JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 05, 1998

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[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): We're still on the estimates process, and today we have with us, from the Office of the Commissioner for Federal Judicial Affairs, Guy Goulard and Denis Guay, commissioner and deputy commissioner respectively.

Thank you for coming, gentlemen. Do you have a presentation?

Mr. Guy Goulard (Commissioner for Federal Judicial Affairs): Yes, we do.

The Chair: Okay, go ahead.

Mr. Guy Goulard: Firstly, Madam Chair, I'm very happy that after a couple of years and the election and all the turmoil in this city, I have the pleasure of appearing before you, as chair of the committee.

[Translation]

My name is Guy Goulard. I am the Commissioner for Federal Judicial Affairs, and have been for almost four years. I am accompanied today by Mr. Denis Guay, my Deputy Commissioner, who has been with our Office since 1989.

We are pleased and honoured to have this opportunity to inform you on the mandate, mission and organization of our Office.

I propose to make a short presentation on our Office and activities and subsequently to answer your questions.

At the conclusion of my presentation, we will distribute copies of the text to you in both French and English.

Also with us is Wayne Osborne, our Chief of Finance. If you have any specific questions regarding financial matters, he will be able to address them.

[English]

The mandate of our office, as provided for in section 74 of the Judges Act, is threefold. Firstly, we are responsible for the administration of part I of the Judges Act, which entails the administration of all salaries and benefits paid to federally appointed judges. Secondly, we are responsible for the preparation of the budget of and for providing administrative services to the Canadian Judicial Council, the Federal Court of Canada, and the Tax Court of Canada. And finally, at the request of the Minister of Justice, the commissioner is to undertake missions in connection with any matter falling within the minister's responsibility for the proper functioning of the judicial system in Canada.

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Our office is responsible for a total budget envelope of approximately $ 270 million, most of which represents salaries and benefits payable under the Judges Act. We have an office staff of approximately 50 persons divided among our five main areas of involvement.

First, which is the opening door to our clients, is the judicial appointments secretariat. Any member of the bar who has a 10-year standing at the bar of one of the provinces or territories, or a combination of 10 years at the bar and as a provincial judge, may submit an application for consideration for an appointment to the federal judiciary. This is done by filling out a personal history form provided by our office for this purpose.

The candidates are then evaluated by one of fifteen committees created across Canada by the Minister of Justice. Each province and territory has one committee, except for Quebec and Ontario where there are one and two additional committees respectively. These additional committees were created because of the large number of candidates in these provinces and to assure some regional input and representation in the evaluation.

These committees consist of seven persons, two additional persons having been added under Minister Rock. They include one judge, three lawyers and three laypersons. The minister appoints three persons of his own choice, two being laypersons and one being a lawyer. In each of the provinces the chief justice, the attorney general, the provincial law society and the provincial branch of the Canadian Bar Association are asked to submit a few names from which the minister appoints the four other members to the committee.

These committees sit regularly, and through an extensive process of consultation with members of the bench, bar, and general public, evaluate the candidate and then discuss the candidate at committee meetings. Four criteria are used for the evaluation: competence and experience in the law, character and temperament.

After their consultation and discussion the committees, through our office, which acts as secretariat for the committees, make one of three recommendations to the minister: either highly recommended, recommended, or unable to recommend. Although it is not a statutory requirement, the ministers, present and past, since the inception of the process, have appointed or recommended for appointment only the highly recommended or recommended candidates.

For your information, in the last calendar year we received 317 applications, and 106 of those were either highly recommended or recommended, while 167 were not recommended. This represents a little over 61% as not being recommended.

This year we had 37 appointments to the federal judiciary. I'd like to note that in the last year, for the first time in several years, we had a reduction in the number of applicants. It went from 353 the year before to 317. We are not sure yet if this represents a trend.

[Translation]

Judges administration: this section deals with all matters concerning judges personally. This includes the preparation of documentation for orders-in-council, including appointments, retirements, leaves of absence, and extensions for such matters as removal allowances. This section also deals with all financial matters related to judges, that is salaries, pensions and reimbursement for all expenses. Last year, by the way, we reimbursed approximately $ 20,000 in expenses claimed.

[English]

The policy and corporate services section consists of our departments of personnel, finance, information technology and general administrative services. The section is also responsible for the development of new policies and programs, such as our recently initiated computerized network project, as well as the recent implementation of the national judicial counselling program and the national judicial travel service. We'll be providing a fuller description of these programs momentarily.

• 0915

Fourth, we publish the Federal Court Report. The Minister of Justice, under her responsibility under the Federal Court Act, has appointed one of my staff as the official editor of the Federal Court Reports. This mandate was given in 1978, and I should note that the Federal Court Reports have been made available through the Internet since August 1996.

[Translation]

Lastly, language training: this program was instituted in 1978 when language training for members of the judiciary was transferred from the Public Service Commission Training Program to our Office. The program's main objective is to improve the ability of judges to carry out their duties in either official language. Three types of programs are offered: training in English legal terminology for francophone judges; training in French legal terminology for anglophone judges; and a training program for francophone judges from common law provinces, who have generally been trained in English and have practised law in English, to familiarize them with French legal terminology.

In 1997-98, 305 federally appointed judges and 47 provincially appointed judges participated in the program.

This was a quick overview of our areas of operation. I would now like to say a few words about some projects undertaken recently to improve our support and services for members of the federal judiciary.

[English]

On the exploitation of technology, our office has conceptualized and developed a network entitled the JAIN, for judicial affairs information network—REMI en français—which is serving as a pilot for a larger-scale project that we hope will eventually link all federally appointed judges throughout the country. This pilot project is currently operating with approximately one-half the federal judiciary—500 judges—and has proven to be a valuable medium for the confidential exchange of information among judges. It provides discussion groups. I think so far we have 10 discussion groups ranging on subjects such as judicial conduct, criminal law, family law, etc.

It also provides, apart from electronic mail, an electronic library where we include papers that are developed for judicial training programs and other papers prepared by judges or law professors that we feel can be helpful to judges. We are presently working with judges who are developing jury addresses, and we feel that in itself might lead to a reduction in appeals and resulting trials and major expenses. The word is spreading quickly in the judicial community, and the demand on our office to increase the level of service as well as the number of participants is very strong.

On that topic, I might note that other countries have looked at it, including the U.S.A. and other foreign countries, and they would very much like to access such a network. That might be possible.

On videoconferencing, given the size of our country and the distribution of the judiciary, we have judges who travel across the country very often to attend a matter that is adjourned or settled, and there are large expenses. So we have been working with interested parties at the federal and provincial levels on the development of videoconferencing to assist our judges, in light of the potential impact it could have on the cost of judicial travel, for which we are responsible.

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Being a stakeholder, our office has cooperated in partnership with some provinces in experimental trials of videoconferencing in the courtrooms. We have coordinated our efforts with Public Works Canada, Industry Canada, and I should add also Justice Canada, in an attempt to move this technology to a stage that will provide important data on the savings that can be had through this technology. If in fact the savings associated with this program can be substantiated—and we strongly expect they will—we plan on making the results available to other organizations, such as tribunals and other courts.

On re-engineering of centralized common services, following discussions with third parties from the private sector, we have instituted the judges travel service program. This system consists of the provision of travel services, including air fare, accommodations, and ground transportation. It is basically the same service that is offered to the federal public service through Riders service at this time.

We have also negotiated access to a travel credit card for judges, which encompasses a system for obtaining cash advances at ATMs. The intent is to reduce or eliminate the need for our office to issue travel advances.

These initiatives have already resulted in substantial savings from the lower travel costs associated with economies of scale, as well as direct cash savings from reducing the costs associated with the financing of standing advances and the issuance of travel advances.

As a separate focus of this strategy, we have entered into an agreement with three separate small agencies to provide corporate services. The agreements afford these agencies the benefit of the experience and expertise we have acquired and provide them with the opportunity to minimize their own administrative costs. We have entered into these agreements on a cost-recovery basis. This has resulted in much lower overall costs to government than would be the case if each of these agencies were to have their own administrative services.

The overall savings are achieved through the application of economies of scale. We as a department have benefited by being able to increase our staff complement, and accordingly have strengthened specific areas where we had previously been vulnerable.

[Translation]

Here are several other recent initiatives. First of all, safety measures. Fortunately, very few serious incidents have taken place in our courts, but there is always a risk that an incident of some sort will occur. That is why, further to discussions on the work environment safety policy for federal judges in Canada, we have obtained commitments from the RCMP to assist judges in the planning of their security measures and to do presentations on security measures to federally appointed judges.

We have established contacts in three provinces between the judiciary and the RCMP. We have distributed Court Security Guides obtained from the National Center for State Courts to the Chief Justices of the provinces.

Our Office has entered into a three-party agreement with the Canadian Judges Conference and Corporate Health Consultants Ltd to provide an employee assistance programs to all federally appointed judges. This program which was introduced on July 1, 1995 has been well received and extended to provincially appointed judges on a cost recovery basis.

And finally, our Office has been called upon to coordinate the participation of federally appointed judges in international cooperation programs.

[English]

The Chief Justice of Canada has asked our office to coordinate the participation of federally appointed judges in international cooperation programs, and this often also includes provincially appointed judges. The Minister of Justice approved this as a mission under section 74 of the Judges Act, on the understanding that all costs would be recovered from CIDA or other agencies and not from our operational budget.

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At the request of CIDA, our office has prepared a project proposal to provide a Canadian contribution to ongoing judicial reforms in Ukraine. Similar programs are being considered for other countries, including Russia and Ethiopia for the time being.

Once again, we thank you, Madam Chair, for the opportunity to address you today. Mr. Guay and I are prepared to receive your questions.

The Chair: Thank you.

I'm going to go to Mr. Forseth first.

Colleagues, let me just point out that this agency will be back on the Judges Act, so if you're inclined to have a little rant about judges' salaries, you might want to save it for when we're doing that, because there are some other issues here.

Go ahead, Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Thank you.

As a backdrop, in a general sense we detect that there's not a lot of public confidence in the judiciary itself. One of the mysteries, I think, for the average public is they just don't know how judges get appointed.

You did discuss how your office is responsible for the administration of the Judicial Appointments Secretariat, which provides support for these 15 advisory committees. Perhaps you could just describe in a little bit more detail than you did in your opening remarks the process of how judges are appointed. You did briefly pass by four criteria of how the committees try to assess the worthiness of a judge. There's also a question about the committees themselves and the overall societal biases.

Throughout that, can you address the issue of somehow looking at improvements to maybe increase direct public involvement or have more of a transparency in the appointment process? This is going towards the overall goal that if the public really understands how judges are appointed, the high successive hurdle approach it takes for someone to be appointed, and the checks and balances that are in place, then perhaps the overall esteem of the judiciary could be improved.

