Public Accounts Committee on June 11th, 2009

[The Chair, Liberal, Shawn Murphy]

I'd like at this time to call the meeting to order.

Welcome, everyone.

I want to welcome everyone here today.

This meeting is called pursuant to the Standing Orders to deal with chapter 2, on the Governor in Council appointment process, of the 2009 status report of the Auditor General of Canada.

The committee is very pleased to have with us today, from the Office of the Auditor General of Canada, Richard Flageole, Assistant Auditor General. He is accompanied by principal Anne Marie Smith.

From the Office of the Privy Council, we have the Clerk of the Privy Council, Kevin Lynch. He is accompanied by Yvan Roy, deputy secretary to the cabinet and counsel to the Clerk of the Privy Council for legislation and House planning and machinery of government. I think he has the longest title in Ottawa. And we have Patricia Hassard, deputy secretary to the cabinet.

From the Immigration and Refugee Board of Canada, we also have the chair, Brian Goodman. He is accompanied by Sylvia Cox-Duquette, senior general counsel.

On behalf of all committee members, I want to extend to all of you a very warm welcome.

We are going to ask for opening statements now. We normally start with the Office of the Auditor General. Then we'll go to Mr. Lynch. Then we'll go to Mr. Goodman.

Mr. Flageole, the floor is yours.

[Richard Flageole, Assistant Auditor General, Office of the Auditor General of Canada]

Thank you, Mr. Chair, for this opportunity to discuss our chapter on the Governor in Council appointment process.

As you mentioned, I am accompanied by Anne Marie Smith, who is the principal who was responsible for this audit.

Our audit examined the process used to make Governor in Council, or GIC, appointments to crown corporations, small federal entities, and the Immigration and Refugee Board.

Overall, there was unsatisfactory progress since our previous audits, with some issues having first been raised as long ago as 1997. Our audit found that there are still long delays in making GIC appointments in these organizations, and that there is a lack of communication about appointments and re-appointments and a need for sustained attention paid to the staggering of appointments.

We found some improvement in the areas of transparency in selection processes for chairs and chief executive officers of crown corporations and heads of small agencies through the creation of a website to publicize vacancies, and in training and orientation of appointees.

The audit found timeliness of appointments to be a problem, with large numbers of positions in crown corporations remaining vacant or occupied by appointees with expired terms for a lengthy period. For example, as of September 20, 2008, 16% of appointees' terms had expired an average of 373 days earlier, and 7% of positions were vacant. In small entities, there was an average gap of 91 days between the end of appointees' terms and their re-appointment, and average periods of vacancy of 296 days for 13 agency heads.

Another matter of concern was with communication with candidates, appointees, and the organizations to which they are appointed. Nearly half of the chairs and CEOs of crown corporations whom we interviewed commented on the lack of communication, with a third using the terms “black hole” or “black box” to describe the appointment process as they awaited information on outcomes. In small entities and the IRB, notification of appointment and reappointment decisions was also not done in a timely fashion.

We noted many instances in which individuals were not notified of reappointments until after their terms had expired. We also noted that the organizations themselves had difficulty in obtaining information on appointments. In three cases, directors learned at a board meeting that they had been replaced days earlier.

The Immigration and Refugee Board is a case study of the seriousness of issues that can develop as a result of insufficient attention being paid to appointments. High vacancy rates and high turnover of board members have significantly contributed to increased delays in rendering decisions and to a large backlog of unprocessed cases. The result is uncertainty for claimants and significant costs to social programs. As of September 20, 2008, there were about 10,000 unresolved appeals and more than 50,000 unprocessed refugee claims. At that time, the board had a 23% vacancy rate and a high rate of turnover.

We are aware that the refugee case inventory has grown since we completed our audit. The IRB 2009-10 report on plans and priorities indicates that the refugee protection division expects to begin the fiscal year with a pending inventory of approximately 65,000 cases and to receive an additional 50,000 new refugee claims this year. Depending on the number of decision-makers available and their level of experience, the board expects to have the capacity to finalize up to 25,000 refugee claims in 2009-10. Therefore, the pending inventory could be over 90,000 by the end of this fiscal year.

