It has been nearly 30 years since I proposed a more open process for selecting and confirming nominees to the Supreme Court of Canada in the op-ed pages of the Globe and Mail. I was among the first voices to do so. But the Frankenstein-like creation followed recently by the Harper government in the botched nomination of Marc Nadon is not the solution. It’s a big part of the problem.
Every aspect of the lives of Canadians is influenced by the nine-member top court. This past year alone saw landmark decisions involving the right of physicians to end the life of a patient over the objections of a family and extended free expression rights to reporters and bloggers. How someone is appointed to that court, and who is actually appointed, are matters that should command the attention of much more than the usual suspects in the legal community.
Until the early part of the 21st century, appointments were made purely on the whim of the prime minister of the day. But the Nadon appointment followed a model established with the naming of Justice Marshall Rothstein to the Supreme Court in 2006. And it is here the process descends into byzantine complexity and opaqueness worthy of the great Machiavelli himself.
This is how the scheme works. In an entirely closed process, the minister of justice puts forward a list of names to a group of legal elites, including the chief justice of the Supreme Court of Canada, the Quebec minister of justice and the Canadian Bar Association. Their job is to advise on the suitability of the candidates presented — the legal equivalent of pre-qualifying for a mortgage application. The criteria for selection, and how the list is arrived at, are never made public. The names on the list are secret, and so is the actual number considered. The Department of Justice claims that the minister also “consults” with the prime minister in coming up with the list, but we know who is really running the show here.
Next, a special committee, known as the Supreme Court of Canada Selection Panel, is formed. This group consists of five members of parliament. In the Nadon nomination, it was comprised of three Conservative members and one each from the Liberal and NDP benches. The committee meets, also in secret, to review the list of pre-qualified candidates provided by the minister of justice. After its closed-door deliberations the committee presents a list of three candidates it deems acceptable. But whether this was arrived at by a majority vote or was unanimous is never disclosed. The only name that is ever revealed publicly is the one chosen and announced by the prime minister. This peculiar process does not end here, however.
After the prime minister makes his decision known, an ad-hoc committee of MPs is formed. Their job is to ask questions of the candidate during a televised session. But they don’t get to make recommendations or to vote on the prime minister’s choice. In fact, their role seems to be relegated to that of mere stage props for one leading part: the prime minister’s choice for the top court, whose performance is usually distinguished by smiles, sports anecdotes and stories of triumph over various childhood adversities.
With the Nadon nomination, the committee had less than three days to get up to speed on the candidate’s background and legal history and to prepare discerning questions. In the United States, it can take three months for the Senate judiciary committee to prepare for its hearings on Supreme Court nominees. Nor was the time adequate to engage Canadians in the process. But then this was never intended to be a real vetting of a nominee of the kind that might reveal important aspects of the candidate’s judicial philosophy.
After all, there is nothing significant hanging on this committee’s actions when the outcome is pre-determined and no actual confirmation vote is ever taken. Mr. Harper has virtually unchecked power in the choice he makes. He determines everything from who gets on the initial list to which of the three names is selected for the nomination. If, for example, all the names presented in the process are male, how exactly does a woman get appointed to a court already heavily male-dominated? Had Mr. Nadon’s nomination not been blocked in a most ironic twist by the Supreme Court itself, he would have completed a court comprised of 7 men and two women.
That last sentence about the decision of the Supreme Court of Canada, which amounted to the Court’s saying a resounding “non” to Mr. Harper’s choice, is the biggest kicker of all in this flawed system. Apparently, through all of this contorted process, it never occurred to anyone that, for at least one name on the list, there was a serious chance his qualifications were not in compliance with the Constitution of Canada in respect of Quebec’s enshrined right to representation on the top bench — not a small point when dealing with a Supreme Court appointment. And the rejection of Mr. Harper’s nominee was not exactly a squeaker. Six of the seven voting justices called the Nadon nomination unconstitutional.
