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37th PARLIAMENT, 3rd SESSION

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

EVIDENCE

CONTENTS

Thursday, March 25, 2004

0910

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

Ms. Tamra Thomson (Director, Legislation and Law Reform, Canadian Bar Association)

Mr. William Johnson (President, Canadian Bar Association)

0915

0920

0925

The Chair

Mr. Denis Jacques (Lawyer, Barreau du Québec)

0930

0935

The Chair

Mr. James Caskey (Co-Chair, Standing Committee on Government Relations and Public Affairs, Law Society of Upper Canada)

Mr. Julian Porter (Co-Chair, Standing Committee on Government Relations and Public Affairs, Law Society of Upper Canada)

The Chair

0940

Mr. Julian Porter

0945

0950

The Chair

Mr. Julian Porter

The Chair

Mr. Kevin Sorenson (Crowfoot, CPC)

0955

The Chair

Mr. William Johnson

Mr. Kevin Sorenson

Mr. William Johnson

Mr. Kevin Sorenson

Mr. James Caskey

Mr. Garry Breitkreuz (Yorkton—Melville, CPC)

Mr. James Caskey

The Chair

Mr. Denis Jacques

1000

The Chair

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

Mr. William Johnson

Mr. Denis Jacques

Mr. Richard Marceau

Mr. James Caskey

Mr. Richard Marceau

Mr. James Caskey

Mr. Richard Marceau

Mr. Julian Porter

Mr. Richard Marceau

1005

Mr. Denis Jacques

Mr. Richard Marceau

Mr. Denis Jacques

Mr. Richard Marceau

Mr. Denis Jacques

M. William Johnson

1010

Mr. Julian Porter

Mr. James Caskey

Mr. William Johnson

Mr. Denis Jacques

The Chair

Hon. Lorne Nystrom (Regina—Qu'Appelle, NDP)

Mr. James Caskey

Hon. Lorne Nystrom

Mr. James Caskey

Mr. William Johnson

1015

Hon. Lorne Nystrom

The Chair

Mr. Denis Jacques

Mr. Julian Porter

1020

Mr. William Johnson

Ms. Carole Brosseau (Lawyer, Research and Legislation Service, Barreau du Québec)

Ms. Tamra Thomson

The Chair

Ms. Paddy Torsney (Burlington, Lib.)

1025

Mr. William Johnson

Ms. Paddy Torsney

Mr. William Johnson

Ms. Paddy Torsney

Mr. James Caskey

Ms. Paddy Torsney

Mr. James Caskey

Ms. Paddy Torsney

1030

The Chair

Mr. James Caskey

Mr. Denis Jacques

Ms. Paddy Torsney

The Chair

Ms. Paddy Torsney

The Chair

Ms. Paddy Torsney

Mr. Denis Jacques

Ms. Tamra Thomson

The Chair

1035

Ms. Marlene Catterall (Ottawa West—Nepean, Lib.)

The Chair

Mr. Kevin Sorenson

The Chair

Mr. Garry Breitkreuz

The Chair

Mr. William Johnson

Ms. Tamra Thomson

Mr. James Caskey

The Chair

Mr. Denis Jacques

1040

The Chair

Ms. Marlene Catterall

Mr. James Caskey

Mr. William Johnson

1045

The Chair

Mr. Denis Jacques

The Chair

Mr. Richard Marceau

The Chair

Ms. Carole Brosseau

Mr. Denis Jacques

1050

Mr. William Johnson

The Chair

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

1055

The Chair

Hon. Stéphane Dion

The Chair

Hon. Stéphane Dion

Mr. Denis Jacques

The Chair

Hon. Sue Barnes (London West, Lib.)

The Chair

1100

Hon. Sue Barnes

The Chair

Hon. Sue Barnes

The Chair

Mr. Garry Breitkreuz

The Chair

Mr. Garry Breitkreuz

Ms. Paddy Torsney

The Chair

Mr. Garry Breitkreuz

The Chair

Mr. Garry Breitkreuz

The Chair

Mr. John Maloney (Erie—Lincoln, Lib.)

