Having exhausted all the alternatives, the Liberals appear to be about to do the right thing and call a public inquiry into foreign interference.
It may well be that much of the evidence is top secret and cannot be heard in open court.
But crucially, the presiding judge will have the confidence of all of the parties in Parliament, nominally representing all Canadians.
That is, if they can find one.
David Johnston, the special rapporteur on foreign interference, belatedly acknowledged how his own perceived political inclinations had doomed the prospect of holding public hearings. In his resignation letter, he said his objective was to restore trust in Canada’s democratic institutions. “(But) I have concluded that, given the highly partisan atmosphere around my appointment and work, my leadership has had the opposite effect,” he wrote.
The process is important — deciding terms of reference and timelines — but the appointment of someone who has been endorsed by all sides is paramount.
There has been some speculation that the dysfunctional nature of Parliament means parties that can’t agree on the time of day won’t be able to reach an accord on a judge. I suspect that the opposition parties will not prove to be the stumbling block — they are desperate to open the spigot and release the drip, drip, drip of what they hope will be embarrassing revelations for the government.
The Liberals at this point have very little choice, having seen their preferred option reduced to ashes. One supposes they have the option of simply abandoning any future action on foreign interference, as they did with electoral reform. But the ramifications of that would go far beyond upsetting a few proportional representation nerds.
The bigger problem is likely going to be finding a jurist who is willing to step into the breach. One retired judge I spoke with said he doesn’t know anyone who would touch this file with a 10-foot pole because it has become so highly politicized. He said most judges have had some political affiliation before being appointed to the bench — a fact he said does not negate their ability to be impartial.
However, both Pierre Poilievre and Jagmeet Singh have been clear that Johnston’s successor needs to have a track record of non-partisanship and neutrality. The NDP motion on the need for a public inquiry earlier this month stated that it must be led by someone with the unanimous support of the House.
This entire farce has already wasted three months. It was entirely predictable and is rooted in the partisan nature of the appointments process on Parliament Hill, where there is no consultation with the opposition parties over any important positions that might rein in the governing party.
It is one of the besetting sins of Canadian politics that nearly 20 years after the Harper Conservatives promised (and failed to deliver) an all-party consultation process on the appointment of officers of Parliament, virtually all political and judicial candidates still rely on the patronage of the prime minister and his cabinet.
In 2015, the Trudeau Liberals promised to take great strides in making officers of Parliament more independent and the appointment process more transparent.
In the event, they grabbed even more power when it came to elevating their friends, scrapping the advisory committee on vice-regal appointments. That brilliant move landed us with governor general Julie Payette, a candidate one senior Liberal called “too spectacular to turn down.”
Appointing people to high positions because they supported your campaign, or helped you raise money, was already well-established by the time JFK named his brother, Robert, as attorney general of the United States because he said he saw nothing wrong in giving him a little legal experience before he practiced law.
Not much has changed since then.
The Canadian Bar Association has expressed its concerns about the federal appointment process of judges, a process it said allows speculation about political interference.
The government saw nothing wrong in naming Dominic LeBlanc’s sister-in-law as interim ethics commissioner, before being forced to reconsider.
An independent appointments commission would have surely nixed that idea and likely that of asking David Johnston to be special rapporteur. Quite apart from the well-publicized family connections, Johnston and Trudeau worked closely together for two years as governor general and prime minister. Arguably, that relationship alone placed Johnston in a conflict of interest when it came to investigating foreign interference that might have benefited the Liberal party.
We are where we are, and it is far from ideal. A public inquiry promises to be a disjointed affair, as witness after witness testifies that they cannot answer the question in public without betraying their oath of secrecy.
The terms of reference will be challenging to fashion: on the one hand, as broad as possible to take in nomination processes and interference in other levels of government; on the other, narrow enough to get it done by in time for the next election, likely a year or so from now.
But the mood of the country is that the issue needs a public airing if trust in the system to be restored (or at least as public as is possible in the circumstances).
It is a reminder of a remarkable legal judgment over a minor collision in England 100 years ago, which ruled “justice must not only be done, it must, manifestly and undoubtedly, be seen to be done.”
It is paradoxical that concerns about threats over foreign interference have persuaded parliamentarians to rise up and thwart the Liberal government’s penchant for handpicking its own watchdogs.
This is a win for democracy and let’s hope MPs are emboldened to demand a bigger say in other appointments.
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