As this experience shows, it’s time to go back to the drawing board. A cloak of secrecy continues to obscure how Canada’s top court is chosen. What is still missing is a genuinely transparent process that fully engages and informs Canadians while demonstrating that democratic values are followed in filling these critical positions. That’s unlikely to happen, however, since in Canada a prime minister simply has too much power — another case I attempted to make in the op-ed pages of the Globe and Mail some 14 years ago.
Unfettered power, which is what any majority prime minister for the most part enjoys, is an unwise exercise in tempting fate, as Mr. Harper — and his nominee — have now discovered.
What a contrast is the deathwatch that now grips many RIM analysts. Years ago, they were bedazzled cheerleaders. We had some thoughts on the folly of that short sighted thinking at the time. Today, they seem more like jilted fanboys in the face of the company’s announcement of record losses, shrinking sales and shipments and other setbacks in its new product launch.
What is happening at RIM is sad for the company, its employees and investors. What is sadder, still, is that, just like what happened at three other now vanished Canadian icons — Nortel, Livent and Hollinger — it was avoidable, and almost entirely the product of management arrogance that was unstopped because of bad corporate governance.
We wrote about these same issues in these same companies long before anyone else because they foreshadowed the crisis that history predicted was coming. In RIM’s case, it was a lesson that even major shareholders who claim a strong commitment to good corporate governance, like the Ontario Teacher’s Pension Plan, were too blinded by the prospects of giddy returns to see. So they and others gave a pass to the weak board structure and the mesmerized cast of directors who bought into a loopy management style.
These are not popular positions to take, as we often discover. When we raised issues about RIM’s boardroom culture and ethically challenged top management — and we were the first on record to do so — a barrage of nasty, vindictive and occasionally threatening emails and telephone calls followed. RIM, it seemed, could do no wrong even when it did (remember the stock option backdating fiasco?), and absolutely no one was interested in hearing a critical word because of the company’s success at the time. “Who needs a board when you have Jim and Mike?” seemed to be how most saw it. No one considered for a moment that RIM’s success might be fleeting, least of all entranced directors on its board. But being a director, investor or analyst is about more than being a captive of a shiny object, whether it is a glittering gold watch or a spellbinding (co-) CEO.
Next on the agenda will be a succession of directors who start to bail out, not wanting their reputations to be tarnished when the Chapter 11 filing is made and not admitting that they, too, took too long to use their mentality to wake up to reality, as Frank liked to urge on Cole Porter’s behalf.
Early clues to RIM’s fast approaching demise, which is clearly underway as the stock hurtles toward the five-dollar mark, were there for all to see, as they were, and are, for many other companies. They always begin with how the boardroom culture dictates the exercise of power and accountability or whether it plays any meaningful role in that process at all. But that is a view that too many inside and outside the boardroom, often caught in a hypnotic state of denial on the one hand and over-deference to the beguiling CEO on the other, remain unwilling to see. A change in fortune can always happen to the beneficiaries of great success and especially to those who make the mistake of assuming previous success is a guarantee for future wins, as JPMorgan’s board is in the process of discovering today in its widening scandal of losses, and as GM’s, Nortel’s, Lehman’s and Penn Central Railroad’s directors before them learned the hard way. It seldom announces its impending arrival in a corporate wide email.
For those interested in learning more about the missed boardroom clues that brought RIM to the brink, our full series of 25 posts over the past six years can be found here.
