JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, November 25, 1998

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[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.): I think everyone knows this, but I'll say for the record that the Honourable Goo Arlooktoo, who is the Deputy Premier, the Minister of Justice, and also the Minister Responsible for Nunavut Transition from the Northwest Territories, and two of his assistants were coming. It turned out that he had to go home on the 3 o'clock plane, I understand, because a report on a conflict of interest issue was to be tabled in the Northwest Territories House. He has asked us to advise the committee that they're very supportive of the bill and that they look forward to having it pass quickly, if that's our decision. I have a copy of his brief. He sent a messenger over with it.

As a result of that, the Minister of Justice has accommodated us and has agreed to appear early.

We thank you, Minister. Did you have an opening statement today, or did you just come to answer questions?

Hon. Anne McLellan (Minister of Justice and Attorney General of Canada): No, in fact I have an opening statement.

The Chair: Good. Okay, so we'll accommodate you with that.

Ms. Anne McLellan: But then I'm happy to answer questions.

The Chair: Mr. Reynolds I know would like to put some questions that aren't on all fours with this bill but are in relation to the performance of your department generally.

I thought we'd just hold that until the end, Mr. Reynolds.

Mr. John Reynolds (West Vancouver—Sunshine Coast, Ref.): That's fine.

The Chair: We'll deal with the Nunavut bill first and then we'll deal with that. I assume the minister is prepared to accommodate you on that, and I thank you for the way in which you have cooperated with us.

Minister.

[Translation]

The Hon. Anne McLellan: Thank you very much. Good afternoon, Madam Chairperson, honourable members of the Standing Committee. I am pleased to have the opportunity to appear before you, this afternoon, as you conclude your review of Bill C-57, an act to amend to the Nunavut Act with respect to the Nunavut Court of Justice and to amend other Acts in consequence.

[English]

As you have already mentioned, Madame Chair, my colleague, Minister Goo Arlooktoo, had hoped to be here today, but he's been unable to join us. In fact I had the benefit of his presentation at the federal-provincial-territorial ministers of justice meetings in Regina some weeks ago. It was a very good presentation and a fulsome presentation from one of the leaders of the north and one of the likely leaders of the new territory of Nunavut. It is unfortunate that the committee did not have the benefit of his presentation today.

Perhaps, Madam Chair, you may be able to invite him back at some other point, because it's very interesting, the challenges that exist in the creation of the new territory and the enthusiasm, energy, and vision with which the people of the north, and in particular Nunavut, are embracing this challenge.

On Thursday of last week, as I understand it, my officials appeared before you and gave evidence on the purpose and effect of Bill C-57. I believe they also prepared for the committee a legislation briefing book with clause-by-clause briefing materials. I trust their evidence and the briefing materials were of assistance to committee members. I believe my officials also plan to make themselves available to sit with you for your clause-by-clause review of the bill tomorrow.

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I know the committee has also heard from a full slate of witnesses, including the Office of the Interim Commissioner of Nunavut, Nunavut Tunngavik Inc., Pauktuutit, the Inuit Tapirisat of Canada, and the Manitoba Keewatinowi Corporation. And as I've mentioned, my colleague, Minister Arlooktoo, had hoped to be here but cannot be.

A little later in my remarks, I will have a few comments to make on the evidence you have heard. However, before I do, I wish to highlight for the committee's consideration a number of important points about Bill C-57.

First, it is fundamental for the committee to understand that Bill C-57, and indeed the entire single-level trial court initiative, is not an Ottawa-led initiative but is in fact a response to a request from the leaders of the north to implement a single-level trial court for Nunavut. Members will have had a chance to review the briefing note on the development of Bill C-57 in the briefing book prepared by my officials. As noted there, interest in the single-level trial court has existed for some time in the eastern and western Arctic.

Following a conference in Iqaluit in November 1997—which was organized by the interim commissioner and attended by northern officials, members of the northern legal community, and a large number of northern JPs and court workers—I was asked by the interim commissioner, the Government of the Northwest Territories, and Nunavut Tunngavik Inc. to introduce legislation in the House of Commons to implement a single-level trial court for Nunavut.

Bill C-57 is the government's response to that request. It proposes the implementation of a single-level trial court for Nunavut, to be known as the Nunavut Court of Justice.

Bill C-57 responds to the request made by the people of Nunavut to give them a new court structure that is capable of meeting the challenges of the unique geography, demographics, history, and culture of the new territory of Nunavut. I know I am not telling the committee anything new when I say this. I know these points were made most eloquently by the witnesses who appeared yesterday from the interim commissioner's office and from Nunavut Tunngavik Inc.

A second important point I want to stress is that Bill C-57 was developed in close cooperation and partnership with the people of the north. You have been told already of the working group that was formed to oversee the development of the federal and territorial legislation necessary to implement the single-level trial court. That working group was comprised of officials from the Government of the Northwest Territories, the interim commissioner's office, and Nunavut Tunngavik Inc., in addition to officials from my department and the Department of Indian Affairs and Northern Development.

As you have heard from Rebecca Williams, Nora Sanders, Leena Evic-Twerdin, and others, Bill C-57 was developed as a result of a true partnership between the people of the north and the federal government.

