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.