This is very serious. Action needs to be taken, and the committee may wish to ask the board about what steps they will take to address this situation.

The government's response to our recommendations in the report gives little assurance or definite undertakings as to how it intends to address the concerns that we raised. Your committee may wish to explore this further with representatives from the Privy Council Office, including whether the government has developed any action plans, timelines or other strategies to address the issues raised in the chapter.

Finally, you will note in our report that officials of the Privy Council Office express their view that aspects of our audit went beyond the Auditor General's mandate and encroached on the exercise of discretion by ministers and the governor in council. As we indicated in our letter to the chair, we are satisfied that the findings in the report fall entirely within our mandate.

Mr. Chair, this concludes my opening remarks. We would be pleased to answer any questions.

Thank you.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Mr. Flageole.

We're now going to turn to Mr. Kevin Lynch, the Clerk of the Privy Council and secretary to the cabinet.

Mr. Lynch.

[Kevin Lynch, Clerk of the Privy Council and Secretary to the Cabinet, Privy Council Office]

Thank you, Mr. Chair and members of the committee.

The Auditor General's status report, chapter 2, looked at the federal government's process for making Governor in Council appointments to crown corporations, other small federal entities, and the Immigration and Refugee Board of Canada. I am pleased to have the opportunity to meet with you today to discuss the findings of the Auditor General on the Governor in Council appointments process, as well to as to update you on measures the government is taking to continue to improve the GIC appointments process.

I'm joined, as you noted, Mr. Chair, by Yvan Roy and Patricia Hassard.

Mr. Chairman, GIC appointments are those made by the Governor General on the advice of the Queen's Privy Council of Canada, as represented by cabinet. The responsibility for recommending appointments rests with ministers. The role of the public service is to implement processes, agreed to by the government, that bring to the political decision-makers a slate of candidates who meet the requirements and have the qualifications for the position, and reflect the diversity of Canadian society. In Accountable Government—A Guide for Ministers and Ministers of State, first released in 2006, the Prime Minister set out his expectations with respect to GIC appointments. The guide states that "it is essential for appointees to be well qualified, and that senior government appointees be chosen through a process that ensures broad and open consideration of the proposed candidates." Further, it specifies that an important aspect of the appointment process is the desire to ensure that GIC appointments reflect Canada's diversity, in terms of linguistic, regional and employment equity representation. The public service is supporting the government in meeting these commitments by developing new policies and guidelines.

These are drawn from best practices in other jurisdictions, that support an accessible and rigorous appointment process. Many such changes have been implemented since 2006.

The GIC appointments process is, by its nature, a complex one, with built-in checks and balances appropriate to the public sector. Private sector appointment processes and practices are not necessarily the benchmark for the GIC appointments process. The Prime Minister's Office, Mr. Chairman, plays a lead role in establishing the policies and is responsible for the overall coordination of GIC appointments as well as liaison with ministers' offices. Privy Council Office, PCO, provides operational support to and advice on the appointments process, including appointment policies, practices, and remuneration. PMO and PCO, as well as ministers' offices and their departments, consult and work closely with their respective organizations to understand their appointment needs.

The December 12, 2006, passage of the Federal Accountability Act provided legislative authority for the creation of a Public Appointments Commission, PAC. The legislative framework provides for a PAC that will have specific roles in the appointments process through the establishment of a code of practice for selection processes. The code will set out the steps necessary for a fair, open, and competency-based selection process for GIC positions in agencies, boards, commissions, and crown corporations.

Consistent with this legislative intent, the government has introduced a number of new processes and practices since 2006 to make the appointment system more rigorous. The management of vacancies has been improved, and both the transparency of the process and access to appointments have been increased.

