Introduction

In Post #2 of my “Unjust by Design Replayed” series, I referenced UBD’s description of the appointments experience at the IRB from 1995 to 2002.  I did this to remind us how a government can claim an adjudicative tribunal appointments process to be merit-based while still ensuring that it remains partisan, and patronage driven, and indifferent to the relative competence of qualified candidates.

But the story of the IRB appointments process did not end in 2002.  In the ensuing five or six years the IRB selection process went through a period of changes that are even more instructive about what can go wrong with government appointments to judicial tribunals, even when the designers of the process are well-intentioned.

Minimizing Partisan Manipulation

The ongoing story picks up at page 55 of Unjust by Design (footnotes omitted):

On 29 November 2002, [Peter] Showler’s term as IRB chair came to an end and he was replaced by Jean-Guy Fleury, a senior member of the federal public service.  In 2004, under Fleury’s direction, the IRB implemented fundamental structural reforms in the appointment process. At the time, Judy Sgro was the Minister of Citizenship and Immigration in the new Liberal government of Paul Martin. With Sgro’s consent, the following changes were implemented:

• The Advisory Committee was renamed the Advisory Panel and reduced to six members, all of whom were to be selected and appointed by the IRB chair, not by the Minister.

• The new Panel’s recommendations were to be made to the IRB chair, not to the Minister’s office.

• A new selection committee within the IRB, chaired by the IRB chair, received those recommendations and, after an extensive personal interview of each of the recommended candidates, decided which ones the chair would recommend to the Minister.

• It was agreed that the chair would provide the Minister with only three names (unranked) for each vacancy.

• The qualifications were revamped and made much more specific.

• Invitations to apply for appointments were widely advertised in both the mainstream and ethnic print media and online, with the qualifications specified.

• The applications were initially screened by staff , not the Advisory Panel, for general compliance with the qualifications.

• Those who survived this screening were asked to take a serious, four-hour exam involving the writing of an adjudicative decision based on hypothetical facts.

• The exam was marked by IRB staff , and the applications of those who had passed the exam were forwarded to each member of the Advisory Panel, along with the exam answer itself, the mark, and the full resumé.

• At its periodic meetings (about three times a year), the Panel discussed the candidates and determined those whom it would recommend to the IRB chair. Each member of the Panel would come to the meeting having reviewed all the information for each candidate. (This was the panel on which I had the privilege of serving for one year.)

While this revised structure removed the element of partisan manipulation in the choice of names to be sent to the Minister, and was designed to identify the best three candidates for each vacant position, Mr. Fleury had to give way to the tradition of leaving the final selection of those to be actually appointed to the discretion of a senior partisan – the Minister.  He had to accept that the Minister would not be required to appoint the best candidate but would be free to select from the best three candidates the one who had the most attractive credentials from the government’s perspective.

So How Did That Go?

Not well.  Even this restriction proved unequal to the task of dousing the government’s patronage urges.

Minister Sgro, who had agreed to Fleury’s any-one-of-the-best-three restriction on her selection rights, resigned from cabinet shortly thereafter and her successor immediately found a way around Mr. Fleury’s agreement.

The way around was simply to refuse to appoint any of the three recommended candidates if the government found none of them acceptable. The upshot of this was a build-up in the list of candidates who had gone through to the end of the rigorous and non-partisan Fleury selection process, been recommended to the Minister as one of the three best candidates for the vacancy in question, and then not been appointed.

At the time I accepted Mr. Fleury’s invitation to join his Advisory Panel in 2005, the list of names of successful but never-appointed candidates was substantial.

And Then It Got Worse

Yes, indeed.  The Harper government came to power and to accommodate the new government’s interest in restoring the partisan input in the selection process, the Fleury process was dramatically restructured.  Unjust by Design tells the tale (at page 56, footnotes omitted):

The Advisory Panel members resigned en masse in February 2007 when the new Conservative government’s intentions to fundamentally restructure the selection process became clear.

The number of panel members was to be changed from six to seven, and the panel’s name changed to the Selection Advisory Board. Three of the seven positions were to be reserved for persons to be selected jointly by the Minister and the IRB chair (it was this politicization of the process that seems to have precipitated the mass resignations), with the remaining four being the IRB chair, another person appointed by the IRB chair, and two members of the IRB management staff selected by the IRB chair.

Fleury’s internal selection committee was abandoned, and the recommendations now went directly from the Selection Advisory Board to the Minister. At the same time, the qualifications became less specific and the written exam was changed back to a pass/fail exam.

And what was the fate of the numerous, “best” non-partisan candidates who had aced the 4-hour exam, satisfied the Advisory Panel and went to Ottawa and impressed Mr. Fleury and his colleagues in their intensive, in-house interview, but who at the time the government changed happened to be on the list of the never appointed?  Well, as far as one knows, they were never appointed.