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Happy Birthday, Canada. Having survived the theatrics of Conrad Black’s renunciation, the vanishing of the Canadians icons he once headed like Hollinger, Dominion Stores, Massey Ferguson and Argus, and now his coming back to your forgiving embrace after being a guest of the U.S. penal system, you can survive anything. More significant, however, and worthy of recognition and praise on such a day, is the sacrifice and courage shown by the men and women of Canada’s armed forces who serve to protect freedom and democracy here and in far off lands, along with their families who give so much. A different kind of war is fought daily at home as well by those who battle poverty, injustice and the tyranny that is often inflicted by power on the part of governments, corporations and the media when that becomes untethered from moral values and human decency. They seldom receive plaques or medals, unlike Mr. Black who continues to hold his Canadian distinctions despite disgracing them (it was on Canadian soil in Toronto that Mr. Black engaged in his obstruction of justice for which he was convicted in the U.S.). These foot soldiers of a civilized society represent in their often unremunerated and unsung work the best of what Canada stands for in the world.
Conrad Black is back at his (temporary) winter home in Palm Beach after being freed on bail pending the outcome of his appeal. His conservative friends in their College of Cardinals-type media conclaves appear to seek his beatification for what he has gone through. If he is found to have been wrongly convicted, as countless numbers are in Canada and the United States every year without a whisper of concern from Mr. Black’s supporters — or the tens of millions at their disposal to make that case, as Mr. Black has — he is entitled to all the redress available for one of the most terrible wrongs the state can perpetrate on a person. But, as Stephen Bainbridge points out, there is still much of the dark earth about him that stands between Mr. Black and his final elevation to sainthood.
Richard Fuld was back before another committee attesting to the fundamental strength of Lehman Brothers, which went under for every conceivable reason, except, of course, the failure of its leaders. Follow-up question: does the Financial Crisis Inquiry Commission realize that Lehman had a board of directors who might shed some light on the calamity? Fed chief Ben Bernanke was also back before the Commission, after the Fed admitted, once again, that it misread the depth of the economic downturn in recent months. A change in lyrics was also detected regarding Mr. Bernanke’s explanation as to why Lehman was not saved. The self-serving music remains the same, however. BP’s infamous blow out preventer made its way back to the surface; its corporate image is still submerged somewhere in an ocean of missteps and CEO blunders. HP’s board is back in the news, and not in a good way. It showed that you can spend tens of millions on a CEO and, for that lofty sum, still get a chief executive with a missing ethics gene. The directors’ solution? Spend tens of millions more to get rid of him in the face of the deception which the board claimed was the reason for his ousting. Go figure. Canada saw a new Governor General appointed to represent the Queen as head of state. It came on the sole recommendation of a prime minister whose Conservative Party holds a minority position in parliament. It is a throwback to a time when most Canadians could not read or write and women did not have the vote. Still, few Canadians seemed bothered by the quaint tradition. On the other hand, few parents teach the idea that any girl or boy can grow up to be GG someday.
President Obama is back to a freshly redecorated Oval Office, where he has hatched yet another stimulus package. The new soft beige seating areas will provide a calming effect when yet lower approval ratings are published. As the distancing of the President from the electorate becomes more pronounced, and the loudening canons of Republican victory signal their approach with each day, one can almost hear the mournful reprise of a love no longer to be: “We’ll always have health care.”
However timeless the Pyramids of Giza and the inscrutability of the Great Sphinx remain, they cannot for more than a few weeks distract our attention from the greater monuments of folly and misjudgment that today’s Pharaohs of business and government routinely create.
They will be pleased to know that, along with all of them, we are back, too.
Far from setting the right example as the host country, Canada’s lavish G8 spending shows the Harper government knows neither restraint nor sound judgment as it asks other nations to cut their deficits.
It is a time when, we are told, when most nations of the world are, or should be, focusing like a laser on curbing the growth of government debt and stemming excessive expenditures. It is ironic then that when the leaders of the G8 nations descend upon Muskoka this week for their summit in the heart of Canada’s cottage country, they are unlikely to see the thick blanket of public spending hypocrisy that covers a land of pristine rocks and lakes. It is not the only anomaly that makes Muskoka a strangely disconnected place for a G8 summit.
