Canadian for doing so is troublesome. There are many cases of Canadians studying in the United States who find work in the United Kingdom before coming back to Canada a decade later yet under the current system they would be disenfranchised after five years. Many of these Canadians working abroad do so for Canadian companies, yet these businesses are not facing the same dilemma as Canadians abroad.

Immigrants who decide to leave Canada for whatever reason and return to their native countries are not less Canadian as their compatriots who live in Canada. They may not be residing in the country but they are nevertheless subject to Canadian law and foreign policy decisions. Many of them actively retain connections to Canada. Questions like are expatriates “real” Canadians, is unconstitutional and un-Canadian in themselves. Canadians living abroad are significant global assets who deserve the same rights as those living in Canada. The world is as interconnected as ever, and is only becoming more so. Isolating citizens based on their current geographic placement, which is based on many factors, runs counter to the way the world operates in the twenty-first century.

The reality if varies by community, it varies by individual, and it varies by country of residence. My anecdotal experience with Canadian expatriates when I worked in the foreign service was mixed; some maintained a strong ongoing connection, others did not.

We do not have enough survey and other information to know, beyond the usual anecdotes, how many expatriates have a meaningful ongoing connection to Canada.

Generally speaking, the longer the time outside of Canada, the looser the bond as family, work and local connections become more meaningful.

I suspect if we applied the US approach of taxation based on citizenship, some of the enthusiasm for unlimited voting rights (no representation without taxation) would decrease.

Canadian expatriates should never lose the right to vote – The Globe and Mail.