Maybe you can give some comments around that whole process.

Mr. Guy Goulard: Your question is extremely welcome. I fully agree with you that the general public does not know how judges are appointed and does not know what judges do, the role they have in our society. Not only does the public not know; very often members of the bar don't know, and members of Parliament, unfortunately, are very often unaware of what this is all about.

In this area, we have spent basically nothing on educating the public on the role of our third branch of government. This is something our office would dearly like to do. It would be a very important contribution to the knowledge of everyone in this country. If there were a recommendation coming from your committee in this regard, it would be appreciated.

Coming to the functioning of the committees, I would like to point out that the 15 times 7 members of these committees contribute their time freely, and they do give much of their time. At some of these consultations, they contact up to 12 to 15 persons by telephone or otherwise, and they prepare—usually they have their own handwritten notes—and assist at meetings that go on for hours, often late in the night, to thoroughly discuss the candidates.

Quite often they are the Mr. Binnies of this world, who are quickly approved, or the Ms. or Mr. No-nos of this world, who are quickly not recommended. But most often they go into lengthy discussion. They will even adjourn to obtain more information. So the process works well. With seven members representing a broad area, including three laypersons, we are satisfied that there is a good representation.

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The process could be improved. We have a right to do meetings with the candidates, to do interviews. We have not done so. We have not encouraged the committees to do so because of the cost involved. If we were to invite candidates to attend a meeting, then it would be fair to cover the cost. With 300 to 400 candidates a year, it would not be fair to interview some but not others. Then it becomes fairly clear what's happening.

Mr. Paul Forseth: Could I interrupt for a moment? Did I hear you correctly that actually we could have an appointment without an interview?

The Chair: Paul, we do this all the time. It's a way to concentrate power and have more secrecy. Not only that, but they're not told whether they're approved or not. Applicants put their names in—the chair will just have a little rant this morning—and they are said to be recommended, not recommended, or highly recommended. They never know what. Not only that, there's no appeal.

Go ahead.

Mr. Paul Forseth: Some of the—

The Chair: It's like the star chamber of judicial appointments.

Mr. Paul Forseth: This is part of what I was getting at.

The Chair: Those who got turned down in Toronto were 0.5%. It was not with this committee, but with the committee before. Who knows what the reasons were?

Mr. Paul Forseth: This is what I was getting at. I caught four criteria. I'm wondering whether there is some kind of schedule or standard that's written down that these various committees across the country are throwing something at.

This whole appointment process, from my political perspective, as you understand, from the Reform Party, we're always looking at trying to get more of a transparency and a public accountability process in there. Of course, for the Supreme Court of Canada, we've advocated some kind of parliamentary hearings, whether it's confirmation hearings or whatever. That's a political point of view.

Without throwing out the baby with the bathwater, I just want you to describe the process a little bit more and some of the criteria for what can be done to really improve this process. As the chair said, it looks like people throw their applications in, they get a yes or a no, and that's about it.

The Chair: They don't get a yes or no, Paul, they don't get anything.

Mr. Paul Forseth: They just get no answer.

The Chair: They don't get anything. They get told that they've been considered by the secret process, which is comprised of more members of the bench and law societies than anything else. It's a little club.

Mr. Paul Forseth: Okay. Do you want to respond to some of those comments?

Mr. Guy Goulard: I'll try.

First, the process does not include the Supreme Court of Canada, so I will not comment on appointments to that court.

It is a fact that at the present time the candidates are not interviewed and are not told of a decision. Earlier on in the committee process they were told.

The Chair: But there's no appeal.

Mr. Guy Goulard: Those who were refused and were well connected evidently reacted, and there were requests for reviews.

There are still possibilities. We have had reviews at the request of the minister in a few cases where the minister felt there was insufficient information at the table.

On the issue of whether it should be opened up and whether candidates should be told of their result, this is a policy decision of the minister; we are the secretariat. I would suggest that might be raised with the minister. This is beyond our scope.

The Chair: I seem to have some specialized information on this. Let me tell you, sir, that while that may be a policy decision of the minister, you administer this process.

Mr. Guy Goulard: Correct.

The Chair: Members of the judiciary delight in telling potential applicants that they are on a so-called short list. This is something that doesn't exist, as there is no short list. They delight in having these people know that they've been accepted or promoted by the committee. Other committee members or members of the bar delight in telling their partners what is going on.

So in fact, this information all leaks out. I think you will confirm that the reason the information was kept secret in the first place was because members of the committee didn't want to operate in public and be lobbied by their colleagues at the bar.

• 0935

But in fact, the information does leak out. People do find out in the most cruel fashion that they weren't deemed acceptable by this little secret process—and without an interview. You send a letter to them that says “You have been considered”. It doesn't say “You have been considered and recommended”, or “You have been considered and turned down, so here's how you appeal it”. It's just that you have been considered. So we're asking people to stick their names into a secret process that leaks like a sieve.

Mr. Guy Goulard: All right. There definitely have been leaks, some well-known leaks.

The Chair: There always are leaks. There are leaks with every application. I get calls every day from people who have been told by a member of the committee that they've been accepted or turned down.

Mr. Guy Goulard: Well, this is surely something that our office should look into, because the importance of discretion is underlined all the time. I hope that in the majority of cases there is no leak, but we are aware of the problem of leaks.

These are very often candidates who have friends. There are seven members on the committees. Notwithstanding our underlining the importance and the cruelty, as you say, of some leaks, it is a problem.

We will be discussing this problem at a meeting of committee chairs. At our suggestion, the minister is inviting the 15 committee chairs to discuss issues. One of the main issues will surely be the discretion that has to be assured. We'll look at options. Opening up the results surely is an option that will be discussed.

As a result of that meeting, the minister might want to review the process. As I mentioned before in this case, we are the secretariat, so we can recommend policy changes to the minister, but then it's up to the minister.

Mr. Paul Forseth: I'll just ask one last question in this round and then allow others to go on. I'll put it to you directly.

Through your offices, is there any written standard for the selection process, the criteria? Is it written down so that the council or committee in British Columbia is somewhat the same and is looking at the same criteria as the committee in Atlantic Canada? Do you have some written material for these committees to adjudicate their candidates?

Mr. Guy Goulard: Yes, we do. Part of the package that is given to all committee members is the guidelines on the process. There's also a form, which we revise from time to time, of the suggested criteria. I know that the form is used by at least some committee members in their consultations. It provides some subheadings under the four main criteria.

For example, under professional competence and experience, we have roughly 20 subtitles, such as proficiency in the law, ability to exercise a role, whether they have written articles, or if they have a specialization. Under personal characteristics, we have honesty, integrity, the ability to make decisions, and reliability.

Consider social awareness. We more than ever pay attention to the issue of social awareness in terms of whether the candidate has demonstrated sensitivity to gender and social equality.

Then we look at potential impediments, such as drug or alcohol dependency, health, and default or family support obligations. There is a specific question in the document as to whether you are in arrears in default or family support obligations.

So to answer your question, yes, we do provide this, and from time to time we review the criteria.

Mr. Paul Forseth: Is that a public document available to the applicants?

Mr. Guy Goulard: Oh yes, this is given to each applicant. It is part of the kit that the applicant—or anyone—can receive.

Mr. Paul Forseth: Okay, thank you. I'll defer to my colleague.

The Chair: Thank you.

I'm sorry that I.... It's early in the morning, it's close in the room, and I hate this subject matter with a passion.

Mr. Guy Goulard: Let's adjourn, Madam Chair.

The Chair: No, I think we'll stay. I have a few questions. I'm going to start with Mr. Maloney. Then, Derek, you had some questions as well.

Mr. John Maloney (Erie—Lincoln, Lib.): As for your comments regarding gender and social equality as one of your selection criteria, how do I as a committee member have any idea of an applicant's attitude toward gender or social equality?

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The Chair: How do you know they're a member of a visible minority? You don't see them.

Mr. Guy Goulard: I know the question is asked, by at least some committee members in their consultation round, whether the candidate is known to be at least aware of the issue, which is a problem. We have members of our—

Mr. John Maloney: Who is that question asked to?

Mr. Guy Goulard: To the persons who are consulted.

Mr. John Maloney: The bar, the bench, or the general public?

Mr. Guy Goulard: The bar, the bench, and the public—yes.

Mr. John Maloney: I could be a flaming bigot in my mind, but obviously for reasons that wouldn't do my practice very well—

The Chair: A smooth flaming bigot.

Mr. John Maloney: Yes, if I were a smooth flaming bigot. How do you get to the issue of knowing if there are people who have a blatant prejudice that's not...?

Mr. Guy Goulard: If you're a smooth bigot, it might not show. But I dare say that we know of bigots. Everybody knows of people who are not even aware of the social or racial equality issues. Some are bigots, and I think what the committee is trying to do is to identify those who may be. That's all that can be done, of course. They cannot do a psychological assessment of each candidate, but at least the effort is there to try to bring it out.

Mr. John Maloney: Should we be doing a psychological assessment of each candidate? We are looking for the best people for the bench.

Mr. Guy Goulard: We would first have to do an evaluation of those who would do the evaluation. I hope we do not have to come to doing social evaluation of not only judiciary but members of the public service or of Parliament.

It is a difficult issue, but at least there is now an effort to identify, and a program is being developed by the National Judicial Institute to provide some sensitivity training to all our judges, once appointed.

Mr. John Maloney: Is that sensitivity training compulsory?

Mr. Guy Goulard: It is not compulsory. None of the judicial training is compulsory. The approach is to bring in, in most of the programs that are given across the country, an aspect that deals with sensitization on these issues. I can laud it. It's not part of my office, but of the National Judicial Institute. I've seen a couple of their programs, and they are extremely well done.

Mr. John Maloney: A candidate will be rated as highly recommended, recommended, or unable to recommend, and you choose between the top two categories. Why would you not choose only from the highest category: highly recommended?

Mr. Guy Goulard: For a number of reasons. She might be looking for a judge in Sudbury, my home town, where they need a person who is bilingual, and preferably a female candidate because they have only men, for example. In that case, the only highly recommended candidate might not be that, although there might be a recommended candidate who is quite good and fits the other categories.

It is important for the minister to have the flexibility. It is still an appointment by cabinet on the minister's recommendation, so I would not want to recommend that we bind the minister to what could eventually be one name. That's one important reason.

Then, as it is subjective at the cabinet level, it is also occasionally subjective, as well as they do work, at the committee level. The act provides a way to appoint judges, and it is by cabinet. We should not impose on cabinet or on the minister a few candidates. That is my opinion.

Mr. John Maloney: Is there any active program to solicit aboriginal lawyers to take positions on the bench? We talk about language training. Is there anything major with our aboriginal languages, the Inuit or Dene, or is it just too varied to do something in that respect?

