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37th PARLIAMENT, 3rd SESSION

Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness

EVIDENCE

CONTENTS

Tuesday, April 20, 2004

1545

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.))

Dr. Kate Malleson (Senior Lecturer in Law, London School of Economics, As Individual)

1550

1555

1600

The Chair

Ms. Judith Resnik (Arthur Liman Professor of Law, Yale University, As Individual)

1605

1610

1615

1620

1625

The Chair

Mr. Chuck Cadman (Surrey North, CPC)

Dr. Kate Malleson

Mr. Chuck Cadman

Dr. Kate Malleson

1630

Mr. Chuck Cadman

Ms. Judith Resnik

The Chair

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

1635

Dr. Kate Malleson

Mr. Richard Marceau

Ms. Judith Resnik

1640

Mr. Richard Marceau

Dr. Kate Malleson

Ms. Judith Resnik

Mr. Richard Marceau

1645

Ms. Judith Resnik

Dr. Kate Malleson

The Chair

Ms. Judith Resnik

The Chair

Ms. Judith Resnik

The Chair

Hon. Stéphane Dion (Saint-Laurent—Cartierville, Lib.)

1650

Dr. Kate Malleson

Hon. Stéphane Dion

Dr. Kate Malleson

Hon. Stéphane Dion

Dr. Kate Malleson

Hon. Stéphane Dion

Dr. Kate Malleson

Hon. Stéphane Dion

Dr. Kate Malleson

Hon. Stéphane Dion

The Chair

Dr. Kate Malleson

1655

The Chair

Ms. Judith Resnik

The Chair

Hon. Stéphane Dion

Ms. Judith Resnik

Hon. Stéphane Dion

Ms. Judith Resnik

1700

Hon. Stéphane Dion

Ms. Judith Resnik

The Chair

Mr. Kevin Sorenson (Crowfoot, CPC)

The Chair

Mr. Kevin Sorenson

Dr. Kate Malleson

Mr. Kevin Sorenson

Dr. Kate Malleson

Mr. Kevin Sorenson

Dr. Kate Malleson

1705

Mr. Kevin Sorenson

Dr. Kate Malleson

Mr. Kevin Sorenson

Dr. Kate Malleson

Mr. Kevin Sorenson

Dr. Kate Malleson

Mr. Kevin Sorenson

Dr. Kate Malleson

Mr. Kevin Sorenson

Dr. Kate Malleson

Mr. Kevin Sorenson

Dr. Kate Malleson

Mr. Kevin Sorenson

Dr. Kate Malleson

Mr. Kevin Sorenson

The Chair

Mr. Richard Marceau

Hon. Sue Barnes (London West, Lib.)

Dr. Kate Malleson

Hon. Sue Barnes

Dr. Kate Malleson

Hon. Sue Barnes

The Chair

Mr. Richard Marceau

Dr. Kate Malleson

1710

The Chair

Hon. Sue Barnes

Dr. Kate Malleson

Hon. Sue Barnes

Dr. Kate Malleson

Hon. Sue Barnes

Dr. Kate Malleson

1715

Hon. Sue Barnes

The Chair

Hon. Lawrence MacAulay (Cardigan, Lib.)

Dr. Kate Malleson

Hon. Lawrence MacAulay

Dr. Kate Malleson

Hon. Lawrence MacAulay

Dr. Kate Malleson

The Chair

Mr. Kevin Sorenson

Dr. Kate Malleson

Mr. Kevin Sorenson

Dr. Kate Malleson

Mr. Kevin Sorenson

Dr. Kate Malleson

Mr. Kevin Sorenson

Dr. Kate Malleson

Mr. Kevin Sorenson

Dr. Kate Malleson

1720

The Chair

Ms. Judith Resnik

The Chair

Hon. Sue Barnes

Ms. Judith Resnik

The Chair

Hon. Sue Barnes

Ms. Judith Resnik

1725

The Chair

1730

Mr. William Trudell (Chair, Canadian Council of Criminal Defence Lawyers)

1735

The Chair

Ms. Judith Resnik

1740

The Chair

Mr. Chuck Cadman

Mr. William Trudell

1745

The Chair

Mr. John Maloney (Erie—Lincoln, Lib.)

Ms. Judith Resnik

1750

The Vice-Chair (Mr. Chuck Cadman (Surrey North, CPC))

Mr. Kevin Sorenson

Ms. Judith Resnik

1755

Mr. Kevin Sorenson

Ms. Judith Resnik

The Vice-Chair (Mr. Chuck Cadman)

Mr. Kevin Sorenson

Mr. William Trudell

1800

The Vice-Chair (Mr. Chuck Cadman)

Hon. Stéphane Dion

Mr. William Trudell

Hon. Stéphane Dion

Mr. William Trudell

Hon. Stéphane Dion

Mr. William Trudell

Hon. Stéphane Dion

Mr. William Trudell

1805

Hon. Stéphane Dion

The Vice-Chair (Mr. Chuck Cadman)

Hon. Stéphane Dion

Hon. Sue Barnes

Hon. Stéphane Dion

The Vice-Chair (Mr. Chuck Cadman)

Mr. Kevin Sorenson

Ms. Judith Resnik

1810

Mr. William Trudell

The Vice-Chair (Mr. Chuck Cadman)

Hon. Sue Barnes

The Vice-Chair (Mr. Chuck Cadman)

Hon. Sue Barnes

Hon. Stéphane Dion

1815

Mr. William Trudell

1820

The Vice-Chair (Mr. Chuck Cadman)

Hon. Stéphane Dion

Mr. William Trudell

The Vice-Chair (Mr. Chuck Cadman)

Hon. Sue Barnes

Mr. William Trudell

1825

Hon. Sue Barnes

Mr. William Trudell

Hon. Sue Barnes

Mr. William Trudell

Ms. Judith Resnik

The Vice-Chair (Mr. Chuck Cadman)

Hon. Stéphane Dion

Mr. William Trudell

1830

Hon. Stéphane Dion

Mr. William Trudell

Hon. Stéphane Dion

Mr. William Trudell

Hon. Stéphane Dion

Mr. William Trudell

The Vice-Chair (Mr. Chuck Cadman)

Mr. Kevin Sorenson

Mr. William Trudell

Mr. Kevin Sorenson

The Vice-Chair (Mr. Chuck Cadman)

Mr. Kevin Sorenson

Mr. William Trudell

The Vice-Chair (Mr. Chuck Cadman)

Hon. Sue Barnes

Mr. William Trudell

Hon. Sue Barnes

The Vice-Chair (Mr. Chuck Cadman)

CANADA

Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness

NUMBER 010

3rd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, April 20, 2004

[Recorded by Electronic Apparatus]

¹ (1545)

[English]

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): I'll call the meeting to order, colleagues. I see a quorum.

We are delighted to have with us today as witnesses two persons with a knowledge of the judicial appointment process in their respective jurisdictions. One is Ms. Kate Malleson, senior lecturer in law from the London School of Economics, with reference to the United Kingdom, and Ms. Judith Resnik, who is the Arthur Liman Professor of Law at Yale University, with respect to our great neighbour to the south, the U.S.A. They may have other expertise as well. They were both participants in a panel held yesterday at the University of Toronto, Victoria College, and they acquitted themselves very well. I'm very confident that their contributions today will assist us in our work.

I'll begin, then, by inviting our witnesses to make a presentation, as they wish. We usually offer ten minutes. It's been suggested we might be more flexible here, if necessary, given the distance you've travelled and the fact that we do have a reasonable amount of time available to us.

Ms. Malleson can begin. Thank you.

Dr. Kate Malleson (Senior Lecturer in Law, London School of Economics, As Individual): I should start by apologizing to the chair, because he heard much of what I'm going to say at the seminar that was held yesterday. I mentioned at that seminar that I was particularly grateful to have the opportunity to be here talking about this now, because, as some of you may know, there are many changes going on constitutionally in the U.K. at the moment and the judicial appointments process is being completely restructured. There's a lot of interest in Britain in what's going on here in Canada. So I think this is a particularly interesting moment for us to be exchanging ideas and information on this subject.

What I was going to do in 10 or 15 minutes was just give you some background on what's going on in Britain, particularly what the debate is about parliamentary involvement in the selection of judges, the selection of Supreme Court judges particularly, which, as I understand it, is the critical issue you are all grappling with at the moment.

We have a constitutional reform bill going through Parliament. What that bill is going to do is abolish the position of Lord Chancellor, create a new Supreme Court, and create a new judicial appointments commission. For those of you who aren't familiar with the existing system, I'll just say a couple of words about that.

The Lord Chancellor is the person responsible for all judicial appointments ultimately. The Prime Minister has some role in the appointment of Court of Appeal judges and the Law Lords, but ultimately, it's the Lord Chancellor. He's the head of the judiciary, a member of cabinet, and the Speaker of the House of Lords, so a member of all three branches.

The creation of the Supreme Court is effectively simply removing the Law Lords from the legislature. At the moment, for those of you who aren't familiar with the system, the top court, the equivalent of the Supreme Court, is currently a committee of the legislature technically, combined with a committee of the Privy Council, which you will all be more familiar with. They are the same judges, by and large, wearing different hats. So it's a complex system and one in which the branches of government are overlapping.

The idea behind these changes is to produce a much clearer separation of powers. The abolition of the Lord Chancellor is an attempt to ensure that we don't have this one office in which all three branches of government come together. The establishment of the new Supreme Court is meant to ensure that we have a top court that is removed from the legislature and has a clear identity, much like the Supreme Court of Canada. It will not, however, have any different powers from the existing Law Lords. What that means is that it will have no power to strike down legislation. In the U.K. the Law Lords, all the courts indeed, do not have any power of judicial review in the U.S. sense of the word, the Canadian sense of the word. Judicial review in the U.K. refers to the process of scrutinizing government action to check that it is legal, fair, and reasonable. There is no power to strike down legislation.

What there is, however, is effectively a bill of rights since the year 2000, when the Human Rights Act came into force incorporating the European Convention on Human Rights, effectively the equivalent of the charter in Britain. The impact of that has been much as it has been here, raising the profile of the senior judges and provoking a lot of questions about the increasingly political role the top court plays in having to decide human rights questions. So if you like, what the U.K. is doing is following behind the process Canada has been going through over the last 20 years or so. These changes are to a great extent a response to that development, an attempt to provide a clearer separation of powers.

I've said the reforms establish a judicial appointments commission. More accurately, they establish two. One commission is for the judges in England and Wales, all the judges below the Supreme Court. The Supreme Court is, of course, a U.K. court, so there is to be a separate commission that will appoint the Supreme Court judges. That commission, at least as the legislation stands at the moment, will consist of five people, the president and deputy president of the Supreme Court, who will be, as I said, the existing Law Lords effectively, and three other members, one member from each of the regional commissions, those for England and Wales, Northern Ireland, and Scotland.

¹ (1550)

The Scottish appointments commission is up and running. Northern Ireland will be up and running in a year; the statute has been passed. The England and Wales commission, as I've said, is in the current bill that's going through Parliament.

It will be a five-person body. At the moment, the proposal is that between two and five names to go forward to the Minister of Justice, who will replace the Lord Chancellor, to select the Supreme Court judge.

There's a lot of controversy about that. The government indicated a couple of weeks ago that the provision where two or five names will be put forward may be replaced with simply one name going forward. It would mean that, effectively, the Supreme Court Commission would have total discretion and there would be very limited political involvement in the system. But it is not yet clear what is going to happen.

The bill, as it stands, does not include any parliamentary involvement in the process. That may be particularly controversial if the one-name option is ultimately the one that's chosen, because democratic accountability will then be very limited.

There's an increasing debate about that, so I wanted to talk a bit about the debate and outline it for you. The question is, why is parliamentary involvement not included, and why has there been relatively little discussion of it to date?

I think that the answer is, as I heard yesterday—and I suspect it's quite equivalent in Canada—there is a long shadow cast by the U.S. judiciary committee hearings, which Judith will tell us about in more detail. The shadow really takes the form of the Bork hearings and the Thomas hearings, which were perceived in the U.K. to have been invasive of judges' privacy or undermining judicial independence. They've really left a shiver of horror running through the system that we should have anything like that. Nothing else is really known about the confirmation hearings, except what people read about the Bork hearings and the Thomas hearings.

As a result, until relatively recently, it was rather heretical to suggest that there could be any parliamentary involvement in the selection of judges. But certainly since these reforms were announced last summer, there has been a change. In the debate, it's quite clear that there is a much stronger voice in favour of some sort of parliamentary involvement.

When I gave evidence to the House of Lords committee, a few weeks ago, which is now scrutinizing the bill, I was speaking with two other senior academics. All three of us spoke in favour of some sort of involvement.

I think the rationale put forward for that is essentially about legitimacy, about the need for the new Supreme Court, although it will not have any greater powers than it already has, to be seen to be connected to the political system because of the recognition that, ultimately, many of the decisions it makes are political.

In addition, it's important to remember that Parliament ultimately has the decision over whether or not a judge should be dismissed. Senior judges can only be dismissed by Parliament. Therefore, constitutionally, it is arguably quite appropriate for Parliament to have some involvement in the selection of judges, as well.

Thirdly, my argument would also be that while there is fear that judicial independence might be undermined by some kind of parliamentary hearing or parliamentary involvement, I think there is a case for saying that judicial independence could actually be strengthened by that.

My rationale for that comes from my experiences working for the last few months as a specialist advisor to the House of Commons constitutional affairs committee, which has been looking at the bill going through Parliament. We called about ten senior judges, all the top judges in the U.K., before the committee to give evidence. They all came very willingly, very openly, and gave evidence.

I noticed that in talking to the committee before the judges came, I thought there was rather a poor understanding of the complexity of judicial independence, what it involved, why it was important, and what the role of the judiciary was. Most of the parliamentarians, certainly in the U.K., didn't actually know any senior judges and have never really heard them talk.

