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Democracy Cookbook: Governance and appointments

The Democracy Cookbook
The Democracy Cookbook

 

By Lynn Moore

The civil service and the provincial court bench would be well served by appointments made exclusively on merit (insofar as it is possible for decision-makers to put aside bias and prejudice).

 

Lynn Moore
Lynn Moore

 

The civil service is the branch of government that delivers government programs and services. The work is wide-ranging and includes almost every facet of our lives, from education and health to policing. Likewise, the reach and the power of the judiciary is of critical importance. The importance of the work cannot be overstated. Citizens have a legitimate interest in having all positions filled by persons competent to do the work.

While the Public Service Commission Act emphasizes and requires the application of the merit principle for many government jobs, large swaths of positions are exempt from that legislation. Positions not covered under the Act include: the Clerk of the House of Assembly; the Citizens’ Representative, the Child and Youth Advocate; the Commissioner for Legislative Standards; the Chief Electoral Officer; deputy ministers and assistant deputy ministers; barristers or solicitors; medical doctors and dental surgeons; and contractual employees. The act should be amended to require merit-based appointments. Notably, many of the positions exempt from the requirement for merit-based appointments are leadership positions or positions that play a watchdog role.

An example of this imprudence is the decision by the Department of Justice to hire two private lawyers to prosecute a murder. They were paid hourly. At last tally, the cost was $700,000.

Occasionally, persons who are handpicked without competition are exceptional individuals who excel. Sometimes, the disregard for merit, the lack of competition and the lack of oversight in the selection process result in incompetent persons appointed to important positions. Always, the handpicking of employees without competition or regard for merit is a serious blow to the morale of talented, industrious and hardworking civil servants. This is especially so when the appointee’s arrival is preceded by the unlawful dismissal of a competent worker. Additionally, unlawful dismissals are costly because those dismissed are owed pay in lieu of notice and severance, and often they successfully sue.

Further, under the current and previous administrations, the growing practice of hiring private individuals or companies on a contract or piecework basis is not fiscally prudent. An example of this imprudence is the decision by the Department of Justice to hire two private lawyers to prosecute a murder. They were paid hourly. At last tally, the cost was $700,000.

The work involved a lone case that took about eight weeks in court. Even assuming equal preparation time (a luxury unknown to any staff Crown attorney), the government paid for 32 weeks of work — two lawyers at eight weeks of trial and eight weeks of preparation. Top-earning trial lawyers with government cost $127,000 a year in salary (plus mandatory employment-related costs) and generally work 48 weeks a year. Instead of 32 weeks of work, the government could have hired staff lawyers and netted 224 weeks of work.

Another branch of the government that plays a fundamental role in maintaining democracy is the judiciary. The federal government has recently revamped its process for the selection of judges to heighten the emphasis on the merit principle. The recent appointment of Malcolm Rowe to the Supreme Court of Canada involved a level of openness and transparency befitting a democracy.

The provincial government appoints provincial court judges. Yet, the provincial selection process is completely secretive. An application and a secret list of lawyers’ names are sent by the chief judge to the minister of justice. Applicants are not told if their names are on the secret list. Consequently, they are also not told why they have been deemed to be incompetent or what they might do to rectify their candidacy.

The provincial court deals with 95 per cent of all criminal cases. Reason dictates that those entrusted with implementing the criminal law have experience in criminal law or at least current knowledge of it. Like the senior bureaucrats who are handpicked without any merit assessment, some of the judicial appointees lacking current knowledge of criminal law become respected jurists, but others struggle.

The constitutionally enshrined principle of judicial independence prohibits dismissing judges for the decisions they make. Judges have to act without fear of reprisal for making the very decisions they were appointed to make. Mistakes are fixed on appeal. Judges without any current knowledge of the criminal law are more apt to make mistakes. The fact that these mistakes may be fixed on appeal is both costly and cold comfort to victims and accused persons who must live with the decisions in the meantime. It also places the safety of the rest of us at unnecessary risk.

The Independent Appointments Commission (IAC) is a step in the right direction. However, the vast majority of the IAC’s appointments involve volunteer positions. If the idea of the IAC is to prevent political patronage, its scope should be expanded. Checks and balances in the form of openness and transparency in the selection process for the hiring and promotion of civil servants and judges will ensure that the work is completed by competent individuals. The rigorous application of the merit principle is fiscally responsible, ensures the most competent people are doing the work, and promotes democracy.

 

About the Author

Lynn Moore (Morris Martin Moore law firm) is a lawyer who represents survivors of sexual abuse. Before entering private practice in 2013, she spent 20 years working with the province’s Department of Justice as a Crown prosecutor and civil solicitor. Lynn completed her studies in Political Science and French at Memorial University in 1989. She lives in St. John’s.

 

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