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Mr. Guy Goulard: We have contacted a number of aboriginal associations, and offered to speak to their groups. We have published advertisements in their own publications on the judicial appointment process, underlining the importance of seeking out unrepresented or not adequately represented groups. So an effort has been made.

Unfortunately, the number of lawyers with at least 10 years' standing who are aboriginal is still extremely small. Very often they are already engaged in doing some work for their community as practising lawyers, and they are still relatively young. So it's difficult to attract them, as difficult as it was for female candidates 20 years ago. When I was called to the bar there was a handful of women out of the 250. Now it's about half, so it's no wonder the percentage of women in the judiciary is growing. The present minister and her predecessors have paid attention to that problem in seeking out unrepresented groups.

Mr. John Maloney: How many do you have?

Mr. Guy Goulard: In the judiciary now?

Mr. John Maloney: Yes.

Mr. Guy Goulard: Funny you should ask. As of now, we have a total of 990 judges, and 185 are female, which is roughly 30%.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): How many are visible minorities?

Mr. Guy Goulard: Sometimes there is no way to identify a visible minority. If it's visible, very often it's clear. However, for example, I was at a committee meeting recently where fortunately I had met the chief justice of that province during the day, who mentioned, “By the way, we are aware that a local lawyer has put her name in to be assessed, and she is of Chinese origin and a very good lawyer”.

The committee went through the meeting and she was being recommended, and no one.... Candidates are invited to indicate if they are from a visible minority. This person had not indicated that, at her own wish, and nobody at the meeting realized it. So after the committee had finished, I raised it. “Is she not...?” “Oh yes, she is of Chinese origin.” So I suggested that they underline that, because that is important to the minister.

So we do not have that. We know that we have a few of Chinese origin, a few who are black persons. We have a few aboriginals, but they are still few and apart.

Ms. Eleni Bakopanos: One small point—on the application there is a little—

Mr. John Maloney: Madam Chair?

Ms. Eleni Bakopanos: I'm sorry.

The Chair: Perhaps you could just let John finish.

Ms. Eleni Bakopanos: I'll go after. I was piggybacking, and I'm sorry.

Mr. Guy Goulard: If I can just add to our figures as of April 1, I would like also to give you the figures as of August 1, 1995, so you'll be able to compare. On that date we had 979 judges and 145 women, so we've gone up by about 20 judges overall and 40 of those are women, or the percentage—

The Chair: That's way below 30%.

Mr. Guy Goulard: As it is now? What is it now?

The Chair: It's around 20%.

Mr. Guy Goulard: So it has gone up from 12% just a few years ago, so the effort is there to increase.

Mr. John Maloney: How does a complaint of judicial misconduct come before the Canadian Judicial Council? What do you interpret as judicial misconduct, and what powers do you have to deal with that, when there is a finding?

Mr. Guy Goulard: I'm happy to say that I have no power. The whole issue of judicial conduct is under the Canadian Judicial Council exclusively. The act provides that anyone can bring a complaint to the Judicial Council. It has to be in writing. Although we provide the resources to the Judicial Council, we have no role whatsoever to play in the evaluation of a complaint.

Mr. John Maloney: Are you familiar with their operations? What do they consider judicial misconduct, and what power do they have?

Mr. Guy Goulard: I'm not—

Mr. John Maloney: You can't answer that.

Mr. Guy Goulard: I am not familiar....

Mr. John Maloney: That's fine. Okay.

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Mr. Guy Goulard: We are asked to keep totally at arm's length from the council, so this is a question that would need to be addressed to counsel.

The Chair: Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Madam Chairman, I think this is a wonderful opportunity to put some information on the public record that just doesn't seem to be out there.

In my years here I've had many inquiries, and most of the information I'm able to provide is simply anecdotal. So if we do our job properly this morning, we can refer, chapter and verse, to this particular proceeding.

In any event, I'd like to ask a few questions about the advisory committee. Why are there 15 regions, or 15 committees?

Mr. Guy Goulard: Firstly, we have one per province and territory, which gives us twelve, because it's a different bar, which is obvious. An additional committee was added for Quebec and two for Ontario basically because of the numbers. These are volunteers, so to have one committee dealing with all the applications in Ontario, they'd be sitting a couple of times a month.

Mr. Derek Lee: Are all the individuals who sit on the secretariats volunteers? There's no remuneration of any sort?

Mr. Guy Goulard: No remuneration. We cover their expenses.

Mr. Derek Lee: You do cover expenses.

Mr. Guy Goulard: Yes.

Mr. Derek Lee: And who appoints the individuals to the Judicial Appointments Secretariat? Is that the correct name?

Mr. Guy Goulard: The Judicial Appointments Advisory Committee.

Mr. Derek Lee: Who actually appoints these volunteers to these committees?

Mr. Guy Goulard: They're all appointed by the minister—

Mr. Derek Lee: Minister of Justice.

Mr. Guy Goulard: But she must choose four from a list given by the chief justice of the province, one given by the provincial branch of the Canadian bar, one by the provincial law society, and one by the provincial attorney general. So these five persons or institutions provide lists. Some lists are one name, with the minister going back if she wants other names.

Then the three others are of the minister's own picking. Two of those three chosen by the minister's own volition are laypersons and one is a lawyer.

Mr. Derek Lee: Thank you. Now, if a person wanted to be a judge, how would she or he formally apply? I know there isn't a formal application process, but let's put on the record how a person “applies” for a position as a judge.

Mr. Guy Goulard: It is a formalized procedure. We don't call it an application, but we call it a personal history form. The person communicates with our office, and we will send the candidate—the person, the lawyer—the forms, along with the guidelines, a document describing the process and a copy of the evaluation criteria. The candidate then fills out the form and sends it back.

We verify with the law society that there is the 10 years at the bar, and we verify as to whether there is any ongoing disciplinary action at the law society level.

Mr. Derek Lee: Excuse me. This is after the documents has come back from the applicant.

Mr. Guy Goulard: That's right.

Mr. Derek Lee: And this is prior to submission to the committee.

Mr. Guy Goulard: That's right. Then, once we've cleared with the bar, a copy of the personal history form goes to each committee member. When they have accumulated enough candidates, they hold a meeting.

I might note that normally this is the process. Occasionally we will get a call or letter from a lawyer, a judge, or even from members of the community. We've had a bishop, I remember, writing and saying, I know this lawyer. He's an excellent lawyer. Being a visible minority, he would be an outstanding judge.

We then communicate to the person in question, telling him or her that their name has been recommended as a candidate. Then if they want, they can send back the forms—and we encourage that.

• 0955

Mr. Derek Lee: So in your view, is the package that's sent out comprehensive? Does it contain a notation of every generic type of information that should be submitted, or is it open-ended, as in here's the basics we need and if you want to send along anything else feel free to do so?

Mr. Guy Goulard: It is fairly comprehensive as far as the process goes, but it will not go into describing what the job may be.

Mr. Derek Lee: Could I ask you to provide a copy of the package to this committee.

Mr. Guy Goulard: Yes, by all means.

The Chair: I think what Mr. Lee was asking—I think there was a miscommunication there, Derek—was not what you tell the judicial applicant but what he or she is required to tell you on the form. I've seen the form and it's pretty vague.

Mr. Guy Goulard: It is now 13 pages, I think. It asks questions on general background, such as the type of practice they have, questions such as whether there are financial difficulties, whether the candidate's ever been convicted of a criminal offence, whether there is something that might put the candidate, the judiciary or the minister in difficulty if it was not mentioned. We're thinking of the Quebec situation. Then there is a question as to why you want to be a judge; it's an essay-type question.

So it is not complete, but we have improved it and are still improving it as time goes. We'll be happy to provide you with a copy.

Mr. Derek Lee: Yes, I think it would be useful to have that filed with the committee.

Mr. Guy Goulard: And if you're a lawyer with 10 years' standing, we'll give you an extra copy.

Mr. Derek Lee: We may wish to have a closer look at the document and the process. These forms and the package are returned to the committee, I gather, and are considered by the committee. What happens to that paperwork when it's finished? Does it ever die, and is it disposed of and shredded, or is it kept around for a hundred years?

Mr. Guy Goulard: Last year we instituted a shredding process. The evaluation is good for three years. It used to be that at the end of the three years we advised candidates that the evaluation was over, kind of inviting them to reapply. Now we tell them that it is for three years and it's up to them to follow up. If there is no new application once the three years is over, we shred the file.

Mr. Derek Lee: You've described the protocol or the minimum protocol of what happens when the committee makes a decision, and I gather they notify the candidate that they've been considered, period, and that's the end of it. Is that correct?

Mr. Guy Goulard: That's correct.

Mr. Derek Lee: And then, for the record, at some point there could be a phone call from someone advising that an appointment is being made or is imminent. And there's still not necessarily any contact between the committee and the applicant or the justice minister and the applicant. Is that correct?

Mr. Guy Goulard: That's correct.

Mr. Derek Lee: So we're flying blind in not having seen the body. There's the complete obvious opposite of a habeas corpus here. Is that correct?

Mr. Guy Goulard: That is correct.

Mr. Derek Lee: Also, I would note for the record that in the standing orders of the House of Commons this committee is not given a mandate to review judicial appointments either. It's specifically exempted from the general role. It's not to say the committee wouldn't look at other ways of looking at these things at some point if we wanted to be creative. So it's a pretty closed process except for one thing now, which the chair has mentioned: the problem of people on the advisory committee, some individuals, who will disclose results of the committee's deliberations—disclose them informally, I'm sure it's not in writing.

So you've acknowledged that there are cases of these leaks. Have you acknowledged that?

Mr. Guy Goulard: I have, yes.

Mr. Derek Lee: Has the Canadian Judicial Council or the secretariat or anyone ever followed up on these leaks to bring some order?

Mr. Guy Goulard: Yes, we have.

• 1000

Mr. Derek Lee: Can you give me an example of how you have restored some order to this problem?

Mr. Guy Goulard: We hope we have restored some order. In one case, it was blatant in that the candidate was out on the street talking to everyone he could, including his local minister, about the refusal. That information was out on the street before we had sent our result to the minister.

In that case, the candidate basically knew what each member of that committee had said.

The Chair: It happens all the time, Mr. Goulard. All the time.

Mr. Guy Goulard: That case was worse, I think.

The Chair: It happens all the time.

Mr. Guy Goulard: To finish the answer, I went, along with the minister's judicial adviser, to that city and spoke to each committee member, one on one, to underline that this was a real problem and the need for tightening up security. Everyone knew which one of the committee members had spoken. Before the second meeting, that committee member had resigned.