I would like to highlight, Mr. Chair, for the committee, six such changes, which very much respond to both the spirit and the intent of prior advice we received from the Auditor General.

First--and this is a key one--to ensure that ministers and their departments are better equipped to manage appointments within their portfolios and understand the expectations of the government, PCO has developed and distributed a document entitled “A Guide to Managing the Governor in Council Appointments Process”. It focuses on the key elements required for a rigorous process. This document provides guidance on effective vacancy management, guidelines for making reappointment decisions, overall expectations, and appropriate steps for recruitment. It also provides specific guidance on effective communications with organizations and appointees on appointment issues.

Second, it is recognized that vacancy management must be improved. To that end, PCO now provides ministers and their departments with a monthly report outlining all appointments set to expire within the upcoming 12 months. This monthly report is meant to assist ministerial and departmental planning and to better ensure that appointment and re-appointment decisions are made in a timely manner.

A third change, in the same vein, addresses the management of upcoming expires. The government has issued new guidelines setting out expectations for ministers to provide notice to appointees as to whether or not they will be re-appointed.

For full-time appointees, ministers now should determine whether a re-appointment will be recommended at least six months before the end of the appointee's term. For part-time appointees, this now should be at least three months before a term expires.

The fourth change relates to increasing transparency and access to the GIC appointment process. In April 2006, the government launched the governor in council appointments website, where opportunities for GIC positions are advertised. Interested candidates have access to selection processes for leadership and quasi-judicial positions in more than 200 government organizations.

The fifth change increases the rigour of the appointments process. The government has broadened the scope of its recruitment efforts for leadership and quasi-judicial positions. Qualified candidates for these positions are recruited following rigorous selection processes, which include the development of the appropriate selection criteria, public advertisements and the assessment of candidates through interviews and reference checks.

The sixth change addresses the need for enhanced training and orientation, for both stakeholders and appointees. This now includes one-on-one orientation sessions for new chairs, heads of agencies and CEOs of crown corporations, and regular workshops on how to implement the appointments process for departmental officials and exempt staff in the ministers' offices.

As these changes indicate, Mr. Chairman, we are working to strengthen the process for GIC appointments. There are always opportunities for improvement, in particular with respect to vacancy management. To manage vacancies well, it's also important to identify the optimal number of GIC positions that are required in an organization to accomplish their legislative mandates and to determine whether existing GIC positions are apportioned where they can be most effective. In some cases, the optimal number of appointees may be less than the maximum allowed under the legislation. To examine this issue, a review led by the President of the Treasury Board will look at how the management of federal agencies, boards, commissions, and crown corporations is impacted by the number of GIC positions and whether the current size is required to optimize their effectiveness. This review is now under way, and it's anticipated that the President of the Treasury Board will submit his report and final recommendations by the end of 2009.

The Auditor General's status report that we're discussing today looked at the government's process for making GIC appointments and examined the extent of progress made in implementing her previous recommendations on appointments. Given the GIC's broad discretion conferred by statute to make appointments, the Auditor General has indicated that her office did not audit the decisions made by the GIC or the roles played by ministers, their offices, or the PMO. We share this view that the audit should not encroach on the exercise of discretion by ministers and the GIC, nor should it comment on the exercise of ministerial discretion, as that would be beyond the scope of the Auditor General's mandate.

The GIC appointment process is a complex one with distinct roles and responsibilities being exercised at the political and public service levels. The role of the public service in the appointment process is to provide advice and operational support. It is not to make decisions on individual appointments. The decision-making takes place at the political level through the exercise of ministerial responsibility and GIC discretion. While these two elements are linked through the common objective of an effective and efficient appointments process, the separation of responsibilities remains clear: PCO manages the process, while the decision-making authority on specific appointments rests with the political level.

In any given year, to conclude, Mr. Chairman, approximately 1,000 appointments are made by the GIC. This is an extremely important element of our Westminster system of government. We very much appreciate the advice of the Auditor General in this area over a number of years, and the Auditor General has contributed to ensuring that the key players in the appointment process are made aware of areas for improvement and are continually looking at ways to enhance policies, practices, and processes.