The third point I must emphasize is that in developing Bill C-57, the government made a clear choice to preserve the substantive and procedural rights of parties before the courts to the fullest extent possible in a single-level trial court system.

Bill C-57 deals with court structure. It is not a piece of legislation designed to remove or accord new legal rights. Nevertheless, when you implement a new court structure by establishing a single-level trial court to operate in a legal system that is premised on a two-level trial court structure, there inevitably will be an impact on procedural rights.

This is so because in a two-level trial court system, the superior court, in addition to its role as a trial court, also reviews and hears appeals from some of the decisions of the provincial or territorial courts. When those two trial court levels are combined into one, it becomes problematic for the single-level trial court to hear reviews and appeals of its own decisions. Hence either those rights of review and appeal are lost or the legislation must provide for the reviews and appeals to go somewhere else.

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In the process leading to the development of Bill C-57, a commitment was made that the people of Nunavut were not to have fewer rights than people in other parts of the country simply because they asked for a court structure with fewer levels of trial court. This commitment can be seen throughout the bill before us today. Allow me to highlight two specific examples of this principle at work in the bill: summary conviction appeals and statutory review.

Bill C-57 preserves the current breadth and scope of summary conviction appeal rights for all summary conviction cases in the new Nunavut system. The bill specifies that summary conviction appeals from the Nunavut Court of Justice are to be heard by a single judge of the Court of Appeal, with a second level of appeal to a three-person panel of the Court of Appeal.

Turning now to the statutory review scheme, committee members will understand that the usual forms of review available for decisions of the provincial and territorial courts through the prerogative writs will not be available for decisions of the Nunavut Court of Justice, as it will be a superior court.

To compensate for this, the provisions of the bill will create a new statutory form of review for certain important decisions in the criminal justice process. Just as is the case with summary conviction appeals, the review will be conducted by a single judge of the Court of Appeal, and an appeal from the review decision will lie with a three-person panel of the Court of Appeal.

Madam Chair, I understand that questions have been raised during the committee's hearings about the judges of the Nunavut Court of Justice. As members of the committee will know, I am committed to finding candidates who are qualified, experienced, and committed to the north to be appointed to the Nunavut bench. I am also on record with my commitment to consult the people of the north to ensure that appointments reflect and respond to the unique demands, culture, and conditions of Nunavut.

The north has been fortunate to have a judiciary committed to working with communities in innovative ways to deal with the unique challenges and problems in the justice system in the north. I know these efforts will continue with the judges of the Nunavut Court of Justice.

The legislation before you today, if passed, will create the basic structure of the Nunavut Court of Justice. However, it is the judges and other participants in the system who will have to breathe life into that structure and make it work. It is the commitment and excellence of the people in the justice system that will determine its ultimate success or failure.

I also want to speak for a moment about the timing of the bill. I am sure committee members have heard repeatedly about the need to pass this legislation in time so that the Nunavut Court of Justice will come into being on the creation of the new territory of Nunavut on April 1, 1999. This need becomes even more pressing when one considers that not only must it be passed before April 1, 1999; it must also be passed sufficiently in advance of April 1 to allow the people of Nunavut to prepare the necessary infrastructure and to prepare such essential components as rules of court.

It is for this reason that I urge this committee to give full but expeditious consideration to Bill C-57 and report it to the House as soon as possible.

As I indicated at the beginning of my remarks, I want to make a few comments on the evidence you have heard this week.

First I want to add my voice to those of the witnesses from the interim commissioner's office, Nunavut Tunngavik Inc., and the Inuit Tapirisat of Canada, all of whom have said that the process that led to the development of Bill C-57 should serve as a precedent for the type of open, collaborative, and respectful partnership we hope will become the norm for similar policy development processes.

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With respect to Pauktuutit's concern about Inuit women having a voice, I fully share that concern, but I note that the testimony you have heard from the interim commissioner's office, Nunavut Tunngavik Inc., and the Inuit Tapirisat of Canada demonstrates that Inuit women were fully consulted throughout the process leading to Bill C-57.

I would be remiss if I didn't say something about the testimony you heard from Manitoba Keewatinowi Inc. With respect to the issue raised by them, I can tell you Bill C-57 neither advances nor diminishes the claim they make with respect to land within the Nunavut area. Bill C-57 is completely neutral on this, and hence the passage of Bill C-57 will have no effect on the respective rights of the parties.

I must also say that as the Manitoba Keewatinowi pointed out to you yesterday, their claim is before the courts, and accordingly, I believe I cannot and should not comment further.

Madam Chair, that concludes my remarks. I would be happy to answer any questions members have in relation to either Bill C-57 or other matters, keeping in mind that some of those other matters I have received no notice on, and therefore I may have to undertake to respond in writing as opposed to orally today.

The Chair: We thank you for that.

Colleagues will be interested to know that no notices of amendment have been brought to us, except for one from the New Democratic Party in relation to the Dene claims. That will have to be dealt with tomorrow, but that's the only amendment that's been brought forward at this point, so it could be smooth sailing tomorrow.

Mr. Reynolds, do you want to start?

Mr. John Reynolds: I'll start on this, and if there's time left when we're finished, I'll do something else.