¹ (1555)

At the end of the hearings, there was, unquestionably, a greater depth of understanding. I think there was a general feeling all around that the opportunity to hear from senior judges about their work, about the courts, and about judicial independence was incredibly valuable, and had actually strengthened, in the minds of Parliament, their understanding and the value they placed on judicial independence.

However, parliamentarians are still slightly split on whether or not they want to have some involvement, though I think they are gaining confidence in the idea that they are equipped to do so. One of the reasons they are gaining in confidence is that we do have a recent precedent for this sort of involvement. It comes from the treasury committee, a very important committee that has, for the last couple of years, been involved in confirmation hearings for members of the Bank of England's monetary policy committee, which is a very important committee that sets interest rates.

After a rather tentative start to that job of confirming the appointments, the treasury committee has really got into its stride, and I think it has produced very valuable reports in a very sensible and sensitive way, which have increased the legitimacy of the monetary policy committee, and improved public understanding of the individuals on that committee and the job they do.

So that's really the debate that's going on at the moment.

That leads finally to the question of if there is some sort of hearing, as there now seems to be growing enthusiasm for, what form would it take? I suspect that it won't take the form of any kind of U.S.-style confirmation hearing, in which Parliament or a committee of Parliament will have a veto. I think the debate got going too late in this process of reform for that to be likely—at least at this stage.

If there is a change along these lines, I think it's more likely that it will consist of the establishment of a joint House of Commons and House of Lords committee, a judiciary committee that will be responsible for scrutinizing the judiciary generally and that will ask senior judges, after appointment, to come before it and answer very general questions. Those questions will quite clearly not have to be about any personal details of the judges, or anything relating to cases that may come before the judges in the future, but will be the kinds of general questions that the judges were answering in the constitutional affairs committee--that is, what they perceive the role of the court to be; what contemporary issues in relation to the judiciary they think are important, and need to be highlighted; how they understand the relationship between the judiciary and the other branches of government; and those sorts of quite general issues.

That would not need any legislative provisions to be introduced; Parliament itself could do that, which I think may happen.

To summarize, you can see that I am not able to come before you and to present a package or system that's already in place, because we are very much in transition and trying to develop a new system. I can only hope that it gives you some comfort or interest to know that the U.K. is very much at the same sort of stage as you in thinking through these issues. Certainly, from what I heard yesterday, the U.K. shares a lot of the same general themes and concerns as you do in the way it's going about this debate.

º (1600)

The Chair: Thank you very much.

Ms. Resnik, please.

Ms. Judith Resnik (Arthur Liman Professor of Law, Yale University, As Individual): Thank you.

Je ne peux pas parler français, donc je vais parler en anglais.

I think it might be helpful to begin by explaining that when I use the word “political”, I use it to mean that decisions have social, economic, and political consequences. Therefore, I think how one selects judges, what judges do, and whether to change how one selects judges are all questions that could be characterized as political, as they have social and political consequences. From my point of view, the question isn't whether there's going to be something political involved, but the form and shape the political involvement will take. There is a great deal of intrinsic political judgment in how you create institutions of government, and courts are institutions of government.

My task is to help make transparent--transparency is another word used in this context--if I can quickly, the system in the United States. So I've prepared a brief handout, which I believe is available.

If you go to the first page, which is a little bit of the U.S. Constitution, I should make plain that our constitution from 1789, in article 2, section 2, provides that “The President...shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...” judges of the Supreme Court and other officers. So you'll see that the U.S. Constitution stipulates that the political branches, the members of the Senate and the President, constitute article 3, which is our judiciary. I've reproduced for you parts of article 3 to show you that our judiciary is also constitutionalized with judges with life tenure, and we often refer to the United States judges who have life tenure as article 3 judges.

This system could have produced bipartisan selection committees and shared consensus. The history of this system has not been that.In 1795, historians teach us, the Senate rejected a man named Rutledge for Chief Justice; the vote was 14 to 10. They disagreed about his views on the Jay Treaty.

In 1803 the United States decided a case called Marbury versus Madison, which is very famous in our constitutional history for establishing the principle of judicial review. At issue in the case is whether the judge appointed by the federalists is going to get his commission delivered by the new Jeffersonians, who didn't want to do so. So that was a fight about judges.

In 1840 a president many people haven't heard of, Tyler, lost several people; nominations he proposed to the Supreme Court were defeated several times.

Recent work by political scientists tells us that between 1877 and 1994 there were 80 nominations to the United States Supreme Court. Ten were rejected. The political scientists coded 23 as controversial, as involving debate and dispute on a nominee.

In 1920 a candidate for the presidency, La Follette, ran against Coolidge on the role and power of federal judges.

The sources of controversy about who should be judges and what they should do in the United States have been about the power of the states as against the national government, about the power of railroads when railroads were very central, about unions, about the meanings of the Constitution, about class, and more recently about other things. In the state system right now in the United States, where sometimes there are elections, but not in all states, the fights are about tort and contract law, punitive damages, class actions, liability rules.

My point is that you don't need a charter or a bill of rights to see the political and social consequences of what judges do or to have debate about them. Also, you don't need public hearings to have deep political contests about who should be judges. There's a wonderful article in the Wisconsin Law Review from 1941 that your staff might want to look at by John Frank that goes through from 1853 to 1938, judge by judge, how they got on the screen, who did it, who opposed it, what happened. We have been debating it. You can see, therefore, coming from the United States, my question isn't whether there will be politics, but what form the politics will take, who will pariticpate, the decibel level, and the genre and the kind.

º (1605)

In the seminar we were at yesterday, from which I learned a great deal, it became clear that there's a lot of use of the word “democracy”, and there's a problem of democracy in how you select judges. So I tried to puzzle a little bit about the relationship between democratic theory and practices and judging, because judging predates democracies. So the question is, now that you have democracy, what do you do?

From my view, democracy drives access to justice. Democracies need courts and they need lots of them, because people have rights in a democracy and they get to claim them. Democracy drives access to the legal profession and access to us all being able to be here in various roles. And democracy drives equal treatment before the law. Democracy actually needs judges to be impartial, and constitutional democracies need judges to have a very odd position in the array of government officials.

There was a period in our shared history--1701 marks the end of it--when judges sat at the pleasure of the government. But that changed with the Act of Settlement, which separated judges from the powers that be of the moment, and gave judges longer temporal terms. They're not delegates of a particular political party or administration, but they're peculiarly licensed officers of government who actually sit in judgment of the government that authorizes them and empowers them.

Judges therefore have to, by definition, be unpopular in several different senses of that word. At a very local level, in which disputants are involved, someone wins and someone loses. Even though there may be nuance compromises in the judgment, somebody may be unhappy with it.

At a larger level, judges make rulings that are unpopular, in the sense that if a vote of the people at that moment were taken, they might not all agree with the decision--although it could change over time.

They may also be unpopular, in the sense that elected officers don't want to take the political heat of a particular decision, but judges make them. They may also be unpopular, at least in the United States, in that we've seen both politicians and corporate, religious, ethnic, and other groups use judicial decisions as mechanisms for mobilization and for protest.

Adjudication is made legitimate by its capacity in some sense to take the heat and try to make a decision based on internal conventions of being based on facts, record-driven, specific, transparent, and explained. Of course, democracy needs legitimate judging.

Constitutional democracies actually try, by creating constitutions, to take some issues off the immediate political agenda by stipulating that they're foundational or fundamental, and therefore insulating them from reconsideration. That's what a constitution is. So when judges are asked to interpret constitutional law, they're giving meaning to, but they need insulation from, the return to politics.

The question is, what is the relationship between democracy and how you select a judge? Is there anything that democracy tells you about how to select judges?

It's possible to think that democracy means every government official gets elected, but no democracy of which I'm aware requires every governmental official to get elected. All of them have appointed governmental officials as well. So once you move from that idea, democracy tells us for sure that judges can't get their positions by inheriting them. That's easy.

Then you ask if there's any one way that democracy requires that judges be selected. At least if you scan the democracies around the world, the answer is no. There are an awful lot of democracies with an awful lot of different systems.

In the one I'm closest to, which is the United States, we have several different ways of selecting judges. Here again, in an effort to be rapid as well as transparent, I'd like to point out that in chart 1 you're looking at the United States life-tenured, article III judgeships. In 1901, you'll see there were about 100 of them. In 2001, you'll see there were 850 of them.

º (1610)

What you're looking at is the shared production of the executive, the Congress, and the judiciary in cooperating together to create a much larger, life-tenured, federal judicial system because of the view that courts were good, having more of them was necessary, and democracy drove demand and required an additional supply of judgeships. So we have many more people who have life-tenured judgeships. It's a co-venturing project. In the last 30 years, roughly 400 new federal rights causes of action have come into the hopper. There's a lot more demand for judging.

Chart 1 shows the article III judges. That means the President nominates them and the Senate confirms them. That's who these people are. But they're not our only federal judges, which is why I provided chart 2.

Starting in the 1960s, this group wasn't sufficient for the task and Congress created what I will call statutory judges. Magistrate judges sit for eight-year renewable terms, and bankruptcy judges sit for 14-year renewable terms. The magistrate judges at the trial level are selected by the life-tenured judges in the district in which they sit. The bankruptcy judges, also sitting at the trial level, are selected by life-tenured appellate court judges from the circuit in which they sit.

You can see by the numbers that we have more authorized judgeships that are not life-tenured than judgeships that are life-tenured at the trial level. Their powers are not identical--the life tenures still have more--but the trend has been to increase the authority of the non-life-tenured statutory judges in the United States in the federal system.

The next chart is a quick look to show you that I still have more federal judges to pull out of my hat, if you will. Inside administrative agencies and in some of our specialized courts called tax courts, or some of our other courts, we have yet other term judges that sit for 15 years, and the like. So our non-life-tenured group is larger than our life-tenured group, which tells you that being a life-tenured judge is a very high-prestige activity. They sit at the top of a hierarchy of a few thousand judges. Sitting at the top of the hierarchy therefore ups the price of the life-tenured judgeship--the Supreme Court at the very top of that pyramid.

The length of service of our life-tenured judges is worth understanding. This gets you to chart 4. From the first 20-some years of the U.S. history, the average length of service for the life-tenured judges at the Supreme Court level was around 13 years, and at the trial level it was around 11 years. If you go forward in time to the last 20 to 25 years, you'll see that our Supreme Court justices are averaging 25 years, and our lower court judges 19 years.

There are more judges being appointed. Some of them are being appointed at younger ages. There is some career promotion going on, and maybe being a federal judge is good for your health. So there are many variables to explain the growing length in term. But the point is that a life-tenured judgeship is a long-term appointment.

It is therefore possible, if a politician wants, to have the opportunity through a life-tenured judgeship position to give their point of view a longer run than they would through just their term in office. We have term limits for our President, for example.

º (1615)

Some of my colleagues talk about this as partisan entrenchment, because if I select people with a particular point of view, I can send them out, and for a long time.

The United States Supreme Court has very special kinds of powers that have also changed over the history of the United States. Up until the 20th century, the United States Supreme Court had a mandatory docket, which is to say it had to take a lot of its cases--it didn't choose its cases. Starting in the 20th century, 1922 or so, Congress authorized an increasing amount of discretion to the United States Supreme Court to decide which cases to decide.

In the 1920s, the United States Supreme Court issued about 330 decisions a year. In the 1980s, it issued about 150 decisions a year. More recently, it's been issuing about 80 written opinions a year. So they have the power to set their own agenda and to decide what to decide. There are a few small exceptions to this, but they are a very small percentage of the docket.

That means that because the United States Supreme Court decides so few cases, the appellate courts are terribly important in our federal system. They are the functional end point of lots of cases. So who our appellate judges are is a significant question for the shape, meaning, and nature of U.S. law.

Being an article III or life tenure judge in the United States is thus a big deal. It's a long deal, and it's a rare deal. It's the only job in the United States that is a life job. We don't have a queen in our system, so this is it. As a consequence, the price is high, and some, but not all, of our presidents have seen it as an opportunity. Specifically, moving to the last several decades, in the 1980s, when Ronald Reagan became the President of the United States, he and his advisers were not happy about the shape of United States law in several respects: in relationship to the rules about sovereign immunity of the states and the state federal power, in relationship to questions of affirmative action and the reach of equality rights--several issues were on his agenda.

His advisers wrote a paper, which is published, called “Constitution of the Year 2000”, explaining what their agenda was and how they'd want the meaning of the U.S. Constitution to change. I quote from it:

There are few factors that are more critical to determining the course of the Nation, and yet are more often overlooked, than the values and philosophies of the men and women who populate the third co-equal branch of the national government--the federal judiciary.

To that end, they developed questions to ask of people when they screened them. There's a book that has recently come out called Pursuit of Justices, by David Alistair Yalof, who has a list of the questions that the Reagan administration asked: awareness of the importance of strict justiciability and procedural requirements, refusal to create new constitutional rights for the individual, deference to states in their spheres, appropriate deference to agencies, commitment to strict principles of non-discrimination--that translates to me as not affirmative action--and disposition toward criminal law as a system for determining guilt or innocence. It goes on, but you can get the gist of the series of questions they ask to look for people who fit that bill--and the book includes the names of people they thought fit that bill.

And by most accounts the agenda that was set forth in these documents and these efforts has been accomplished, some of it by litigating decisions from the Department of Justice, but a great deal of it through the selection of judges who interpreted U.S. law with these lenses in mind.

Now, when I'm inside the United States context, which I am, and sometimes testifying in comparable committees inside the United States, it's my view that once you're in this process, with a president wanting to use judgeships to signal to constituencies, those people on either side of it have to understand that selecting judges is a place to generate and fight about norms and the meaning of the Constitution. Once inside, it's my view the Senate ought to be taking a more active role, not a less active role, given the agenda setting of the president.