The Chair

Ms. Paddy Torsney

The Chair

Ms. Paddy Torsney

The Chair

CANADA

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

NUMBER 006

3rd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, March 25, 2004

[Recorded by Electronic Apparatus]

¿ (0910)

[English]

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): Colleagues, I call the meeting to order. We're continuing our study of a review mechanism for prospective Supreme Court of Canada appointments.

We have with us today three important witnesses representing the legal community across the country, at least as best as we can assemble it, and it is a good group. We have the Canadian Bar Association, the Barreau du Québec, and the Law Society of Upper Canada, with representatives of each of those groups.

Thank you very much for coming. I realize that you didn't have a few weeks to prepare your submissions or complete consultations, which you may or may not have had in process or attempted to complete. But thank you very much for being with us today. Your submissions will be very helpful to colleagues.

I would like to suggest that we start with the Canadian Bar Association in terms of presentations, and they will be followed by both of the provincial law associations, if that's all right with you.

For the record, I'll introduce the parties. We have with us from the Canadian Bar Association, Mr. Bill Johnson, president, and Tamra Thomson, director of legislation and law reform; from the Barreau du Québec, Denis Jacques, and Carole Brosseau, who coordinates research and legislation services; and from the Law Society of Upper Canada, Mr. James Caskey and Mr. Julian Porter, who sit on the Law Society Standing Committee on Government Relations and Public Affairs.

We'll propose 10 minutes for each of the presentations. When they have been completed, colleagues will have questions, I'm sure.

Let's begin with the Canadian Bar Association.

Ms. Tamra Thomson (Director, Legislation and Law Reform, Canadian Bar Association): Thank you, Mr. Chair.

The Canadian Bar Association is very pleased to present its views to this committee this morning on the very important topic of appointments to the Supreme Court of Canada.

The CBA is a national organization representing approximately 38,000 jurists from across Canada in each province and territory. Our primary objectives include working toward improvement in the law and in the administration of justice. It is in that optic that we have looked at the subject and we bring our comments to you today.

You have received our written submission, and I am going to ask our president, Mr. Bill Johnson, to speak to the submission.

Mr. William Johnson (President, Canadian Bar Association): Thank you, Tamra.

Mr. Chair and honourable members, thank you for the invitation to address you today concerning the Supreme Court of Canada appointment process. The Canadian Bar Association welcomes your review of this issue. Our approach to this issue of appointments to our highest court is anchored firmly in the principles of judicial independence, transparency, and merit. Today I will explain our reasoning.

[Translation]

First, let me remind you of the CBA's long-standing belief in the importance of appointing judges. Some 18 years ago, our National Council approved most of the recommendations in the McKelvey report on the appointment of judges in Canada. All 27 recommendations in this report suggested improvements to the federal, provincial and territorial appointment process. The government implemented a significant number of our recommendations; as a result, the Minister of Justice now has an excellent system of advisory committees operating throughout the country.

In its report, the CBA acknowledges that political power is part and parcel of the judicial appointment process. In fact, when it comes to Supreme Court appointments, it plays a decision-making role. Of course, names of prospective candidates are put forward, lists are thoroughly examined and the names are reviewed, and the Prime Minister has the last word when it comes to choosing the successful candidate. Nevertheless, the consultation process itself is carried out behind closed doors.

¿ (0915)

[English]

Given the current process, it is no wonder the public perception of the process is so murky. The Prime Minister has identified the need for reform and has given due notice to Canadians that he intends to make reform a priority. Our association applauds this desire to change the current system. We have written to the Prime Minister and his cabinet members offering our support to ensure that the new system is transparent, that it involves parliamentarians, and that the candidates are the best-qualified individuals for the position.

Our studies of this question, our original report in 1986, our response to appointment reform proposals that died with the Meech Lake Accord, and others grew from three distinct problems with the current system.

First is a murky public perception. Most Canadians don't know how the appointment process works and suspect, rightly or wrongly, that there is political interference.

Second, there are too many cooks. The structure of the Supreme Court is such that by statute, the appointments rotate by region. This has given rise to the perception that provincial politics are involved in the process.