I'd just like to say that your officials and the witnesses we've had have done a good job of convincing my party to support this bill.

Ms. Anne McLellan: Thank you.

Mr. John Reynolds: We will hopefully get it through committee tomorrow morning and you can put it in the House on Friday, if you want.

Ms. Anne McLellan: Thank you very much.

Mr. John Reynolds: There is no intent to delay it.

The only question I have is on the selection of the judges and what the process will be. I know what the process is in British Columbia, from when I was in the cabinet there. With a totally independent group of judges and people within the community, I'm just wondering what your plan is in Nunavut before you make your decision.

Ms. Anne McLellan: What we're going to do is put in place in Nunavut the same process we have in the provinces and territories presently. I think most colleagues are aware that the previous government put in place a system of judicial selection committees. Each province has one, but for Ontario, which has three, and Quebec, which has two. We will establish a similar committee for Nunavut, and that committee represents the broad cross-section of the interested parties.

Committees in the provinces have seven members. Because of the size of the area and the relatively small population, we may have to change the numbers on the committee. That is a decision we will make in consultation with the people and the Government of Nunavut. But the present structure is that you have a representative from the existing bench; you have a representative from the law society; you have a representative from the Canadian Bar Association; the provincial or territorial Attorney General makes an appointment; and then the federal Attorney General has three appointments, two of which must be laypeople and one of which is a lawyer.

As you can see right away, to have representation from all those groups in Nunavut may be somewhat problematic, so what we have agreed to and what the people of Nunavut want is the same kind of locally based committee structure, but the exact numbers on the committee and who exactly will be represented there are things I can't commit to today, because those discussions are ongoing right now with the interim commissioner, the Northwest Territories bar, and the judges who presently serve in the Northwest Territories. But clearly we will have a similar process in principle to what exists in the provinces, the Northwest Territories, and the Yukon.

Mr. John Reynolds: Are you compelled to appoint whoever they recommend?

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Ms. Anne McLellan: No. I cannot appoint anyone who is not recommended by a judicial selection committee. Therefore I have to choose my appointments from the list of recommended and highly recommended candidates that comes from a judicial selection committee. I cannot ignore that list and say I'm going to appoint someone who either hasn't gone through the committee or was rejected by the committee. I have no power to do that. The candidates I appoint must come from a list of approved candidates.

Mr. John Reynolds: Fine, thank you.

The Chair: Minister, I don't mean to correct you, but could I add to that? If there were an existing member on the bench of a territorial court, you could also appoint her without her going through a committee.

Ms. Anne McLellan: Yes. Those who are already reviewed and are sitting on a court, be it a superior court, a territorial court, or a provincial court, have already gone through a review process—either ours, if they're already sitting as a superior court judge, or a provincial review process, if they are sitting as a provincial court judge.

Mr. John Reynolds: Fine.

The Chair: Is that it? Thanks.

[Translation]

Ms. Guay.

Ms. Monique Guay (Laurentides, BQ): Madam Minister, the Bloc Québécois also supports this bill. We too want it to be adopted as quickly as possible.

The Hon. Anne McLellan: Thank you.

Ms. Monique Guay: I would like to ask two short technical questions. Do you think that the three judges who will be appointed to the Nunavut Court will be able to manage the workload? Yesterday, some witnesses raised their concerns with that and mentioned the fact that the territory was very vast and that it was sometimes difficult to go from one place to another. Would it be possible to increase the number of judges if necessary? Will these judges be required to travel throughout Nunavut?

[English]

Ms. Anne McLellan: In fact we believe that initially three judges will be enough, but your point is a good one. Because the creation of this territory and the creation of a justice system in the territory are new endeavours, we will be working closely with the new Government of Nunavut. If it becomes apparent that three judges are not sufficient to cover the area, certainly we would entertain any reasonable request from the government of the new territory of Nunavut to consider increasing the complement.

The three judges will travel. One of the benefits of a single-level court is that one judge can hear all nature of matters. Therefore, when a judge travels into a community—and it goes without saying that we're dealing with small communities and relatively isolated communities—he or she will be able to deal with virtually all matters of whatever kind. We hope, and I think the people of Nunavut hope, that this will be an efficient form of justice and one where you don't have to have a territorial judge fly in to do a certain aspect of the work, then you have to wait for a superior court judge to fly in to deal with different kinds of issues.

So through the creation of a single level, yes, they will travel, but when they travel and when they are in communities, they will be able to deal with virtually the whole range of matters. That jurisdiction is brought together in one person.

So yes, if it proves that we need more judges on the ground, we will work with the new territorial government to ensure they have the resources they need. And secondly, they will all travel.

[Translation]

Ms. Monique Guay: I see. Yesterday, witnesses representing Nunavut women told us that a lot of work had to be done to protect the rights of women and children. These women told us about numerous problems of abuse and a host of other issues that must be resolved. They expressed their concern with the limited number of judges and with respect to the way the system would work. You have reassured us with your answers today.

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Could you give us an idea of the costs involved or the annual budget that they will be granted?

The Hon. Anne McLellan: I am sorry.