º (1620)

For example, I've suggested that in the United States we switch to super majority rules for confirmation of judges and justices, and I also think we could reinterpret our constitutional guarantee of life tenure to have an understanding of term limits, of mandatory retirement, because I think if one wants to talk about democratic deficit, the deficit sits at the very long terms in which one holds the power to judge. They have to be long enough to be insulated, but not so long as to be entrenched.

If you look at the final chart I've provided, chart 5, it shows you that there are more than 500 people who between 1993 and 2003 have come before the United States Senate. None of these are Supreme Court justices; they're all lower court judges in this chart. What you'll see is that 90% of them are confirmed by 90 or more senators. We have 100 senators total, so they're mostly confirmed and they're mostly confirmed by a large number.

But you also know that there's a great deal of partisan conflict over judges. What this also shows you is that the conflict occurs before the nomination. Who gets nominated is where the conflict exists, so the fight is often long before you get on the Senate floor. Once you get to the Senate floor, you more often than not succeed.

Let me just sum up and offer a couple of concluding comments.

What I think the United States experience can offer other countries is that if you want to have judicial selection and appointment be a space for political debate about what your norm should be, you can do so. Other countries have done so; we have done so in the United States. It is a place that can be used by politicians to signal. It causes politicians great discomfort sometimes, because their votes get counted for or against them by different constituencies, depending on how they vote. There is a member of the United States Senate up for re-election who is seen as vulnerable or as attacked because he voted a particular way on a particular Supreme Court justice nomination. So it's clear that with technology, special interest groups, energy, and partisan conflict, this can be a place for it.

The question then is, if you are thinking about changing your system, one would have to ask what problems one wants to fix--whose legitimacy, whose accountability, whose democratic deficits are at stake, and how whatever change you generate will affect others' political accountability. What are the reasons for the change? Is there not enough diversity? Are there not enough judges? Is there not enough legitimacy of judges? Or is it the question of legitimacy of the prime minister or of this body?

From the outset, I should just offer one comment about sitting in the United States. The Supreme Court of Canada is extremely well respected. It is extremely visible in constitutional conversations, and its judgments are read around the world. The other thing I should mention is that unlike the United States Supreme Court, you have televised access to arguments, to watching their processes. That's not available in the United States Supreme Court. You have legislative override. That's not available in the United States system. You have mandatory retirement. That's not available. So there are aspects of democratic processes at work in your system that are not at work in my system.

In my own experience, in the United States, the energy to make changes around the methods to select judges comes from people wanting to do something else. It comes from some other agenda. When we fight about judges, we are often fighting about other things; they've become a great surrogate for that.

Thank you.

º (1625)

The Chair: Thank you both very much. That was very illuminating--both presentations.

I know there have to be questions, so I'll start with the opposition. I know that Ms. Malleson has to leave at 5:15, so I'll maybe interrupt at about 5 o'clock to make sure there aren't any questions that have to go to her before she has to leave.

I'll start with you, Mr. Cadman, for seven minutes.

Mr. Chuck Cadman (Surrey North, CPC): Thank you, Mr. Chair. I'll be brief here, because I realize there are a lot of questions around.

To Ms. Malleson, the U.K. is undergoing proposed changes. What was it that drove the need or the desire for change? Was it something within the public perception of the way things were being done? Was that part of it? I'd just be interested to see what was the reason behind it and what was or what is the perceived role of the general public in what's being proposed.

Dr. Kate Malleson: I'd like to say there was a general public drive for some of these changes. I have to say that the general public in the U.K. knows absolutely nothing about the House of Lords. And it's not just the general public. As I was saying yesterday, as a dinner party game, I often ask intelligent and well-educated people, “What's our top court?” They struggle just to get to the House of Lords. Then you ask, “Can you name a single judge? How does the system work, and what is the House of Lords?” Nobody knows that at all.

In a sense, though, that's part of the answer to the question. There was a perception in government that that state of affairs was an unhappy one and there should be better public knowledge of the system. That's because of the underlying rationale for these changes, which has to do with the separation of powers and the belief that the informal and rather confused and overlapping system we've traditionally had whereby the executive, the legislature, and the judiciary have been enmeshed--and most particularly, of course, the role of the Lord Chancellor and the presence of the Law Lords in the House of Lords--really needed to be clearer and needed to be separated.

I don't think it was because there was any suggestion that judicial independence had actually been undermined or that Law Lords by virtue of being in the House of Lords had been inappropriately influenced. Nobody has suggested that at all. Rather, there was a perception that suddenly that was seen to be inappropriate by anyone who actually understood the system and that it was a very difficult system to understand.

It links to the point I made about the increasing role of the judiciary. Although we don't have a federal system, we now have a system in which Scotland, Wales, and Northern Ireland have much clearer regional power. The court that was given the authority to determine the boundaries of that power was, confusingly, the Privy Council, for reasons I won't go into because they're so complicated. There was a sense that with a devolved system and a system of human rights, you can't have this continuing confusion over the Privy Council and the House of Lords and a mixing of the branches of government. You have to have greater clarity on the separation of powers and an independent Supreme Court that is seen to be independent.

Mr. Chuck Cadman: We've heard some testimony about somehow involving lay persons in the selection process. Is that anticipated in the U.K.?

Dr. Kate Malleson: This is not entirely clear at the moment. We do know the composition of the three regional bodies. Of course, the body that selects the Supreme Court judges will have three members, one from each of these bodies. What's not clear is whether those three members are going to be drawn from the lay members of the bodies or from the judicial or legal members of those bodies. I hope very much that the three members drawn from the regional committees will be lay members. I think that the presence of the president and deputy president is sufficient judicial presence and that the other three members should be the lay members, but that has not been clarified.

º (1630)

Mr. Chuck Cadman: Professor Resnik, concerns have been expressed about going to the U.S. style. I think that primarily it's because of the perceived line of questioning that occurs during public hearings. Is there any restriction on the types of questions that would be asked, or is it just wide open?

Ms. Judith Resnik: There is no formal restriction, and Senator Schumer, who is a Democrat on the House judiciary committee, chaired a subcommittee set of hearings in 2001 about what role ideology should play in questioning. I testified at one of those hearings, and we can supply your staff with the testimony.

Some people testified that you shouldn't ask anything about people's views on the law, to which the senator replied, and I'll paraphrase, why am I having a hearing if I can't ask those questions?

So in the United States system the questions include questions about individuals' views on the shape of the law. In the hearings about Judge Bork, for example, there were a great many questions directed toward his vision of the 14th amendment, which is our equality provision. His view was that it didn't apply to women because it was written after the Civil War with African-Americans as the focus, so it was about race, not about gender. This became a contentious issue that was part of the opposition to his confirmation.

So we have a recent history of questions being asked. Now, that doesn't mean that people answer by saying I will vote x or y. And it also doesn't mean necessarily the answers predict who will win and who will lose, because if you read back over all those transcripts you'll find some people who are weaving and ducking, and other people who are more forthright. But the understanding is that people are trying to determine what vision of the law these people bring. It's assumed that by the time they're in that position they have the intellectual and professional ability to do the job.

I should add that in the U.S. system the American Bar Association between 1952 and 2001 were formal members of the process. They were used to vet or to pre-examine individuals as part of the process before they were nominated. President Bush excluded them from the process, and members of the Senate judiciary committee, who are Democrats, have invited the American Bar Association to comment about the process and to comment about nominees. So they now do a form of evaluation afterwards.

The American Bar Association's process has constraints in which it says they will inquire about professional integrity, competency, skill, and temperament, but not about philosophy of judging or ideology. So there are interviews conducted by a panel of people who go to the nominees and who also interview other people about the nominees and have reports that end up describing people as qualified or not qualified.

There is also a huge questionnaire that the Senate and the Department of Justice and the ABA have that each candidate is required to fill out. I brought with me, and will be happy to give your staff, a list of questions relating to jobs you've held, education, income, legal experience, and background. It goes on and on. You can see the kinds of data that are collected and questions that are asked in the written form.

[Translation]

The Chair: Thank you.

Mr. Marceau, for seven minutes.

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you very much, Mr. Chairman. Welcome, professor. Thank you for coming.

I will start with you, Ms. Malleson. You mentioned that there might be a role for parliamentarians and that this was being considered in the United Kingdom.

So, in discussions on the role that parliamentarians might play, is this being considered as part of the judicial appointments commission you spoke of, or would this be through a completely different committee?

What could be the role of parliamentarians? What options are being considered or at least being discussed?

º (1635)

[English]

Dr. Kate Malleson: That's a very important question. There is no discussion at the moment about having parliamentarians included on the committee. In fact, as the bill stands, the only group specifically excluded from membership of the committee is parliamentarians. I'm talking about the committee for England and Wales from which the Supreme Court committee will be drawn. There is no suggestion of that.

I think it's unfortunate we didn't have a debate about that. I'm certainly somebody who thinks that could have been a real option. I've been to South Africa and studied the South African Judicial Service Commission, which does have parliamentarians, very successfully, as members of the commission. I think that might have been a much more positive approach. But that was never on the cards.

Instead, the proposal is that a committee—and it's not clear which committee; it may be the constitutional affairs committee or more likely it may be a new joint House of Lords and House of Commons judiciary committee that is formed—will have responsibility for some kind of post-appointment hearing. Exactly what form that takes, as I say, is yet to be thought out.

[Translation]

Mr. Richard Marceau: Thank you.

Professor Resnik, obviously, the United States is a federation, and it would be very difficult to amend your Constitution.

We know that, in the United States, the Supreme Court is called upon to decide issues of jurisdiction between the states and the federal government. Whenever this is debated by our neighbours to the south, is there ever any mention made of the lack of involvement of the federated states in the process?

[English]

Ms. Judith Resnik: I'm very glad you mentioned the states, because I did want to add that, when I talk about the United States federal system, I'm talking about a third of a million cases at the trial level. I gave you some numbers, a million and a half bankruptcy petitions. In the state system is where almost all of our litigation occurs—between 14 million and 15 million, depending on what counts as a case.

They are tremendously important, and they separately constitute their own judiciaries. Some, by the way, have commissions sometimes with lawyers and non-lawyers, so we have many models. If you're shopping for other forms of commission-like activities, we have many in the states.

In the federal system, one idea is that the United States Congress.... Each state has two senators. In some ways, the Senate is in the confirmation process, and therefore the states are there through that mechanism. The other is that, unlike your legal system, the United States Supreme Court has interpreted our tradition that state courts are final on issues of state law unless it violates U.S. constitutional law. So state high-court judges have insulation from the federal system. You're completely correct that it's the question of what belongs to the states and the feds that generates a great deal of discussion.

Our federal politicians have not talked about changing the current allocation of power in terms of selecting our article III life-tenured judges. But what they frequently do is put in bills to take jurisdiction away from article III judges, the Supreme Court or the lower courts. It's unclear whether all of them are constitutional, but they use this very often as they protest decisions the judges make.

For example, there's currently a bill in the House to take away jurisdiction over cases involving the Ten Commandments, because one of our circuits made a decision about that. There's another joint resolution proposed to have our federal judges barred from citing foreign law.

Bills come in regularly, and have since the last fifty years and going back. When somebody in the House of Representatives and sometimes the Senate does not approve of a decision, that's the mechanism used to question.

º (1640)

[Translation]

Mr. Richard Marceau: You will no doubt respond that the question should be put to others in a better position to answer, but I would nevertheless like to know—and this is addressed to both of you—, given that you know the systems that are in place in various parts of the world, what suggestions you might have for us.

What are the strengths of the systems that are already or will be in place, and which of the existing systems should we adopt, and which ones should we absolutely stay away from?

[English]

Dr. Kate Malleson: I guess that partly depends on where you're starting from. If you are starting from scratch, that's obviously a very different proposition, and you could start to think about some sort of commission. We talked, as your chair will know, yesterday at the seminar in considerable detail about possible models of quite extensive, quite large commissions that would appoint your Supreme Court--and I assume the question is relating to Supreme Court judges essentially. I think that would be a very positive route to take.

I'm a supporter of commissions specifically for the reason that there is no one model, that it's an incredibly adaptable system. You can look around the world, you can look at how other different systems have adapted commissions, and then you can think about your own legal, political, cultural context and decide what would best suit you. For example, the balance between lay people and lawyers, the presence of politicians on a commission or not, the dominance of judges, who should chair the commission, the federal balance when you are a federal system, all these kinds of issues can be adapted and constructed. As we are grappling with the question of the number of names that should go forward to the executive, assuming that you choose a recommending commission, rather than a full appointing commission, it again will depend on your particular balance between independence and accountability.

Those questions I think have to be answered by Canadians and have to be constructed for Canadians, but my general comment would be that a commission is a very positive model, because it allows you to construct a system that would be appropriate. But I suspect you're not at this moment at that stage. You probably are not starting from a blueprint.

Ms. Judith Resnik: This is a very hard question. I don't believe there's a universal answer; context is all. I found, listening and reading before I came, that I was having a little trouble figuring out what needed to be fixed, what's the energy for the change. It comes back to Mr. Cadman's question, I believe, about the source. So if the question is legitimacy of the courts, you get one set of answers, or accountability of the courts, which is even more problematic. If the question is the power of the Prime Minister, that's a different set of questions. So I need to turn the question back to you for a moment to try to understand what the problem to be solved is. I've heard very many different things sometimes from the academy from what I've heard outside.

[Translation]

Mr. Richard Marceau: The fact that we have in our Constitution a Charter of Rights, which is the equivalent of your Bill of Rights, is obviously one of the reasons that we are having this discussion here today. We are talking about the powers that judges have today, especially at the Supreme Court level, and about the danger, be it real or perceived, of having to all intents and purposes one person, the Prime Minister, hold almost absolute power over appointments to positions of such great importance, where people hold office for such a long time.