I'd be pleased to answer any questions you may have on the process.

Thank you, Mr. Chair.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Mr. Lynch.

We're now going to hear from Mr. Brian Goodman, the chair of the Immigration and Refugee Board of Canada.

Mr. Goodman.

[Brian Goodman, Chairperson, Immigration and Refugee Board of Canada]

Thank you, Mr. Chairperson.

Good afternoon, and thank you for inviting me here today. I'm pleased to have this opportunity to introduce myself to the committee and to provide you with information on the Immigration and Refugee Board of Canada—or IRB—Governor in Council selection process, our actions to implement the one recommendation that the Auditor General directed to the IRB and the government, and the current state of our member complement and workload.

I'm joined today by our senior general counsel, Sylvia Cox-Duquette.

I've been a member of the IRB for almost eight years now, and I've served on two of the board's three divisions, first as a member of the refugee protection division, hearing refugee claims, until 2006, and then as deputy chairperson of the immigration appeal division, before being appointed interim chairperson in March 2007 and chairperson in June of that year.

The current selection process for GIC members represents a significant change from the previous process. In addition to setting a pass/fail mark for the written exam, the Selection Advisory Board (SAB) merged the former Advisory Panel and the Chairpersons Selection Board.

All members of the SAB are required to affirm their impartiality in all aspects of the selection process.

Under the revised selection process, the IRB Chairperson is accountable to the Minister of Citizenship, Immigration and Multiculturalism for the selection of qualified candidates according to nine behavioural competencies.

The IRB established these competencies for GIC members to ensure they have the necessary skills, abilities and personal suitability to fulfil their responsibilities.

Candidates who meet the written test and interview competencies undergo a detailed reference check and, on occasion, a behavioural event validation.

In my capacity as chair of the SAB, I recommend to the minister only those candidates who are qualified, based on these competencies, to be considered for appointment to the IRB. The selection process is transparent and merit-based.

The minister recommends the re-appointment of members to the governor in council after taking note of the IRB chairperson's recommendations based on rigorous end-of-mandate performance evaluations.

Since April 1, 2008, two-thirds of those members seeking re-appointment have in fact been re-appointed.

The Auditor General's report recognized that the IRB consistently followed established procedures to solicit and assess new candidates. It also found that new candidates were regularly recommended to the minister and that recommendations for re-appointments were consistently made six months in advance of the expiry date of the incumbents' terms.

Among the recommendations, the report called on the government and the IRB to work together to determine an appropriate complement of members or other strategy to deal with the inventory of unprocessed refugee claims and unresolved immigration appeals on a timely basis, taking into account the current size and the projected number of new cases. The IRB welcomes the recommendation of the Auditor General that the IRB be staffed in a timely manner with the required number of decision-makers who have the knowledge, skills, and experience to carry out the board's mandate. The IRB is pleased that the Auditor General recognized that the processes for soliciting, assessing, and recommending qualified candidates to the minister are sound and that my recommendations to the minister for appointment were based on the members' performance and made in a timely manner.

In response to the recommendation, I have recently shared with the government proposed options to address the IRB's workload challenges. I look forward to continuing to work with the minister and the government to arrive at a strategy that allows the IRB to address its pending inventory and increased intake.

One of the challenges the board continues to face in the pursuit of its mandate is the vacancies in the GIC member complement, along with the rate and timing of appointments and re-appointments at the board. The board is funded for a GIC member complement of 164. As of today, the IRB has a total of 137 members—107 in the RPD and 30 in the immigration appeal division. We currently have a shortfall of 27 members—20 in the RPD and 7 in the IAD. We also have 17 members whose terms are due to end in 2009-10. Of course, that doesn't take into account the possibility of members resigning prior to the end of their term for various reasons, including taking another job, which happens regularly.

