Liberals accused of ‘housecleaning’ of Tory appointees at refugee board

Leave it to others to comment, particularly those with experience in dealing with the IRB.

Like all GiC appointments, there is a strong political element (and has always been).

The delay in appointments appears to be characteristic of the government, partially due to its commitment to increased diversity in appointments, but one that affects the timeliness of decision-making.

The in-depth study, 2016 Refugee Claim Data and IRB Member Recognition Rates | Canadian Council for Refugees, shows a variation in acceptance rates among members, as happens to a certain extent in all such processes:

A slew of seasoned decision-makers tasked with hearing refugee and immigration appeals have either left or will depart from their job in what some call the Liberals’ “housecleaning” of Conservative appointees.

In light of what some critics call inadequate funding and a growing backlog stemming from the recent spike in asylum-seekers crossing into Canada via the United States, the loss of the adjudicators on the immigration and refugee appeals tribunals is expected to toss the system into disarray.

“Our concern is the government is continuing to have a governor-in-council appointment process that is political and discretionary instead of going for a transparent process to appoint the most suitable candidates who are competent, judicious, fair-minded and efficient,” said Raoul Boulakia of the Refugee Lawyers’ Association of Ontario.

“The efficiency and quality of the decisions could be compromised if the people who are brought in do not have the expertise and are not judicious.”

The Immigration and Refugee Board, which oversees both appeals tribunals, said 14 appointees have left their job since last August and another 39 will have their appointments expire by the end of this year. The board confirmed a total of 42 people applied for reappointments to the tribunals, but would not say how many have been successful.

Currently, 23 of the 58 positions at the refugee appeals tribunal are unfilled while the immigration appeals division has six vacancies out of the full complement of 44 appointments.

Like the court system, the refugee and immigration appeals tribunals require adjudicators to have stronger knowledge and experience with the administration of the law in order to review decisions by lower-level refugee judges or immigration officials, who are civil servants.

While failed refugee claimants — and sometimes the immigration minister — can appeal to the refugee tribunal any questionable decisions made by asylum judges, rejected immigration applicants in sponsorships or those facing removal orders can take their cases to the immigration appeals tribunal.

As of the end of December, the immigration appeals tribunal had a backlog of 10,206 cases and a processing time of 20.4 months (compared to 17 months in 2013), while the refugee appeals division had 1,938 cases in the inventory with the average processing time at 124 days (compared to 65 days in 2013), said the refugee board.

Under the old system by the former Conservative government, existing adjudicators seeking reappointment to the tribunals would have all their previous decisions evaluated in terms of quality and quantity before being recommended by the board chair based on their track records.

However, last summer, the Liberal government, which ran an election campaign on transparency and bipartisanship, rolled out a new process for those already sitting on the tribunals by requiring them to reapply for their appointment and pass an online test.

They are then interviewed by a hiring committee made up of the refugee board chair and one representative each from the Prime Minister’s Office, Privy Council Office and the Immigration Department. The composition of the committee opens the door for partisan selection, Boulakia said.

The Privy Council said the government’s new approach to governor-in-council appointments supports “open, transparent and merit-based appointments.”

“All candidates seeking appointment to a GIC position with the Immigration and Refugee Board, be they incumbents or new candidates, are subject to a rigorous selection process developed for the position, which includes inputs and insights from the independent bodies, including the chair of the refugee board,” said Mistu Mukherjee, a spokesperson for the PCO.

“The results of these assessments, made against public and merit-based criteria, are provided to the minister. The minister makes appointment recommendation from this list of highly-qualified candidates.”

Adjudicators who took the test said the questions had nothing to do with immigration and refugee laws and complained they had no way to review the exam or find out why they might have failed.

“The process is partisan and not based on merits. They are cleaning out anyone who was appointed by the previous government, whether they are really affiliated with the Conservatives or not,” complained one adjudicator, who underwent the process and asked not to be identified for fear of repercussion.

