Good morning, Prime Minister. Appreciated your taking a peek at the administrative justice system the other day; glad to see that you are interested in talking some more. Thanks for the call.
Yes, I did see your announcement that you are developing a new and “more rigorous” GIC appointments process. It is to be designed to “support Ministers in making appointment recommendations” – a transparent, merit-based process. That was the February 25th announcement, right?
No, Mr. Trudeau, I didn’t much like it. Why? Because there is no recognition in that announcement of the need to distinguish between, on the one hand, “agencies” – i.e., regulatory agencies, Crown corporations, boards of directors, etc. – and, on the other, adjudicative tribunals. You seem to be assuming that one appointments process will do for both categories.
Why is that a problem? Well, in general terms, it is another instance of Canadian governments refusing to distinguish between agencies and tribunals, and it is that refusal that has buried our administrative justice system under the pile you looked at the other day.
In particular, the fact is that you need two distinct appointment processes – one for agencies and one for tribunals. The one projected in your announcement will probably be okay for agencies, but you need something quite different for tribunals.
Well, I’m not surprised that your advisers are telling you that. Everyone you will talk to – those in the public service, your political colleagues, your political advisers – all of them will have a strong professional interest in having the agency-tribunal distinction ignored. From their self-interested perspective, the need for executive branch control of tribunals will be seen to be no different than the need for executive branch control of agencies.
But, here’s the thing: unlike agencies, tribunals are not engaged in doing the government’s business; they are not exercising a managerial discretion in the administration of policy. They are doing the courts’ business: determining people’s legal rights by interpreting existing law and applying it to evidence-based findings of fact. That function is not a discretionary function, it is a judicial function; it cannot be distinguished from what courts do; it requires unbiased decision-makers.
You would like some examples? The most obvious are the Canadian Human Rights Tribunal and the Social Security Tribunal. I think you will find about 11 federal tribunals that qualify as adjudicative tribunals – tribunals that are doing the courts’ work, not your government’s work.
Agencies, on the other hand, are not doing the courts’ work, they are doing your government’s work. It is work that could be done by government departments but it has traditionally been assigned to agencies for a variety of sound political or administrative or economic reasons none of which have anything to do with the justice system or the rule of law.
Thus, for agencies, there is every reason for you and your colleagues to appoint decision-makers who share your ideology – decision-makers you can count on to support your government’s policy direction.
Yes, Mr. Prime Minister, I am saying that your appointments to agencies need to be partisan.
And no, I am not being inconsistent. For example, if your government believes in the importance of an independent public broadcaster you will want to appoint people to the CBC Board who share that belief, and should your government have strong views on the need for the airwaves and the internet to be managed and controlled in the public interest, you will not want to appoint CRTC board members who believe that market principles should always prevail.
I am not saying that you would ever select people for appointment to an agency’s board with the intent of subverting the agency’s legislated purpose. But every agency’s constituent statute gives that agency a managerial discretion over a range of operational issues – what is to be done is clear, how it is to be done is the question. And it is appropriate, and to be expected, that your government will feel the need to appoint agency members whose general predispositions on the operational issues within that agency’s range of discretion are congruent with your government’s own general predispositions on those issues.
But, as much as your advisers might like you to think otherwise, there is no comparable justification for having partisan decision-makers in adjudicative tribunals – in fact, no justification at all.
In the tribunal context, a partisan appointment produces a biased adjudicator – no, of course, not necessarily actually biased, but an adjudicator seen to be biased which in law is the same thing.
The partisan nature of the appointment gives any right-thinking, objective and informed, outside observer – and most parties in hearings before that adjudicator – grounds for reasonably apprehending a conscious or unconscious government bias in that adjudicator, which is in law the definition of a biased adjudicator.
Both democratic theory and the rule of law require that adjudicative tribunals be and be seen to be independent and impartial – be and be seen to be situated at a truly arms length distance from government, and manifestly non-partisan. Tribunal chairs and members must, of course, be qualified and competent, but for them, that is not enough.
And no, Prime Minister, it is not just me. Let me read you a couple of passages from a speech by a former Chief Justice of the Supreme Court, the late Antonio Lamer.
Your Minister of Justice can find it for you in Lamer’s article “Administrative Tribunals – Future Prospects and Possibilities”. It was published in 1991, in volume 5 of the Canadian Journal of Administrative Law & Practice at page 107. Yes, it is old but its still relevant and pertinent. The relevant passages are these:
These bodies [adjudicative tribunals] are not regulatory agencies but are created to operate essentially as adjudicators … in a manner that is similar to the function of the judiciary … and expected to dispense justice in the same sense as the courts of law. …
The fairness of the administrative process in cases where a tribunal carries out adjudicative functions in individual cases is no less tied to the independence of the tribunal from the government than it is for the judiciary.
And here’s another, written by another Justice of the Supreme Court, Justice Beverley McLachlin – before she took over from Lamer as Chief Justice. Your Minister of Justice’s staff will be aware of it, too.
(If they’ve forgotten, give them this reference: McLachlin, “The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law” (1998) 12 C.J.A.L.P. 171.)
After identifying the distinction between what she had referred to as “regulatory or licensing bodies” and “dispute resolving bodies” – i.e., between what you and I are calling agencies and adjudicative tribunals – McLachlin said this:
[These dispute resolving bodies] are doing what the courts have traditionally done … [and] a theory of the Rule of Law that cannot account for these dispute resolving bodies will have a very short life. The rule itself will become illegitimate”.
And the problem, Mr. Prime Minister, is that nowhere in the administrative justice system that you have inherited can one find any rule-of-law “accounting” for tribunals. In the design of adjudicative tribunal structures, including appointment processes, and in the administration of adjudicative tribunals, Canadian governments have never accepted the rule of law as a justice imperative; they have always seen it as an obstacle to be circumvented. And, to the detriment of everyone who must look to government tribunals for the vindication and enforcement of their rights, the rule of law has in fact been routinely circumvented, not least by your predecessor.
Yes, I would be interested in talking more about this.
But meanwhile, might you put your advisers to work contemplating what the process for selecting, appointing, and re-appointing chairs and members of adjudicative tribunals might look like, were one to accept the premise that both democratic and rule-of-law principles require adjudicative tribunals to be, and be seen to be, non partisan – truly independent and impartial.
Yes, of course; they will not have been in the habit of thinking in those terms, but ask them to just for once take their lead from Lamer and McLachlin, assume there is that requirement, and see where it takes them. …. They might find some useful precedent in Quebec, or in the UK’s modern administrative justice system.
Talk to you soon.
RE