Senator Terry Stratton was appointed to the Senate March 25, 1993.
A Bill designed to provide
for increased transparency and objectivity in the selection of suitable
individuals to be appointed to high public office was introduced in the Senate
in March 2001. This article is a slightly edited version of a speech by the
sponsor of the Bill opening debate on second reading.
I believe that Parliament has essentially been neutered by
two events that have made the House and the Senate far less dynamic and
critical in the eyes of Canadians.
The first event is the
management of the affairs of Parliament by the Prime Minister’s Office and by
three Prime Ministers starting with Pierre Trudeau, followed by Brian Mulroney
and continuing today with Jean Chrétien. Management has made the backbenchers
no more than puppets who stand up when called on to vote. This is magnified by
the fact of having virtually no effective opposition.
The second event, the Charter
of Rights and Freedoms, has made the Supreme Court of Canada all-powerful.
The court, not Parliament, has the final say in determining the laws of the
land. Yes, one can argue that we have the “notwithstanding” clause, but it has
not been used by any federal government, to my knowledge.
It is time to bring some
sunshine into the appointment process to ensure transparency and objectivity in
the selection of individuals to be appointed by Order in Council to certain
high public positions in Canada, particularly the Supreme Court of Canada. One
may ask why the Senate of Canada, an appointed body is introducing this Bill?
If not us, who then? Why should we not re-establish for now, in a small way,
our role in determining the players in the game, even though that role is
advisory? Remember that the PMO is now deliberately leaving this place, the
Senate, out of legislation. That is how powerful they have become.
This bill establishes in
statutory form a committee of the Queen’s Privy Council for Canada to develop
public criteria and procedures, to devise a process to identify and assess
candidates and to provide for parliamentary review of these appointments
through appearance before the Senate Committee of the Whole.
The idea for this bill had its
origins as I sat in the audience in Winnipeg last year listening to Senator
John Lynch-Staunton, talk about parliamentary reform. His emphasis at that
time, and I am sure still is today, is that while people talk at length about
Senate reform, they ignore the real problem: that Parliament, the House of
Commons and the Senate are becoming increasingly irrelevant as more and more
power becomes concentrated in the Prime Minister’s Office. Here, I am referring
specifically to the power of appointment possessed by the Prime Minister.
The Prime Minister has powers
that make him the envy of other leaders of government, not the least of whom is
the President of the United States. The Prime Minister chooses the cabinet
without any vetting process such as the President of the United States has to
endure. He chooses every deputy minister of every department, who are
responsible to the Clerk of the Privy Council, who in turn reports directly to
the Prime Minister.
The Prime Minister appoints
all Supreme Court and other federal judges. He appoints heads of Crown
corporations. He appoints directors of these corporations and all other
government agencies. He appoints the head of the RCMP. He appoints the Chief of
Defence Staff and immediate associates. He appoints ambassadors and other
senior representatives abroad, and of course he appoints members of the Senate.
Perhaps, even in a small,
modest way, this bill represents the beginning of an attempt at reforming our
parliamentary process so that the power is shared.
While the idea of this bill
may be new, the concept of some parliamentary involvement in Order-in-Council
appointments is not. Senators who have been members of the other place or who
have been here for a while may remember the 1985 report of the Special
Committee on the Reform of the House of Commons, a committee chaired by James
McGrath. During the 1984 federal election, scrutiny of appointments became an
issue. Chapter 5 of the special committee’s report is an attempt to offer
solutions to the issues of transparency and review. The chapter reveals the
difficulty that the committee had coming to grips with this subject. How does
one balance the prerogative of government with the scrutiny and the exercise of
those prerogatives? That was the question.
The report deals at length
with the pitfalls of the American system but also with the benefits achieved
with some level of ensured parliamentary, or in the case of the United States,
congressional, or senatorial scrutiny. The committee lists as criticisms that
there are too many such appointments that in theory could be scrutinized. The
thoroughness and intensity of the scrutiny varies from committee to committee
in the U.S. Senate. Supposedly qualified people are discouraged from offering
themselves for public office because of the possibility of the scrutiny and the
spotlight that is focused on them during the confirmation process.
The House of Commons special
committee accepted these as potentially valid criticisms, with the hope that by
recommending a mixed process of scrutiny for some appointments and confirmation
for others there would be more consultation by government before appointments
were made and more openness in the process.
The committee set out various
processes for reviewing a great number of Order-in-Council appointments.
However, when these recommendations were translated into the House of Commons Standing
Rules and Orders, members found that there were too many appointments being
referred for scrutiny, and these appointments were not the ones where scrutiny
would be really helpful. The process envisaged by the McGrath committee never
worked all that well.
The purpose of this bill
is to move us toward parliamentary reform. It counters the centralizing
tendency of the PMO and lets sun shine in on the Order-in-Council appointment
process for a limited number of positions that can be added to later.