This situation, when combined with the fact that some of those who were appointed recently, though they were fully qualified, had very strong links in the past with the party that appointed them, has brought some members of the public to think that those choices were made for partisan reasons. So, perhaps more attention should have been paid to the old saying which you are no doubt familiar with, that justice must not only be done, but must be seen to be done.

º (1645)

[English]

Ms. Judith Resnik: Right.

This is helpful, because if the question is curbing the Prime Minister's absolute power for so long, one possibility is to look to terms of office for Supreme Court justices. In Germany and in France there are fixed non-renewable terms of nine and twelve years so that one could give a long enough charter as to avoid temporariness and another set of problems, but not so long as to have this enshrined forever, because one of the utilities of adjudication is that it can only endure if everybody keeps signing on to the proposition.

You asked about what you want to avoid and what you want to get. If you want to re-argue your charter, then you can do so through who you appoint. If you want to avoid that, then you have to develop a mechanism that puts you far enough away from the individual in a particular moment that you are not going to re-argue your charter. So that would suggest moving back in time.

One possibility is to have a commission of lawyers and non-lawyers, in or out of Parliament--out of Parliament has a safety net, in that it is a little more insulated--that it develops lists of possible people long before their openings, so that you don't have a fight around a particular opening at a particular time but have a set of people, all of whom you think would be fine or that a lot of people think would be fine.

I guess I'm a little puzzled in the sense that when democratically elected officials have the power of appointment, at least from inside the United States, one assumes that there are a range of qualified people, and then the person makes a choice in which party affiliation is permissible. If you are currently in a situation in which party affiliation is seen as impermissible for judging and you think that's an important part of your culture, then the more you involve the political branches in debating a particular person, my guess is the more you will heighten the sense of the partisan, rather than damp it down.

Dr. Kate Malleson: Just as a quick follow-up, if you look at the consultation paper that announced the changes that we are instituting, the opening paragraph effectively summarizes exactly what you have just said. The government's rationale for introducing appointments commissions was that it is no longer acceptable for judicial appointments to be in the hands of one politician at a time when the power of the judiciary is increasing.

Although in England, in the U.K., there have not been any allegations of partisan political appointments--in fact, quite the opposite, it is generally accepted that they are non-partisan--what has been agreed is that there is a perception that this might change as the power of the judiciary increases.

The Chair: Thank you.

Mr. Maloney.

Ms. Judith Resnik: May I just add one quick response?

The Chair: Please go ahead.

Ms. Judith Resnik: One thing to look at in the United States system is that although we have a President and a Senate constitutionally authorized to engage, the President has huge amounts of power and more often than not is successful. So if the real concern is limiting the power of the executive, the U.S. system has not in fact done that as much as the visible foaming around it might suggest. If the problem to solve is one of too much power in one person, then it will be a wonderfully challenging exercise, but at least if the U.S. is an example, just putting a lot of power in the Parliament doesn't solve that problem.

[Translation]

The Chair: Mr. Dion, you have seven minutes.

[English]

Hon. Stéphane Dion (Saint-Laurent—Cartierville, Lib.): Professor Malleson, you suggested, if I understood correctly, that at the end of the process, once the choice is made and the person is selected, the judge would then be invited to a committee. In order to do what?

I understood that there is a pedagogical effect on the parliamentarians. I would suggest that there are so many other means to explain to parliamentarians, if they don't know, but is it for the judicial system to bring a newly appointed judge to explain that to them?

º (1650)

Dr. Kate Malleson: I'm not sure it's about explaining the judicial system to them. Most parliamentarians are quite aware of the judicial system itself. What they're not necessarily aware of are the subtleties and complexities of current debates around judicial independence, and they simply don't interact with senior judges. Obviously it's a constitutional question as to whether or not that's appropriate, but there seems to be a growing belief that actually it is appropriate for there to be some official forum for parliamentarians and senior judges to interact.

That's particularly true for the U.K.--and I don't whether this is analogous for Canada--because of the removal of the Lord Chancellor. Because one of the knock-on effects of the removal of the Lord Chancellor is that the Lord Chancellor in the past has been seen as the body who protects judicial independence, who stands as a buffer between the executive and Parliament and the judges, and with his removal the judges are going to have to be much more proactive in defending their own judicial independence. Forging some sort of relationship with Parliament is perceived, I think, as one way in which they could do that. So that's one role it would play.

I think there's a second aspect to it, though, which is about informing the public. As I said earlier, I think probably this is rather different in Canada. I suspect that most reasonably well-informed people could name at least one or two Supreme Court judges, and do have a particular idea of what the Supreme Court is and does. That isn't true in England. Therefore these hearings would be one way in which the public could know something, even if in only very general terms, about the top judges in the country.

Hon. Stéphane Dion: So it would be public?

Dr. Kate Malleson: Absolutely.

Hon. Stéphane Dion: So we'll have public hearings, but not about the selection of the individuals, but about the role of the judiciary system.

Dr. Kate Malleson: Yes.

I should add that there is, as yet, no formal proposal for this to happen. This is only currently being debated, so we will wait to see if it does. But if it does happen, what I think is absolutely clear is that it would not be acceptable to have the U.S.-type system where judges are asked their views about substantive law. I think judges would simply refuse to come.

Hon. Stéphane Dion: Okay, but if it's not about selecting a judge, why would it be the new judge who would have to do this task, to have a dialogue with the parliamentarians? Why would not the chief justice, who has more experience of what the court is, then fulfil the role?

Dr. Kate Malleson: It's a valid question, and it may be that what actually in the end is decided in the U.K. is not to go down this route and to instead formalize some kind of system where, as you say, perhaps the chief justice or perhaps other senior judges appear, say once a year, before the committee or a new committee to talk about various aspects of the administration of justice. And it may be that this is the way ultimately it's done.

I think there's simply a perception that it almost might be appropriate for new judges to be introduced to Parliament, for them to have some idea of who the new judges are at the point they are appointed. But that may not ultimately be what's adopted.

Hon. Stéphane Dion: It's something of another topic then. It's not the selection of judges; it is the dialogue between judges and parliamentarians that you're addressing.

Dr. Kate Malleson: That's certainly an important aspect.

Hon. Stéphane Dion: Okay.

Professor Resnik, I forgot my question, but I had an important question for you. It will come back.

The Chair: We're definitely coming back.

If I could pose a question on a factual detail coming out of this, can I confirm your earlier statement, Ms. Malleson, that from time to time in recent hearings there have been judges invited to parliamentary committee hearings to discuss some element of procedure and the policy of judicial selections, etc., and that this has occurred? Because here there have been rare instances, if any, of judges being called to Parliament or invited. For former judges, yes; but for sitting judges it's been very rare because of a sense of wanting to maintain the separation in Parliament between the legislative branch and the judicial branch. Can I confirm that this happens from time to time in the U.K.?

Dr. Kate Malleson: Yes.

I was very interested yesterday to be informed that judges would probably be very reluctant to come before a parliamentary committee, for that reason, because certainly that's not the position in the U.K., and judges have appeared.

I have to say that this was not common, say, five years ago. This is a relatively recent development and it's a development that has arisen as the senior judiciary has become more significant, more important. But it's developed, it's increased, as I say. Before Christmas and in the autumn term the constitutional affairs committee invited, I think, about ten judges. We drew up a list, and every single judge who we invited--and they were all the senior judges from around the U.K.--came and they very willingly gave evidence. So yes, and we anticipate that this will undoubtedly continue.

º (1655)

The Chair: Before we go back to Mr. Dion for the balance of his time, I'll let Ms. Resnik add something.

Ms. Judith Resnik: I happen to have a picture in my bag from the most recent newsletter of the federal judiciary in the United States, which has a judge testifying before a subcommittee of Congress on the budget.

In the U.S. system, the federal judges appear before congressional committees that have oversight responsibility. Starting in 1939, the Administrative Office of the United States Courts took the administration out of the Department of Justice and into a separate entity of the judiciary, and members of our judiciary have since then, and before then a little bit, gone to testify before committees.

The Chair: That's fine. And of course the chair, here, is not aware of any rules that would prevent us, in this Parliament, from exercising our authority to send for persons and papers and records, and essentially summon a judge to Parliament for any particular reason; we just, as a convention, don't appear to be doing it very often.

Monsieur Dion.

Hon. Stéphane Dion: Merci.

When the choice of the President is facing the Senate, I have read that he or she may decide to not answer questions. What I didn't find out is if it is clear what is the winning strategy. Because sometimes if you answer, you look like somebody who does not understand that you should not answer, and sometimes if you don't answer, maybe it will not help you.

Ms. Judith Resnik: I'm pausing because I'm trying to capture a complicated process.

The hearings are just a small piece of the political battle. So it is possible, I could imagine, for particular answers to be so explosive as to generate yet new controversy that might end up creating a strong enough opposition to defeat a nomination. But in many instances you can contrast the people who got through and the people who didn't in some, and it isn't the answers to particular questions but a much longer set of activities.

For example, I gave you the example of Judge Bork. He was testifying about his vision of the fourteenth amendment from things he had already written. So the conflict wasn't only his testimony, although his testimony might have been an occasion to say “I thought that a while ago, I don't think that any more”. Also, I should be clear that many judges or prospective judges might say “I'm uncomfortable answering that”, and some of them don't answer. So it's not that they are necessarily all answering every question. And it's also the case that some senators will say they won't ask about this, but they will ask about that.

But if you read the transcripts, you'll see that you're eliciting history, point of view, general prior assumptions about the role of government and the role of rights, and those people have been selected for that. So it's actually quite a rehearsed process. People are rehearsed in advance.

Hon. Stéphane Dion: My point is that we have discussions with our Canadian witnesses about whether, if we do an advisory committee, we need guidelines for the questioners. Also, which questions will be accepted? Which ones will not be accepted? There is an argument to not do that, and say that whatever question will be asked, the person has the right to answer or not to answer.

My problem with this is that if I decide to not answer, how will I know it will not penalize me?

Ms. Judith Resnik: I think the answer is there are no warranties and that you could develop guidelines. The bar associations have tried to not inquire into questions of people's views on the world of the law, but only into their competencies as lawyers. Others take the position that because these judgeships are so prized and so important, coming back to the centrality of them, the desire to question comes from a view that you're trying to understand how they will approach their job as these very important cases come before them.

It's not that you would ask how they would decide X, Y, or Z, because the answer is it depends on the case. Rather, it's what are your general attitudes towards the larger issues? Some will respond by saying they haven't really thought about that very much, and others will respond in part, because they have written about it before, by explaining what they've already said.

There is some discussion that the process of questioning pushes the nomination process, changes who you pick. So the slang is a “stealth candidate”: pick someone who hasn't written very much, about whose writing you can know very little, who will be credibly able to say they don't know what they think about it.

» (1700)

Hon. Stéphane Dion: And this is an argument to choose this person? I don't know.

Ms. Judith Resnik: You see some of the downside of using judicial selection as a means of doing politics. I think it can have an upside, potentially, in terms of legitimacy and in terms of norm development.

It's a difficult process that uses the activity of judging in a really odd way, because judging is going to be something that happens in the future. You're using this person as a means to debate the shape of your law. If you're in high-stakes selection processes that are very open, with an individual, that's the job. The question is whether you want it.

The Chair: Thank you.

Mr. Sorenson, for three minutes. We're at three-minute rounds now.

Mr. Kevin Sorenson (Crowfoot, CPC): All right.

Thank you again for coming.

The Chair: And with an emphasis on Ms. Malleson, who has to go in about ten to fifteen minutes.

Mr. Kevin Sorenson: Okay. I'll ask my first question to Ms. Malleson.

We've had a fair bit of testimony about the United States, Great Britain, France, Germany, and other countries that have been mentioned. Ms. Malleson, you have written about South Africa. The President of South Africa appoints the judiciary in the Constitutional Court, but as I understand it, they're required to choose from a commission that brings forward a list of delegates.

What role does Parliament play in picking the commission that would forward those candidates to the president or the prime minister, or whoever? I guess it's the President of South Africa. What role do parliamentarians play? And how has it worked over the last five or ten years?

Dr. Kate Malleson: The parliamentarians pick the members who are parliamentarians. I think, off the top of my head, there are six parliamentarians.

Mr. Kevin Sorenson: How many are on the commission in total?

Dr. Kate Malleson: It's a big commission; it's 23.

Mr. Kevin Sorenson: There are six parliamentarians.

Dr. Kate Malleson: I'm sorry, there are six national and four from the provinces, so there are ten parliamentarians altogether, I think. I'd have to check that, because I haven't looked it up. They are obviously picked by Parliament.

That's the role. They don't have any other roles. They don't have any confirmation hearings or anything like that.

» (1705)

Mr. Kevin Sorenson: Has the exercise been fairly successful over the long term?

Dr. Kate Malleson: Yes.

Mr. Kevin Sorenson: There have been some major changes in South Africa.

Dr. Kate Malleson: In the long term, it's new. This is the new system that was set up with the new constitution, so one can't make long-term comments.

Three years ago, I went and interviewed Constitutional Court judges, who had all, obviously, been appointed under the new system, and all the members of the judicial service commission and leading members of the bar. At that stage, anyway, there was very widespread support for the system. It seemed to be working extremely well. I sat in on some of the interviews, because although there was no confirmation hearing, there are public interviews for each candidate. It's extremely daunting, because all 23 members of the commission sit around and interview the candidates.

When the system was first devised, there was a lot of talk that people would not put their names forward. Senior lawyers were simply not going to be prepared to put themselves through this very public process and the danger that they might not be appointed, and such. In fact, everybody I spoke to said they were not aware of anyone who'd been unwilling to put his or her name forward.

When I spoke to the Constitutional Court judges who'd gone through the process, they all said that they found it incredibly daunting, very stressful, and they didn't enjoy it at all. But they felt that going through a public interview had enormously strengthened their legitimacy as a Constitutional Court, and they were very pleased to have done it.

Mr. Kevin Sorenson: Yes.

