John Duncan exits cabinet on an unusually clear-cut infraction

John Geddes on the reason for the Aboriginal affairs minister’s resignation

The most surprising thing about John Duncan’s resignation today as Aboriginal affairs minister is the lack of ambiguity about the line he crossed. This isn’t an example of a politician misunderstanding a grey area: cabinet ministers just aren’t allowed to try to influence courts.

Yet Duncan says in his letter of resignation that he “wrote a character letter to the Tax Court of Canada on behalf of an individual to whom my constituency staff was providing casework assistance.” He did this despite the fact that, according to Ottawa University law professor Adam Dodek, who happens also to be a former political aide, “it is beaten into ministers and their political staffs that they can have no contact with judges.”

The firmness of this particular prohibition, Dodek says, goes back to the so-called “judges affair” of the mid-1970s, when three cabinet minister in Pierre Trudeau’s government tried to influence court decisions. Dodek generously speculates that Duncan might have imagined that giving a letter of reference to a constituent, who would in turn pass it on to the court, wasn’t the same as a minister directly communicating with a judge. “That’s less bad,” he said.

But still hardly good. “The fundamental problem is the appearance of a minister of Crown trying to influence the decision of a judge,” Dodek concluded when I interviewed him shortly after Duncan’s resignation was made public late this afternoon. “This really was a serious infraction. It can threaten public confidence in the independence of the judiciary.”

For my part, I’m used to stories in which a politician’s lapse is open to debate or interpretation. This one appears to be starkly clear. It makes me wonder if the briefing and training given to ministers and their staffs is up to scratch. It’s called, after all, the Tax Court. Shouldn’t that word alone set off alarm bells to any letter drafter, no matter how junior, in any minister’s office?

Finally, Duncan’s exit from his portfolio removes a minister who, for all the many problems he had in the job, brought an unusual personal perspective to it. He has, as I discussed in this recent blog post, close personal and family ties to the First Nations communities on Vancouver Island. Of course, that didn’t make him necessarily the best guy for the job, but it would have added a particular sort of interest to watching his handling of controversial files in the coming months.




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John Duncan exits cabinet on an unusually clear-cut infraction

  1. That’s most likely the most handy peg to hang Duncan from. But given the higher profile FNs issues are set to assume for this PM. And given Duncan’s less than stellar performance from a FNs perspective I’d say it looks suspiciously convenient. There’s a link floating around here ( thought it was on your blog) that mentions that Duncan recently caused a stir in FNs circles by firing off letters that seemed to undermine the treaty process in BC. Maybe another letter he shouldn’t have posted?

  2. He seems like a nice enough man who gave the impression of
    being somewhere he didn’t want to be …. in over his head.
    That applies to a lot of the cabinet automatons.

  3. So what did he think would happen because of the letter? Even setting aside an actual attempt to influence an outcome, did he think a judge would be all “wow, I wasn’t going to give you a fair trial before, but now that you have a letter from a politician I will totally believe everything you say and find in your favour!” We give them lordly salaries and lifetime appointments and require them to record their judgments in order to get an impartial rule of law – does Mr. Duncan not understand or believe that?

    • Should have checked with Stock or Randy white… that didn’t go so well either.

    • And it only took him 20 months.

    • After doing the wrong thing?

  4. So the letter had been sitting around for a long time. Of course PMO knew about it. I guess the resignation letter was on file for awhile as well, and ready to go when timing was right. Anything else?

  5. Are we perhaps parsing things too finely when we argue that a Minister writing a letter to try to influence the CRTC isn’t resignation-worthy, but a Minister writing a letter to try to influence the Tax Court is? I see the difference of degree perhaps, but not substance.

    If the last C in CRTC stood for “Court” instead of “Commission” would Flaherty have resigned for trying to improperly influence them?

    • Maybe. It’s just a guess but I am wondering if the distinction lies in a body which makes decisions because the Minister is super busy and can’t do everything himself (and thus subject to Ministerial override), and an independent body answerable to no one but a higher court. I’m not even sure that distinction exists in all, some or even none of the sub-juicial decision-makers we appoint, though. If anyone has an authoritative answer on the matter I would be interested.

      • The CRTC isn’t subject to Ministerial override. The CRTC is an independent regulatory body that reports to Parliament.

        • Yes that puzzled myself as well (I wasn’t specifically thinking of the Flaherty and the CRTC because I wasnt’ sure what form the radio license hearings he intervened in took, but there are tribunals that aren’t superiorcourts where it would certainly be a no-no to be writing to the court with your opinion. A human rights trubinal for example).

          • Actually, some research seems to indicate that while the CRTC does report to parliament and can’t be over-ridden by the Minister, the enabling statute allows the commission to be over-ruled by Cabinet. Even then they have to observe certain principles of fairness, and it almost never happens. Still, that’s not a restriction placed on a court, who need to be overridden by a change in the law.

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