In that case, I think we found the problem, and it was resolved. But we have not found any solution to making sure that every one of the seven members on the fifteen committees will—

Mr. Derek Lee: You haven't found a way, but the best way I can think of is simply to kick them off the committee. Give them the boot. Why wouldn't that be possible?

Mr. Guy Goulard: In that case it worked, but occasionally we do not know. There are leaks at the committee level. There are necessarily leaks emanating from higher levels.

We can just imagine a situation where a member of Parliament will try to put some pressure on the minister to appoint a candidate, and the minister might be in a position to say they cannot appoint that candidate. Well, then there might be a leak that the minister can't appoint, and therefore it's because the candidate is not recommended. It can go from no comments to building comments.

Now, 61% are not recommended. There is a problem of leakage that I would surely like to resolve.

Mr. Derek Lee: Is there a written protocol presented to the members of these advisory committees that would outline what should be obvious to them if they're of any quality in terms of appointment?

Mr. Guy Goulard: There is. It is outlined in writing. It is outlined at the initial meeting. It is often outlined at ongoing meetings. It is especially outlined when there has been a clear leak.

Mr. Derek Lee: Okay.

The Chair: Can I piggyback on that?

You can outline all you want, but a judge sitting on the committee might think, “That doesn't mean I can't tell my chief”—

Mr. Guy Goulard: No, no.

The Chair: Let me finish—or a representative of the Ontario law society on the committee might think, “That doesn't mean I can't tell the treasurer or my colleagues on the law society”, or a member of the Canadian Bar Association might think, “That doesn't mean I can't tell them”.

The fact of the matter is, you have a secret process here, or an allegedly secret process, and what I would suggest is an inherently unfair process to the applicant. I'm telling you that you have leaks all over the place.

I can tell you—and I don't have this from the minister's office or from my political minister's office; I have it from the street—who's on the list in Windsor. I'll bet I can tell you every one, and I'll bet I can tell you the comments. So much for the confidentiality, Mr. Goulard.

I don't accept that there are only minor problems with leaking. I know there are major problems when a lawyer comes to me and tells me they know they've been accepted, or they know they're on the so-called short list.

I suggest to you, sir, that there's a serious problem. I get this all the time, because since I chair the justice committee, they think I somehow have some part in the process, which I don't. Believe me, I don't. I get it all the time.

The regional chief justice told me I'm on the short list. How does he know? He's not even on the committee. He knows because one of his buddies told him. That's how he knows. They all think they have a role to play in appointing these judges.

• 1005

Mr. Guy Goulard: Madam Chair, I thank you for sharing your knowledge with me.

The Chair: I've shared it before.

Mr. Guy Goulard: With me?

The Chair: Yes, last year.

Mr. Guy Goulard: I will share that not only with the minister, but with the 15 committee chairs when we meet at the end of the month.

The Chair: We all know it's the committees that want to keep the process secret. We all know they don't want to have to face an applicant. They don't want to have Derek Lee, who is applying for a judicial appointment, put his face right in front of them, because God forbid they should be accountable for this decision.

If the committee chairs want to continue to keep this secret, perhaps they should reconsider the process and reconsider whether they want to be on the committee or not. Maybe it's turning into a star chamber.

Mr. Guy Goulard: We tell each committee member, such as a judge, “It is secret and you are not to tell your chief.” We tell the bar representative, “You are representing the bar, but you are not to share with the bar.” But there is what we say, and there is what happens. I know there is a difference.

The Chair: There's a big difference. There are politics at play here other than Liberal politics or Tory politics. There is also the politics of the bar, which is unaccountable and really nasty.

Mr. Derek Lee: It may well be that no matter what process—

The Chair: Maybe there's medication I can take.

Some hon. members: Oh, oh!

Mr. Derek Lee: —is selected and put in place, there is still the problem of winners and losers; successful and unsuccessful applicants. Someone has to make the decision, and at the end of the day, at this point, the Minister of Justice and the cabinet make the appointment and not the committee.

The question I might have asked first is how does the community become aware of a judicial vacancy? Keep in mind these ought to be—they are structurally and not seen to be—the most public type of appointments there could ever be. That person will be around dealing with disputes for a long time. Although they don't participate or have a high public profile politically in the community, in terms of community leadership, it is certainly a very public appointment.

Therefore, the process of inducting potential appointees ought to be reasonably public. So please tell me how the community becomes aware of a judicial vacancy.

Mr. Guy Goulard: There is no process to advise the general community of a vacancy at the federal judicial level.

Mr. Derek Lee: All right. Has that ever been noted by your group as a possible weakness in the system? As an elected member, my first blush reaction is that it that is a weakness.

Mr. Guy Goulard: We've never looked at it as a weakness. Now in Ontario there must be more than 300 names of approved candidates, which include the provincial judges who submit their candidacy and are not evaluated. Their names go automatically in the bucket.

To solicit applications for a given vacancy is something that has not been looked into. I'm not saying it should not be looked into. The provincial judiciary operates in that way to some extent.

Mr. Derek Lee: My perception is that there is some work to do. We may have a chance as a committee to take this up further. Maybe all of us have had this experience, but I remember this one in particular. A judge—a person who was publicly appointed as a judge—came and asked me what the process was. I knew roughly what it was, but I felt uncomfortable that someone who had always played by the rules—this particular person—wouldn't have been aware of or made aware of, or would have had some difficulty becoming aware of the process of appointment to another judicial office.

That's a comment on what we have here, which the chair has alluded to from a different perspective, but it's certainly not a very well-known process. I suggest there is a weakness and we have to do something about that.

• 1010

This is business for another day. You may wish to comment. I'll conclude my questions here.

Mr. Guy Goulard: I fully agree with you that there is a drastic lack of knowledge in the general and legal communities, not only on the appointments process but on the judiciary as a whole. That is a major problem. I would like to be able to obtain some funding to do a public education program. This would have to be requested and given to me as a mission by the minister, but it is something I will raise with her.

I'm very happy that in the next issue of the Canadian Bar Review, the magazine that goes to all its members, they are finally doing a full article on the federal judicial appointments process. Bravo. Finally. But it has taken a long time. When the reporter came to my office to do part of the interview, I told him he could do half a dozen articles regarding the judiciary. Hopefully they'll follow up.

Now that I've had a chance to meet with members of the judiciary from several countries, I have no doubt that we have the best judiciary in the world. But I'd like the general public to know why it is the best judiciary in the world.

Mr. Derek Lee: Thank you.

The Chair: With the previous committee, not the current committee in Toronto, what percentage of applicants was turned down?

Mr. Guy Goulard: Do you mean in Toronto or in Canada?

The Chair: Toronto. Ontario has three committees, right? It has the south-central, the north and the east. There's a committee that sits in Toronto and basically goes through the Toronto applications. I want you to tell me what percentage of applicants the previous committee—not the current committee—turned down.

Mr. Guy Goulard: I would have to go back.

The Chair: Would you find that out for me? I'm going to suggest to you it turned down close to 80%.

Mr. Guy Goulard: I can give you the figure for 1997, but that's not what you're looking for.

The Chair: All right, give me the 1997 figure and tell me what percentage was turned down.

Mr. Guy Goulard: Do you want the Metro Toronto or Toronto south? We have three committees.

The Chair: I thought we just had three committees in the whole province.

Mr. Guy Goulard: Yes. One is Toronto proper, one is south and west of Toronto, and the other is east and north.

The Chair: I just want Toronto.

Mr. Guy Goulard: In Metro Toronto we received only 41 applications for the year.

The Chair: You only received 41 applications in Toronto.

Mr. Guy Goulard: Yes. There was a drastic drop in Toronto last year.

The Chair: Okay, that makes my point. How many were turned down?

Mr. Guy Goulard: There were 23.

The Chair: What about the year before?

Mr. Guy Goulard: I don't have figures for the year before.

The Chair: I suggest to you some of the best lawyers in the world are practising in those big firms in Toronto, because they can afford to pay them. People who are making $400,000 a year managing law firms and women who are making $300,000 or $400,000 a year managing substantial portions of their law firms were turned down by that committee. How do I know? Leaks.

I was shocked to hear the names of some people who were turned down, not by the committee you're talking about but by the ones before that. I was shocked.

I would like to know the numbers, since 1993, on all of the Ontario committees. I want to know the number of people who applied and the percentage that was turned down.

Mr. Derek Lee: On a point of clarification, by “turned down” you mean not recommended.

The Chair: But that amounts to a turn-down, because our ministers of justice since 1993 have not asked for reviews. The Tories used to do it all the time. We don't do it. They don't resubmit names.

I also want to know what kinds of reasons were given for those turn-downs. I'm going to suggest, Mr. Goulard, and would like to know whether some of the reasons were no trial experience, no experience in the courtroom and those kinds of reasons. I would suggest this is not rocket science; this is the Ontario Court General Division. It would take a person capable of making $400,000 a year and managing a major law firm probably about four weeks to figure out how to run a trial. So I want to know for what kinds of reasons people are being turned down. I don't want to know why Fred Smith was turned down; I want to know why all the Fred and Freda Smiths were turned down.

• 1015

I'd also like to know what percentage of women are being turned down as opposed to men, and I'd like to know how many women are applying as opposed to men, so that we can figure out whether a lower percentage of women who are eligible are applying. When a woman comes to me now and asks me about a judicial appointment, I warn her of how unfair the process is.

And I would submit to you that it was the problems with the Toronto committee that caused there to be only 41 applications last year. That's shocking, absolutely shocking.

Mr. Guy Goulard: I will be able to provide you with the total numbers of applicants and the percentage of unrecommended by year. We do not keep that by gender.

The Chair: You don't? Why not?

Mr. Guy Goulard: We keep the total by gender, but the percentage of unrecommended by gender—

The Chair: Well, Mr. Goulard, if there were only 41 applications to go through—

Mrs. Sheila Finestone (Mount Royal, Lib.): Where have you been living, under a rock somewhere?

Mr. Guy Goulard: Under Mr. Rock for three years, yes.

Some hon. members: Oh, oh!

The Chair: Mr. Goulard, if there were only 41 applications last year, you can figure out who the women are.

Mr. Guy Goulard: The reason we have not been given this is that in some jurisdictions it would identify the person. So on that, I will need to clear it with the minister.

As to the reasons, this I cannot divulge. This goes to the—

The Chair: No, I don't want to know why Joe Blow was turned down. I want to know generally the reasons. I want you to give us a profile, Mr. Goulard, not specifics. I'm asking for a generic answer.

Mr. Guy Goulard: Oh, fine. That's easy. It's because they do not meet the criteria. But I'll—

The Chair: No, Mr. Goulard, that's not what I want to hear.

Mr. Guy Goulard: I know.