“This is complex, technical work. It takes a long time for new members to learn the stuff. This purge means people’s (immigration) status is going to be uncertain for longer. It is going to further affect people’s ability to bring their family members to Canada. This is going to have a huge impact in people’s lives.”

Although it is a common practice for a new government to fill board and tribunal appointments with their party supporters, another affected adjudicator said the test is “flawed” and the process is “rigged.”

“What happens is you feel you are shackled to a political party with your job security resting on the whim of that party. But you are not supposed to get involved in any politics. It is just so wrong when you are not assessed by your performance and good judgment but by who you know,” said the source, whose appointment was not renewed.

“Our political leader has said to refugees, ‘Come to Canada and we will welcome you.’ It’s like an open invitation, but some people who come here are not really who they say they are. With more refugees coming, everybody will be appealing and rushing to the appeals tribunals when they are turned down. This is all about cleaning house.”

Refugee board spokesperson Anna Pape said it is not a requirement for appointees to have experience in refugee and immigration matters and “(complete) training” is provided to all new decision-makers, regardless of their education or experience.

Source: Liberals accused of ‘housecleaning’ of Tory appointees at refugee board | Toronto Star

Trudeau government’s vacant appointments backlog up 80%

Good follow-up story and valid concern regarding the large number of vacancies.

But nice to see that PCO is now tracking more systematically the diversity of appointments and improving representation (of the more than 100 appointments to date, 62 per cent women, 15 per cent visible minorities, 10 per cent Indigenous Canadians):

Five months after Prime Minister Justin Trudeau’s government assured Canadians that its new system would soon fix the backlog of appointments that need to be filled, the problem has gotten much worse.

An analysis by CBC News reveals that one in three governor in council positions — ranging from directors of government agencies to members of tribunals that hear appeals of employment insurance or pension disputes — is currently vacant or occupied by an appointee whose term is past its expiry date.

When CBC first looked at the question in October 2016, 19.6 per cent of the governor in council positions were vacant or past their expiry date.

That number is currently at 35 per cent, although it will drop slightly next week when several appointments to the Immigration and Refugee Board made by cabinet earlier this month take effect.

The backlog in October of more than 300 appointments has now swelled to 572. Of the 515 positions, 354 are vacant. Another 161 are occupied by an appointee, often one named by the previous Conservative government, whose appointment is past its expiry date. However, they are allowed to remain until they are replaced or renewed.

The positions range from lucrative full-time jobs with six-figure salaries to part-time positions that pay per diems and expenses.

There are also 57 vacancies for federally appointed judges, down slightly from the 61 vacancies in October 2016 that prompted concerns about growing backlogs in criminal trials.

In several cases, positions are being filled on a temporary basis because the government was not able to fill them before the incumbent’s term was set to expire. Among them are half of the officers of Parliament — the conflict of interest and ethics commissioner, the commissioner of lobbying and the official languages commissioner, while the chief electoral officer’s position is listed as vacant.

Former prime minister Stephen Harper’s government went on an appointment spree in the weeks leading up to the 2015 election, filling not only most of the positions that were vacant but also making 49 “future appointments” of individuals whose terms weren’t due to be renewed until well after the election.

In October, the government said that the initial backlog was caused in part by the decision to overhaul the appointments process and bring in a more open and balanced merit-based system.

It said that system was up and running, Canadians were applying for the positions and vacancies were being filled.

Five months later, the government said it has received more than 11,000 applications for vacant appointments and more than 100 selection processes are currently underway.

“The more rigorous approach to conducting selection processes represents a significant volume of work,” said Raymond Rivet, spokesman for the Privy Council Office.

Rivet said that since the government launched its new appointments process it has made more than 100 appointments.

“Of this number, 62 per cent have been women, 15 per cent visible minorities, 10 per cent Indigenous Canadians and 50 per cent identify as fully or functionally bilingual.”