[English]

At this point, other than obviously the cost of the three judges, it is hard for us to have a precise handle on what the creation of this new system and its ongoing operation will be, but we're going to be watching that very carefully. I would be happy to report back to this committee as we gather the information surrounding what it costs to run the justice system. In fact other departments will be doing exactly the same thing with other components of the creation of the new territory of Nunavut. This is a new challenge and experiment for all of us.

I could certainly provide you with the preliminary numbers, a rough estimate of judicial salaries. The three superior court judges will be paid what superior court judges in the rest of Canada will be paid. You considered the Judges Act just a few months ago here, in terms of salary and the whole range of compensation issues for superior court judges.

I don't have that. Do you have that right here? Okay.

The rough estimate—and I accentuate “rough” at this point—is $220,000 per judge, and that includes travel. That's an estimate of salary plus travel for a judge on an annual basis. There would be three of those.

The Chair: What was the number again? Sorry.

Ms. Anne McLellan: It's $220,000 per judge. That's salary plus benefits plus their travel within the territory for one year.

[Translation]

Ms. Monique Guay: But these judges will need some support in carrying out their duties. For example, will they travel alone or will they be accompanied by an assistant?

[English]

Ms. Anne McLellan: It will depend, but certainly in most communities—because most communities are small—they will fly in the clerk and other support staff. Those will, however, not be paid for by us. They will be paid for by the territorial Government of Nunavut, just as now, while we pick up the costs of superior court judges in the provinces, the support staff who deal with the actual administration of justice—the running of the courts—are provided by the provinces.

So the territorial government will be picking up those costs, but yes, additional support people will travel with the judge. Those costs are something I know the territorial government will be monitoring very carefully, because they have to pay for them, not us.

[Translation]

Ms. Monique Guay: Madam Minister, I would appreciate it if you could provide committee members with the estimates for this new type of service delivery by these judges, who will travel from one end side of Nunavut to the other. Thank you very much.

[English]

Ms. Anne McLellan: Yes, I would be happy to do that, on the clear understanding that they are estimates. We're going to learn—everybody is going to learn—as we move forward through the creation of this new court system.

[Translation]

Ms. Monique Guay: We are all very much aware, Madam Minister, that it is a new court system and that all we can expect are general estimates.

[English]

The Chair: Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Madam Chair.

I want to thank the minister in particular for spending some time with us. I have previously congratulated the chair of this committee for the quality of witnesses and the presentations we've benefited from with respect to this legislation, so I pass that on to you as well.

I can also indicate at the outset that the Progressive Conservative Party is similarly supportive of this legislation, and we do not wish to hold this up.

My questions are along the same lines, with respect to funding. I'm wondering, Madam Minister, if you can tell us if the cost-sharing of the administration of the Young Offenders Act, or the new Young Offenders Act when it's in place, will meet the standard that is required. The current situation appears to be that the federal government is not carrying its end of the load with respect to the Young Offenders Act.

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Ms. Anne McLellan: Are you speaking about Nunavut here or more generally, Mr. MacKay?

Mr. Peter MacKay: Well, I'm using the general as a backdrop to this. I'm asking you specifically with respect to the new territory, but feel free to comment on the general situation.

Ms. Anne McLellan: Maybe I will just say a little bit about the general situation. Everybody is aware that cost-sharing surrounding the administration and enforcement of the Young Offenders Act is a very important issue. It is an issue I have talked about with my colleague, Monsieur Ménard, from the province of Quebec, but it is no less important an issue for all attorneys general in the country.

In fact if you look north of 60, there are particular challenges in dealing with problems of young people and how we prevent kids from pursuing a life of crime, which I would think for all of us is the best strategy to prevent young people from involving themselves with crime in the first place.

In the north there is a particular set of problems. It is a youthful population, it's a fast-growing population, and we are all aware of the tragic circumstances surrounding drug abuse; alcohol abuse; the number of children who are born with some degree of FAS, fetal alcohol syndrome; and the number of children who live in family situations where they are subject to either physical or sexual abuse. Often these young people will turn to criminal activity out of a sense of desperation and hopelessness.

Certainly I have talked to many in the north about the fact that we, as a federal government, are responsible for parts of the youth justice system, most particularly but not exclusively youth justice legislation presently called the Young Offenders Act. One of our challenges is to provide sufficient flexibility to provinces and territories so that they can meet the challenges and achieve the goals of their province or territory. That is nowhere truer than north of 60, and it will be as true in Nunavut. The challenges will be as great in Nunavut as they are right now in the Northwest Territories and the Yukon.

I acknowledge that as we move forward to a new youth justice system that hopefully puts greater emphasis on prevention and rehabilitation, we will require additional resources. I have told my provincial and territorial colleagues that I am optimistic that I will receive additional resources to implement, with their support, a new youth justice system in this country.

We are all aware of the fact that initially youth justice was cost-shared on a fifty-fifty basis. Now it's about thirty-seventy. It varies from province to province somewhat, but it averages 30%. I understand the strains that has put on the provinces, and I am very sensitive to those strains.

I have to say that we in the federal government have to do a better job of ensuring that we are providing the degree of resources necessary to achieve the goals we all have in terms of young offenders: ensuring that, one, they don't fall into a life crime in the first place, and two, if they do, there are rehabilitative and reintegrative strategies that provide them with the opportunity to return to their communities and become productive members of society.