The Chair: I want to know if there are comments on files such as, “Doesn't have trial experience” or “Immaturity of judgment” or “Judgment not well enough developed”. And I want to know if there are comments on files that say, “Dishonest” or “Fraudulent behaviour” or “Unprofessional in his comportment with his colleagues”. I want to know what kinds of comments are on there. I don't want to know for specific people, but I want to know generic comments. And you can do that for the whole country, if you like.

Mr. Guy Goulard: That I can give you. It will be all of the above, yes.

The Chair: I don't need to know committee by committee; I just want to see the kinds of comments that are being made.

You can tell I'm very suspicious about this process, sir.

Mr. Guy Goulard: That's not too difficult.

The Chair: And I don't suggest that's your fault. I suggest that's the fault of the way this committee was set up two governments ago and the way we've allowed it to develop.

Anyway, I'm sorry; does anyone else have questions?

Eleni, you did.

Mr. Guy Goulard: In defence of the committees, it is surely not perfect, far from it. I fully agree with you that there is a lot of space for improvement. But compared to what it was before, I think we're still better off. But that does not make it perfect.

The Chair: Well, you know something? In the final analysis, who's on the hook if a judge screws up? The Prime Minister and the Minister of Justice.

Mr. Guy Goulard: Yes.

The Chair: I would suggest to you that by fettering our discretion in terms of how we're appointing people, we run a serious risk for the whole system. So I don't know if I agree with you that it's any better, but I sure would like to work with you to make it better.

You have a point of order, Mr. Lee?

Mr. Derek Lee: I have a point of clarification again.

With reference to the 41 applications, I think it's fairer to say that because there's a three-year window on these things, you have to look at a three-year or four-year period before you get any sense of the volume.

The Chair: Oh yes, Derek, that's right, but there's a reason there were only 41 applications last year.

Mr. Derek Lee: Well, someone wouldn't perhaps have applied in that year because they had applied two years before.

The Chair: Yes, or because they didn't want to enter the star chamber of that—

Mr. Derek Lee: The star chamber, okay.

The other is that the witness indicated there was some information he wouldn't be able to provide. As is my custom—

The Chair: Please go ahead.

Mr. Derek Lee: —I just want to indicate to the witness that there is no class of evidence that a witness may refuse to provide to this committee. These are part of the standing orders of the House of Commons. The committee will acquiesce in the witness' suggestion that some forms of evidence are better not provided in public, but it would be the committee's decision, as delegated from the House, whether or not information should be made available.

• 1020

So I accept it. I acquiesce.

Mr. Guy Goulard: I think we've clarified—

The Chair: I don't want to know specific information, I want to know generally, because I'm on my high horse right now.

Voices: Oh, oh!

The Chair: Eleni, do you mind if I let you ask your questions last? That way you can sort out what you want to sort out.

Mrs. Finestone.

Mrs. Sheila Finestone: Do you want to go ahead, Mr. Forseth?

Mr. Paul Forseth: No, it's your turn.

Mrs. Sheila Finestone: Fine. Thank you very much.

I wonder if you could please tell me how your operation works with respect to the provision of corporate services to the Canadian Human Rights Tribunal under the new Bill S-5. Will it be affected at all?

Mr. Guy Goulard: It will have to be reviewed at that time. We do not know. Our arrangements will have to be reviewed. As it is now, it is a very small operation. They felt they could get better services to administer their personnel. I think what we're doing for them is personnel and finance. We keep the books rather than have them have their own personnel officers and finance officers.

If they create a much bigger operation, then they might want to do it themselves.

Mrs. Sheila Finestone: We have many tribunals in Canada, whether it's ports or transport or whatever. Has there ever been an approach with respect to the training of tribunal judges or the administration of these tribunals through your service?

Mr. Guy Goulard: It has never been discussed. The only training my office delivers is language training. Interestingly, I've raised very recently with our director of that program extending it to other boards and tribunals and other law persons at the Department of Justice or the provincial attorneys general.

The policy of the land is bilingualism, and these committees, at least at the federal level, deal with federal laws. All the provincial courts and provincial prosecutors are under the Criminal Code. I'm biased, but I think they should all have at least the capacity to improve their second-language skills in the law.

So I would like to extend the program on a cost-recovery basis to other boards and tribunals. It is something we are looking into.

Mrs. Sheila Finestone: Thank you for that. You've led me right into the next question.

As the chair of official languages, I am very anxious to know, first of all, if what you have just told me is that it is not a requirement for a judge to be bilingual. Is it on the application form, “Are you bilingual?”

Mr. Guy Goulard: It is on the application form. We ask about their language skills in French, English, and “others”, so that we might identify.

Mrs. Sheila Finestone: I was going to ask you about aboriginal tongues.

Mr. Guy Goulard: We ask them if they wish to identify themselves as aboriginals.

Mrs. Sheila Finestone: No, that's not my question to you, sir.

Mr. Guy Goulard: Tongues? No. It's part of “others”. We do not raise a specific question about any language other than French and English.

Mrs. Sheila Finestone: Is it an obligation, sir, to speak both languages before you can apply?

Mr. Guy Goulard: It is not.

Mrs. Sheila Finestone: Is it an obligation to be competent in both languages before you can be appointed?

Mr. Guy Goulard: It is not.

Mrs. Sheila Finestone: Do you not think that might be advisable in light of the fact that this is, by our Constitution, a bilingual country, with founding nations, and that there be at least a minimum of two out of three? You know, even in the ballpark two out of three is an important count.

Mr. Guy Goulard: It surely would be desirable. Is it realistically attainable? I doubt it.

Mrs. Sheila Finestone: Which would lead me to suggest that I'd like to support the suggestion from my colleague Derek Lee that we review this application form and make some very strong recommendations to the minister.

In my view, if you can't speak both languages you don't deserve to be a judge. I don't think you should. I think you need to have the skills to be able to respond to Canadians wherever they live across this land. Across this land there are 1.5 million Canadians who are francophones, and I think they deserve consideration, just as the more than 1 million Canadians who are English-speaking and living in Quebec deserve it. You're saying you don't have that as a rule or as a necessity.

• 1025

My second question to you is how are federally appointed judges removed from office? I take the example of the Quebec judge. I'd like to know, first, why we didn't know and why you don't have a process whereby you can have known there was a misdemeanour, to put it mildly, in the case of a judge in Quebec. Why couldn't he be removed by the procedures of your office, or by the Parliament? How do you remove a judge who's been offensive, or who has committed a crime?

The Chair: Mrs. Finestone, that judge was a provincially appointed judge and so we don't have any constitutional jurisdiction over him, but we might ask if the same circumstances had happened.... Do you know the case she's talking about, Mr. Goulard?

Mr. Guy Goulard: There are a few I can think of.

The Chair: I think she's talking about...I can't remember his name.

Mrs. Sheila Finestone: I don't want to name—

Mr. Guy Goulard: The Quebec judge who had been involved in the 1970 crisis?

The Chair: Yes, the FLQ crisis, Therrien.

Mr. Guy Goulard: I surely will not talk about that case, because it's beyond my jurisdiction, but—

The Chair: But if the same thing happened federally, let's talk about what would happen.

Mr. Guy Goulard: Firstly, dealing with the language issue, which was your first point, I'll repeat myself. It is desirable but I think not realistic to hope we could attract the best candidates in Toronto or Vancouver or Halifax if we imposed that they have to be bilingual.

Even being bilingual as far as the law is concerned is another issue. I am a franco-Ontarian. My first tongue is French. I learned my law at Osgoode Hall and practised, basically, in those years only in English, so I do not consider myself to be bilingual in the legal terminology. I still have a lot to learn.

[Translation]

Ms. Sheila Firestone: Does this mean that you couldn't hear a witness who might appear before the court to present his case to you? For instance, if I were the witness, both of us could speak franglais.

Mr. Guy Goulard: Of course we could, thank heavens! However, to draft a decision using the proper French terminology would be a real challenge. To hear a technical case dealing with broadcasting, where I have always used English terminology, would also be a real challenge.

My colleague Mr. Guay, who specializes in civil law, would likely have the same problem in English, although we both consider ourselves perfectly bilingual.

To restrict the list of potential candidates to persons who are truly competent in both languages would limit the number of qualified applicants. The solution is to improve the language training program we offer judges.

We have a number of judges, from the West in particular, who were unilingual when they entered our program and who now preside over jury trials in their second language. We have members of the judiciary who are capable of this. An Alberta judge recently told me that she had just presided over a murder trial, a trial by jury, where the proceedings were conducted in French. We have made considerable progress.

However, because of cutbacks, we have had to restrict our program, rather than expand it as we would have liked to. Furthermore, provincial judges who deal with criminal law, the Young Offenders Act and child support provisions have increasingly withdrawn from our program because of a lack of funding.

I intend to recommend to the Minister that additional financial resources be allocated so that we can improve, not cut, our language training program.

Ms. Sheila Firestone: Are you telling me that in divorce cases, where a trial is held to...

[English]

I forget how you say “custody.”

[Translation]

Mr. Guy Goulard: Child custody.

Ms. Sheila Firestone: ... child custody, judges have removed themselves from the case because they lacked the training, the services and so forth?

Mr. Guy Goulard: Because there was a lack of funding.

Ms. Sheila Firestone: Funding of what?

Mr. Guy Goulard: Provincial judges, who often handle child custody and child support cases, have had to withdraw from our language training programs because the provinces were no longer willing to fund their participation.

Ms. Sheila Firestone: Let me put my question another way. In the future, do you think it will ever be possible to appoint a competent person well versed in all aspects of the law, a person who may not have had any sensitivity training or taken any courses on cultural diversity, a person who may not speak both official languages, and give that person one year to take all of these courses? Only then would that person be recommended for an appointment.

• 1030

Is it totally unrealistic for me to think that this could be possible or that it could indeed be within the realm of possibility?

Mr. Guy Goulard: Certainly, it's not impossible. In other countries, newly appointed judges receive months of training. France has a different system in place, but every newly appointed judge receives 30 months of training upon completion of his law degree. The system there is quite different.

Certainly we could improve the programs we offer not only to new judges, but also to those who have been on the bench for several years.

[English]

Mrs. Sheila Finestone: My last question, Madam Chair, if I have the time, I'd really like to—

Mr. Guy Goulard: I've not fully answered your question.

Mrs. Sheila Finestone: Okay. Sorry.

Mr. Guy Goulard: I've not touched the discipline aspect. The only way a judge can be removed is by approval of both the House of Commons and the Senate, both houses of Parliament. That is the only way a Canadian judge, a federally appointed judge, can be removed, and that has to be after an inquiry and recommendation by the Judicial Council that goes to the minister, and then the minister brings it to Parliament.

Mrs. Sheila Finestone: Has this ever happened?