However, Conservative MP Tony Clement, former president of the Treasury Board, said the growing backlog of vacant appointments is affecting service to Canadians.

“This clearly a case where these appointments, which are necessary for the proper functioning of government — there could be issues involving people getting their appropriate EI, for instance, or their appropriate pension — are not being processed because of the lack of these appointments.”

Clement blamed the backlog on Trudeau’s director of appointments, Mary Ng, who announced Feb. 15 that she was taking a leave from her job to seek the Liberal nomination in the Toronto-area riding of Markham-Thornhill. The riding became vacant after Trudeau appointed former immigration minister John McCallum as Canada’s ambassador to China.

“It’s very disappointing,” said Clement. “The person in charge of this process is now the Liberal candidate in Markham, and obviously she was spending too much time campaigning for herself and not enough time making recommendations to the prime minister on appointments.”

Diversity in GiC appointments – 2016 Update

My latest in IRPP Policy Options:

election-2015-and-beyond-implementation-diversity-and-inclusion-062Following my 2016 baseline study of the diversity of Governor in Council (GiC) appointments (Governor in Council Appointments – 2016 Baseline), I have analyzed 2016 and early 2017 appointments using the GiC appointments index. There has been a strong push towards gender parity but no clear trend with respect to visible minorities and Indigenous peoples.

Baseline data below:

GiC Baseline 2016.010

Source: Diversity in GiC appointments

Laïcité: Couillard reçoit froidement un appel de l’opposition, Philippe Couillard rejette l’accusation de racisme systémique lancée par QS (appointments)

Two articles of interest. First, despite the Quebec shootings, the opposition parties continue to play identity politics, deliberately or inadvertently:

M. Couillard a déclaré dans un point de presse que l’enjeu du port de ces symboles est un phénomène inexistant dans le cas des fonctionnaires qui disposent d’un pouvoir de coercition.

«On est encore une fois en train de mettre sur la table un débat pour un enjeu inexistant, a-t-il dit. Je l’avais dit il y a quelques années: à ce que je sache, il n’y a pas de policier qui porte de signes religieux au Québec. Il n’y en a pas plus aujourd’hui. On est en train d’entreprendre un débat sur un enjeu qui est plus qu’hypothétique, qui est inexistant.»

Selon le premier ministre, l’attentat qui a fait six morts dans une mosquée de Québec, la semaine dernière, ne doit pas faire dévier le débat vers la place de la laïcité dans les services publics.

«Le problème d’horreur qu’on a vécu au Québec, la semaine dernière, c’est le racisme et la xénophobie poussés à la violence extrême, a-t-il dit. C’est ça l’enjeu. Il ne faut pas le retourner et voir qu’on va régler le problème en restreignant les droits de certaines personnes dans la société.»

M. Couillard a tout de même affirmé qu’il sera possible pour l’opposition de discuter de ses propositions lors de la commission parlementaire qui étudie le projet de loi 62, proposant l’obligation du visage découvert dans les services publics.

«On aura des arguments importants, mais je pense que personne ne s’attend à ce qu’on mette nos principes de côté ou qu’on marchande nos principes», a-t-il dit.

Source: Laïcité: Couillard reçoit froidement un appel de l’opposition | Alexandre Robillard | Politique québécoise

Same story in the Globe:  Debate over wearing religious symbols returns to Quebec 

Secondly, the Quebec government comes under attack for the tiny number of visible minority government appointments (the provincial equivalent to GiC federal appointments, where visible minorities form 6.1 percent – see Governor in Council Appointments – 2016 Baseline):

Le gouvernement rejette les accusations de racisme systémique dans ses nominations, mais reconnaît qu’il y a un problème.

Le premier ministre Philippe Couillard estime en effet qu’«il y a beaucoup de progrès à faire au Québec».