For reasons that defy logic, but evidently not crass political expediency, some $50 million has been doled out to communities and local councils throughout the region in the name of the G8 summit. Canada’s Conservative government, led by Stephen Harper, calls it the G8 legacy infrastructure fund. Under this plan, towns and villages, some of which are an hour or more from the site of the G8 meeting, have been given vast sums to spend on public washrooms, new roofs, elaborate town welcome signs built out of stone, and garbage cans — lots and lots of garbage cans. The larger symbolism of associating litter bins with the G8 meeting does not seem to be something that occurred to the Harper government or to the local communities that sprouted all those garbage cans.
One town was given $1.5 million to improve its main street after spending close to that amount five years ago — on its main street. It has some very fancy designs embedded into the pavement and brand new garbage cans — lots and lots of garbage cans. In fact, there appears to have been a peculiar outbreak of fear throughout Muskoka that has prompted the need for a sudden increase in litter bins, which can be seen lined up like sentries every twenty feet or so on the main streets of several of the region’s hamlets.
Another town had so much money thrown its way that it was unable to fully spend its allotted $1.2 million by the deadline. It did manage to buy more garbage cans though — lots and lots of garbage cans — as part of what it calls its G8 legacy project. Of course, no G8 leader will ever set foot in any of these outlying communities, much less make use of the public washrooms, the newly shingled arena or even a single garbage can.
Few in Muskoka, where billionaires and American film stars make their summer homes and luminaries like conservative commentator David Frum can been seen dockside debating against a quickly melting ice cream cone, seem terribly bothered by this display of largesse. In fact, Muskoka could be a location that other politicians come to for tax and spending lessons. Local taxes have soared by more than fifty percent over the past four years. Water rates have risen by at least that. Some councils have racked up a level of debt in the same period that is triple their total annual operating and capital budgets. The head of the regional government has been in office longer than North Korea’s Kim Il Sung. Like Mr. Kim, he is not elected by the people. He is appointed by other members of the regional government. There is little appetite for change. In Muskoka, it is not uncommon to find local elected representatives holding office for a quarter century. Most local communities don’t have any effective ratepayers advocacy and the vast majority of citizens don’t bother to vote in municipal elections. Local councils frequently hold meetings behind closed doors.
Muskoka is known for many things — family cottages, dazzling lakes, the haunting late night call of the loon — but leading the way in transparency and accountability, the twin forces that are transforming governance around the world, does not appear to be among them. That alone makes the location for the G8 rather peculiar. Nor does the idea that fiscal restraint and deficit reduction, acknowledged by governments everywhere as a key to economic survival, appear to be something the Harper government thought should be applied to the G8 meeting in Muskoka, even though his government is running a $50 billion dollar deficit. It should be borne in mind that the security and logistics costs have to be duplicated in Toronto for the G20 meeting that is to follow. Estimates of more than a billion dollars have been given by government officials as the price tag for G8 and G20 security alone. Smart use of scarce resources is a challenge facing all government as they enter a new era of fiscal constraints. With all its duplication and unnecessary spending, the handling of the G8/G20 by their host country under Stephen Harper seems not to be the model to follow.
A $50 million spending spree may be small compared with the other costs of the summits. But it is emblematic of the wrong signal being sent at just the wrong time. If Canada wants other nations to commit to cutting deficit spending, it cannot put itself in the position of mindlessly throwing money around when the notion strikes it.
Whatever else may be said about it, the G8 in Muskoka will be remembered for its record costs and for the easy slush fund it created for towns and villages when the focus of the world is on exactly the opposite direction in public spending. And it will be remembered for all those garbage cans — lots and lots of garbage cans, which, to many, may be an apt symbol after all.
The Olympic Winter Games in Vancouver are another chapter in the unique history that Canada is writing on the world stage — sometimes in bold letters, sometimes in subtle poetic cadence.
