Unelected Officials

AuthorCraig Forcese - Aaron Freeman
Pages162-291
162
4
Unelected Officials
For many Canadians, a federal election in which citizens designate their
members of Parliament is the central event in Canadian democracy; how-
ever, the Government of Canada comprises many thousands of other people
who are not elected. Democracy in Canada depends, therefore, on mechan-
isms designed to hold these unelected off‌icials politically accountable. This
accountability stems from the “primacy” of elected representatives over
unelected off‌icials. This primacy ultimately, the hard core of responsible
government — comes in several forms:
 
authority elected representatives exercise over their unelected counter-
parts, and the related notion that these elected off‌icials are “responsible”
for the activities of their unelected counterparts.
  -
ters in appointing and selecting these unelected off‌icials. Here, demo-
cratic accountability is preserved by the monopoly of elected off‌icials on
hiring and f‌iring their unelected counterparts.
In Canada’s modern democracy, these two forms of primacy are some-
times disregarded, ref‌lecting the emergence of values other than raw ac-
countability to elected representatives. After all, accountability to politicians
is a double-edged sword. On the one hand, it extends to unelected off‌icials
the umbrella of democratic legitimacy. On the other hand, allowing polit-
icians to police unelected off‌icials infuses the accountability imperative with
Unelected Officials 163
partisan politics. Partisanship in the selection of unelected off‌icials raises
two key issues:
         -
ship (especially when coupled with a strong command-and-control pri-
macy) irremediably corrupts the functions of unelected off‌icials. Judicial
independence, for instance, is a clear rejection of political primacy in
the courts of law and, increasingly, in quasi-judicial administrative tribu-
nals.
 
bugbear of Canadian governance: political “patronage” or favouritism.
There are two ways to look at patronage. The most popular way usu-
ally championed by parties when in opposition — is to view patronage as
off‌icial corruption, an illegitimate sharing of public spoils. On the other
hand, patronage may also be viewed as the inevitable, and perhaps desir-
able, product of democratic transitions of power between parties. Should
we not expect that the parties we have elected — presumably for their dif-
ferent views on public policy — will staff government with off‌icials sym-
pathetic to that public policy vision?
Political favouritism is an accepted way of doing business in the United
States, where overtly political appointments are made deep into the public
service. US political parties try to score points against one another by some-
times contesting individual candidates, but no mainstream critic appears to
view these politicized appointments as illegitimate.
Still, there is something troubling to the modern mind about govern-
ment authority being granted without question to unelected party faith-
ful. It may be that a candidate’s curriculum vitae is a relatively minor factor
taken into consideration by the electorate during elections. Indeed, as the
Supreme Court has observed, in elections, “[m]any individuals are unaware
of the personal identity or background of the candidate for whom they wish
to vote.”1
Nevertheless, when those same elected off‌icials are tasked with either
selecting or designing a system for selecting their unelected counter-
parts, we expect that credentials will prevail over other considerations in
determining the outcome of that process. We are far more inclined, in other
words, towards the competence-based “merit” principle when it comes to
selecting unelected off‌icials. In an era that places emphasis on aptitude, and
not political pedigree, appointments inf‌luenced by partisan leanings appear
to do violence to this principle of meritocracy.
1 Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912 at para. 56 [Figueroa].
LAWS OF GOVERNMENT164
Moreover, the US comparison casts a suspect light on Canadian proced-
ure: the United States differs from Canada in that executive appointments
must be preceded by conf‌irmation by the senate, at least for those off‌icers
exercising signif‌icant authority under the laws of the United States.2 No
such requirement exists in Canada. The Constitution is either silent on ap-
pointments or, as with some judges, gives the executive exclusive constitu-
tional power to appoint unelected off‌icials. As a strict constitutional matter,
the opposition parties in Parliament are given no opportunity to take part
in this process. Thus, absent any other legal intervention, the only check on
truly egregious governing party patronage practices would be political and
media exposure and condemnation.
As John Turner learned in the 1984 election, popular outrage over pa-
tronage appointments can be potent. Political checks on patronage, however,
tend to deepen contempt, not just for the governing party, but also for the
political process and public institutions. Therefore, patronage scandals, while
being true constants in Canadian politics, are not a sound basis on which to
build a viable, accountable, democratic state. There is room for law.
One legal solution to patronage is to impose a clear competence-based
merit principle in appointments and dismissals, removing politics from
the process entirely. This approach obviously minimizes the prospects of
patronage. On the other hand, it also seems to reduce the potency of the
primacy concept: civil servants, for instance, are insulated from their pol-
itical masters, giving them an autonomy not shared by their politically ap-
pointed counterparts. Political patronage may not be commonplace in the
professionalized, semi-autonomous civil service. But a professionalized
bureaucracy can also open the door to Yes Minister’s Sir Humphrey Appleby:
off‌icials serving their own interests with only token deference to the will of
their elected masters.
A second solution usually associated with unelected off‌icials over
which the government lacks full command and control primacy is to
limit the government’s dismissal powers while throwing open the appoint-
ments process. In some instances, our system includes new political checks
on egregious political favouritism by obliging the executive branch to test its
selections against the recommendations of professional bodies and parlia-
mentarians. In order to make such a process work, a number of questions
must be addressed: How are the professional bodies selected? What role do
they play? How do we ensure that a parliamentary process does not result
2 Article II of the US Constitution empowers the president, with the advice and consent
of two-thirds of the senate, to appoint and commission “off‌icers” of the United States.
It pertains to persons exercising “signif‌icant authority” by reason of the laws of the
United States.

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