Third is inconsistent consultation. Without a formal appointment process in place, consultation with those most familiar with the profession and among ministers of justice, attorneys general, and Department of Justice officials is at best a hit or miss proposition.

Our proposal for reform, the proposal we forwarded to the Prime Minister and the members of cabinet two weeks ago, recommended a representative process that works. It's based on the establishment of an independent advisory committee with parliamentary representation.

A word of caution is that our proposed model does not recommend a public hearing similar to the United States system of congressional review of judicial candidates.

[Translation]

There are three reasons why we are opposed to this type of hearing. First, we feel that even if the public should be aware of the selection process and the criteria used in evaluating prospective candidates, their private life and personal opinions should not be a consideration. Only the qualifications and experience of these candidates should be relevant, since these are the requirements for serving the Canadian public.

Second, the discomfort felt by those who are subjected to the American congress style of public hearings could discourage the most qualified candidates from accepting a judicial appointment. Our system works well because it is served by the most brilliant and qualified members of our legal profession, who bring with them a wealth of solid practical experience.

The third and final reason is that Canada's society is based on a strong commitment to the separation of the judicial, executive and legislative powers. This well-balanced approach has so far served Canada's democracy well.

[English]

Our proposal today is built on the success of the working non-partisan advisory committees--and I served on one in Saskatchewan for two terms--for superior and many provincial courts across the country. The committees include representatives from the public, the legal profession, the judiciary, and the governments involved. Nominations are encouraged from a wide variety of sources. The advisory committees in place are working well and are recognized internationally.

Let me be perfectly candid about the situation. As a result of the CBA report, the McKelvey report on the appointment of judges, governments adopted the advisory committee approach federally and provincially. However, unfortunately, the federal government stopped short of implementing one of our key recommendations, which was using non-partisan advisory committees to assess potential candidates to the Supreme Court of Canada.

This approach, our approach, is grounded in the principles of judicial independence. We firmly believe that judicial independence must be not only protected but also guaranteed. As our Supreme Court has said in the Prince Edward Island reference, judicial independence protects Canadians against the abuse of state power. It is also--and this I believe is very important as well--an integral component of federalism protecting one level of government from encroachment into its jurisdiction by another.

Judicial independence ensures that the courts guard our constitution, guard the rule of law, guard equality, and guard the democratic process. Put another way, judicial independence ensures our judges are independent of political manipulation.

Canadians must have confidence in their justice system, confidence that judges who make critical life decisions will be impartial, open-minded, and not subject to political influence.

As I said, earlier this month I wrote to the Prime Minister urging just such a process, and this is how it would work. Each time a vacancy occurs on the Supreme Court--and we now have two thrust upon us--a special advisory committee would be appointed.

It would be similar to the judicial appointment model for superior courts that's in place and works well, similar in that its members would be drawn from the legal community and the public, include representatives from the federal Minister of Justice, the provincial Minister of Justice, the Chief Justice, the law society or societies of the relevant jurisdiction, and the Canadian Bar.

Each of these specially created advisory committees would also, in our recommendation, include up to four parliamentarians from this committee, the Commons committee on justice and human rights. We believe this model will ensure representation from all stakeholders in the process.

¿ (0920)

[Translation]

The committee would examine the file for each candidate according to public criteria based on merit. They would then submit recommendations to the Prime Minister. These recommendations would be subject to the duty of confidentiality, something that works quite well in our present system. There are four advantages to this model.

First, it would meet the objective to include parliamentarians, in this case, yourselves, in the appointment process.

Second, it reflects the unique characteristic of the Supreme Court of Canada as a court of last resort.

[English]

Third, it reduces the perception of secrecy and political influence in selecting judges.

Fourth, it adds full transparency regarding the criteria for selection and full transparency regarding the process.

Let me briefly review our preliminary thoughts on appointment criteria. The CBA has stated that the criteria should be public, objective, and merit-based. What do we mean by “merit-based”?