C’est Québec solidaire qui a accusé lundi le bureau du premier ministre de racisme systémique dans ses nominations. Selon le parti de gauche, les personnes issues de minorités constituent seulement 2 % des 400 à 500 nominations par année effectuées par le Conseil exécutif.

Dans un point de presse mardi en ce jour de rentrée parlementaire, M. Couillard a dit qu’il ne pensait pas que c’était le cas.

Il a toutefois ajouté qu’il y a beaucoup de progrès à faire et que c’est clair quand on regarde les chiffres d’accès à la fonction publique des communautés culturelles.

La ministre de l’Immigration, de la Diversité et de l’Inclusion, Kathleen Weil, a réagi à l’accusation. Selon elle, il ne s’agit pas de racisme systémique, mais elle a admis qu’il y avait un problème.

Source: Philippe Couillard rejette l’accusation de racisme systémique lancée par QS | Patrice Bergeron | Politique québécoise

 

How do the feds track diversity of appointments? – Policy Options

My latest, analyzing what PCO ATIP documents reveal about their tracking of GiC diversity, with my usual series of charts, including 25 year series data with respect to women’s representation:

As I have been taking a closer look at diversity in Governor in Council and judicial appointments, the gaps in the available data have become much clearer. Documents I received under the Access to Information Act revealed that while the Privy Council Office (PCO) has been systematically tracking representation of women and French/English speakers in these appointments, there has been limited tracking with respect to the other employment equity groups, that is, Indigenous peoples, visible minorities and persons with disabilities.

A number of the documents appear to reveal a certain scramble to prepare this data for the incoming Liberal government.

Source: How do the feds track diversity of appointments? – Policy Options

Government appointments and diversity – Policy Options

election-2015-and-beyond-implementation-diversity-and-inclusion-042My latest piece in Policy Options, reporting on the Liberal government’s commitment on increasing diversity in government appointments (political, deputy minister, judges and heads of mission) – spoiler alert, it largely has.

Source: Government appointments and diversity – Policy Options

Reforms to the Superior Courts Judicial Appointments Process: Diversity element

The operative paragraph on diversity, including reporting:

To promote diversity, the new JACs will be mandated with identifying outstanding jurists from a wide range of backgrounds and practice areas, with a view to having a judiciary that reflects the diversity of Canadian society. JACs will be supported in this task by the diversity-related training provided to members noted above. The collection and publication of statistical data on judicial applicants and appointees will provide transparency and enhance accountability with respect to progress towards a more diverse bench.

Source: Reforms to the Superior Courts Judicial Appointments Process – Canada News Centre

Trudeau shakes up PS top ranks with more young blood (diversity numbers)

With these appointments, the overall DM diversity numbers for the 39  appointments are: 43.6 percent women, 7.7 percent visible minorities:

Prime Minister Justin Trudeau shook up the senior ranks of Canada’s public service with another sweep of promotions for younger executives who are poised to take over as the leaders of the next decade.

The latest round of appointments reflects Privy Council Clerk Michael Wernick’s push to rejuvenate the top ranks of the bureaucracy with a better mix of youth and experience. The prime minister is responsible for all senior appointments but they are typically made on the advice of the clerk.

Wernick has said managing a “generational turnover” is his top priority as the last wave of baby boomers, who dominated the face and character of public service for decades, retires. In speeches, he has exhorted the baby boomers to “move on” and make way for the next generation of leaders.

Friday’s shakeup included three promotions into the ranks of deputy minster and three assistant deputy ministers into associate deputy minister jobs. All are about age 50 — either in their late 40s or early 50s — positioning them for the top posts over the decade. Last year, the average age of deputy ministers was about age 58.

As one senior bureaucrat said, “It looks like 50 is the new 60.”  The public service has aged over the years, including its senior executives compared to the 1970s and ‘8os when the public service grew rapidly and it wasn’t unusual for executives to get their first deputy appointments in their 40s.

The Trudeau government has made more than 30 senior public service appointments, and a significant number have been younger appointments than in previous years or were recruited from outside the public service.