However, since October 2008, I'm pleased to report that 33 new members have been appointed and 10 members have been reappointed. Understandably, our efforts have recently focused on training and mentoring the new members. It takes up to a year for a new member to become fully productive. Currently, 71% of our members are in the first term of their mandate, which is usually three years. That is an unusually large number. As the Auditor General pointed out in her report, we'd like to see a balance between the number of new members and the number of experienced members.

I would also like to stress that one external factor over which the IRB has no control, and which has a huge impact on our inventory, is the dramatic increase in the intake of refugee claims. Our intake is volatile and we have no control over the number of claims that are referred to us. In this past fiscal year, 2008-09, a total of 36,262 claims were referred to the IRB, compared with 30,564 in 2007-08 and 23,460 in 2006-07.

As a result of this increased intake, coupled with our member shortage, the current pending inventory has grown to 59,007—which is better than the 65,000 we had projected. The average processing time is now 17.6 months in the RPD and 11.9 months in the IAD. This is obviously very high: people are looking for a finality with respect to their applications and appeals, and their lives are on hold in the meantime, as are the lives of their families. From fiscal year 2006-07 to 2008-09, the intake has increased by 55% in the RPD, 9% in appeals to the IAD, and 21% in ID detention reviews and admissibility hearings.

I'd like to conclude by highlighting the fact that over the last year, in my view, the performance of the board has been extremely praiseworthy. Notwithstanding the external pressures of a mounting intake and a shortfall in member complement, we finalized 20,218 refugee claims in fiscal year 2008-09. Thanks to the dedication and hard work of our members and our support personnel, along with the positive impact of some of the case management efficiency measures we've adopted in a number of areas, finalizations per member have increased to the extent that we were able to achieve this notwithstanding a member vacancy rate that averaged over 27% over the fiscal year.

Finally, I'd like to mention that 2009 marks the 20th anniversary of the Immigration and Refugee Board. Thank you for your good wishes. Over the 20-year history, the board has finalized almost one million cases.

Thank you. I'd now be happy to answer any questions you may have.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Mr. Goodman.

Just before we go to the first round, in my opening comment I neglected to mention that we're accompanied today by the parliamentary counsel, Mr. Rob Walsh.

Mr. Walsh, because there's a difference of opinion as to the mandate of the Office of the Auditor General, I asked for a legal opinion on this issue. That legal opinion was prepared by Mr. Walsh's office. It's been circulated to all members, and he's here today. If any members of the committee want to address any questions directly to him, he's here for that purpose.

We're going to start the first round of seven minutes.

Ms. Ratansi, you have seven minutes.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Thank you, Mr. Chair, and thank you all for being here.

I have some questions for Mr. Lynch. In 2006 Prime Minister Harper promised to end patronage appointments. He said he wanted an independent commission to select appointees based on their experience, not their political ties, yet in the years since then we have seen nothing but the opposite to be true. The Prime Minister has continued to stack boards, commissions, the Senate, the courts, etc., with well-connected Conservatives. My question--

[The Chair, Liberal, Shawn Murphy]

Ms. Ratansi, there is a point of order.

Go ahead, Mr. Saxton.

[Andrew Saxton, Conservative, North Vancouver, BC]

Mr. Chair, the Auditor General made it very clear when she was before committee previously, and I quote. She says:

We did not look specifically at that. I would think that political affiliation should not be a criterion for appointment, but on the other hand, if someone has a known political affiliation, I don't believe that should disqualify them either.

I think it's very clear that her report did not delve into this. Today we're looking at the AG's report, so I think that question is out of order.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Mr. Chair, Mr. Saxton is quite out of order, because that's the presentation that Mr. Lynch himself has made. I'm picking it up right from there, in “Accountable Government”. I have a very valid question. If he would care to sit down and listen to the question first, before he makes points of order, he'll be fine. The question is very logical.