Mr. Guy Goulard: It has never happened. There has been recently—

The Chair: We've been right on the edge.

Mr. Guy Goulard: Yes, right on the edge; one was recommended for the first time since the existence of Judicial Council.

The Chair: It happened in the last Parliament.

Mr. Guy Goulard: It's the Bienvenue case from Quebec. In that case, he had attained the age of retirement and therefore retired. So that's the process.

Mrs. Sheila Finestone: Thank you. I was just curious with respect to the issue of paying surviving spouses. I'd like to understand if the amount of money or the allocation of the sums is equivalent to the Canada Pension Plan for spouses?

Mr. Guy Goulard: There is no comparison.

Mrs. Sheila Finestone: What are the differences?

Mr. Guy Goulard: I'm not sure what the Canada Pension Plan is for surviving spouses. I can tell you what it is for surviving judicial spouses.

Mrs. Sheila Finestone: On a matter of principle, frankly, I'd like to understand why would spouses of judges receive either more or less than the spouses of a parliamentarian or the spouses of a federal public servant.

Mr. Guy Goulard: There might be a similarity. Does a surviving spouse of a parliamentarian receive half of the pension that the parliamentarian would have had?

Mrs. Sheila Finestone: I believe it's 60%.

Mr. Guy Goulard: Then you're better off. Is that 60% of the pension?

Mrs. Sheila Finestone: That's 60% of the pension.

Mr. Guy Goulard: For surviving spouses, it's half of the pension of a judge. A judge, on retirement, will receive two-thirds of closing salary, and should he die the following month, the wife will get half of that, 50%.

Mrs. Sheila Finestone: That's two-thirds of closing salary.

Mr. Guy Goulard: The judge receives two-thirds of closing salary.

The Chair: It's a half of two-thirds.

Mrs. Sheila Finestone: Madam Chair, I would like to have a comparative analysis of the annuity and the payments to the surviving spouses relative to the Canada Pension Plan and the public service.

The Chair: We will be receiving figures like that during the Bill C-37 review, which is coming on, among other things, judges' salaries and remunerations.

Mrs. Sheila Finestone: Fine. Thank you very much.

The Chair: Mr. Goulard has heard you, so you're going to ask that question again.

Mr. Guy Goulard: All I could provide is what judicial surviving spouses get. That's easy.

Mrs. Sheila Finestone: You don't think it's your responsibility to know if you're within the norm of Canadian public civil servants? Between a deputy minister who retires and a judge, is there much difference?

Mr. Guy Goulard: Yes. It depends on how long the deputy minister has been there, what kind of pension he has accumulated. In my case, if I died, my wife would get half of my pension, as you say. But half of my pension will depend on how long I've been in the job. For a judge, it's half of the judge's pension, and the amount is fixed the day he or she is appointed.

The Chair: Mr. Goulard, Mrs. Finestone is asking a legitimate question, and perhaps you could work with whoever your contacts are in the justice department to get that information for us, because you will be back very shortly on Bill C-37.

Mr. Guy Goulard: Yes. I'd be pleased to.

• 1035

Mrs. Sheila Finestone: Can that translate to supernumerary judges and everything else?

The Chair: Yes, everything. Let's find out what's going on here, because we're going to have to take a look at it in depth. It's just a coincidence that estimates and Bill C-37 are coming up right around the same time.

Did you want to ask your questions now, Ms. Bakopanos?

Ms. Eleni Bakopanos: No, I'll wait. That's fine.

The Chair: Okay. Mr. Forseth.

Mr. Paul Forseth: Thank you. Based on your testimony today, it has certainly been made clear that really the ball is in the court of the minister, talking about the integrity of the appointment process, the transparency or the lack of it, and generally the public confidence in the appointment process in general—all of the little things that add up to judges being reflective and representative of the breadth of Canadian society and also being the very best of Canada.

I think it's also been around this table that we've maybe agreed that it's been a somewhat exclusive club that has perpetuated its own kind, a somewhat self-serving superiority in attitude.

You've said that you recognize the need for change, but essentially you've said that it's up to the government. I'm just wondering if you could give this committee maybe even an issues paper or some list of possible improvements from your inside perspective of the appointment process and options for improving the public confidence in the bench.

Certainly I think we need to raise the discussion level of the whole process. The public has to have more involvement in the process, also, and there needs to be more attention on who is on the selection committees themselves—not just necessarily the end product, but the integrity of the process of how we get there and just how these committees go about their business.

The appointment process, for its accountability, needs, I think, to be greatly improved, and I think that appears to be somewhat the will of this committee. I'm just asking what you can do to help us generally towards that agenda.

Not only do you give account for the daily operations of what you do, but there's also that analysis edge. We need to continue to assess what we're doing and give options to the minister and to this committee. I just think the public has a very cynical view of the bench, and that shouldn't be. It's our responsibility to lead that edge and not just always be reactive and defensive.

Mr. Guy Goulard: Am I to take that as a request for a concept paper?

Mr. Paul Forseth: Well, maybe you could comment on it.

The Chair: He is asking for your comments, I think. Do you have any specific suggestions that would make the process fairer and more transparent?

Mr. Guy Goulard: I could give it some thought, yes. As of today, no, I'm not prepared to.... I did not expect that type of question, but we surely could give it some thought and report back to the chair.

The Chair: Well, maybe Mr. Forseth will bring you the question when you come back on Bill C-37. Is that fair, Paul? That's not very far away.

Mr. Paul Forseth: Perhaps you'll take my concerns and some of the other views expressed at this committee today as due notice, and be ready.

Mr. Guy Goulard: Yes. I've already shared some concerns about the secrecy or the lack of secrecy in the process, and we share that concern. I will give it some thought, yes.

Mr. Paul Forseth: One last observation. The chair has certainly provided opinion about the general disorderliness of information leaking everywhere, and so on. That kind of reaction happens when the central process is not proper. When you have a properly organized administrative process that has clear rules and clear parameters, then you don't get this messiness and leaks all over the place. When you have formal system that will work fairly well, then you don't have all the leaking everywhere that you do with an informal system. The reputation of what the chair cited is perhaps a clear reflection of the lack of the formal processes being in order.

Thank you.

The Chair: Mr. Bellehumeur, did you have any questions? No?

Mr. Goulard, initially you pointed out that there is a criteria document that's used by the committees. I wonder if we could have that tabled so that we could take a look at it.

Mr. Guy Goulard: Yes, I will provide you with a complete kit, which includes the criteria.

• 1040

The Chair: That's great.

Ms. Bakopanos.

Ms. Eleni Bakopanos: Thank you.

The Chair: She's distracted. She's elsewhere. You'll be safe. You can go ahead.

Ms. Eleni Bakopanos: They always leave the parliamentary secretary until the end, Mr. Goulard, just in case.

Mr. Guy Goulard: Okay, I was wondering.

Ms. Eleni Bakopanos: With all that said, thank you very much for that information. I'd like to pick up on some of the things said by my colleague, Derek Lee.

I think it's very important for the process to be known. It's my experience also that the chair gets hit on a lot about appointments, and so do I as parliamentary secretary to the minister. I did get the kit. In fact, I looked through it. That gave me at least some ideas for helping some of the interested parties in terms of what the process is.

I want to just reiterate something that I think is very important, because there seems to be an impression that there are no laypersons on these committees. You did say there are two laypersons who are appointed by the minister.

Mr. Guy Goulard: There are three laypersons, three lawyers, and a judge.

Ms. Eleni Bakopanos: So there are ordinary citizens who are not necessarily lawyers sitting on the selection committee.

Mr. Guy Goulard: Correct.

Ms. Eleni Bakopanos: They are appointed by the minister.

Mr. Guy Goulard: Two are appointed by the minister and one is the provincial attorney general's representative.

Ms. Eleni Bakopanos: So there is some process where the ordinary citizen has some input.

Mr. Guy Goulard: Oh, yes.

Ms. Eleni Bakopanos: Do you think it should be increased?

Mr. Guy Goulard: No, I do not see the need to increase it. It's three out of seven. They balance the lawyers, although the judge has to be a lawyer also.

I would like you to know the contribution of these laypersons. In most committees, they play a very active role and do a lot of consultation. Some are accountants, medical doctors, professors, retired or active business persons. So there's a very good cross-section of society there bringing in that specialized input that lay persons can bring.

Ms. Eleni Bakopanos: The reason I insist on that comes from one of the criticisms I've heard back from people who have not necessarily made it to the process at this point. They say that if you were not involved at all in any of the bar association activities or if you were not known by the old boys' network or whatever you want to call it, then you never really had a good chance of being recommended despite all the other factors. So it's important to say that there are lay people there who have no connections either to the legal profession or the bar association whose input is just as important as that of the other members of the committee.

We talked earlier about visible minorities, cultural communities, whatever terminology we use. We use “cultural communities” in Quebec; we use “ethnic minorities” or “visible minorities” in the rest of Canada. There's a question on the form such that the person has to voluntarily state that they are a member of that group.

Wouldn't it have been important to say that it's an advantage, in a way? Perhaps it should be stated where you tick this off. The fact is that we don't have as many visible minorities sitting on the bench, therefore we are looking for candidates along those lines. I know it's a little grey line if you do indicate that on the form.

Some people may not wish to tick it off, but knowing that this would be an advantage because there are not enough members on the bench of that particular community, they may be more inclined to tick it off. I'm suggesting that perhaps that should be indicated in some way on the form, or orally perhaps to the candidate. I don't know. I don't have a process.

But I know a lot of people are hesitant to tick it off. I had that experience with the public service in Quebec, where the numbers were so low. When you actually checked the names—this is one indicator—or the religious affiliation or the mother tongue, you came up with different statistics than those that were in fact ticked off. So I would venture to say that this should be looked at in a much broader way.

Mr. Guy Goulard: This is to improve an invitation to identify oneself.

Ms. Eleni Bakopanos: Yes, that's right.

Mr. Guy Goulard: We're always cautious of the danger of contravening the Charter of Rights.

Ms. Eleni Bakopanos: Yes, I realize that.

Mrs. Sheila Finestone: It was on the census question this time.

Ms. Eleni Bakopanos: Yes, it was.

Mr. Guy Goulard: That's right, yes. The question we have is: “Given the objective of a more representative bench, if applicable, you may wish to indicate your status. There is no obligation to do so.” Then there's a box for “visible minority”, “aboriginal”, “disabled”, “ethnicity/cultural origin”, and “other”. So we're inviting people to open up, but to go—

Ms. Eleni Bakopanos: Gender is indicated also, by the way.

Mr. Guy Goulard: Gender is elsewhere, yes.