I don't know much about the Constitutional Court in South Africa. Is it like the federal court system? How many would be on it?

Dr. Kate Malleson: There are, I think, nine members. No, I'm sorry, there are eleven members.

Mr. Kevin Sorenson: All right. It would be like our Supreme Court.

Dr. Kate Malleson: It's only a Constitutional Court; it's not like your Supreme Court. It doesn't hear private law matters, it only hears constitutional matters.

Mr. Kevin Sorenson: Every time there is a vacancy for judges in South Africa, how long a period of time is it? Every time there's a vacancy, is there a new commission?

Dr. Kate Malleson: No, they have fixed terms, twelve-year fixed terms. When a vacancy comes up, the judicial service commission puts forward names to the president, but the commission appoints all the other judges as well. I won't say the commission is constantly sitting, because they obviously only sit when they need to fill vacancies. They don't only appoint the Constitutional Court; they appoint all the judges.

Mr. Kevin Sorenson: So this commission is always there. At a change of Parliament, they may have to re-address members who—

Dr. Kate Malleson: The parliamentary members. The others, obviously, stay. There are lay members, academic members, and members of both branches of the legal profession—and judges.

Mr. Kevin Sorenson: And there's no term for the commission? They come and go...?

Dr. Kate Malleson: They have fixed terms as well. Each of them has a three-year, once renewable, term.

Mr. Kevin Sorenson: Thank you.

The Chair: Are there other questions for Ms. Malleson from any quarter?

[Translation]

Mr. Richard Marceau: Okay, but Sue should be first.

[English]

Hon. Sue Barnes (London West, Lib.): I think that we around this table definitely want to see some aspect of parliamentary input. We're just not sure how and where.

You've been working at this in Britain now for what--a couple of years?

Dr. Kate Malleson: It's more recent that that, I'm afraid. These reforms were announced in the summer, and they were very unexpected. There had been quite a substantial academic debate and support for the changes long before that, but they were politically unexpected. They came on a Thursday afternoon cabinet reshuffle.

Hon. Sue Barnes: Okay. I don't want to waste a lot of time on that, but I'd be interested in knowing why you think they ruled out parliamentary involvement at the commission formation stage, because that's one thing we talked about potentially having here. You're talking about the confirmation stage, but there seem to be two stages where you could provide input.

Dr. Kate Malleson: I don't think I can answer that, because it was something I've argued for very strongly over the last few years while this debate has been going on. I have actually engaged with the current Lord Chancellor on it, and I have not had any explanation as to why that was rejected.

I suppose the answer is probably that there was a concern about politicization, that there was a sense that you shouldn't have politicians involved in the process. But I think that was not a very well-thought-through rationale.

Hon. Sue Barnes: I'd like to ask my other questions, but because this witness has to go, I'll cede to others.

The Chair: Thank you.

Questions for Ms. Malleson...?

[Translation]

Mr. Richard Marceau: You said that, in South Africa, appointments to the Supreme Court are done through a public process. In that regard, I would like to know whether there are some types of questions that are not allowed. Would you say that the way in which the South African commission has worked up till now would be a good argument to counter statements by those who believe that such a process would necessarily turn into some Bork and Thomas type of legal proceedings as happened in the United States.

[English]

Dr. Kate Malleson: The answer to both of those questions is yes. There are guidelines that the judicial services commission itself constructed about what could and couldn't be asked. They're quite general guidelines, but they're especially about anything that invades the personal privacy of the individual candidate.

That said, what's quite interesting is that the candidates themselves have sometimes used the public hearings as an opportunity to present information about themselves, which they want to be in the public domain because they know that it will come out. They want it to be released in a controlled manner.

The particular example I'm thinking of was one of the current justices, Edwin Cameron, who is HIV-positive. He knew that the media were going to release that information at some stage, and he used that public hearing as an opportunity to let the commission know about that bit of information. They then appointed him. In a sense, that was a very successful way of dealing with that problem. But the commission itself would never have asked him, and they would never have been allowed to ask him about his HIV status, for example.

They only ask very general questions about ideology. The only one I can remember that they asked at the time I attended was their view on the death penalty. Of course, in America it might have been a deeply controversial question, but obviously this was after the Constitutional Court had already struck down the death penalty, so it was in fact a very uncontroversial question, to which they all answered the same thing.

The kinds of questions they asked were things like their views on diversity in the judiciary, and what steps, if any, were necessary to improve diversity. Obviously, in South Africa that is a vitally important question. There were many interesting discussions about that.

Certainly the interviews have not degenerated in the way that was feared when this system was set up.

» (1710)

The Chair: Ms. Barnes, another question. We have a couple of minutes.

Hon. Sue Barnes: Here in Canada we have the federal level and the provinces and territories. Obviously, our Supreme Court has an impact on what the law will be across the whole country. Even though there are different jurisdictions, vacancies occur in a geographic manner, so you may go to one region of the country to fill a position.

Where in the process and how are the regions consulted? I realize that in Great Britain you don't have the equivalent of the states in the U.S. or the territories. Is there the equivalent of an attorney general in Scotland, Ireland, or Wales who is consulted, and who does this consulting?

Dr. Kate Malleson: That is becoming much more important. It's quite clear that for the Supreme Court, the conventions that there be Scottish and Northern Ireland judges are now absolutely entrenched. There may even be a convention that there should be a Welsh judge on the new Supreme Court.

There are two ways in which their input is fed into this system. One is that under the new commission, there will be a member of each of the three regional commissions. So Northern Ireland, Scotland, England, and Wales will, as it were, have a place at the table on the Supreme Court commission. Secondly, it is expected that when names are being considered to go forward to the commission, there will be consultation with, for example, the chief justice in Northern Ireland, the senior Scottish judges, and the Welsh judges about the suitability of the names being thought of or any other names they would want to put forward.

Hon. Sue Barnes: Up until your current reform, how secretive was the process? We recently had our justice minister come before the committee and set out the protocol. People didn't know what happened. For all they knew, a name was picked out of a hat.

Dr. Kate Malleson: The whole system was until recently deeply secretive. Much of the criticism concerned the secretive nature, particularly what were often called the secret soundings, the process whereby senior judges were asked their views about candidates effectively in secret, and nobody knew who had said what about anybody. At the lower levels there has been tremendous formalization and much greater openness over the last few years. But when it comes to the top judges, it still is very secret. For example, we do not know what the relationship is between the Prime Minister and the Lord Chancellor. We do not know, for example, which prime ministers, if any, have rejected the choices offered by their lord chancellors. We don't know whether lord chancellors have put forward lists from which the prime ministers have chosen or how they've gone about the process.

Hon. Sue Barnes: So just putting forward the protocol sheds some light on it and provides transparency.

I was interested in your point about the education of the public. You were using the situation of the questioning of individuals as an education of the public. What about going over the protocol and the reasoning for it, would that be seen as education?

Dr. Kate Malleson: Yes. We've had increasingly a process whereby, for example, the selection criteria have been formalized. Originally, there were no formal selection criteria. There's still much more debate to be had about that, and the public nature of that debate has been very important.

» (1715)

Hon. Sue Barnes: Thank you.

Ms. Resnik, I would like to ask you about this, because obviously our constitutions are different.

Am I out of time?

The Chair: No, not at all. We're just trying to manage the time that Ms. Malleson has. I hate to burden the public record with these travel details.

Two other members have indicated that they'd like to ask questions. Make them very short questions, please.

Hon. Lawrence MacAulay (Cardigan, Lib.): If a suggestion is made to the Prime Minister and the Prime Minister turns that suggestion down, do you feel that should be public knowledge?

Dr. Kate Malleson: Do you mean in the British system?

Hon. Lawrence MacAulay: Yes.

Dr. Kate Malleson: The difficulty with that is the issue of the confidentiality of the names. That's one of the issues we're grappling with at the moment. If, for example, a list of names is put forward--

Hon. Lawrence MacAulay: But I said one name. If that one is turned down, that would be made public, wouldn't it?

Dr. Kate Malleson: If we go for a system, you mean when there's only one name. Yes, then on that basis, it's quite clear that the system will have to be, because this is written into the legislation in relation to the English and Welsh commission, that the minister—because it won't be the Prime Minister, I should articulate this—under the new system will be the Secretary of State for Constitutional Affairs. The Prime Minister will have nothing to do with the system. If the minister turns down that name, the minister under the current provisions must give reasons for doing so.

What is not yet clear is whether those reasons will be made public or not. I myself am quite torn about that, because on the one hand I can see strong reasons why they should be made public. On the other hand, I am concerned about confidentiality for the individuals involved. One possible solution that's been put forward, and this wouldn't work at the Supreme Court level, is that the commission would make an annual report to Parliament in which it would articulate how often the minister has rejected names put forward and in general terms the reason. But it would try to do it in such way that the individuals involved couldn't be identified.

The Chair: Okay.

Mr. Sorenson.

Mr. Kevin Sorenson: Actually I think I've been working so close with Mr. MacAulay for the last few years that he asked the very same question I was going to ask, and that was about when it should become public. But the reason I would ask that is you did mention, or one of you mentioned, that the majority of the debate has already been passed. So everything is kept within the commission. Nothing is ever made public. Maybe I'm mixing the two up between the Americans and others. But do you bring candidates forward and the public not know who is being questioned with regard to some of these appointments?

Dr. Kate Malleson: Do you mean is that the proposal in the U.K.?

Mr. Kevin Sorenson: Yes.

Dr. Kate Malleson: The answer is yes.

Mr. Kevin Sorenson: That it would not be public.

Dr. Kate Malleson: Much like your Ontario committee, which goes to great lengths. We heard from Peter Russell, the first chair of the Ontario committee, the extent to which they set up in hotels, with candidates coming in one door and other candidates leaving from the other door, so that candidates wouldn't see each other and know who was being put forward. The proposal in the U.K. is it should be the same.

Mr. Kevin Sorenson: Are all these appointments usually judges from lower courts? Is that the way? Or are they people from firms? We've talked before that perhaps people who are involved in prestigious law firms don't want it out that they want to be considered for a judgeship because it affects the firm.

Dr. Kate Malleson: We don't have that system yet, but if and when it goes through, you're absolutely right, it will be confidential at all levels. The idea is that for both the Supreme Court and High Court and recorders and district judges, that part of the process will be confidential.

Mr. Kevin Sorenson: Would the Prime Minister or whoever does the appointing know that this wasn't unanimous at the committee? Would they know these were the arguments—it was a split committee or it was a vote of one to twenty, or a vote of eleven to nine? Would the Prime Minister know that?

Dr. Kate Malleson: No. All the minister will know is the minister will receive a name that is being put forward, or in the other system two to five names—we're not yet clear which it's going to be—and the minister will also receive the details of the other candidates who are considered appointable but not chosen. The minister will be able to reject the first name but will have to give reasons. The minister will be able to reject only if the minister can give reasons that one of the other candidates who was on the paper is better qualified than the candidate who was put forward.

» (1720)

The Chair: Thank you.

If your time has expired, Ms. Malleson, if you must go, we regretfully must acknowledge that, and my colleagues want to thank you very much. Your presence in the jurisdiction was a very happy event. It's been very helpful to have you comment on the British and South African systems. Thank you again. I believe staff have made some arrangements to assist you in the departure. Thank you very much.

We still have Ms. Resnik and we have another witness who may be able to join. I don't know how long Ms. Resnik has available.

Ms. Judith Resnik: I am not flying out until early tomorrow morning, so I'm easy.

The Chair: All right, that's wonderful.

I'll just ask the clerk to check with our other witness while we proceed.

Ms. Barnes, would you wish to continue with your time?

Hon. Sue Barnes: I have just one question for Ms. Resnick

Ms. Judith Resnik: If I could add before that, coming back to this question of what you ask, the reason for some members of our Senate, such as Senator Schumer, to want to move toward ideology and philosophy is to move away from the other strategy to try to defeat nominations, which is to look for personal impropriety.

The effort to shift toward law philosophy was an effort to improve the quality of the hearings and to move them from a search for disqualifications at some personal level to a more thoughtful inquiry into where are we now, who else is on the court. You're joining a bench that has already on it people with particular knowledge bases. Some may have been in government, some may not. Some may have had great experience with states, and others may not.

This idea of contextualizing it and moving it toward a higher plane was the interest in shifting away from what's seen as the search for scandal, to try to give you a more cheerful version of it.

The Chair: All right, Ms. Barnes.

Hon. Sue Barnes: Ms. Resnik, thank you very much. Obviously we have different constitutional systems, different powers, so we're not going to be able to agree on everything. But I would be interested in knowing this. The President chooses the nominee who is put before the Senate, and they have that advise and consent authority. I'd like to know how the President chooses his nominee, and what type of politics, either large or small, go into that.

Ms. Judith Resnik: Let me respond by first suggesting that there are many in our system who, as in your system, are looking for more bipartisanship and for commissions. Senator Schumer, who is the Democrat in the judiciary committee from New York, is arguing that there should be a bipartisan process. Furthermore, the U.S. Constitution says that the Senate shall provide advice and consent, so some within the United States argue that, as a matter of constitutional law, the President ought to seek advice before putting forth a nominee rather than follow the current practice, which is to put a name forth.

The third point to mention is that some presidents have sought advice in advance of putting a name forth, and they have consulted with the chair of the committee within minority parties to try to propose people who would be acceptable to all.

Now, the current process--I'm not in the administration, so I can tell you what the impression is from afar--is that the White House provides information about individuals, which is given to other people in the White House. Let me thicken the description a little bit. We have a Department of Justice with a cabinet-level Attorney General, and inside the Department of Justice there have been over the last few decades lawyers who work full-time on who should be our judges, because the system embraces lower and higher court judges. In our system, also increasingly, Supreme Court justices are picked from court of appeals judges.