My bill attempts to address
some of the shortcomings of the McGrath recommendations by putting in place a
process that would involve meaningful scrutiny of a few senior positions based
on order of precedence. We are trying to make this a manageable process, and
when it is successful, we can add other positions later. We are starting with a
small number deliberately, by order of precedence, and adding later upon
Turning to the bill itself,
clauses 3 through 5 would establish in statutory form a nomination committee of
the Privy Council cabinet. It is to be composed of the president and such other
members of the Queen’s Privy Council as are nominated from time to time. It
becomes, in reality, the selection or nomination committee for the
Order-in-Council appointments listed in the bill.
This committee, under clause
6, is to develop and publish criteria for the positions in question. Clause 7
allows the committee to seek out and to assess potential candidates for each
position listed in the schedule and to make recommendations to cabinet.
Clause 8 requires ministers,
when intending to fill a listed position, to choose from among candidates
recommended as eligible. Clause 9 requires the minister who recommends an
appointment for a listed position to give notice in both Houses of Parliament
or by publication in the Canada Gazette.
Clauses 10 through 12 provide
for parliamentary review. Here the class of nominees has been divided so that
the Senate is not required to deal with all federally appointed judges, only
the ones it wants to hear. However, for the positions listed in Part 1 of the
schedule attached to the bill there would be review provided an invitation was
issued by the Senate during the allotted time period.
I decided that review in
Committee of the Whole by the Senate was preferable to any other alternative.
The Senate is less political than the House of Commons, represents the regions
of Canada and has proven in the past to be very effective when dealing with
federal officials appearing in the Committee of the Whole, especially in
relation to their annual reports.
Clause 11 provides that
appointments that need to be made in a hurry can be made, where the delay of a
Senate hearing would be harmful, in order that the Crown prerogative is not
interfered with. However, even in this case, a hearing can be held after the
appointment is made.
Clause 13, the last clause of
the bill, establishes that ministers of the Crown are to recommend an
individual for an appointment covered under this bill only if the nominations
committee has recommended the individual for appointment; the individual has
attended, if invited, a hearing before the Senate Committee of the Whole; and
each House of Parliament has sat for seven days following the hearing, giving
Parliament time to comment on the appointment.
The criteria are public; the
nomination is public; the process is transparent; and Parliament, through a
televised hearing in the Senate Committee of the Whole, is given the
opportunity to question the person. The person becomes whole; there is a face
attached to the name; there is a personality attached to the face.
I know there are many here,
including some on this side, who would be against this type of scrutiny for
Supreme Court of Canada appointments. Not being a lawyer, not being part of the
club, I believe otherwise. I read and thoroughly agree with Professor Jacob
Ziegel’s arguments contained in a June 1999 Institute for Research on Public
Policy publication entitled “Merit Selection and Democratization of
Appointments to the Supreme Court of Canada.” It is Professor Ziegel’s opinion
and, indeed, the opinion of many others, that the Supreme Court’s role in
public policy-making, especially since the Charter of Rights and Freedoms, is
so crucial that the public is entitled to know about the beliefs of the men and
women who are to be appointed to this court. As Ziegel points out, those who
offer themselves to public office by running for the House of Commons in a
general election have their beliefs and backgrounds displayed openly for all to
see, and they do not have anywhere near the kind of influence Supreme Court
judges have on public policy.
Editor’s Note: On June 5, 2001, Senator Serge
Joyal raised a point of order with respect to this Bill. His contention was
that because the bill seeks to establish compulsory procedures that ministers
must follow when nominating someone to fill certain high-profile public
positions, it would affect the prerogative of the Crown. Accordingly, the
senator maintained that it appeared that the Bill required Royal Consent.
In his ruling Speaker Dan Hays
noted that Royal Consent is part of the unwritten rules and customs of the
House of Commons of Canada. Any legislation that affects the prerogatives,
hereditary revenues, property or interests of the Crown requires Royal Consent,
that is, the consent of the Governor General in his or her capacity as
representative of the Sovereign. This consent may be given at any stage before
final passage, and is always necessary in matters involving the rights of the
Crown, its patronage, or its prerogatives. He ruled that the operation of
Bill S-20 could give rise to situations in which the Crown would be
deprived of the ability to make an appointment on advice. Therefore the Bill
affects the exercise of the prerogative and requires Royal Consent which
normally is transmitted by a Minister who rises in the House and states: “Her
Excellency the Governor General has been informed of the purport of this bill
and has given her consent, as far as Her Majesty’s prerogatives are affected,
to the consideration by Parliament of the bill, that Parliament may do therein
as it thinks fit.”
He further ruled that although
Royal Consent is required, debate on the Bill could proceed since unlike
Westminster there is, in Canada, no binding precedent the Royal
Consent be signified in each House of Parliament.