Mr. Peter MacKay: Thank you, Madam Minister. I appreciate that.

Ms. Anne McLellan: It was a long answer. I apologize.

Mr. Peter MacKay: No, I appreciate that, and I'm particularly pleased to hear that you're sensitive to the particular needs of the youth in the north, given what you've said about the fact that there is what I call a falling down—you've put a number on it of 30% to 70%—in terms of the cost-sharing with the provinces presently. I am in touch with, I'm sure, many of the same provincial attorneys general, who are understandably concerned about this as well.

Do I take from your answer that there is going to be a commitment, keeping in mind these particular sensitivities of this new territory, to ensure that the federal government does carry their load: the 50% of the new youth justice system?

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Ms. Anne McLellan: I cannot commit today to a return to fifty-fifty cost-sharing. In 1989, under a previous government, that level of funding started to erode. But what I have committed to with my provincial and territorial colleagues is that I will do everything I can to convince my colleagues around the cabinet table that we must allocate additional resources to youth justice in this country.

Mr. Peter MacKay: Thank you, Madam Minister.

I have a question on the use of justices of the peace. I commend the drafters of this legislation; it's high time we started making broader use of justices of the peace. I am concerned, however, about the training of those justices, given particularly the circumstances in the north and the challenges that will be there. The judges themselves, I think you would be quick to admit, are going to be faced with challenges, given the intricacies of having now potentially five levels of court to preside over.

My question again is twofold, along the lines of training and funding for the training for justices of the peace, and your department's response to that challenge.

Ms. Anne McLellan: Let me just say a couple of things, and then perhaps someone from my department would like to add more detail.

We are very aware of the fact that justices of the peace are particularly important in the north and will be particularly important in Nunavut, and that therefore a high quality of training is essential.

We also acknowledge that this has been an identified concern by those who presently work in the justice system in the north and that we need to do a better job of ensuring that JPs have the training they need.

While the training itself is, as I understand it, actually the responsibility of the Government of Nunavut, because we see JPs as key to the ability to deliver a high-quality justice system, we will be working with the Government of Nunavut, providing whatever assistance we can, and we will be monitoring with the Government of Nunavut very closely the on-the-ground, if you like, delivery of services by JPs. We will do whatever we can to ensure that they are working at that level and meeting the expectations of local people in those communities.

We don't want to impose. If in fact there are deficiencies, we can certainly help identify and deal with them, but I wouldn't want to create a situation where we come in and say, “Well, gosh, all these people aren't working to the level we would expect,” and be perhaps culturally insensitive to some extent, in terms of imposing our views.

Therefore it's going to be very important to ensure that the territorial government has the lead. They must ultimately take responsibility for the training of these people. But we know it will be a challenge, and therefore we want to be there to help them.

Mr. Peter MacKay: Thank you.

Ms. Anne McLellan: Do you want to add something, Karen?

Ms. Karen Markham (Counsel, Criminal Law Policy Section, Department of Justice): Yes, thank you.

I'd just add that the deputy minister designate has indicated that there are plans, as I believe we may have mentioned in our presentation, to hire a full-time JP administrator, who will then go to each of the different communities and try to canvass the names for appropriate candidates. There will be a public legal education component to that as well. So they will try to encourage qualified people to come forth, give their names, submit to the training, etc., and be involved in that. They're very aware, as the minister has just indicated, of the need to encourage this kind of training and to get suitable candidates.

I would think as well that the administrator will assist tremendously in the administration of the JPs and their activities.

Howard, did you want to add to that?

Mr. Howard H. Bebbington (Counsel, Criminal Law Policy Section, Department of Justice): No, I think that fully covers the ground. Again, it's not just the training, but the support and infrastructure.

I could add that I believe the judges of the Nunavut Court of Justice will be playing a mentoring role to the JPs, as, again, Nora Sanders, the deputy justice minister designate of Nunavut, indicated yesterday.

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People understand the importance of this and the potential of this aspect of the system to bring the justice services into the communities and to more closely involve Inuit culture by the careful selection, appointment, training, and support of justices of the peace.

Mr. Peter MacKay: I'm glad to hear the department is particularly open to it, because I view this as quite an empowerment of justices of the peace, and my concern is that on a practical level, some of these justices of the peace are going to find themselves in conflicts of interest in smaller communities. Let's face it: a justice of the peace may wind up having his neighbour's children appear before him. He may have to make a decision on release of bail in a spousal case that involves somebody known to him, perhaps related to him.

I'd like to ask a question that stems from that. This is a more procedural type of question, but with there being three appointed judges—and I keep in mind the minister's response to a question from my colleague about the potential for more appointments, but with a judge at an appeal level or a trial level making a decision and then, as I understand it, with three judges on the panel—a judge could be hearing the same appeal. Similarly, a judge hearing a preliminary inquiry at one court level might hear the trial. Those are concerns I have about the practical application, where you only have a three-judge pool.

Ms. Anne McLellan: Actually Howard will explain that, because I think there might be some confusion about how the trial process operates in terms of the Court of Appeal. The territorial Court of Appeal will, at least initially, be the Court of Appeal of the province of Alberta.

