Federal Court of Appeal dismisses challenges of ethics, lobbying commissioners appointments

The Federal Court of Appeal has dismissed a case from a democracy watchdog challenging the Trudeau government’s appointment of new ethics and lobbying commissioners. 

In the ruling, released from the bench late last month but only recently posted online, the presiding judges say they weren’t convinced by Democracy Watch’s arguments that the actions of the governor-in-council, or cabinet, in making the appointments were “unreasonable.”

Democracy Watch had argued that cabinet acted inappropriately in naming the commissioners because both offices were actively investigating complaints implicating the government, including a private fundraiser by the late Barry Sherman hosted for Prime Minister Justin Trudeau.

The new lobbying commissioner named by the government, Nancy Belanger, announced in early 2018 that her office wouldn’t proceed with the probe of that fundraiser because of Sherman’s death in Dec. 2017

Considering the ongoing investigations, Democracy Watch said cabinet was inextricably biased in naming the new commissioners as they would ultimately be responsible for ruling on the appropriateness of the actions of several ministers, including Trudeau.

But, in issuing the verdict, the court cited a 2001 Supreme Court ruling that said it was the role and responsibility of the respective legislature to determine the composition and structure of a tribunal-like body given their “primary policy-making function.”

As such, these sorts of bodies, even those that issue quasi-judicial decisions, weren’t bound by the same Charter of Rights requirements of independence from political decision-makers afforded to the courts. 

READ MORE: Federal lawyers appeal court ruling for Aga Khan investigation

Democracy Watch said in a statement Thursday that it will apply to the Supreme Court of Canada for permission to appeal the Federal Court of Appeal’s ruling on the basis that the commissioners “enforce key constitution-related laws and so must be fully independent from Cabinet in every way, including in how they are appointed.”

The group also says its application to the country’s highest court will argue the appointments were flawed because cabinet failed to properly consult with opposition party leaders as required under the terms of the Parliament of Canada Act and Lobbying Act.

The Federal Court of Appeal, though, ruled that cabinet’s consultations passed the “reasonableness” test. 

“The appellant has a view as to what the statute requires. The governor-in-council has another. Reasonableness contemplates precisely this possibility. We have not been persuaded that the governor-in-council view is unreasonable,” reads the ruling.

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