Competition Out, Patronage In – Ford’s new system for appointing Ontario Provincial Court Judges

What We Have Had Until Now

A merit-based, competitive selection system designed to objectively identify the two best qualified candidates for each vacant position.

Key Points of the Current System

(as described by the AG, or inferred from his announcement)

  1. Independent, non-partisan selection committees (called “Review Committees”).
  2. Specified qualifications for appointment as a Provincial Court Judge that are relevant, focused and detailed.
  3. Detailed application forms designed to provide the committee with all of a candidate’s relevant personal information.
  4. A rigorous and competitive selection process that includes written and graded exams, meaningful interviews, and reference checks.
  5. Review Committees that are  mandated to select the two best candidates for each vacancy.
  6. Government discretion limited to choosing one of the two best candidates.

What the Attorney General proposes

The Attorney General proposes to convert the existing appointments process to what has been called in the past a “hybrid” system of appointments –”merit-based but patronage driven”[1].  (Although, of course, the AG did not say that the system would be patronage-driven. )

Key changes to look out for on the path to a patronage-driven system

  1. Possibly, a change to partisan control of review committees, although this is not essential in converting the system to a patronage-driven system.
  2. Specified qualifications that are more general and less detailed.
  3. Application forms that seek only general information.
  4. Elimination of exams or dumbing-down of exams, or grading of exams reduced to pass-fail marking.
  5. Selection-Committee mandate changed to the identification of all candidates that can be said to be qualified – which is to say, as a practical matter, merely the identification of those who cannot be said to be unqualified – and to provide the government with an unranked list of those candidates.
  6. Government discretion changed to the selection of anyone on that unranked list – that is, the selection of any candidate who has been  identified as not “unqualified” for appointment as a Provincial Court Judge – without further regard for the relative qualifications of the candidates on the list.

Typically, selection committees in a hybrid system of appointments will provide the Minister’s office with unranked lists of the candidates they deem to be qualified, together with only a short summary of their qualifications and no information on which a qualifications-based, competitive selection could be made by the Minister.

The only additional information the Attorney General will be able to bring to bear in choosing which names on the selection committee’s list to appoint – and which names not to appoint – is information concerning the candidates’ prior service to the Progressive Conservative Party or to some other party and a general understanding of their ideological stance.

For Those Who Cannot Remember

In the category of those who cannot remember the past are condemned … , it is relevant, in this context, to remember an old, but classic case in point.[1]

In 1995, the Liberal government of Jean Chretien, responding to a decade of media criticism about patronage appointments of adjudicator members of the Immigration and Refugee Board, announced the creation of a merit-based selection process for those appointments.  It was a process very like the one the Ontario Attorney General announced today for the appointment of Provincial Court Judges – and Justices of the Peace.

At that time, the Federal government established a “Ministerial Advisory Committee on the Selection of Members of the Immigration and Refugee Board”, provided it with a set of qualifications by which it was to be guided when evaluating candidates, and committed to no one being appointed unless they had been recommended by the Committee.

By 2002, the year that the then Chair of the IRB retired from his three-year term as chair of the IRB, that Advisory Committee had been at work for seven years, with the government’s commitment to this merit-based selection system in full sway all that time. And yet, as disclosed by that Chair in his famous, 2003 interview with the Toronto Saturday Star, political patronage remained “a devastating blight on the Immigration and Refugee Board.”[2]

Moreover, in an interview by this author in the course of writing Unjust by Design, that same ex-Chair advised that, at the time he retired, although 10 to 15 percent of the 170 appointed members in the Refugee Division of the Board were in his estimation excellent, 10 to 15 percent – 17 to 25 members – were in his opinion incompetent, while the rest were merely “adequate.”

In assessing the implications of today’s announced changes in the Provincial Court Judges appointment process it is, therefore, important to understand how it was that, from 1995 to 2002, the federal government’s patronage apparatus succeeded in effectively finessing an IRB appointment process that was supposed to be – announced to be – a merit-based system.

But for that the reader will have to go to pages 53-56 of Unjust by Design.

However, be advised that what the Ontario Attorney General proposed today has the same propensity for patronagizing the appointments of Ontario’s Provincial Court Judges as Chretien’s merit-based appointments process had for the appointment of IRB adjudicators in 1995, with, of course, more potential for permanent damage, given that the selected Judges receive life-tenured appointments, whereas IRB adjudicators are appointed to short, fixed terms.

At the heart of the problem – the flaw in the ointment, as it were – is the failure of an appointments process to mandate non-partisan selection committees to identify the best candidate(s) for a position rather than merely all the candidates who cannot be said to be unqualified.

RE

[1] For a description of that debacle see Unjust by Design, at pages 52 to 57.

[2] As reported on the front page of the Toronto Saturday Star of 14 June 2003.

 

 

 

[1] See “The Chimera of ‘Merit-Based’ Reforms”, Ellis, Unjust by Design – Canada’s Administrative Justice System (2013, UBC Press), pp. 52-54.

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