This round of promotions includes: Paul Glover, the associate deputy minister of health, becomes president of the Canadian Food Inspection Agency; Timothy Sargent, associate deputy minister of Finance, is promoted to deputy minister at International Trade; and James Meddings, assistant deputy minister at Western Economic Diversification Canada, moves to the top job at Federal Economic Development Agency for Southern Ontario.

Glover replaces CFIA president Bruce Archibald, who is retiring. Sargent is taking over from Christine Hogan, who was recently named the new World Bank Group executive director for Canada, Ireland, nine Caribbean countries, Belize and Guyana.

Similarly, Meddings replaces Nancy Horsman, who is the new International Monetary Fund executive director for Canada, Ireland, nine Caribbean countries and Belize.

Doug Nevison becomes the European Bank for Reconstruction and Development executive director for Canada, Morocco, Tunisia and Jordan.

The Trudeau government’s appointment of two women — Horsman and Hogan — to the world’s main economic boards is part of its push to ensure Canada’s representatives abroad reflect gender parity and the wide diversity of Canada. About 45 per cent of Canada’s diplomatic postings are now held by women.

Other moves in the Friday round of appointments included Chris Forbes, the associate deputy minister at Agriculture who moves to Finance as one of the department’s two associate deputy ministers. Rob Stewart, assistant deputy minister at Finance, moves up to the associate deputy minister position responsible for G7 and G20.

Nada Semaan, executive vice-president at Canada Border Services Agency (CBSA), moves to Agriculture as associate deputy minister, and Kristina Namiesniowski, an assistant deputy minister at Agriculture, takes over Semaan’s position at CBSA.

Today, more than one-third of the executive cadre are over age 55, with 400 of them over 60. About 46 per cent of all public service executives are over age 50. The average deputy minister is 58; associate deputy minister 54, assistant deputy minister 53.7 and directors and directors-general 50.

Along with the drive to infuse more young talent into the executive jobs, Treasury Board president Scott Brison is committed to making the public service more millennial-friendly to attract more youth.

Source: Trudeau shakes up PS top ranks with more young blood | Ottawa Citizen

Justice minister announces 24 new judges in effort to end national shortage

Finally, the announcement of the new process for selecting federally-appointed judges. No real surprise given the ministerial mandates letters. Still nothing (yet) and regular reporting:

The Liberal government has announced a new judicial appointment process that emphasizes gender and racial diversity.

One of the key changes unveiled on Thursday specifies that governments and independent legal groups that pick the members of the committees that screen candidates “will be asked to take into account the need to ensure [the committees] are representative of the diversity of Canada,” according to a justice department backgrounder. All members of the screening committees will get training on diversity, unconscious bias and assessment of merit, the backgrounder says. A federal agency will keep track of the demographic makeup of applicants. Until now, applications have been tabulated only by gender, not race.

As part of the process, applicants will have to fill out more detailed application forms than they do now. In these forms, applicants will detail their abilities in Canada’s two official languages, and they may be tested on their proficiency.

Another set of modifications will undo changes the Harper government made to the process. The Conservatives had put a police representative on the judicial advisory committees that screen judges for federally appointed courts (such as provincial superior courts, the Federal Court and Tax Court). They had also taken away the vote of a judge on those committees, which had given the federal appointees a voting majority. And the Conservatives had taken away the judicial advisory committees’ ability to “highly recommend” applicants; they could only recommend (or not). The government will remove the police representative, return the vote to the judge and re-establish the “highly recommended” category.

Applicants who applied under the previous process will have to re-apply, but on Thursday, the government announced the appointments of 24 judges under the existing process.

The Liberals have come under fire from the legal community because they appointed just 15 judges in their first year in power, during which judicial vacancies reached 61. That’s more than at any time during Stephen Harper’s decade in power, records show. When Mr. Harper stopped appointing judges in the summer of 2015, before the federal election, there were a little more than a dozen vacancies.

