Choosing the watchdogs
Compared to the scandals now roiling Washington, the case of Justin Trudeau’s misguided Christmas vacation on the Aga Khan’s private island seems positively quaint. But whatever else comes of the ethics commissioner’s ongoing investigation into that trip, something of consequence has already emerged.
The saga has shone a light on a long-standing flaw in our system of democratic oversight: namely, that the government is allowed to choose the watchdogs whose job it is to hold it to account. It’s time to take another look at how we appoint these guardians of our democracy.
Last week, amid Ethics Commissioner Mary Dawson’s inquiry into Trudeau’s unseemly yuletide getaway, the prime minister recused himself from the search for Dawson’s successor, who is slated to take over in July. Usually, after consultation with the opposition, the PM would select a candidate. But Trudeau rightly determined that in this case the optics would be problematic.
As we have seen in the U.S. in recent weeks, when a politician under investigation hires (or fires) the head of the office conducting that investigation, the appearance of impropriety, if not the thing itself, is difficult to avoid.
But Trudeau’s rightful recusal fails to address a deeper issue. What if a future prime minister, faced with a similar situation, chose to behave less ethically? Surely the integrity of the process should be invulnerable to the whims of individual governments. Moreover, it’s not at all clear that Trudeau’s choice to assign the task to House Leader Bardish Chagger, whose job is to defend the government’s interests in Parliament (often in consultation with the Prime Minister’s Office), does much to mitigate the appearance of a conflict of interest.
In fact, under the current process for appointing parliamentary watchdogs, such an appearance may be present even in the absence of any active investigation.
The problem, as has become clear in recent days, goes beyond the search for a new ethics commissioner. Last week, the government picked Madeleine Meilleur, a former Ontario Liberal cabinet minister, to be Canada’s new official languages commissioner. This prompted understandable denunciations from the opposition benches, whose members promised to do everything in their power to block the nomination.
After all, the language commissioner is charged with ensuring the equality of French and English within government; that is, to hold Ottawa to account on language issues. That Meilleur is a former Liberal partisan, selected by a Liberal government, may cast doubt on her fitness for the position.
None of that is to suggest the government is looking to appoint uncritical cronies or that Meilleur or some future ethics commissioner would not pursue their watchdog work both capably and vigorously, but only that, under the current system, the appearance of conflict-of-interest is unavoidable.
The Trudeau Liberals came to power promising to overhaul an appointment process that has too often been opaque and unaccountable, seemingly favouring the loyal over the meritorious. And last year, they did deliver a new and improved system for ministerial appointments. All jobs are now posted publicly along with objective hiring criteria. But, on parliamentary watchdogs, given the special tensions involved, the government should go farther.
The current process, which includes consultations with opposition leaders and a motion in the House, offers some transparency, but little constraint, especially on a majority government. Much better would be a process like the one the Trudeau government introduced for appointing senators or Ontario has in place for picking judges. These approaches rely on independent expert panels to propose a shortlist of candidates to the cabinet, thereby taking partisanship largely out of the process while maintaining the ministers’ ultimate prerogative.
The government might also consider creating a commissioner of public appointments, as the United Kingdom has done, to watch over ministerial nominations for public positions, ensuring that choices are fair, free of conflict and made in a timely fashion. Stephen Harper promised a similar mechanism, but walked away. Given our persistent problems with this process, we may want to revisit that idea.
The function of parliamentary watchdogs is in part to establish and maintain public trust. The new official languages commissioner should be the last appointee chosen through a process that undermines that aim.