Suppose I were a president, I thought I had eight years, I wanted you to be on the Supreme Court, and you were currently a lawyer or an academic. I would first put you onto the court of appeals. Everyone else knows that's part of the possible agenda, so the question about whether to go on the court of appeals comes with more freight because you may be en route to the Supreme Court.

In addition to the Department of Justice having a group of people thinking about who should be judges, inside the White House is a segment of the staff who also have in their portfolios the question of who should be judges. Depending on the administration, Justice or the White House people have more or less authority to winnow the list down and generate a group of names.

In the United States there are researchers who have looked at all the people who have been appointed. In our system, most of them, if they're Republican, may have Republican résumés with activities related to the Republican Party. Or there are certain private lawyer-based organizations, one called the Federalist Society. Being a member of the Federalist Society may well position you for a potential selection to a court because that organization is affiliated with a lot of the agendas that were put forth under the Reagan-Bush agenda plan about how to change the content of U.S. law.

One part of the selection process when a president wants to change the meaning of law is to look at who these people are, what affiliations they've had, and what their attitudes are toward law. The current President of the United States, when he was running, ran on the platform that he would look to choose judges and justices like Justice Scalia and Justice Thomas; that was part of his campaign promises. I think many people believe he has endeavoured to fulfill those promises and has selected judges who share those points of view.

There is an actual formal questionnaire the government gives to nominees. They are concerned, for example, about whether people have paid the right kinds of taxes, have paid taxes for their employees, because that became a topic in a nomination some time back. In addition, there are informal soundings, what we would call consultations, with a host of who-you-call people.

There are chapters in this book that go from Truman through the present president. Who called whom? Who said what about whom? Why did they think so-and-so was or was not good or bad in light of it?

There are also views about conformability. For example, some people think the United States Supreme Court would be better if there were greater diversity. A president may say, gee, I need to find a person with a certain set of demographic characteristics; I need a westerner, I need a this, or I need a that. Some of it is regional, some ethnic, some religious, and some about women or men. Sometimes it's a combination: I can deflect opposition from group A if I pick a person from their group who has view B.

» (1725)

What I'm trying to help capture is that this is quite an intense political activity in the United States. When you create structures that embed politicians who have to get elected and you have debates about what the meaning of law should be, you can generate a system of judicial selection that feels very political and very partisan. If you don't want that system, you're going to have to back very far away from immediate political engagement.

I think I should add that in our system, as I mentioned before, the people who take some of the heat over these fights are politicians running for re-election. It's an issue in re-election campaigns in the United States, which justices you did or did not support.

The Chair: I will, perhaps, if it's possible later, ask Ms. Resnik to connect the dots between the dynamic she has just described and the indirect impact of that on political campaign financing, just so we can be aware of it, because we can learn from this. I had the benefit of speaking with her yesterday about this, and it was very interesting.

In the meantime, before we go there, I'd like to introduce to colleagues Mr. William Trudell. Mr. Trudell is the chair of the Canadian Council of Criminal Defence Lawyers, and he is appearing today to comment on our subject area.

Welcome, Mr. Trudell.

As we have with other witnesses, we'll offer the usual ten-minute period for a presentation, and then we'll go to questions.

» (1730)

Mr. William Trudell (Chair, Canadian Council of Criminal Defence Lawyers): Thank you very much, Mr. Chair.

On behalf of the Canadian Council of Criminal Defence Lawyers, I'm very grateful to appear before the committee.

I want to start off by apologizing. We prepared a brief, but I wasn't able to get it translated. My apologies to the French-speaking members of the committee. We tried to get something tangible, and I've left it for anyone who wants to look at it.

The brief that we've left is only a little background about the Canadian council, which I'm sure the committee is now familiar with. We've been here a number of times.

I'd like to say that the process for Supreme Court appointments must not be political, embarrassing to candidates, or publicly invasive. Although many in this country feel that the existing process has worked, the Prime Minister should be applauded for an attempt to fashion a more reliable process. However, it should not be public.

A public parliamentary committee questioning potential candidates will be, in essence, a political one, shaped by regional, constitutional, and camera concerns. The indirect question will lead to speculation in the press and in question period. No one who respects privacy or wants to protect loved ones, associates, past mistakes, or insecurities will want the job. Every decision they make on the bench will be compared to their performance before the committee.

Criticism of the judiciary and judicial activism has been in vogue in this country. It will continue with a personal bent. Did Madam Justice say that before the parliamentary committee? How can she now join in this judgment, etc.?

It is inevitable, we submit, that the erosion of dignity, respect, and complete independence of the court will follow such a process. There is another way. The judicial appointments process of the province of Ontario, which you've heard mentioned here today, may be an example.

In Ontario, vacancies develop and candidates apply. A comprehensive application form is reviewed by 14 members of a committee made up of three lawyers, three judges, and eight laypersons. The key is confidentiality. The applications are screened, discreet inquiries and references are checked, and the committee then selects a number of candidates for interviews.

Once the interviews, not in public, are conducted, where a committee member can ask any question of a proposed candidate, the candidates are ranked and a list is sent to the Attorney General, who must select from it. The committee looks for exceptional qualified candidates, and the screening process is remarkably effective, thorough, and candid.

When the Attorney General selects, he or she is selecting from among a group of candidates whose backgrounds, beliefs, reputations, competence, and capabilities have been examined, checked, and ranked. The committee is representative. Indeed, lay representation outweighs those who work in the industry, and a balance emerges. The applications are detailed, the interviews are candid, and the committee's deliberation is thorough. Although confidential, the selection process is clean and above reproach.

The Canadian Council of Criminal Defence Lawyers suggests that the parliamentary committee consider a similar process. We are proposing the establishment of a permanent appointments committee, involving a confidential interview process.

The committee could be composed of a representative from each party in the House of Commons, as long as that party has a certain number of seats; a nominee from the Senate; three representatives from the practising bar; one judge, perhaps nominated by the judicial council; and three laypersons appointed by the Prime Minister. A chair would be selected from among the parliamentarians.

The rest of the process could remain the same, as set out by the Honourable Irwin Cotler before this committee. Potential nominees that the Prime Minister is considering would then be referred to the committee after they have been approached as to their interest. Those candidates would be asked to complete a standard questionnaire.

We've included the type of questionnaire that is used in the province of Ontario and in the federal appointment process in our material. Forms currently used, a form prepared by the committee, might be used by these prospective candidates.

Potential nominees would then be interviewed in camera by the committee.

» (1735)

Based upon the information provided, the committee could either recommend or not recommend a candidate, using their own rating system. The list of recommended candidates would be sent to the Prime Minister, who would then decide on the ultimate appointment to the court.

That person's application form and any notes would be destroyed by the committee members. The entire process would be confidential, and committee members would be sworn to uphold that principle.

The non-parliamentary and Senate members of the committee would serve for five years, thus providing some continuity, given changes that may occur because of electoral defeats.

This type of process avoids the Clarence Thomas circus that we've heard about, public embarrassment, the question that should not be asked, and political grandstanding. It does offer dignity, public input, accountability, and respect for our institutions and for those who may eventually serve on our highest court. It also maintains the existing selection process, as set out by the Minister of Justice, but adds a screening mechanism.

That, in essence, Mr. Chair, is what we are proposing. In the interim, I know that the committee perhaps has a more pressing problem, because there are two appointments that have to be filled in June. If we are asked, we may have some ideas in that regard.

What we're saying, then, is that the minister can do what he is doing now, to consult across the country with the people who the minister consults with. Then persons who the minister wants to recommend would be asked if they are interested, and then they come before a committee where questions can be asked in camera.

I must say to you that having served for five years on the Judicial Appointments Advisory Committee in Ontario, it is a remarkable system of confidentiality. It is a remarkable system of balance. It is really quite remarkable that at the end of the day the committee reaches unanimity in terms of candidates, and it seems that the system has worked very well in the province.

I commend those kinds of ideas for the committee's consideration.

The Chair: Thank you very much for that thoughtful presentation.

Now we'll go to questions or resume questioning as members think fit.

I did ask Ms. Resnik if she would comment on the linkage between the existing Senate confirmation process in the U.S.A. and political fundraising—but I didn't want to destroy the continuity of Mr. Trudell's evidence here.

Perhaps we could go to Ms. Resnik, and then I'll look to any of the members who want to put questions to either Mr. Trudell or Ms. Resnik.

First, Ms. Resnik, on the campaign financing.

Ms. Judith Resnik: Because judgeships have become political issues, people campaign on those platforms.

The traditional story of judicial independence is one that says “We've got to be scared about the executive and the parliament leaning too hard on judges”. I think the 21st century has to say “We have to be worried about the role of the media”—which didn't exist in the way it does now—“and we have to be worried about special interest groups”, who have views about issues that judges decide. The example coming from the United States is that identified groups, such as the Chamber of Commerce, have poured millions of dollars into the elections of judges, into campaigns, and into advertising. The money pouring in has been very well documented by a political scientist named Anthony Champagne. The Association of Trial Lawyers of America has put in money as well, so people try to get their folks in.

Our conversation yesterday was also to the point. The vividness of campaign financing is seen where there are elections, but where there are not elections, groups that care about people who are nominated can do things other than donate to elections. They can create media campaigns about a person or ideas or issues. We've seen energetic efforts from groups affiliated with a host of different issues on different sides, to try to increase public awareness. This is a public awareness and education campaign; it's to say “Care about who your judges are, and help get so-and-so on or off the bench”.

The money on the federal side isn't directed initially to the election of a particular judge, because we have selection, but it is directed to campaigns about the issues that person represents. Once people in Parliament, or in our Senate, take positions...because we don't have as much campaign regulation as you have, they become identified with certain points of view through their positions on certain judgeships, and either become targets or champions.

So the closer you link it to a parliamentary process, the more the people who will be seen as accountable may be the people standing for election.

» (1740)

The Chair: Good.

Mr. Cadman.

Mr. Chuck Cadman: Mr. Trudell, you indicated that if you were asked, you would have some ideas possibly on how we should deal with the two appointments coming up. I'll ask the question, then.

Mr. William Trudell: One of the things I'd like to say--and it has already been reflected by my colleagues from the United States and England--is how respected the Canadian judicial system is. Right now, as the International Criminal Court is going forward and with the formation of the International Criminal Bar, the Canadian judicial system is looked upon as a leader, and our assistance and guidance is sought. In the interim, I think it's very important that you go as slowly as you possibly can.

With respect, I know that perhaps this committee is part of a comment about a democratic deficit. But I don't believe, with the greatest respect, that when we're talking about an appointment to the Supreme Court of Canada, we ought to mix politics with that important role.

Right now, however, we have a unique situation whereby two vacancies have to be filled. I would suggest on behalf of the Canadian council that for the interim, a subcommittee of this committee, or indeed this committee, be expanded to include members of the public, perhaps three; former justices of the Supreme Court--for instance, former Chief Justice Lamer or Mr. Justice Cory, and I noted and read former Madam Justice Claire L'Heureux-Dubé's testimony here; and a member of the public who is well known--let me throw out a name, someone who is well recognized as kind of an ear of Canada, such as Rex Murphy. I would suggest that this committee then interview the Minister of Justice.... I note, Mr. Chair, that you're smiling, but in search of names while on the plane, I came up with that one.

I would suggest that this committee could expand its representation to involve certain persons from the community who are not parliamentarians, perhaps representatives of the bar, and then examine the Minister of Justice in camera as to the reasons for the appointments the Prime Minister is proposing. If you did that on an interim basis, because these positions have to be filled, you would protect this issue of whether the hearing and details about a person should be public. You will expand and include members of the public, laypersons, and perhaps members of the bar and other judges in this interim step until you decide whether there should be something more permanent.

The minister has offered, if I read his testimony properly, to come back to this committee. It may be with the interim expansion of the representation of the committee. You may ask the minister in camera why and how he and the Prime Minister have considered the candidates and what kind of information they gathered, following along the examples he has given to you about what our government looks for in a candidate.

Then there's some parliamentary involvement and some accountability and the public is involved, but you maintain the integrity of the independence of the judiciary. It may be that you decide eventually that parliamentary involvement in public hearings is not the way to go. It's an idea that we offer for this interim period when two appointments are going to be made.

I suppose that when you're now dealing with the whole picture, some out there may not be satisfied if the government just appoints. We have to say--and I'm really delighted to hear our colleagues say it--that the Supreme Court of Canada is well respected.

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It is obvious that when the appointment is coming, all of us cross our fingers and hope that it's done right and the candidate is a good one. It always has been like that.

The Chair: Okay. That was well put.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): I have a question for Ms. Resnik.

You have described for us how institutions or organizations campaign on behalf of a certain candidate. They try to pick someone who has an ideology or philosophy that would be advantageous to their positions. It would suggest to me that judges who have won their positions in that way potentially make decisions based on a particularly general, very wide-based political ideology, as opposed to what's right or wrong in a specific decision.

Have I portrayed what you're trying to tell us? If so, what do you think of that?

Ms. Judith Resnik: Depending on the kind of case, one's general views matter more or less. The more the case is fact-intensive and narrow or specific, which therefore means more on the lower court end, there may be many cases in which my world views on whatever are not going to drive particular decisions under the rule of law. When you come to higher courts, and sometimes in lower courts, there's a range of decision-making possible under an injunction to provide equal protection of the law, and their interpretation matters. When people are selected to be judges, they bring to bear their prior history and then make judgments.

In a system where someone can sit for a very long time as a judge, one hopes and one finds that views change over time because you learn on the job. You can see that in recent years for certain Supreme Court justices, a couple who have died. For example, Justice Blackman is very famous for having thought about the world in one way in his early years, and as he judged for longer he actually changed his mind on some of the issues he thought about as he learned more as a judge.

We aspire to the idea that judges really do take each case as it comes. We want to have a culture that makes it more true than not, while at the same time, knowing that where they come from will affect how they see the problems.