Backlogs in criminal, civil and family cases have risen in some provinces, especially in Alberta and Nova Scotia.

Source: http://www.theglobeandmail.com/news/national/liberals-to-unveil-new-judicial-appointment-process-undo-changes-made-by-harper/article32454733/

And the announcement of 24 judicial appointments:

After months of criticism for not acting fast enough to appoint much-needed judges across the country, Justice Minister Jody Wilson-Raybould announced 24 judicial appointments Thursday.

“We have moved to fill urgent judicial vacancies by drawing on existing lists of recommended candidates,” the minister said in a statement. “The government is confident in the outstanding quality of these appointees and their dedication to delivering just outcomes for Canadians.”

Justice system can’t wait for judicial appointments review, say judges

Trudeau government has backlog of more than 300 appointments

Of the 24 new appointees, 14 are women and two are Indigenous. (No visible minorities are mentioned but need to doublecheck).

Source: Justice minister announces 24 new judges in effort to end national shortage

And for the list (I will be doing an analysis later as am travelling):

Source: http://news.gc.ca/web/article-en.do?nid=1140619 (separate links by Federal Court and Provincial Courts)

How Trudeau can bring diversity to Supreme Court: Ranjan Agarwal

Some good practical suggestions. The ones I favour include publishing the demographics of applicants and focussing efforts on improving the diversity of other judicial level appointments, where the potential pool is larger.

The easing of the official languages requirement is a non-starter, so those with judicial ambitions should make knowledge of both official languages part of their education.

Needless to say – but I keep saying it – the Office of the Commissioner for Federal Judicial Affairs Canada should include in its reporting, the number of visible minority and Indigenous judges, not just women:

So, can this missed opportunity be salvaged? Yes, if the prime minister takes four steps.

First, he should make clear that Justice Rowe was appointed because he was the best Canadian for the job, not the best Atlantic Canadian. In doing so, he would affirm that his next appointment in September 2018 does not have to be from British Columbia (since Chief Justice Beverly McLachlin, who will retire then, notionally holds that seat on the Court), leaving open the possibility of appointing an aboriginal or minority judge from outside B.C.

In particular, the current convention does not allow for the appointment of a Northern Canadian, even though the courts in the territories are some of the most diverse in Canada.

Second, the prime minister should publish demographic statistics of the applicants for this appointment. How many women applied? Self-identified minorities? Aboriginals? Non-Atlantic Canadians? How many judges? How many lawyers? The problem with promising diverse appointments is that the talent pool at the senior levels of the bar or on the trial and appeal benches may simply not be there. Demographic statistics allow the government and the legal profession to consider where more work must be done to create a pool of good, diverse candidates.

Third, the prime minister should revisit (though not necessarily reconsider) the “functional bilingualism” requirement. Potential applicants have two years to immerse themselves in French-language training. But the government should test whether the bilingualism requirement had a disproportionate impact on aboriginal and immigrant communities, where French-language education may not have been a priority for their parents.

Finally, the prime minister should disproportionally fill the 60 other judicial vacancies with qualified women, aboriginal and minority judges. A more diverse Supreme Court is, in many ways, symbolic. The real work of the justice system happens in our trial courts — that may be the only interaction many Canadians have with a judge.

After every hearing, the Court’s justices gather over lunch to discuss their views on the appeal. The appointment of Bertha Wilson in 1982 surely changed the discussion around that table about many issues, including perhaps most importantly abortion, gender rights and spousal abuse.

The appointment of an aboriginal or minority judge will have the same impact, providing a much needed perspective on novel issues facing an increasingly diverse Canada and in an age of truth and reconciliation. Our justice system is the finest the world has ever known. But, sometimes, not only must justice be done, it must also be seen to be done.

Source: How Trudeau can bring diversity to Supreme Court | Toronto Star