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Précis: Miller-Rogers Opinion on Options for a Merit-based CBC Board of Directors Appointment Process

Nov 14, 2016

This précis has been prepared for readers’ convenience by FRIENDS of Canadian Broadcasting, not by Peter Miller/Brian MacLoed Rogers. 

View the legal opinion here.

Pursuant to the Broadcasting Act, the CBC Board is composed of a maximum of 12 members appointed by the Governor in Council (GIC ) “during good behaviour”, including the Chairperson and President. While subject to approval by the GIC for appointment and dismissal, the Chairperson and President of the Corporation are not required to be Order in Council appointments.

The CBC Board currently has two vacancies.  Of the current Harper government appointed ten-member board, eight members have historically been Conservative Party donors.  

On September 22, 2015, in his then-capacity as leader of the Liberal Party, Justin Trudeau committed to review the process of appointing CBC Board members to ensure they are “merit-based and independent”.  On February 25, 2016, the Liberal government announced a new GIC appointment process, “one where an open, transparent, and merit-based selection process will support Ministers in making appointment recommendations for positions within their portfolio.”

The appointment process for CBC directors, including the Chairperson and President, has been subject to various reviews and recommendations over the last two decades.

The 1991 Broadcasting Act introduced certain safeguards to better ensure the independence of the CBC.  These included:

  • The power of the Board to fill a vacancy in the office of President, with an officer of the Corporation, for up to sixty days, without GIC approval; and
  • A general declarative statement, and specific financial provision, that in pursuing its mandate CBC shall “enjoy freedom of expression and journalistic, creative and programming independence”.

Unlike the governance of public broadcasters in other Western jurisdictions, the Broadcasting Act, 1991 did not, however:

  • Introduce an open, transparent, merit-based Board appointment process;
  • Establish any specific qualification criteria for directors, such as required expertise or a test for independence; or
  • Provide the Board with effective hiring and firing power over the President.

The clear and demonstrable failure of the current appointment process to ensure that directors are truly independent of government calls for such measures to now be taken.

The Government’s new GIC appointment process provides an appropriate general framework. But the need for independence at the CBC, at the Board and staff level, necessitates selection criteria and safeguards that are unique to the Corporation, and, to ensure their permanence, enshrined in legislation.

Miller and Rogers make 14 specific transitional and permanent recommendations to revitalize and re-constitute CBC’s Board appointment process and governance structure.

As a transitional measure, they recommend that government immediately introduce a new appointment process to address vacancies, encourage existing partisan appointees to step down, and seek to secure a majority of non-partisan appointments by December 31, 2016.

For the longer term, they recommend that government move to re-constitute the CBC’s governance structure through amendments to the Broadcasting Act, with a target date of December 31, 2017.

Transitional Recommendations – New Policies and Practices

Recommendation 1:  The government should proceed to fill vacancies on the CBC Board employing an expanded version of its new approach to GIC appointments (Recommendations 2 through 7, below). Consistent with the government’s new approach to GIC appointments, candidates for director should be encouraged from all regions of Canada, employing recruitment strategies and outreach activities to reach qualified and diverse pools of candidates.

Recommendation 2: Director candidates should be required to possess experience in at least one of three general categories:

  1. broadcasting, media and/or journalism;
  2. financial or technical matters; and
  3. cultural or creative industry experience, including music and film/TV production.

Recommendation 3: An appointments committee chosen from current or former Deputy Ministers, and Associate or Assistant Deputy Ministers of Canadian Heritage, Heads of Cultural agencies, and distinguished Canadians, such as recipients of the Order of Canada, should be formed to vet candidates and provide the Minister with a short list of recommended qualified ‎names. The CBC Appointments Committee should be explicitly tasked with recommending a Board comprised of a majority of non-partisan members.

Recommendation 4: As an interim measure, the government should invite current Board members who individually or collectively do not meet the selection criteria to step dow‎n.

Recommendation 5: As a further interim measure, the government should consider dismissal of the Chairperson and/or President in that capacity.  Such dismissal should take precedence over the dismissal of other directors, in the event that the Chairperson, President or Board did not have the confidence of the government in terms of plans for expenditures of an increased CBC parliamentary appropriation.

Recommendation 6:  In the event of a vacancy in the position of President, the following three-phase appointment process should be followed:

  1. Nominations are first vetted by the third-party Appointments Committee created under Recommendation 3, that then provides a list of qualified candidates to both the GIC and the CBC Board;
  2. The Board provides a short list of a minimum of three eligible candidates, with recommendations to the Governor in Council;
  3. The Governor in Council selects a President from the short list, who is then appointed by the Board.

Recommendation 7: As a further interim measure, in the event that a sufficient number of Board members do not resign to bring the number of partisan members to less than 50%, the government should consider dismissal of sufficient partisan directors to meet this criterion.

Medium-Term Recommendations:

Amendments to the Broadcasting Act Recommendation 8:  Within‎ eighteen months, the government should amend the Broadcasting Act to formally establish a new appointment process and overhaul the CBC Board. Recommendations 2, 3 and 6 would form part of the amendments to the Act.  We also recommend a rule be added to Recommendation 3 to require that a minimum of two directors possess each area of experience.

Recommendation 9:  In furtherance of ensuring experienced directors as set out in Recommendation 8 above, the conflict of interest provisions set out in section 38(1) should be amended to permit a minority of Board members to be engaged in broadcasting, production, or music, or have a pecuniary or proprietary interest therein, but to avoid any direct conflict by requiring disclosure of any such interests prior to appointment and recusal on any decisions that affect those interests.

Recommendation 10:  Consideration should be given to providing specific requirements on partisan appointments, such as the following:

  • No more than 50% of Board members should have a partisan background.
  • For every partisan government member, there should be an equal number of members from other political parties.

Recommendation 11: CBC director appointments should remain ‘during good behaviour’ rather than ‘at pleasure’, and remain eligible for a five-year term, renewable at the option of the GIC.

Recommendation 12: Consideration should be given to reducing the size of the CBC Board of Directors from 12 to nine.  Consideration should also be given as to whether section 36(5) of the Act (which allows an incumbent director to continue in office until a successor is appointed) should be rescinded.

Recommendation 13: The CBC Board should explicitly be made responsible for approving the goals, policies and long range plans of the CBC, as well as evaluating their implementation. The President should be made explicitly responsible for general management and supervision of staff, and to develop long-term strategies for recommendation to the Board.

Recommendation 14: The CBC’s requirement for journalistic, creative and programming independence, set out in Section 46(5) and section 52(1) of the Broadcasting Act, and Section 68.1 of the Access to Information Act, should be made a direct obligation of directors.