Justice shouldn't be political

The recent appointment of eight new members to the National Parole Board of Canada by the Minister of Public Safety, Vic Toews, raises important questions about the appointment process to administrative boards and tribunals in Canada. Of the eight new appointees, five are former police officers.

There is no reason to believe that all the appointees are not "highly qualified and committed people" as claimed by the minister. There is also no reason why former police officers are not deserving candidates to serve on this important federal board.

What is troubling about the appointments is the apparent attempt to create a perception that the current federal government is going to be tough on prospective parolees by putting their fate in the hands of enforcement-minded individuals. Indeed, as the Citizen reported Tuesday, rates of granted paroles have declined since the Conservative government has been in power.

The role of appointed members of the tribunal is not to be tough or lenient but to be fair and objective.

Federal and provincial boards and tribunals have long been a repository for politicized appointments. Some boards, such as the Immigration and Refugee Board, have been scandalized by a history of inappropriate appointments that have included relatives and friends of elected politicians, failed political candidates and political supporters - some of whom are not competent to write a reasoned decision in either of Canada's official languages.

There is a compelling argument that the elected government of the day must have the prerogative to advance its mandate through the many "policy oriented" boards and tribunals charged with the responsibility of adjudicating important disputes and advancing the policies of the government of the day. After all the government was given this mandate by the electorate.

This deference to a politicized appointment process must however be qualified. There are many tribunals, such as the Canadian Radiotelevision and Telecommunications Commission, which have a mandate to deal with important policy considerations that impact very broadly on the Canadian public. The government of the day should be able to directly influence the policy direction of such tribunals through the appointments process with the caveat that appointees are at minimum competent and qualified to exercise their responsibilities.

The more pressing concern, however, arises when it comes to "rights oriented" boards and tribunals such as the National Parole Board and the Immigration and Refugee Board where very important individual rights are at stake.

These quasi-judicial tribunals play an extremely important role in deciding critical issues of life, liberty and public safety. Any perception by the public that the impartiality or competence of these rights-oriented boards and tribunals has been compromised by partisan political appointments will necessarily bring the administration of justice into disrepute.

It is important to recognize that there have been improvements in the appointments process in recent years at both levels of government. However, maintaining control of the appointment process to allow politically based appointments remains a problem.

Perhaps the best approach to addressing the issue on board and tribunal appointments lies in drawing a rough distinction among boards and tribunals along the categories of "policy oriented" and "rights oriented" tribunals. Governments would be allowed more flexibility to appoint persons of their choice to "policy oriented" boards and tribunals while requiring an acceptable level of competence and qualification.

However, in regards to "rights oriented" boards and tribunals, governments should institute a more impartial and independent appointment process that precludes political interference. Independently constituted selection committees drawn from professional associations, organizations, academia and the public should be responsible for the final selection of candidates. This will ensure impartiality and integrity of the process and diminish the possibility of the administration of justice being brought into disrepute.

A look at the judicial appointments process in Ontario offers a potential compromise between the two models mentioned above. Using this model, an independent selection committee can recommend candidates for appointment to boards and tribunals and the government is mandated to appoint only from the pool of those candidates assessed and recommended by the selection committee.

The integrity and impartiality of our quasi-judicial tribunals must transcend the government of the day and remain unassailable from partisan political influence.

James C. Morton, a Liberal, is past president of the Ontario Bar Association and adjunct professor at Osgoode Hall Law School of York University.

Mark M. Persaud, a Conservative, is a Toronto lawyer and former prosecutor and legal adviser to the Royal Canadian Mounted Police. The views expressed herein are solely their own.