Reappointments

The “It’s Our Turn Now” Syndrome

And then there is the scandal concerning the Harper government’s non reappointment of Liberal-appointed IRB adjudicators while it pursued “its our turn now” policy.  It is a scandal that replicates itself in many Canadian jurisdictions whenever there is a change of government.

Unjust by Design tells that story as it pertains to the Harper government and the IRB, beginning at page 64 (footnotes omitted).

After the Harper government came to power in 2006, Jean-Guy Fleury [IRB Chair] found that his recommendations concerning the reappointment of IRB members – even those whose excellent performance had been confirmed by the IRB’s respected system of performance evaluation – were no longer being accepted; neither were his recommendations for the appointment of new members. A year later, the annual IRB report to Parliament highlighted the impact of the new government’s appointment [and reappointment] policy on the Board’s backlog. The Canadian Press reported:

Canada’s backlog of refugee claims is soaring to record numbers due to the government’s failure to appoint sufficient adjudicators, says the [new] chairman of the Immigration and Refugee Board.

The backlog has ballooned along with the number of board vacancies since Prime Minister Stephen Harper took office in February 2006. The number of vacant positions has more than quintupled – to 58 from 10, according to the board.

At the same time, the number of claims waiting to be heard has more than doubled to 42,300 from just over 20,000. In its recent report to Parliament, the board projects that the number of pending claims will soar to 62,300 this year. That’s more than triple the line-up when Harper took office and well beyond the previous record of 52,325 pending claims in 2002.

Moreover, the numbers are expected to escalate to 73,300 next year and a whopping 84,300 the following year.

The implications of the Harper government’s refusal to reappoint meritorious members of the IRB went well beyond the impact on the backlog, however. And it is important to understand these implications, because in Canada they are experienced by many tribunals, judicial or otherwise, whenever there is a change of government.

The Conservatives’ policy of not reappointing members who had been appointed by the previous Liberal government even though the chair was recommending their reappointment meant that the Board lost a generation of hard-won skills and experience that in the ordinary course would have provided the basis for training, supervising, and mentoring new appointees.

The IRB’s adjudicative function is complicated and difficult, and it is well known that it takes about a year or two of full-time experience under the guidance of experienced members and managers for even the best new adjudicators to get fully up to speed. Under the Harper government’s reappointment policy, it is hard to know where that experienced training and mentorship will come from.

This policy will have dramatically reduced the Board’s average adjudicative experience and overall competence, imposed large new administrative, personnel, and budgetary burdens for training, education, and supervisory activities (assuming that trainers and mentors with the necessary level of experience can be found).

Moreover, the government must have known, but chose to ignore, the fact that the inevitable delays in filling the numerous vacant positions with up-to-speed replacements would lead the Board back to the unmanageable and unacceptable backlogs of previous years – an outcome that was confirmed, as we have seen, in the new chair’s report to Parliament a year later.

Finally, there is the obvious human dimension. The impact on the personal lives and careers of Board members whose reappointments were unexpectedly denied without, it is important to note, any notice or financial compensation, is obvious, but that is a tiny matter compared with the impact on the refugees and immigrants who depend on the Board for life-altering decision making that is impartial, credible, competent, and expeditious.

In my opinion, the Harper government’s determination to replace the Liberal appointees on the IRB with their own appointees will have jeopardized the Board’s capacity to respond effectively and appropriately to that need, to some extent for many years to come.

We can also be sure that in selecting the people to replace the Liberal appointees at the IRB  – and to replace Mr. Fleury’s non-partisan and non-appointed candidates – partisan credentials would have been at the forefront of the qualifications sought.

Final Observation

There is one final observation in Unjust by Design about the patronage problem, an observation that remains pertinent, pertinent to what seems to me to be the ultimate question in this context – ie., what kind of people are we?

It reads as follows, at page 24:

Federal government officials and politicians know that the competent implementation of Canada’s troubled immigration and refugee policy depends on the quality of the people appointed to the IRB. They also know that these appointees are entrusted with adjudication of the immigrant or refugee status of individuals – frightened individuals, often in desperate straits, whose future and the future of their families, and sometimes their very lives, depend on a fair, competent, and timely adjudication of their rights.

In light of these facts, it seems to me that it should be plain for all to see that the patronage abuse of IRB appointments … is on moral and ethical grounds far more shameful than the mere misappropriation of public funds.

Yet, unlike Sheila Fraser’s revelations ** , Peter Showler’s equally public and authoritative exposé  appears to have startled no one; it certainly sparked no outrage, led to no  inquiry, threatened no one’s job, and brought down no government.

** Revelations about the Liberal’s sponsorship scandal. The Auditor General  made those revelations public at about the same time that Peter Showler gave his “patronage is a devastating blight on the IRB” interview with the Toronto Star.  See UBD at page 24.

RE