Out with the old, in with the Blue

Government-appointed tribunals and commissions are teeming with soon-to-be expired memberships.  That’s normal.  So is reappointing members to a second or third term to keep the rookie list short and the institutional memory long.

Less traditional are the current rosters, full of first-time members and members whose term is about to expire without reappointment.

The increase in one-time appointments for members, whose terms are usually three or five years, reflects a shift toward politicizing the designated independent bodies, says Errol Mendes, a law professor at the University of Ottawa.

When serving members are not asked to come back, the job experience within the membership drops; but it’s a sacrifice made so the government can hand-pick favoured candidates, Mendes says.

"If you don’t like what quasi-judicial tribunals are doing, you either do not renew its members or if they come to the end of their term you just dump them and find other people who may or may not be more pliable.” — Errol Mendes

“This seems to be an emerging trend with this government: if you don’t like what quasi-judicial tribunals are doing, you either do not renew its members or if they come to the end of their term you just dump them and find other people who may or may not be more pliable.”

The Conservative government has recently been accused of eroding the independence of the public service after attacks on Richard Colvin, the diplomat who testified government officials were aware that Afghan detainees handed over by Canadian troops could be tortured. But Mendes says the trend toward partisanship is part of a larger issue that is being played out in “alarming” membership changes to quasi-judicial bodies.

Casualties of the refusal to reappoint

The government's refusal to reappoint members can produce a broad turnover of important positions or entire memberships at independent adjudicating bodies, Mendes says.

Prominent people who have not been re-appointed include Paul Kennedy, chair of the Commission for Public Complaints Against the RCMP, who headed the inquiry into the Taser incident at Vancouver International Airport that left Robert Dziekanski dead; and Peter Tinsley, chair of the Canadian Military Police Complaints Commission, who is currently presiding over hearings into Canada's handling of Afghan detainees.

The terms of both men expire this month and both will be replaced, despite Kennedy’s reported willingness to serve another term and Tinsley’s involvement in a case that is now in progress.

Paul Groarke is a past member of the CHRT and critical of the system of government appointments to a quasi-judicial body.

“To me that’s the most astonishing. Usually the custom is to let them finish off the hearing before they get yanked,” Mendes says, comparing the removal of Tinsley mid-hearing to switching a judge in the middle of a court case. Mendes adds the refusal to let Tinsley continue is even more significant because this hearing could have huge political repercussions and is the most important case involving the Department of Defense since Canadian soldiers were charged in 1994 with torturing Somali prisoners.

Other equally alarming changes can be missed when a high-profile member is not at stake. These more subtle shifts in membership can still yield large turnovers with big consequences.

The Canadian Human Rights Tribunal (CHRT), an independent adjudicator of human rights complaints, is one such quasi-judicial body that has quietly seen drastic member restructuring.

Peter Engelmann is a human rights lawyer in Ottawa who has worked on cases before the CHRT and is wary of the “full-scale change” to its membership under the current government.

Engelmann says since the Conservatives took office in 2006, no full-time member of the Tribunal after serving for the first time has had a term renewed. He says it’s highly unusual for experienced tribunal members to not be reappointed for a second or third term unless a blatant reason is given for their essential dismissal.

That was before. Now members aren’t being called back for reasons unknown.

Karen Jensen was appointed a full-time member of the CHRT in 2005 by the then-Liberal government and in August 2009 decided her last case at the tribunal.

"I have no idea why I was not reappointed." – Karen Jensen

“I have no idea why I was not reappointed,” Jensen says. “I don’t understand the process behind it. I was just told I would not be reappointed.”

Jensen is currently the assistant dean of academic affairs at the University of Ottawa’s Faculty of Law.

Member turnover is rife in government-appointed bodies. But even if the process itself isn't flawed "if the people who are chosen aren't qualified then that's a very serious concern," says Marilou McPhedran, a former part-time CHRT member and current principal of the Global College at the University of Winnipeg.

McPhedran has no comment on current newly appointed members, but she worked closely with Jensen at the tribunal.

"There's no question she's highly qualified and did her job very well."

The entire process of government appointments to an adjudicating body is problematic, says Paul Groarke, another former member of the CHRT who only served one term, and current chair of the criminology department at St. Thomas University.

"I think the real reason is probably that politicians have very little knowledge about the actual workings of the system," Groarke comments by e-mail from Kuala Lumpur where he is attending an international human rights conference.

"They make their decisions on political grounds, the way that politicians do, and are not in a good position to determine whether individual candidates are likely to perform well as members of the tribunal."

The rookie

The most recent appointment to the CHRT Shirish Chotalia, who became chair on November 2.

Mendes says Chotalia is an experienced human rights lawyer, but relatively obscure among colleagues.

“She doesn’t stand out as the most prominent human rights lawyer in Canada,” he says. “There are very, very well known human rights lawyers across this country.”

The new chair also comes with less experience at the CHRT than her predecessors, Engelmann says

CHRT members are appointed on the advice of Justice Minister Rob Nicholson. 

Chotalia served a part-time term at the tribunal from 1999 to 2005. She replaces Grant Sinclair, a member from 1989 to 1997 and vice-chair from 1999 to 2004, when he was appointed to his first term as chair. 

Before that, Anne Mactavish was president of the old Human Rights Tribunal Panel before asked to be CHRT chair in 1998.

The decision to appoint new members is made in consultation between the Prime Minister’s Office, the Privy Council Office and the Department of Justice.

"So the efficacy of the process depends on the sincerity and integrity of the minister and his officials," Groarke says. "And there are certainly questions whether this government is committed to the human rights system."

"I think the pivotal question is whether she is going to exercise the kind of independence that we are entitled to expect from the chair of the tribunal. Is she going to stand up to the political forces at play in this government?"

Rob Nicholson, the minister of justice, would not comment directly on the appointment of the new chair.

Chotalia was picked unanimously by Parliamentarians who were able to vote on the five candidates selected by the government, and she has since been well received at the CHRT, says Pamela Stephens, spokesperson for the justice minister.

But institutional inexperience has consequences that aren’t that easy to spot, says Engelmann. Experience not only in the practice of law but in the unique quasi-judicial body itself is important

The government should strive toward more full-time members with successive terms because only with experience on the roster will the product be worthwhile, Engelmann says.

“You have more consistency in decisions and you have better quality of justice.”

History and function of the Canadian Human Rights Tribunal