Howard, you might want to say some more about that.

Mr. Howard Bebbington: Just to expand on that point, it is important to know that the appellate court structure for the NWT will continue into the Nunavut area for a transitional period. The essential core structure of the Court of Appeal of the NWT is the Alberta Court of Appeal. That will continue. The judges of that panel will be available to hear appeals, and that panel is expanded somewhat by other judges from other jurisdictions who participate in this as well.

Mr. Peter MacKay: How long will that continue?

Mr. Howard Bebbington: That's a question for Nunavut. I must say there's a strong interest in changing the structure for the Court of Appeal to either a northern-based Court of Appeal or some structure recognizing the geography and the distance between Edmonton and Iqaluit.

But it is very much a question for Nunavut to resolve itself, after division. We feel this is appropriate, but again, we'd be very happy to assist in any way we can as they consider the issues and as they move to consider other changes.

It's important to understand that the appellate bench will be quite distinct. There may be members of the superior court in Yellowknife and in Iqaluit who would sit as judges of the Court of Appeal, but the bench will be fully and quite distinct. So there isn't a possibility of a panel hearing a matter that one member of the panel or a judge has heard before.

If I can just go back to the beginning part of your question, obviously it is a concern when you have an entire jurisdiction with three judges, but remember the population is a factor there as well.

I wanted to add to that a very important point, which is that the Nunavut Court of Justice will make fairly extensive use of ex officio judges. So the superior court judges in Yellowknife will be ex officio members of the Nunavut Court of Justice, and the same for the Yukon. The senior judge of the Nunavut court will be able to call on assistance, as she or he sees fit, from ex officio judges from other jurisdictions and from deputy judges who will be appointed. So there will be plenty of potential to bolster, if you will, the trial court panel.

With those devices, the structure is set up now to respond to the need, and again, as the minister has said, we will be watching very closely what occurs as Nunavut comes into being.

Mr. Peter MacKay: I'm really glad to hear that, because it struck me as an anomaly that you would have the potential for a preliminary inquiry judge to then sit in judgment, where a different standard obviously applies and the evidence has already been heard, and there might be excluded evidence that is still on the judge's mind.

Mr. Howard Bebbington: This is an important point, and the legislation is silent in this sense. Because judges of the Nunavut Court of Justice will conduct preliminary inquiries, there is at least a theoretical possibility for the judge to conduct the same trial. That is left open in the legislation. But we believe the judges will be administering the system to make sure there is in fact no conflict in those circumstances.

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I believe it was Nora Sanders who pointed out the examples in parts of Quebec where on occasion a judge has sat as the presiding justice at the preliminary and gone on to conduct the trial. There may be those circumstances in a remote community, in an environment where it is better to move on quickly with the matter, rather than delay it for another judge to come forward. I believe the judges of the Nunavut Court of Justice will be sensitive to those needs and will respond appropriately, as the need may be.

Mr. Peter MacKay: So the discretion then will be left to the judge, according to the circumstance?

Mr. Howard Bebbington: Yes.

Mr. Peter MacKay: Thank you.

The Chair: Thanks, Mr. MacKay.

Mr. DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Madam Chair.

Madam Minister, when your Justice officials were here earlier, reference was made to something called the Nunavut justice committee, which was going to be handling some questions dealing with the administration of justice. Yesterday, when the witnesses were here from the interim commissioner's office, they didn't seem to have that same understanding, that there was going to be this type of standing committee to deal with administration of justice. They referred to the judicial selection committee, but is there going to be a justice committee apart from that, and if so, what types of issues are they going to be dealing with?

Ms. Anne McLellan: We're not going to have a justice committee separate and apart from the committee that will select the judges, but probably the territorial Government of Nunavut will have and will require an administrative mechanism of some sort to administer the court, as the provinces do now.

What you will be dealing with is, I suppose, a microcosm in a way. The territorial government must ensure that it has the ability to administer the court, albeit a single-level court. That is their responsibility, and they will have to have the administrative processes in place to ensure that the court, which we are creating and to which we will appoint judges, has the ability to carry out its tasks.

Mr. Paul DeVillers: In its role as being responsible for the administration of justice.

Ms. Anne McLellan: Yes.

Mr. Howard Bebbington: I'm sure the member may also be thinking of something that has been referred to by Nunavut officials. There is not a distinct single entity, but there are things called community justice committees, which exist in some but not all communities of the eastern Arctic. They are involved in sitting down with the police and working with the system, not in the context of the formal trial process, but in pre-trial diversion, attempting to have input on sentencing, and things of that nature. But that very much is a territorial thing, not a federal thing.

Mr. Paul DeVillers: That's theirs, okay.

Ms. Karen Markham: I was just going to make the very same point and say that, for instance, in the Baffin I'm aware that youth justice committees are extremely active, such that very few matters, other than the most serious, are actually referred to and dealt with in the courts. So the committee process in Nunavut is alive and well, and we expect it will continue to be alive and well. It's funded, as the minister has indicated and as Howard has confirmed, on a territorial level.

Mr. Paul DeVillers: Okay, thank you.

That's all, Madam Chair.