Ms. Eleni Bakopanos: It's earlier, yes. But you don't keep any statistics, from what I understood, on whether it was visible minorities or ethnic minorities who applied. But you could if they were to stick them on.

Mr. Guy Goulard: We could now that we have this question. This is a relatively recent question.

Ms. Eleni Bakopanos: Yes, I understand that. It was as of two years ago?

Mr. Guy Goulard: Two years ago, I believe, yes.

Ms. Eleni Bakopanos: I understand that.

• 1045

Mr. Guy Goulard: From then, yes, we could tell you how many applied, although that is not necessarily representative, as I mentioned, of these Chinese-origin applicants.

Ms. Eleni Bakopanos: No, I realize that.

Mr. Guy Goulard: She had not, and she is.

Ms. Eleni Bakopanos: Yes. But you could provide those statistics for us, in any case, on how many have applied and how many have made it through the process.

Mr. Guy Goulard: Yes.

Ms. Eleni Bakopanos: Okay, I would be interested.

Mr. John McKay (Scarborough East, Lib.): On the caveat that it could be quite misleading....

Ms. Eleni Bakopanos: Of course. We're all aware it's not a perfect system, but it would be interesting to look at the numbers.

Are letters of reference also required?

Mr. Guy Goulard: No, not letters, references.

Ms. Eleni Bakopanos: They have to put down a reference and then—

Mr. Guy Goulard: They have to put down at least four references.

Ms. Eleni Bakopanos: Then those references are checked, if I understand it.

Mr. Guy Goulard: Those references are checked. They are consulted.

The Chair: They aren't every time, Mr. Goulard, believe me. We can talk after and I'll tell you exactly when, but they're not checked every time, certainly not in Toronto.

Ms. Eleni Bakopanos: But they are put there in order to indicate that they are the people who know the candidate best, I would assume.

Mr. Guy Goulard: Right. According to the candidate, these are the persons they would like to be consulted.

Ms. Eleni Bakopanos: They would more probably give a favourable recommendation.

Mr. Guy Goulard: Yes, but occasionally we have—

Ms. Eleni Bakopanos: Oh, you have some who don't.

Mr. Guy Goulard: Exactly. We have some who were not told they were given as references. On a few occasions some of their references had reservations.

Ms. Eleni Bakopanos: Well, that speaks of the candidate.

Mr. Guy Goulard: I know there were cases where the references were not all checked. When the candidate is approved, that is not a major problem. When the candidate is not recommended, our directions to the committee members are that they should all be checked, in all fairness. But I'd like to hear you.

The Chair: Do you mean after the decision is made they check the references, Mr. Goulard?

Mr. Guy Goulard: No. If it comes to a point where they are going to arrive at a consensus that the candidate is not to be recommended—

The Chair: Then they check the references—

Mr. Guy Goulard: —they should have at least checked the references before.

The Chair: —when the decision's already been made. This is such a collegial, close little group that has clearly decided it's not going to recommend Derek Lee, so they say “We'd better call Shaughnessy Cohen, who recommended him, because we want to cover our backsides and we don't want to let Derek into the club.”

Mr. Guy Goulard: I'd like to be more positive to—

The Chair: I know you would.

Mr. Guy Goulard: —make sure they have checked this candidate thoroughly.

The Chair: That's the problem. There's a bad taste in the mouths of a lot of good people out there who risked a great deal to apply for this job, and now believe they were treated in a shabby, unfair fashion. And they have no right to appeal. Sooner or later, a claim for judicial review will arrive on the minister's desk, and then you will say “Oh, we should have checked the references.”

Ms. Eleni Bakopanos: I would like to continue on the gender analysis issue that was brought up earlier. Is there no way, or are there particular reasons why you can't provide those types of statistics, since the beginning of this government's mandate in 1993, on how many women applied in the 15 regions?

Mr. Guy Goulard: That's no problem.

Ms. Eleni Bakopanos: Okay, so we'll have that. There's no problem there. Earlier I understood there might be a problem.

Mr. Guy Goulard: I was afraid of giving the number of females who were not recommended on a city or regional basis because you might have been able to identify someone.

Mrs. Sheila Finestone: I just want to know how many applied.

Mr. Guy Goulard: No problem. We've agreed what I'll give, and I think the chair was satisfied.

Ms. Eleni Bakopanos: Okay, I just wanted to know what the problem was. So if there were two, we might be able to identify the one who was rejected.

Mr. Guy Goulard: Yes.

Ms. Eleni Bakopanos: But they may not have been rejected. It may be that they were not highly recommended. I want to put that down too because you have three categories. That means I could have been recommended, but the minister chose the candidate who was highly recommended.

Mr. Guy Goulard: That could be.

Ms. Eleni Bakopanos: So it doesn't necessarily mean they were not recommended and didn't make it through the process. You wouldn't be able to tell us that.

Mr. Guy Goulard: Right.

Ms. Eleni Bakopanos: Okay. So let's just be clear there could be a lot of women out there who were recommended but did not make it to the top.

Mr. Guy Goulard: I just want to avoid identifying a candidate.

Ms. Eleni Bakopanos: Okay.

There's one other thing. I think I agree with some of my colleagues that a lot of the onus seems to be on the minister. Even though 80% or 90% of the process is not fully in her hands, as soon as that applicant receives the letter—and I've seen one of the letters that went out—the obvious impression is left that it's the minister who decided they were not to sit on the bench, if they don't eventually get an appointment to the bench.

• 1050

I've raised that with the minister, between you and me, saying that I think it's highly unfair that the minister should be singled out in the letter without.... Although I think the candidate would know the process, they may not wish to accept the process, which is another factor we can take into account.

But I had suggested that the letter should be reworded in a way that it clearly reflects that there is a process.

The Chair: The letters are awful, Eleni.

Ms. Eleni Bakopanos: Yes. I think that has to be reworked, be it the letter that goes initially out to the candidate, or the letter that is finally sent out.

As far as the three-year period is concerned, a lot of the candidates I found assumed that automatically after three years—although I suppose it's something that should be outlined to them in the letter that is sent—they are again reconsidered, that it's not a new process that you have to go through again.

Mr. Guy Goulard: The letter states so.

Ms. Eleni Bakopanos: Now.

Mr. Guy Goulard: Yes.

Ms. Eleni Bakopanos: In the past it did not, apparently.

Mr. Guy Goulard: No, in the past we would send a letter saying the three years is over and it's time to reapply.

Ms. Eleni Bakopanos: But now they have to take the initiative on their own.

Mr. Guy Goulard: Now, when they get the initial letter, it says it will lapse on a given date and it's up to you to reapply.

Ms. Eleni Bakopanos: To reapply. Okay.

I would also like to—

The Chair: Can I help you? I understood things a little bit.

Ms. Eleni Bakopanos: Sure.

The Chair: Are you sending the same letter all across the country?

Mr. Guy Goulard: Yes.

The Chair: So let's have the letter.

Ms. Eleni Bakopanos: Yes.

The Chair: Let's find out all the correspondence that you have with an applicant, from beginning to end.

Mr. Guy Goulard: Fine.

Ms. Eleni Bakopanos: Good idea.

Mandatory training: The issue of the amount of training that judges receive has come up so often in terms of the mixed committee on custody and access. I think it should be mandatory.

I know that earlier you answered a question, but you didn't give your opinion on whether you think that is an absolute necessity. I think it is. I think even if you've had ten years in family court as a lawyer, there is still a different perspective you have to take as a judge. I would say there has to be mandatory training. In some countries there is, from what I understand.

Mr. Guy Goulard: In some countries there is or has been. I raised that in France. They had a mandatory ten-day training for a judge within the first five years on the bench. They've abandoned that.

What they told me is that judges are coming back to the program. I suggest that you might want to look at the entire judicial education issue. What is being provided? How many judges are taking advantage? Why are they not?

I think that would be a better question than just looking at should there be mandatory training. You can have mandatory training that is worthless and some very good programs that are not taken.

Ms. Eleni Bakopanos: Speaking to some of the new appointees, they find the sessions that are provided very helpful, in fact.

Mr. Guy Goulard: Yes.

Ms. Eleni Bakopanos: Even if they've been 10 or 15 years practising in a certain area. Most of them have said to me that they would agree it should be mandatory, in fact.

Also, the other comment I have heard from others is that the ones who do take those courses are the ones who are the better judges in the end. It's the ones who are the most reticent to take the course who in fact have...I don't want to say prejudices, but a certain block in terms of viewing certain societal issues.

Mr. Guy Goulard: I fully agree. I've recently been at both the federally appointed judges new training program—or the dumb judge school, as they call it—and the counterpart for provincial judges.

Ms. Eleni Bakopanos: I see your point.

Mr. Guy Goulard: I believe that most newly appointed judges in the last year...and it happens only once a year. The National Judicial Institute also gives a quick and dirty few days three or four times a year for the federal and provincial levels. But most judges don't have to be forced; they want to go to them. Both of those programs have an excellent reputation, so judges do go.

One comment that was made, at least at the provincial level this year, is that it is too short. It is five days.

Ms. Eleni Bakopanos: Yes.

Mr. Guy Goulard: I fully agree. I've been there. I was a judge. It was even worse then. The only training I had was to go and observe in the court for a few days. Then I was sworn in and away I went. That is not fair to the public or to the judge.

There is a need to have another look at our judicial training. What is in place? What could be done to improve it?

Mrs. Sheila Finestone: Where do you go to get that information?

• 1055

Mr. Guy Goulard: For federally appointed judges, that's easy. You can come to my office, because we pay the bills. Although there are a number of good programs...I could find that information as to what's ongoing with federally appointed judges.

Mrs. Sheila Finestone: Madam Chair, I would appreciate that.

The Chair: Okay.

Ms. Eleni Bakopanos: I just have one last question on the education part of it.

The Chair: All right.

Ms. Eleni Bakopanos: I was wondering, do you speak at all to graduating students from universities? I know it's early in the process obviously, but perhaps 10 or 15 years down the line they may be considering this. Wouldn't it be interesting for them to know what type of tools and skills they have to have in order to be good judges on the bench eventually?

Mr. Guy Goulard: Yes, I have spoken to generally first-year students rather than last-year students as a general introduction to what a lawyer is all about; then I end with what a judge is all about and how you become at least a federally appointed judge. It's usually a good program; I enjoy it, the kids enjoy it. But there is no formalized message going out to the law schools or the bar associations or anyone on what being a judge is all about and why people should think about being judges. That is unfortunate.

Ms. Eleni Bakopanos: Thank you.

The Chair: Mr. Bellehumeur, we just have a few minutes left. Just keep in mind, we had future business on our agenda and we're going to have to do it this afternoon. Mr. Bellehumeur, go ahead, please.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Commissioner, you focused on several aspects of the appointment process. If I understand correctly, the committees that oversee appointments are comprised of seven members. The Minister selects one committee member from a list supplied by several groups, including the Canadian Bar Association. Is that correct?