The world’s top athletes pushed and soared, twisted and glided for 17 days and gave the world a spectacular performance. But in the end, it was Canada’s team that set the record, claiming more gold medals than in any Winter Olympic Games in history. The host country pulled in 14 first place medals, compared with 10 for Germany and 9 for the United States. To top it off, there was the Canada – U.S. final that saw two evenly matched emblematic titans of hockey go into sudden death with Canada claiming the gold there, too. Joannie Rochette, the figure skater from Quebec, won the bronze and the hearts of millions everywhere for her amazing grace in the face of such a sorrowful loss. She became the world’s adopted symbol of what the Olympic spirit means in terms of dedication and commitment. The opening and closing ceremonies showcased unsurpassed talent that revealed to the world the potential of a land blessed with natural beauty and endowed with an energetic and creative people. And they came from every part of the globe to make Canada their home.
All this was a fitting and long overdue reminder to those who may have forgotten that Canada can compete with anyone and win. Canada will never shine in the swagger competition. Its voice is sometimes understated in either of its official languages. Its institutions of democracy sometimes seem a little tepid compared with those of the U.S., and way too much power is concentrated in the hands of its prime minister. One does not get many Barack Obamas rising in Canada’s political system. Nor would a Sarah Palin ever get beyond a small town council chamber. But ask Canadians to build a railway through a mountain and span a continent with it, or charge them with taking a hill called Vimy Ridge in the battle torn fields of First World War France; tell them you want to create a health care system that is universal and serves all citizens equally, or enlist them in a war against terror in Afghanistan — and you will see an uncompromising and unparalleled spirit that gets the job done like no one else. One can never presume to know with precise certitude on what side of a struggle Providence sits. But when you have a Canadian on your side, there’s never any doubt. And success is always a lot closer because of it.
The Games got off to a shaky start, but, overall, their organization was a masterful display of management at its best. Canada’s Olympic committee never lost sight — as many organizations often do — of its central mission. In this case, that was the competition of the players and teams and the ease by which audiences could partake in the excitement. Well done.
The Olympic Winter Games in Vancouver are another chapter in the unique history that Canada is writing on the world stage — sometimes in bold letters, sometimes in subtle poetic cadence. It speaks a language of tolerance, understanding, respect for the individual and, above all, of how precious the gift of freedom is to be able to compete, excel, and, if not to prevail, at least to leave a better mark with a head held high.
That’s a gold medal performance that is Canada’s gift to the world.
The day a nation became transformed by its heroes.
Precisely 90 years ago today in a field in France, the four divisions of the Canadian Corps began their legendary assault on German forces in one of the pivotal clashes of the First World War -the battle of Vimy Ridge.
My grandfather and several great uncles were there in the thick of it. They were among the lucky ones who fought that day and eventually returned home to marry and raise a family. For thousands it was their last day. Generations are fortunate when they can produce valiant young men and women who willingly answer their country’s call. But as for our leaders, we are often less blessed. For it is still the folly of those in charge, who command from the bunkers of grandiose ego and narrow thinking, that is the cause of the carnage that is also the legacy of too many generations.
My grandfather seldom talked about the “Great War” and never once sought any special praise or recognition for what he had done. It is said that the Germans holding the ridge could not believe how the Canadian troops just kept coming and coming. Little did those scruffy kids from Saint John and Timmins, Toronto and Montreal, Calgary and Moosejaw know that on that cold Easter Monday of April 9, 1917, as they climbed and took a hill among the ceaseless mud below and the thundering roars of death above, they also helped a country ascend into history as a nation in its own right. It would be one now that produced its own heroes, and fought under its own flag and set the stage with those values to produce an offspring that was to become known as the Greatest Generation.
Canada’s brave young men and women continue this tradition of service in Afghanistan, where since 2001, 116 members of the military and one diplomat -and their heartbroken but boundlessly proud families- have made the ultimate sacrifice.
Many dates live in the dusty books of history. The valor of the Canadians who took a hill in France and transformed their nation on this date in 1917 lives in the hearts of Canadians forever.
Originally posted April 9, 2007. Updated April 9, 2009.