Does Independence Matter? from Elections Canada to the Nuclear Watchdog, the Harper Government Seems to Disagree
Sossin, Lorne, Literary Review of Canada
The old saw is that if the only tool you have is a hammer, every problem looks like a nail. For Canada's federal government, the hammer is partisanship and, of late, the unlucky nails have been a disparate set of independent public agencies, from Elections Canada to the Canadian Military Complaints Commission to the Canadian Nuclear Safety Commission. Whether it is the nature of the Conservative Party, the nature of Prime Minister Stephen Harper or the nature of trying to govern in a minority Parliament where an election is always on the horizon, the government seems unable to distinguish between campaigning and governing.
Partisanship in politics, of course, is nothing new, and is the lifeblood of elections and parliamentary politics. What is eroding is a shared sense of boundaries around certain no-go zones that need to be free of partisanship if democracy is to work. The classic example (and the one that usually sucks all the oxygen out of the room) is the courts. If government tried to subvert the impartiality and independence of the courts by appointing party hacks and fellow travellers to the bench, or only selectively enforcing the judgement of the court, the rule of law would not be worth the paper the Magna Carta was written on. Minority rights, human rights and the Charter of Rights and Freedoms would all be deployed simply to serve government ends. One merely has to look at the recent headlines from Pakistan to Zimbabwe to see how this plays out. Even looking south where the power and primacy of the U.S. courts are beyond debate, partisanship has brought the integrity of the justice system to the brink (think Bush v. Gore, and the spectacle of the Republican appointed justices handing the presidential election to George Bush in 2000).
Judges are singularly vulnerable to manipulation by government--this begins with the government's largely unfettered power of appointment to the bench. When the Harper government decided to add a law enforcement officer to the federal judicial advisory committees that vet whether potential candidates are qualified, even Chief Justice Beverley McLachlin felt compelled to speak out, although to little effect. Beyond the appointment power, however, the administration of justice is vulnerable in many other ways. Governments control the budgets of the courts, including the upkeep of courthouses and the hiring and firing of court staff. Governments also control judicial salaries, although since a 1997 Supreme Court decision, constitutionally mandated salary commissions issue recommendations for salary increases in an attempt to depoliticize the process.
The courts are not independent in any real sense. They are, rather, completely dependent on the support of the government. Yet, despite all the ways in which a Canadian government could subvert the judiciary, none has done so (even after courts began striking down government actions and laws under the Charter). As a result, Canada's judiciary is recognized the world over as one of the strongest and most independent. Ultimately, the judiciary's independence is as much a product of political leadership as it is testament to the abilities of our judges.
While most would agree that democratic politics requires courts as independent arbiters of social, economic and political disputes, does that same logic apply to bodies like Elections Canada, the Canadian Military Complaints Commission or the Canadian Nuclear Safety Commission? And do Canadians care if it does or not? Unlike courts, these bodies (and hundreds of other arm's-length agencies, boards and commissions) were designed by government as expert bodies to fulfil specific policy goals. They are created by statute and can have their jurisdiction, authority and structure modified at any time by a simple act of Parliament. They are also expected, however, to be impartial and objective, and to act only to advance the legislative purposes for which they were created. …