That's a somewhat long-winded way of answering that sometimes this intensive selection process yields people with more narrow views than I personally would hope. There are other instances when it yields people who have not been predicted correctly about. Sometimes one of the current justices who is appointed is seen to have disappointed some people who thought he would be of a particular persuasion, so some of those partisans redoubled their efforts.

I would wish we had a system in which we could both understand the social and political nature of judging and hope for people who would be warm and wonderful people, who would listen really hard, who would be open, and who had a sufficient consensus about shared values that they could then apply them in a collegial fashion. I think you can do things in a judicial system to make it more or less true so that you have an interdynamic system.

I think it's a great benefit to have a court that is not only a constitutional court. We also have not only a constitutional court. A constitutional court means the people who sit on it only know a narrow part of life, the hottest button issues, and that world. A court that does a lot of ordinary law has to learn and know more. I would think those judges would be better judges because of it. I think it's more helpful to have a court have less discretion in picking what it will decide.

My view in terms of the role for Parliament and Congress is to set agendas, not to take jurisdiction away, but to give mandatory jurisdiction to be sure your judges rule on issues you want them to rule on.

I also think there ought to be an end game. I think sitting for 30 years is a problem in a democracy. I think you need change. I can think of a variety of structures that will help educate judges, constrain judges, oblige judges within the confines of adjudication, and ideally lower the sense that everything they decide is a constitutional question of enormous import.

It's not true with the U.S. Supreme Court either, even with only 80 cases. A lot of their cases are statutory, some of them involve common law rules. It's a much richer story than the part the press and others see from a distance.

» (1750)

The Vice-Chair (Mr. Chuck Cadman (Surrey North, CPC)): Mr. Sorenson, for three minutes.

Mr. Kevin Sorenson: This question has been passed to me, and it's a good question, I think. It deals with legitimacy.

For Ms. Resnik, do you believe Supreme Court judges are more legitimate because they've been vetted by the Senate, or are they too identified as now being either a Republican judge or a Democratic judge? Does it affect legitimacy?

If you'd answer that one first, and then for Mr. Trudell, is our Supreme Court lacking in legitimacy?

Ms. Judith Resnik: When I sit inside the United States, in our current situation, I make the argument that my Senate should be all the more active and that what we see is a Senate that doesn't have the stamina to look as hard and long as it should, that there's too much deference to the President in terms of picking people. It isn't because I'm conferring legitimacy on the people picked; it's because I'm attempting to moderate the partisanship of any particular president.

The vetting process and the role of the Senate alters who's confirmable--not enough from my point of view, but it could--and when it does, it ideally brings people toward a more middle range.

For example, if it took 60 votes over the last 12 years or so, you'd only lose six people. If that's how deep.... Most people go through, fine. But I would also want my President to consult my Senate before they put people up, as well as afterward. So I would like to move to a place that could use the two-branch system to increase legitimacy.

I don't think, in terms of decision-making, the activity of the vetting increases legitimacy. And over the last several years, increasingly we are seeing in the newspapers reports of decisions that include the party that appointed the judge as a description of the judge who made the ruling. That's been a change over time, and I think it's an example of a negative effect. It isn't just a negative effect of the Senate vetting; it's a negative effect of the interaction between the President and the Senate.

» (1755)

Mr. Kevin Sorenson: One would imagine that if the Senate is coming with names the President has already said “These are the ones I want you to consider” or “This is my choice; if you're going to be a good Republican”--or a good Democrat--“make sure that is the recommendation or that is one of the short list of people we may be considering.”

Politics plays into it so much.

Ms. Judith Resnik: In the current system, the President says “I'm nominating so and so”, and then the Senate has a role. In earlier eras, some presidents went to the Senate and said “I'm thinking about nominating so and so. What do you think?” That's one kind of role.

Senator Schumer is proposing that the Senate and the President and the two parties develop a commission--now we're back into a commission story--to try to back away from this very partisan position, both the Senate and the presidency.

The legitimacy issue is the question of whose legitimacy is at stake. I very much worry that we're starting to see judging more as a kind of roll call rather than as embedded in records and in obligations drawn from a particular case. So I think it would be better for our court to decide more cases, to decide a broader range of cases, to have mandates to do so.

I guess I should add that in the United States, not all of our appellate decisions are actually published and written. Some of our judgments are made without great explanation. I think there are a lot of ways we could increase the legitimacy of decision-making through more explanation.

The Vice-Chair (Mr. Chuck Cadman): Mr. Sorenson, you asked Mr. Trudell a question. Could you let him answer, and then we can come back to you.

Mr. Kevin Sorenson: Okay. I'd better write this down.

Mr. William Trudell: We're in a very interesting time in this country. I think there's no question about it for those who work in the industry and those who are involved in litigation: we would say the Supreme Court of Canada is very legitimate.

What is the problem here? The problem seems to be the charter, which is still growing, still being developed, still being interpreted. It's called a living tree, and there are only a few branches on it.

The court has been placed in a position to interpret the charter, and suddenly the press or various interest groups, whoever they may be, are saying, “Who are these people? Why are they saying this?” There is this optical attack on the legitimacy of the court. Those who can step back from it understand that the charter is very important, but it's going to take years for the charter to unfold.

What happens then, of course, and what seems to have happened recently, is that the Supreme Court justices have to speak out a little bit to say: “This is who we are, and this is all we're doing. We're not making law; we're interpreting the law.” But there are sometimes questions raised in question period about the court being proactive and actually making law; therefore, this storm has developed. Now we're looking at deciding whether there is a problem or whether it's optics.

My respectful submission to you is, optically there may be some suggestion it doesn't look legitimate because the Prime Minister appoints these people. We now know he just doesn't pull the name out of a hat. There is a consultative process throughout the country. I think if the public knew that, then the optics of illegitimacy—not to be able to find another phrase—would be controlled somewhat. This is why our proposal here offers a balance, so that there is some accountability and some questioning of the prospective candidate to the Supreme Court.

I hear what my friend is saying about the politicizing. It depends on what you want. We in this country, with respect, don't want a political court. We don't want a court, in my respectful submission, that looks as if it is Liberal or Conservative or Bloc or NDP in its bent. Openly questioning the optics in Parliament then will become much more pronounced.

My answer to the question is we have an optics problem here, as opposed to a real one.

¼ (1800)

The Vice-Chair (Mr. Chuck Cadman): Monsieur Dion, you have two minutes.

Hon. Stéphane Dion: Mr. Trudell, I would like to thank you for putting on the table a variation of the idea of an advisory committee. You have designed it differently from what we have heard so far, especially from the bar or from Madame L'Heureux-Dubé. I would like to hear your comments on these variations. Do you know the model, or do you want me to highlight the differences?

Mr. William Trudell: If I understand the Canadian bar model, it is an advisory committee—

Hon. Stéphane Dion: As yours is.

Mr. William Trudell: —but I did not understand that the advisory committee would have the right to interview the prospective candidates in camera. I thought Madam Justice L'Heureux-Dubé was saying the same thing.

Hon. Stéphane Dion: No, she's open to interviews, but they were not. There are differences between them.

Mr. William Trudell: Our position is that we feel the public interviewing of prospective candidates doesn't serve the purpose. It will create problems.

Let me give you an example of a question someone may ask a prospective candidate in public: “What do you think of Mel Gibson's The Passion of the Christ?” Now, what's the answer to that question? If a prospective candidate to the Supreme Court of Canada says “I thought it was a brilliant movie”, there is some feeling in the country that the movie is anti-Semitic. If the person says “You know, I thought a bit that Caiaphas wasn't portrayed fairly”, what is this person saying? It's a very simple question about a movie.

Hon. Stéphane Dion: I didn't see the movie. It's too bloody for me.

Mr. William Trudell: My point is that leads to all kinds of speculation and all kinds of uninformed comments in the public, and in my respectful submission doesn't help. But in an in camera hearing you may ask, if you're a member of the committee, what did you think of The Passion of the Christ, or what do you think of the issue of anti-Semitism in that movie, and that person will answer the question.

We don't want to know how a judge is going to judge a case. We don't want to know what their decision is. We want to know that they have an open mind, and that they're not going to get judge-itis as soon as they get there.

Hon. Stéphane Dion: I think everybody—yourself, Justice L'Heureux-Dubé, the bar—agrees it should not be public. The differences are elsewhere. First, you suggest that the Minister of Justice keep a role in order to pre-select candidates that the advisory committee will consider. They are suggesting that the advisory committee make its own list and decide who they want to look at—or to interview, in the case of Madame l'Heureux-Dubé. Is it important for you that the Minister of Justice keep the role to have a pre-selection?

Mr. William Trudell: When we looked at it, we thought the system as it works now is not a bad system; it's optically open to criticism. We believe the Minister of Justice, because the Minister of Justice may be placed to contact the people he referred to when he was before the committee—perhaps the senior judge in the province, perhaps the leader of the bar in the province.... The Minister of Justice is, in my respectful submission, well positioned to make the inquiries initially throughout the country, rather than a committee throughout the country, which may have to be expansive. We don't have any difficulty with the minister doing the first inquiries and making the recommendations, but then there would be a role for Parliament and the public.

¼ (1805)

Hon. Stéphane Dion: I would question—

The Vice-Chair (Mr. Chuck Cadman): Quickly, Mr. Dion.

Hon. Stéphane Dion: I will come back, but the differences are important at each step, because if we go to recommend an advisory committee—

Hon. Sue Barnes: I will give you my time.

Hon. Stéphane Dion: Okay. I will come back.

The Vice-Chair (Mr. Chuck Cadman): Mr. Sorenson.

Mr. Kevin Sorenson: This is just going back to the question of protecting legitimacy. Also, Mr. Trudell, I can't remember the context of what you had said regarding optics. You talked about the optics of question period and the optics of what the appointee may look like, but there is an optic in the general society out there that we have much more activism among judges.

I think five years ago people hadn't thought too much about judicial activism, but as you've already stated, with the increase, the charter, the courts stepping in and saying we have a responsibility here—perhaps not only to interpret law but to step in to make some fairly significant suggestions as to certain rights that they see being missed out—we have much more judicial activism today than we've ever had in the past.

Does this judicial activism throw into question legitimacy of the courts? It certainly does, given the number of letters I've received as a politician. As a politician I'm very much concerned about the politics of courts, because people are saying it's not so much to blame the judiciary; it's spineless politicians sometimes who are quite willing to stand back and watch the judges make the decisions and build law and then be basically unaccountable. I get a lot of letters about people concerned about judicial activism.

This is to both of you.

Ms. Judith Resnik: I would actually wish that our vocabulary didn't use that term, because every time a judge makes a decision, they're acting. If they decide there isn't a right under the charter or if they do, each of those decisions is an act.

The idea is that at least in the United States experience, our judges have sometimes been a little ahead of the curve, and sometimes our federal system judges have been quite behind the curve, seen as holding back the country. The big fight in the 1930s and 1920s was our federal judiciary was anti-regulation. It took the New Deal.... The major federal regulatory programs were authorized only as the judiciary changed its composition.

With respect to your constituents, one response is we gave them this odd job. We asked them in individual cases to help us interpret the meaning of a particular set of rights. Particularly in terms of charter rights, you write them at a level of generality that will always require some elaboration as applied to particular instances, and you don't want to lock it in at a level of specificity. It will do harm, not good, to be too specific if you are constitutionalizing something.

If you disagree with the positions that are taken by judges, the question is if they're making a constitutional ruling, you're stuck unless you have your override. And your override looks, from the U.S., like a wonderful way to respond to the real split, were one to occur, between judicial rulings and parliamentary vision. Because when the split is high enough, the political stakes in the Parliament will be to use the override, and when they're not, it's because you're in a moment of transition where there's conflict.

If you go to the decision in the United States that says that all people are equal, blacks and whites can't be segregated. At the time it was decided it was a huge conflict and plenty of politicians would have lost their seats. People fought about it and fought about what it meant to say “desegregation”. Today, there isn't a person in the United States who isn't embarrassed that we have a history of segregation, and that was only 60 years ago.

That's the role we've asked judges to play. We have to see it as a part of the democracy that says we want to make some promises to do things that in the short term are going to be painful and unpopular.

¼ (1810)

Mr. William Trudell: I think there's a real concern that we ought not to be seen to be trying to rein in the Supreme Court. We as people in the industry and you as parliamentarians have to say to those people who react to judgments of the Supreme Court, “Wait. We're looking at the larger picture. Our world is changing so fast.”

Sure, there will be criticism of the court, but quite frankly judicial activism--and that's the word that's used--is what they're doing. They're active in interpreting the charter. Every day in my practice I'm going to look at a case and I'm going to look at the charter issue, and some young lawyers only look at the charter and forget about the merits sometimes. So the court is in this terrible yet wonderful position where they're being asked to respond to increasing changes in our world, from fetal rights to issues of abortion to same-sex marriage. It's unbelievable.

If we go back ten years, I think the court has always been judicially active. But the stream of problems and individuals who are saying it's my right, I have a right to do it because of the charter, hasn't been as monumental. The flow hasn't been as tumultuous as it is now.

I would respectfully say to you that we have to be very careful that this committee isn't perceived as trying to rein in the court. As to the letters that you get and the complaints that we as defence counsel get and that judges and our academics get, what we have to do is try to educate the public in terms of the bigger picture—what's really happening here—as opposed to a response that changes something that really isn't broken.

That's why, Mr. Dion, we don't think there's anything really the matter with the system right now and the Minister of Justice making the first proposals. But what we're saying is let's allow Parliament and the public to screen it in a way that both respects privacy and also permits the hard questions to be asked.

The Vice-Chair (Mr. Chuck Cadman): Thank you, Mr. Trudell.

Mr. Dion, unless there's any objection, it will be the last question.

Hon. Sue Barnes: Could I ask something else, Mr. Chair?

The Vice-Chair (Mr. Chuck Cadman): We're at our quitting time right now.