The Chair: Thanks, Mr. DeVillers.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): Mr. Bebbington, you just made mention of the term “deputy judges”. Is that the term you use for JPs, or is that something in addition? What is it?

Mr. Howard Bebbington: No, that is something in addition. In addition to the justices of the peace, there are three judges of the Nunavut Court of Justice, but there are two other ways in which judges become involved.

One is the ex officio judges, as I was explaining. By virtue of statute, the Nunavut Act as we have amended it makes express reference to ex officio judges. So the superior court judges, both in the NWT and the Yukon, are ex officio judges.

But in addition to that, there's the potential to appoint deputy judges of the Nunavut Court of Justice, which will also be federal appointments. These are judges from other jurisdictions who are very interested in the north and would like to go up on occasion to assist the judiciary in Nunavut and hear some cases for a period of time. It's actually a practice that exists now in the NWT, where the trial bench is supplemented by judges from other jurisdictions who come and assist by travelling through circuits, hearing cases, and assisting in the workload of the court.

Both of those mechanisms will be available in Nunavut as well.

Mr. John Maloney: The single-tier system seems to be falling into place rather nicely. Of course we'll see how it operates in fact. If it does fly, would you consider using this system in the other territories?

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Ms. Anne McLellan: That would be entirely up to the other territories.

What we have with Nunavut is an opportunity to see a single-level court in operation. There's been much discussion by academics, by some involved with the administration of justice, and even by some of the provinces, from time to time—I don't want to overstate it—who've looked at the possibility of the creation of a single-level court. In Nunavut we all have the opportunity to see such a court in operation, although in a unique set of circumstances and dealing with a small number of people.

We all should take the opportunity to see how this court operates and learn from it. I would be open to discussions with the other territories or with provinces—although that would be, I think, fairly unlikely, but certainly with the other territories—if they wanted to pursue the possibility of a single-level court.

This is a tremendous opportunity for all of us to learn from what the people of Nunavut have expressed as their preferred system of justice.

Mr. John Maloney: Thank you, Madam Chair.

The Chair: Thanks, Mr. Maloney.

Mr. Lee has been given time to sharpen his pencil, and he has a little question.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Stop this nonsense.

Ms. Anne McLellan: Is my flak jacket on?

Voices: Oh, oh!

The Chair: You know, Derek, we needle you because you react. If you stop reacting, we'll go away.

Mr. Derek Lee: Madam Minister, we all know that the department and the people of Nunavut are working very hard to make sure there's a smooth launch of the new government and the new court. But inevitably when you create a new system, there will be some things that you'd like to manipulate a little bit to make things run more smoothly. This raises the question of some kind of review.

I know when you have only three judges, you won't need a really elaborate system of review here, but my question is, who's going to keep the list of potential refinements or modifications? Will the Nunavut government do it? Would your department rely on the Nunavut government to keep the list in this non-elaborate review process, or would the justice department here either do it or lend a hand?

Ms. Anne McLellan: We'll be watching very carefully, very carefully, because what one is dealing with here is the delivery of justice, albeit it for a small number of people, but that small number of people have every right to expect the same level of administration of their justice system and justice as anyone else.

Obviously the territorial government and their administrators will be on the ground, and they will be observing the system and hearing—as we know they will, I'm sure—some concern. We are equally confident that they will also hear very strong, positive endorsements of the system, once it's up and running.

So they will, I suppose, be the repository of the first cut at how the system is working and where there may be some problems, concerns, and things they need to look at, if it deals with the administration. If there are issues surrounding numbers of judges—for example, whether three judges are in fact enough—or perhaps jurisdictional issues, then those are things that clearly we have a very large interest in, and we will be watching very closely.

The reality is that the challenges for this new territory initially will be enormous. They will need help—not people imposing their views on them, but help—to ensure that this system gets up and running, not only the justice system, but the entire territory. We will be there, and my department, which has worked closely with the people of Nunavut, wants to continue that relationship and continue to provide the kind of support, advice, and assistance that will be welcomed by them.

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We will be working with the territorial government to make sure that if there are problems or concerns, they are picked up early, and to make sure we do—again, working together—whatever we can to fix them.

Mr. Derek Lee: Thank you.

The Chair: Thanks a lot.

Mr. Reynolds.

Mr. John Reynolds: That's all I have on Nunavut. I have another question I could ask.

The Chair: Go ahead.

Mr. John Reynolds: The Canadian Foundation for Children, Youth and the Law has filed a charter challenge to have section 43 of the Criminal Code declared unconstitutional. The government has said it does not intend to remove section 43 from the Criminal Code. It goes on to say it doesn't intend to support this appeal and it's not funding any research on its removal.

That's correct from the Ministry of Justice point of view, but as you know, the Minister of Canadian Heritage— Through the court challenges program, the Canadian Foundation for Children, Youth and the Law have received a grant of more than $40,000 to launch the court challenge.

I know the minister's department will fight this challenge, but is she prepared to— We've had a number of people, certain groups, call our office saying they would like to intervene, but they don't have that kind of money. I'm wondering if there's any openness in the department to assisting those who might like to be on the government side and intervene in this challenge.