In any event, you stated the following in your presentation:

The Minister then selects one name from each of these groups, and finally appoints three additional members at her own discretion.

This means that the minister can pick someone from any field.

Two of the lay members and one of the lawyers on the committee are selected by the Minister.

The Minister may also appoint members at her discretion. Theoretically then, of the seven members, six could be selected by the Minister herself.

Mr. Guy Goulard: That's incorrect! Four members must be chosen from the lists that have been supplied: the judge, from a list supplied by the Chief Justice; a lawyer, who has been recommended by the Canadian Bar Association; and someone whose name has been supplied by the provincial bar association...

[Editor's Note: Inaudible] which gives us four members.

Mr. Michel Bellehumeur: Then what do you mean on page 2 when you say "the Minister then selects one name from each of these groups..."

Mr. Guy Goulard: Yes, which gives us a total of four members.

Mr. Michel Bellehumeur: From the four groups that you listed previously.

Mr. Guy Goulard: That's correct.

Mr. Michel Bellehumeur: And finally, the Minister appoints three additional members at her own discretion.

Mr. Guy Goulard: That's correct.

Mr. Michel Bellehumeur: Which brings us to seven members.

Mr. Guy Goulard: Yes, it's a seven-member committee.

Mr. Michel Bellehumeur: Then why, further on, do we have "two of the lay members and one of the lawyers on the committee are selected by the minister"? Is this merely repeated for emphasis?

Mr. Guy Goulard: This is a reference to the three additional members appointed at the Minister's discretion.

Mr. Michel Bellehumeur: Must the ratings "highly recommended", "recommended" or "unable to recommend" be unanimous in order for the choice to be approved?

Mr. Guy Goulard: No.

Mr. Michel Bellehumeur: Therefore, five of the seven members could rate a candidate as "highly recommended".

Mr. Guy Goulard: That's correct.

Mr. Michel Bellehumeur: Or four of the seven could rate the candidate as "highly recommended", while three could opt for "unable to recommend".

Mr. Guy Goulard: That's right.

Mr. Michel Bellehumeur: And this particular appointment would be considered "highly recommended".

Mr. Guy Goulard: I'm not saying that this has happened, but it is possible.

Mr. Michel Bellehumeur: You're saying it's possible. Does the Department of Justice ever submit any names for your consideration?

Mr. Guy Goulard: No.

Mr. Michel Bellehumeur: Never?

Mr. Guy Goulard: No. Each candidate must submit his or her own application.

Mr. Michel Bellehumeur: And yet, you stated that at one point, a bishop sent you a letter saying that so-and-so would make an excellent judge, that you contacted him and that...

Mr. Guy Goulard: We sent the person whose name had been recommended to us an application form and subsequently, that person did apply for a judicial appointment. The bishop didn't actually nominate the person. During the four years that I've been in office, I've not once received any recommendations or suggestions of names of possible candidates from a federal or provincial department.

Mr. Michel Bellehumeur: I see. Has a judge ever been appointed or a person recruited for the position before the committee has had a chance to consider that person's application?

Mr. Guy Goulard: No, that's impossible.

Mr. Michel Bellehumeur: Can you explain the following to me then? I'm a lawyer myself and I practised law for eight years. I was a member of a Conservative law firm. Two members of the firm were appointed to the bench because the Conservatives were in power. I would imagine that today—I don't follow these things closely—judges with ties to the Liberal Party are being appointed.

• 1100

When the Conservatives are in power, Conservative judges are appointed. Conversely, when the Liberals are in power, Liberal judges are appointed to the bench. This is a rather odd coincidence, given that the appointment process is supposed to be completely non partisan. Could this possibly explain the public's negative perception of the appointment process?

Mr. Guy Goulard: Possibly, but that's something you should ask the Minister.

Mr. Michel Bellehumeur: I realize that. What I'm saying is that...

Mr. Guy Goulard: We evaluate the candidates, but ultimately, the decision rests with the political powers that be.

Mr. Michel Bellehumeur: I want to talk about something that you touched on briefly earlier, namely the case of Justice Bienvenue. In a democratic country like Canada, which has made great strides in recent years socially, politically and culturally—ours is a more open society for one thing—wouldn't you agree that the process for removing judges is rather archaic? The House of Commons and the Senate must pass a resolution before a judge can be removed from the bench. I believe the decision must be unanimous as well. Isn't that right?

Mr. Guy Goulard: I don't believe so. I don't know.

Mr. Michel Bellehumeur: In the case of Justice Bienvenue...

Mr. Guy Goulard: I have the answer. A two-thirds majority is required.

Mr. Michel Bellehumeur: Two-thirds?

Mr. Guy Goulard: That's correct.

Mr. Michel Bellehumeur: Isn't there a faster way to go about this? I can give you another example involving a federal judge. Of course, we could look more closely at what's happening in Quebec, and I'm not saying that the situation is any better there.

Mr. Guy Goulard: It's similar.

Mr. Michel Bellehumeur: We're talking about the federal level here. Maybe the future holds something different in store for me, but I'll have to wait and see. However, we have a case today where a judge has been charged with money laundering and somewhat unethical behavior. He is a federally appointed judge. If ever he is found guilty, is it a given that he will be removed from the bench?

Mr. Guy Goulard: No. The procedure for removal will kick in. We have to...

Mr. Michel Bellehumeur: We need to review the rules governing appointments and removals. Something isn't working right. I repeat, people have a very negative perception of the justice system today.

When I was a lawyer, I was sometimes told that I didn't stand a chance because I was practising the lowliest of professions. The public's confidence in the legal profession has eroded. When the news came out that I was considering a career in politics, I was told that I stood even less of a chance, because after all, lawyers were only one notch up from politicians, who were at the bottom of the heap.

Some hon. members: Oh, oh!

The Chair:

[Editor's Note: Inaudible]

Mr. Guy Goulard: Becoming a judge would be the culmination of your career!

Mr. Michel Bellehumeur: In your opinion, wouldn't changes in these two areas likely improve the public's perception of judges and the judicial system? To begin with, appointments could be more transparent and the removal process could move along at a faster pace in cases where a judge, who is supposed to be above reproach, is found to be flawed as a result of past behaviour.

I'm confident that if the committee had the support of the Commissioner, no justice minister could ignore this. I'm convinced that judges could be removed more quickly and that the public's perception of the justice system would improve.

Some clients talked about the "halls of injustice", so disillusioned were they about the system. To their minds, judges are in cahoots with everyone. In my view, we should start by taking a look at the appointment and removal process to see how we can make it more open and in so doing, improve the public's perception of the justice system.

Mr. Guy Goulard: I'd like to make two comments. First of all, the process in place stems from legislation. Again, I would suggest that you bring this matter up with the Minister. I believe she's scheduled to appear before your committee next week. Legislative amendments are the Minister's responsibility.

I've just returned from a country where a judge can be removed from the bench on a month's notice. Things move along very quickly there.

Mr. Michel Bellehumeur: According to some...

Mr. Guy Goulard: The process moves along too quickly. Between these two extremes, there is certainly room for improvement. I suggest that you take this matter up with the Minister.

Mr. Michel Bellehumeur: As Commissioner, do you believe there's room for improvement?

Mr. Guy Goulard: There's always room for improvement.

• 1105

Mr. Michel Bellehumeur: But personally, as Commissioner...?

[English]

The Chair: Excuse me, but we're just about out of time, Mr. Bellehumeur, and Mr. Lee wants to sum up.

Mr. Derek Lee: I don't know if it's to sum up. I was struck by the candour of the commissioner here on matters of policy. Normally we wouldn't get that kind of candour on policy matters.

It also struck me that we're briefed in a way that says the body is independent. My question is, to whom is the commission reportable, or accountable?

Mr. Guy Goulard: To the minister. According to the law, I have the rank and status—whatever that means—of a deputy minister. Therefore, my boss is the minister.

Mr. Derek Lee: But you're also independent.

Mr. Guy Goulard: Of what? I am at pleasure, if you like. I must behave.

Mr. Derek Lee: The commission is independent.

The Chair: Perhaps it's his great confidence in the present minister that allows him to be this candid with us.

Mr. Guy Goulard: It may be. In any event, with one exception, the process to dismiss has to be the same as the process to appoint. I'm appointed by cabinet, on recommendation of the minister after consultation with the judicial council. So you would have to go back.

Mr. Derek Lee: But what about the commission? If the commission is independent, to whom is it accountable?

Mr. Guy Goulard: My office?

Mr. Derek Lee: Yes, your office; the commission.

Mr. Guy Goulard: The commission is me. What you see is what you get. I'm accountable to the minister. The minister signs my budgetary submission. If I had an annual report—and it's never been asked for—it would go to the minister. My boss is the minister. I'm accountable to the minister.

Mr. Derek Lee: On a day-to-day basis?

Mr. Guy Goulard: On a day-to-day basis, my arrangement with the minister who picked me, Allan Rock, was that if I have a problem, give him a call. If I don't have a problem, just do my job.

It works, and works well. I'm basically a bean-counter. We pay the bills. We go into different projects to improve our judges' access to technology.

Mr. Derek Lee: But if there's a policy change, a change in administration, is it handed down to you from the minister?

Mr. Guy Goulard: Yes.

Mr. Derek Lee: What branch of the minister's department would oversee what you're doing?

Mr. Guy Goulard: That's an issue. The minister's Department of Justice has nothing to do with my office.

Mr. Derek Lee: That's the point I'm getting at.

Mr. Guy Goulard: That's the theory, that they have nothing to do with the office. That's why we were created.

Mr. Derek Lee: In any event, I'd love to spend more time canvassing that, just from a management point of view—

Mr. Guy Goulard: So would I.

Mr. Derek Lee: I'm sure. But I'll pass on it and maybe come back to it when we do the Judges Act revisions, unless members want to pursue it. I'll simply say that this window in Parliament may be the only true accountability window, given the way this independent body has evolved.

We'll leave that for another day.

The Chair: You'll be back probably within about 10 days, in any event, so I'm sure we'll carry on. You don't know that, but you will be, on Bill C-37.

We all have people waiting in our offices. I think we'll adjourn now and pick up on this where we left off.

Mr. Guy Goulard: Madam Chair, in the name of my colleagues, I thank you for the invitation to come.

It was mentioned that there was candour. I see your committee as an ally. I would like to improve things for our federal judiciary. I would like to inform the public about our judiciary. Unfortunately, I have not been given any kind of resources to do that, and it is something we should talk about at some time.

The Chair: Thank you.

Mr. Guy Goulard: I thank you.

The Chair: We're adjourned.