Gomery's Blinders and Canadian Federalism

Gomery I: Flawed from the Beginning

GOMERY I: FLAWED FROM THE BEGINNING Ses plus grandes oeuvres sont des cauchemars de scrupuleux rediges par un ironiste et par un roi de la parabole sur un ton de proces-verbal. —Alexandre Vialatte (1998), a propos de Kafka INTRODUCTION It may seem a little incongruous to refer to Kafka when analyzing the first report of Justice John Gomery on the sponsorship affair. Yet this report has a Kafkaesque flavour. As his journalattests, Kafka was often distraught and even led, on one occasion, to divide a sheet of paper into two columns to try to decide whether or not to marry—the reasons for doing so in one column and those for not doing so in the other. This exercise had nothing to do with the joy or the grief brought by marriage; it had to do with Kafka's anguish and self-blame over his inability to love. All of Kafka's work springs from this guilt. In the same way, Gomery's work is bound to echo his circumstances. Gomery brought some baggage to the task along with a certain mindset. Reports of commissions of inquiry never spring to life fully formed. First, Gomery is a judge. He has been trained to adjudicate and to find guilt or innocence, and he can no more escape from this reality than a turtle can leave its shell. He is neither 41 42 Gomery's Blinders and Canadian Federalism an organizational design specialist nor an expert in political philosophy or public administration. As a result, he appears to have been ill prepared to untangle the underlying strands of the sponsorship affair. Second, Gomery is an Anglo-Quebecker who, as Douglas Fisher has suggested (2005), is permeated by the mindset of his fellow Anglo-Quebeckers. Sincethe 1970s,theyhave remained obsessed with the view in good currencyin Westmount at the time that, faced with the threat of the Quebec sovereignty movement, the best remedy—perhaps the only remedy—was and remains the Trudeau-like, intransigent, federal Liberal Party's imposing its own rule top down. Gomery embodied these two handicaps in a particularly toxic way. He was given a job that seemed to be relatively simple: to establish the facts. But doing that well would have required a reasonable grasp of the context from which these facts emerged. However, in defining the context, Gomery made some basic choices that sent his report in directions that cannot necessarily be defended and seem a little Kafkaesque. Indeed, for Gomery, the sponsorship affair was a sort of Rorschach test. His report was therefore bound to echo his own assumptions as much as an objective picture ofexternal reality. First, Gomery chose to define his mandate in political terms—recently declaring that he had chosen Bernard Roy (a former political lieutenant of Brian Mulroney) as principal prosecutor because he wanted to avoid being labelled as an acolyte of the federal Liberals. Second, he choseto surround himselfwith advisers who had a particularly strong centralist view of the Canadian political system and who, as a result, helped to reinforce his view of things. Understandably, he was then led tobuild his report on a number of presumptions, such as the continued relevance of a pure Westminster-type responsible government regime in Canada. And third, Gomery chose both to apportion blame and to bestow exoneration on specific people, which he did not have Gomery I: Flawed from the Beginning 43 to do. Todo this, he had to make further assumptions: about the nature of the workings of the governmental apparatus, about the nature of accountability,and about the nature of the elements that could form the basis of determining blame and innocence. On all of these fronts, the choices that he made were questionable, and as a result his conclusions need to be taken with a grain of salt. Even more serious is that, having made these choices, he did not stick to them consistently. He abandoned his presumptions and assumptions when it suited him. He would like to be able to say, like the judge-penitent of Albert Camus, "Chez moi, on ne benit pas, on ne distribue pas d'absolution. On fait 1'addition, simplement ... ," but he proved himself incapable of doing this (Camus1956). GOMERY AND WESTMINSTER There is no consensus on the continued reality of a pure Westminster model in Canada. Some believe that it still exists, while others see it as a ghost of the past...