[The Chair, Liberal, Shawn Murphy]

Ms. Ratansi, I'm going to allow the question, but I'll ask you to restrict it to the.... You'll have to understand that the appointment of the person is part of the political process, but you're quite right that there is, passed by Parliament, a provision in the Federal Accountability Act dealing with the Public Appointments Commission. Mr. Lynch--and the Auditor General, I should point out--quite correctly made reference to this, and there is no problem with your pursuing your question in that area.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

That's where my question was going, so I would appreciate some patience from people.

My question is regarding the accountability and the establishment of an independent commission. We have seen appointments.... Governments have done it, but the Prime Minister made that statement and promised to end those types of appointments. Now we have seen the appointments of Justice Green or John Weissenberger, or whatever.

As a person who has been a public servant for quite some time and as someone who gives advice, you believe in the process, so after a prime minister says he will avoid patronage appointments based on politics, do you believe these kinds of appointments help or hinder the GIC process or the public perception of the GIC process?

[Kevin Lynch]

Mr. Chair, let me try to answer the question. As my comments indicated, the government has made a number of changes to improve the rigour and nature of the appointments process since 2006. In my comments I went through six of those, but there are more. They've all been geared toward being much more rigorous in terms of the qualifications and competencies required. They've been geared toward the public notification, including advertisements for the appointments, and the nature of the process to move forward. The government and the Prime Minister in his 2006 guide have moved to improve the accessibility and rigour of the GIC appointment process. It has launched the website. It advertises GIC appointments to all leadership, and quasi-judicial appointments are made based on advertised selection criteria. I think that's a very substantial change in the rigour of the appointments process for GICs over the last number of years.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

I thank you for that answer. It may be a change in the rigour, but everything in theory versus something in practice.

In 2006 the passage of the Federal Accountability Act stated that they would establish a Public Appointments Commission. You talk about the establishment of a PAC that will specify roles. Those codes go with the PAC, but up to 2009, there has been no active commission, apart from the $3 million that has been wasted in keeping the office lights on.

Could you tell me exactly what this PAC is doing, because it does not exist. The House of Commons rejected the appointment and the government has not appointed anyone else. Those codes that you're talking about, the rigorous codes, are all in theory. Nothing has been put in practice, according to what the Auditor General has told us. Could you explain the difference to me, please?

[Kevin Lynch]

Certainly. The Federal Accountability Act, which came into effect, as I noted in my comments, on December 12, 2006, established the structure and mandate of the Public Appointments Commission. The government, since that time, has done considerable groundwork for the implementation of the Public Appointments Commission. Work has been done in examining best practices in other jurisdictions--what are the best practices in this role? As I indicated in my comments, in the public sector it's not exactly the same as in the private sector. It's prepared a draft code—

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Mr. Lynch, I don't want to interrupt you, but is there a PAC? Is there a Public Appointments Commission in place at the moment?

[Kevin Lynch]

You're asking a very specific question. I'll turn to my colleague, Mrs. Hassard, to answer that, if you don't mind.

[Patricia Hassard, Deputy Secretary to the Cabinet, Senior Personnel and Public Service Renewal, Privy Council Office]

Thank you very much.

What exists is the Public Appointments Commission Secretariat, which is a very small unit made up of one executive and one assistant that is meant to prepare the ground for the eventual implementation of the commission itself. The commission itself has not been set up, but there is a secretariat.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

What does the secretariat do? Is it preparing the groundwork for the implementation when the PAC is established?

[Patricia Hassard]

That's right.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

In the presentation that Mr. Lynch gave us it says there has been legislative intent, and there has been a very rigorous process, and there have been changes. When are those changes coming? When would they be implemented? When can we see what is in reality going to happen?

[Patricia Hassard]

I think I would answer that by saying that all of the changes Mr. Lynch described are actually in place now. They are meant to increase the rigour, the transparency, the accessibility of the appointments system in anticipation that we would be able to meet the standards set out in a code of practice set out by the Public Appointments Commission.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

During what stage were they put into place?

[Patricia Hassard]

They've been put into place at various times since 2006.