Ms. Anne McLellan: You quite rightly point out that—and probably this highlights why—the administration of the court challenges program isn't in my department. We obviously will defend this law, as we have defended other laws in the past that have been challenged by interested parties—individual Canadians or associations.

In terms of funding, I have to say there is probably not funding available within my department, and I don't know whether under the court challenges program there's any opportunity to provide funding for interveners who want to appear either in support of the applicant or on the other side. I don't know that. Just let me check. Excuse me.

Mr. John Reynolds: I saw him shaking his head in the back.

The Chair: I note for the record that Yvan Roy is joining the table.

Ms. Anne McLellan: How much do you know about the court challenges program?

Mr. Yvan Roy (Senior General Counsel, Criminal Law Policy Section, Department of Justice): Not that much, but I don't think that in the past the Department of Justice has funded the intervention of people in support of or against a piece of legislation. It would be perhaps a little bit awkward if that were to be the case.

In other challenges, with which you're familiar, the department did not fund them, whether that be the firearms challenge or some other things of this sort.

If they are interested in supporting that legislation, they should probably get the funding either from legal aid or from another source. The department, as the minister has indicated, will definitely seek to support section 43, as we think it is constitutional.

The Chair: Just by a stroke of coincidence, Mary Hurley, who's one of our researchers from the Library of Parliament, used to work for that program and has a little bit of information.

Ms. Mary Hurley (Committee Researcher): The little bit of information I can give on the question you're asking, Mr. Reynolds, dates from the contribution agreement that governed the court challenges program prior to its dissolution in 1993, but since it's been re-established, I believe many of the fundamental rules are still in place.

I believe I can say that in theory, intervener funding is available. The court challenges program has in the past funded a number of interveners. However, in order to obtain funding from the court challenges program, applicants must fill criteria. The question then goes to a panel of equality rights experts, who vote on the issue.

There have also been occasions when the program has funded organizations to defend a federal law. The case I'm thinking of in particular—and this was intervener funding—was for the Women's Legal and Education Action Fund to intervene in the Butler case, where they argued for upholding the obscenity law.

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The Chair: And it's an arm's-length agency, isn't it?

Ms. Anne McLellan: Yes, so in fact, you should encourage people who do want to intervene to contact the court challenges program and see what funding is available for intervention.

Ms. Mary Hurley: Well, as I say, there's no question that the customary funding is available for those who are challenging laws.

Ms. Anne McLellan: Right.

Ms. Mary Hurley: This is what makes the program such a unique program: you have the government funding challenges to its own laws to determine their constitutionality.

There's no question that the majority of applicants who are funded are applicants who are challenging law. Any applicant to the program who's arguing either in favour of or against a law is going to have to meet the criteria, and all of that material is available from the program, which is now situated in Winnipeg.

A voice: Good.

The Chair: There you go. If you can't get the answer from the department, we just—

Mr. John Reynolds: That's right. We have a great committee. We get answers from somewhere, and that's the key anyway.

I'm just pleased to hear that government put on record that they are supportive of this, because we're getting a lot of questions about it.

Ms. Anne McLellan: Our position is clear, and we will be there to defend the law.

Mr. John Reynolds: We will contact the court challenges program tomorrow and get their criteria.

Madam Chair, I know the minister has a very important meeting at 5.30 tonight—

Ms. Anne McLellan: I do. We do, all of us.

Mr. John Reynolds: I have some other questions, which are to do with the estimates. As the minister knows, some of them are technical and need numbers. Could the minister undertake to get these answers back to us before Monday night, because we have to vote Tuesday on these issues?

Ms. Anne McLellan: I'd be happy to do that.

Mr. John Reynolds: At least I can then debate them on the supply day.

Ms. Anne McLellan: I'd be happy to do that. I have no problem with that.

Mr. John Reynolds: I'm quite prepared to just do that, rather than go through them item by item here.

The Chair: Thanks, Mr. Reynolds. That's great.

I want to thank the minister for accommodating that concern and for helping us stay one happy, accommodating little family here. It's been great.

Ms. Anne McLellan: I just want it clear—and Yvan is right here, so he can take this away with him—that we will respond by Monday evening so that you have these for your discussions on Tuesday.

The Chair: Thank you very much.

Mr. MacKay.

Mr. Peter MacKay: I just have a very quick general question.

In the implementation of this bill, is there a formal monitoring process to see how it's going and evaluate it? And finally, is there a movement or a philosophy afoot within your department to look at implementing some of these changes in other jurisdictions—other territories or provinces?

Ms. Anne McLellan: Certainly there is a monitoring and evaluation component. That's very important, because this is new to all of us. So that's going to be very important.

As I said in response to an earlier question, it isn't for us to impose approaches or administrative structures, let alone the structure of the court itself, which may be unique to Nunavut, on other jurisdictions. But what we can all do is learn from Nunavut, and if there are jurisdictions, territorial or otherwise, that would like to build on some of the work and experience in Nunavut, certainly they will find us open to working with them to do that.

Mr. Peter MacKay: Thank you very much.

The Chair: Thanks, Minister.

Ms. Anne McLellan: Just before I go, could I make sure everybody knows they're invited to our reception?

The Chair: You might want to do that as soon as we turn these lights off.

We're adjourned.