Hon. Sue Barnes: I thought we would go until 6:30.

Hon. Stéphane Dion: I'm not sure, Mr. Trudell, that at the end of the day it will make a big difference. What we have been told—and you will tell me if you agree—is that le bassin, the possibilities, of candidates is well known. Not everybody may be judges at the Supreme Court of Canada. When you start, we have been told there are about 10 to 12 persons considered. So to ask the Minister of Justice to name those people is not so important. The advisory committee will come with the same kind of pre-selection anyway. That is my first point, but it's not my main point.

My main point is that there are differences regarding the composition of the two advisory committees, between the one you suggest and the one the bar is suggesting, and Madame L'Heureux-Dubé.

A difference, it seems to me—though I may be wrong—is that your idea is to have a national committee. It would be the same wherever you decide to go. Their own suggestion is to have something that is more linked to where you have to choose your judge; if it's in Quebec, it's not the same as it is in Atlantic Canada or in the west or in Ontario. It's not the same network. It's not the same, and so on. This is a difference, if I understand it well.

Another difference is that your advisory committee seems to be more political and more linked to the Prime Minister than what they are suggesting. What they are suggesting is to have four parliamentarians, one for each party, or three if there are three parties. They are in the advisory committee, without any link to their whip or to their Prime Minister. They are involved in it with the commitment to work as part of a committee—once they are on the committee.

But in your suggestions, you add to that three laypersons to be chosen by the Prime Minister; a Senate member, who I guess will very likely be from the Prime Minister's party; and a chair to be selected from among the parliamentarians, who will very likely be from the Prime Minister's party too.

The bar has no clear idea about who would chair the committee. I think it's a key decision for us to decide, if we recommend something about who would chair such a committee. Madame L'Heureux-Dubé was suggesting, and insisting, that it be the chief justice herself who would chair the committee, because the chief justice knows the court's needs.

I would like you to comment on these differences.

My last point is about the recommendation to the Prime Minister. You are suggesting a short list, I understand, of maybe three names, or something like that. I think the bar was about there, too. It wasn't clear in their recommendation, but Madame L'Heureux-Dubé was saying let the advisory committee decide; maybe they will come up with a clear person, that “It's clearly this person who we need to recommend to the Prime Minister”. Otherwise, they may come up with a short list. She was reluctant to come up with a straitjacket for the advisory committee.

So you see, there are differences. For us, it's important because the devil is in the details, and we need to come up with something that would be a really good solution for Canada.

¼ (1815)

Mr. William Trudell: I don't know if I can respond to all of them, but let me start with the regional issue.

That's why we feel the Minister of Justice can still maintain the role he has—or she has, depending who the minister is. The minister will contact the local region, will talk to the leaders of the bar, will talk to the law society president, will talk to the chief justice of that court to get some input. When the Minister of Justice comes to Ottawa, he's not in Ottawa, or she's not in Ottawa; she is the Minister of Justice, or he is, for the entire country.

There is your regional input. But then that regional input comes back to the committee. When we talk about the committee.... We started with Parliament wanting to have a role. Our position here is that this committee is represented by four members of Parliament. They represent different parties, which is a reflection of the House of Commons, and they are selected by their particular party.

How do you go about determining who is selected chair? in my respectful opinion, I don't think the chief justice who is sitting at that time should be the chair of an advisory committee. Perhaps a former chief justice might be the chair of the committee. Maybe that is who is appointed by the Judicial Council, because the chair has to be permanent.

When we're sitting in this room, I'm here on behalf of the Canadian Council of Criminal Defence Lawyers. We have representatives in Nunavut and we have representatives in Newfoundland. What you want to be able to do is get that input.

But an advisory committee that is providing names on a regular basis is a bit unwieldy, we think. We think the status quo with screening works, and we think the country and all interests are represented by the makeup of the advisory committee.

We are different in terms of this. You have an advisory committee that is made up of people from across the country. Who appoints that advisory committee? Is it the Canadian Bar Association that decides who is going to be on it? I think you need something more central and more permanent, because you're talking about the Supreme Court of Canada.

¼ (1820)

The Vice-Chair (Mr. Chuck Cadman): Mr. Dion, please.

Hon. Stéphane Dion: Do you want not to see any representative of the attorney general of the province or the region?

Mr. William Trudell: The Minister of Justice, in our proposal, will have talked to the chief justice of the province, will talk to whoever it is on the court of appeal, will talk to the attorney general to make sure of the best candidate from that region. Who better to tell you—and who better to tell than the Minister of Justice—than his equal in the province or the chief justice? We think that covers it, quite frankly.

The Vice-Chair (Mr. Chuck Cadman): Thank you.

Do you want to wrap it up?

Hon. Sue Barnes: Your proposal varies from the CBA's and other proposals in that they were talking about a screening mechanism for candidates involving various participants, including some parliamentarians, that would go for each appointment. As I see yours, it's a permanent situation with perhaps changing parliamentarians. Obviously you have different elections and times and whatever, and maybe some parliamentarians would sit for a period where there was very little activity.

The whole point is that your proposal is to develop a pool of the qualified. Essentially, say if somebody was new on the court of appeal and over a period of five years hadn't applied, somebody could be saying to them, “Go and apply and get yourself screened, just in case anything shows up in Nova Scotia”—or Atlantic Canada or Alberta, B.C., whatever. Then your proposal also says that the Minister of Justice—I just want to be clear that I'm getting it right—then carries on with the screening.

We have heard concerns, especially from some of the opposition parties, about there not being enough provincial input. But that doesn't necessarily have to come in the screening process. It could come in the consulting process by the justice minister as he currently goes and consults, whether it be as currently under the protocol, in my understanding, that he just consults with the one AG from the region in which the vacancy occurs, or otherwise. It has been put to this committee that other people want him to consult with all the AGs potentially, because potentially the whole country would be affected by the decisions of the court as a whole over time.

Mr. William Trudell: I think that's the direction the minister should be given. He should consult with his counterpart in the province. He should consult—and be expected to consult—provincially or in the region in an expansive way.

If you have—and I'm a member of the Canadian Bar Association—an advisory committee, there are optics about who these people are and how they get on it. But if you have something permanent that has a parliamentary representation....

I must tell you, and it's not telling stories out of school, that it's quite astounding how the provincial committee in Ontario, after having been together for a while, has a feeling of confidentiality and respect for the system. And it works. If you are appointed to that committee because you have worked for a party, after you have been in the committee for a while that's gone, because the committee really get struck with the importance of what they're doing.

It's the same thing with the candidate. If you come into that committee, and you go up recommended to the Attorney General, although you might have canvassed for the Liberal Party or the new Conservative Party or whatever it doesn't matter, because you have been qualified. And so be it, because there is no politics before it gets there, or the politics gets screened out.

What we're talking about is something constant, optically identifiable, and understandable, as opposed to something with various input that may be changed so that a member of the public will say “Wait a minute; I know that person on that committee and I know how they got on that advisory committee out there.” Then optically, the industry is left....

¼ (1825)

Hon. Sue Barnes: You're saying the only interview of potential candidates would be as they were screened through, and then the system would operate as it does right now from that point.

Mr. William Trudell: The system first of all selects people after the minister—

An hon. member: With the current process.

Mr. William Trudell: Right, with the current process....

Perhaps expand it. Tell a minister, we expect you to ask more questions of more people in the province. That minister, in consultation with the Prime Minister, approaches these people and says “Your name is being considered for the Supreme Court of Canada. Are you interested?” The person may say no, they're not. If they say yes, then they are asked to fill out an application form in confidence, and they are asked to appear in front of the committee. The committee has the document; they ask whatever questions they want, and then they say to the Prime Minister and the Minister of Justice, we recommend A and B, but not C.

Hon. Sue Barnes: I know we're running overtime right now. I just want to say it's very important that we've had these variations. I don't think there is a member in opposition or in government who wants to come up with something that's harmful to the court--not at all. But we're also serving the public, and we are the elected members of the public. I think there is some light and transparency that needs to be shown. No one expected two vacancies while we were going through this process. In fairness to this committee, which is working hard, we started the process before we knew about those vacancies. I think there is a little bit of concern about what happens in the interim, and I know the process has already started, obviously--the Minister of Justice said it at the committee here--for those vacancies. There needs to be care taken, and potentially in not setting precedents right now. I think this committee is very conscious of trying to improve a system, and I think that's important.

I want to thank you for your contribution. I know it's difficult, especially in a short time.

Mr. William Trudell: Let me just say I wasn't being trite in who I was suggesting might help the committee on an interim basis. You have the benefit of a number of people who have come before the committee, but you have Professor Ratushny, who has a history in this. You have former justice George Thomson, who teaches the judges. On an interim basis, perhaps that suggestion of outside input might help.

Ms. Judith Resnik: If I might just also comment, I hope I've helped to show the interdependencies of the system, so that as you are considering changing.... It seems to me you'd have a daunting task were you to try to change too much too quickly. It might be helpful to think self-consciously that what you want to do is reflect, that the democratic response to your constituents is to say you're in the middle of a big question and your job is to figure out answers that have some longevity, that would be wise and do no harm; therefore, an interim solution of any of these various kinds would enable you to then move to develop, whether it's commissions and compositions.... And there are 14 examples before you, at least, and I think all of us could end up proferring more. To institutionalize something that later will be harder to deinstitutionalize would be to let the urgency of the moment perhaps derail the wisdom of your ongoing inquiry.

The Vice-Chair (Mr. Chuck Cadman): Mr. Dion, very quickly.

Hon. Stéphane Dion: Mr. Trudell, I just want to understand this a bit more. The Minister of Justice would not come with his own short list that he would send to that advisory committee--he would come with all the candidates that may be considered?

Mr. William Trudell: No, the Minister of Justice does exactly what he does right now. Let's say he comes up with three names that might.... Well, we have two vacancies. Let's say he comes up with three names. Let's forget about the province of Ontario right now. Someone from the minister's office contacts those three people and says “You're being considered for the Supreme Court of Canada. Are you interested?” Maybe somebody says no. If they say yes, then they're invited to appear before this committee. The form would be sent to them; they'd fill it out. It asks questions, so the committee would know something about their backgrounds. It's kept in confidence, and they're interviewed. If, of the three, the committee says they don't like one, then the Prime Minister cannot appoint that person.

¼ (1830)

Hon. Stéphane Dion: Okay, I understand better. So it would be a short list from the Minister of Justice.

Mr. William Trudell: Yes, absolutely. It could be five names.

Hon. Stéphane Dion: Or maybe one?

Mr. William Trudell: Maybe one. But if the minister suggests one, and the committee doesn't approve of that one, for whatever reason--it may be a fantastic person, and there would be no problem--then that person does not become--

Hon. Stéphane Dion: Is it possible for the committee to say that this seems to be a good person, but they know that other persons may be qualified too, and they don't understand why those people are not there?

Mr. William Trudell: No. The system is a combination of.... The Minister of Justice gets an opportunity to do his or her job and then put the best names forward.

The Vice-Chair (Mr. Chuck Cadman): Mr. Sorenson, this is it.

Mr. Kevin Sorenson: This comes out of the last question.

If we were to have a very short list, then we're talking about the legitimacy of the committee, because if we are all of a sudden saying no, the Minister of Justice may send only one name forward, then nothing is really changed. Or if we say that he is going to send only three names forward, and the committee can't bring anyone else, nothing has changed. We have a mechanism in place that's a little different, but in all reality, it's basically just a snow job to the public again, that we've made some reforms and some changes when there is no reform.

I think our committee is meeting here because we recognize two things. First, we need change, we need reform, and the public is asking the question of what the process is. As we look at the process, we say perhaps it's too political. Right now it's only the Prime Minister appointing. Yes, he works hand in hand with the Minister of Justice, but what you've suggested now is that we're down to a very short list, three names. We know that the Prime Minister is already going to be talking to the justice minister about what three names they may be--it's very likely.

So really, you're saying that we don't make any major changes.

Mr. William Trudell: I'm saying, with great respect, that it is a major change, because you have parliamentary interviews of the prospective candidate in the committee, you have a former judge involved in a committee that interviews, you have laypersons who may represent visible minorities. This committee is a real change.

Mr. Kevin Sorenson: But even the committee, as Mr. Dion just—

The Vice-Chair (Mr. Chuck Cadman): Could you let Mr. Trudell answer? We're way over time.

Mr. Kevin Sorenson: Yes, but just let me say, even the committee, as Mr. Dion has said, is going to be made up mainly of the government in power, whether it's a Conservative government or a Liberal government. They're going to have the majority of the people on that committee. As he suggested, you'd expect that they would want to have a fairly high input into who would chair the committee.

Mr. William Trudell: How is that possible when you have four members, one of each? I'm suggesting there are four parties. You have a representative of each one of those parties. You have a representative from the Senate. You can work it out whether it has to be the majority leader in the Senate or has to represent the party. That's not necessary. The Prime Minister could appoint these lay people. Maybe you don't want the Prime Minister to appoint these laypersons.

All I'm talking about is diversity. You have the public, former judges, members of the profession, and parliamentarians all interviewing and asking questions in a confidential way and reviewing the Prime Minister's selection.

The Vice-Chair (Mr. Chuck Cadman): Clarification.

Hon. Sue Barnes: My understanding of the pool, as in the Ontario system, is that people can apply to go in. So it's not just the people who the minister would put in. If I'm sitting on a court of appeal or I'm in academia, I could decide I'd like to be screened. Could I not apply to be screened in your system?

Mr. William Trudell: I think that some people actually do write in and say they're interested in the Supreme Court of Canada. Our system, the one we're suggesting, wouldn't allow you to do that.

Hon. Sue Barnes: All right. That's fine. I'm glad I clarified.

Thank you so much, both of you.

The Vice-Chair (Mr. Chuck Cadman): Thank you very much to our witnesses. Thanks to everybody for being short.

We're adjourned.