Over the past 18 years, the CBA has assembled this list of criteria: high moral character; human qualities, such as sympathy, generosity, charity, and patience; experience in the law; intellectual and judgmental ability; bilingualism, as required; and good health and good work habits.

In conclusion—and I know you've been waiting for this—our Supreme Court of Canada must continue to be representative of the regions and legal systems of Canada. The CBA supports the appointment of bilingual judges and encourages affirmative action policies for the appointment of women and members of minority groups to the bench.

We are strongly opposed to any system that would subject candidates to parliamentary interrogation on their beliefs, preferences, or judicial opinions in a vacuum. We are strongly opposed to any system that would give Canadians the mistaken impression that the judicial branch answers to the legislative branch.

The current system, as I've said, can be improved. The current system we live with now can be improved to maintain public respect for the legal system. As the voice of the legal profession in Canada, we urge you today to consider implementing an advisory committee model that has the attributes of success—demonstrated success—respect for judicial independence, transparency, and a proven track record.

Ladies and gentlemen, that's the substance of our brief. When my colleagues are done, I'm sure we'll all be happy to entertain your questions.

Thank you very much, Mr. Chair.

¿ (0925)

The Chair: Thank you, Mr. Johnson.

We'll now go to le Barreau du Québec.

[Translation]

Mr. Denis Jacques (Lawyer, Barreau du Québec): Thank you, Mr. Chairman.

I would like to first of all thank you for having invited us to speak to you about the position of the Barreau du Québec on such an important issue.

My name is Denis Jacques. I am a former president of the Quebec Bar Association and I practice law in Quebec City. With me today are Carole Brosseau, a lawyer for the Research and Legislation Service of the Barreau du Québec.

Our brief is only in French, in view of the short notice we had to appear before you, but we will providing you with a translated version within the next few days.

We are here today to present our view on a timely issue. I must admit that, even before the departure of Justice Arbour, and the upcoming retirement of Justice Iacobucci in June, resulting in two vacancies on the Supreme Court benches, the Barreau du Québec had chosen the appointment of judges to the Supreme Court of Canada as the theme for the plenary of our congress which will be held in Quebec City from June 3 to 5 of this year.

First of all, there is no doubt that Canada's judiciary is of the highest quality. We are justified in being proud of the judges that we have in this country. We are recognized worldwide, as evidenced by the fact that judges and others in the legal profession come from all parts of the globe to see what we are doing here. And I think they have a good reason for doing that: it is because we do a good job. And that includes the way in which we appoint judges in Canada. The quality of our Supreme Court judges is second to none, even with the appointment system as it exists today, a system which, unfortunately, is not well understood.

A few years ago, the Barreau du Québec spoke out in favour of an official advisory committee for the Supreme Court. This is what we said in 1987:

Supreme Court of Canada appointments must be treated differently from other appointments. First, we don't see why a representative of the public should sit on the advisory committee which, we feel, should include the following persons: the Chief Justice of Canada; the Chief Justice of the province or provinces for the region where the appointments originate; the president of the Bar Association of the province or provinces from which the appointments originate; the president of the Canadian Bar Association.

It is on page 3 of our brief.

And we continue:

This committee could approach the candidates who would be under no obligation to agree to be interviewed or to submit their names for consideration. It would be a true advisory committee in that it would advise the Minister of Justice on the candidates whose names have been put forward. Therefore, we do not think that there should be a limit placed on the number of names that could be recommended to the Minister.

That was the position that we held in 1987; unfortunately, it was not adopted. The current appointment process is an informal, poorly understood process. The Prime Minister and Minister of Justice undertake consultations within the legal community before choosing the successful candidate. Consultations by the Minister of Justice and the Prime Minister's Office obviously include proposals made by the judiciary, the Bar Association of the province, the Canadian Bar Association and, of course, other leading members of the legal community.

Even though it is an informal procedure, the results over the past few years have nevertheless been quite successful. We have every reason to be proud of the current make-up of the Supreme Court of Canada. In Quebec's case alone, over the past five years, the three new judges appointed to the Supreme Court of Canada have originated from the Court of Appeal of Quebec, where they sat for a number of years.

However, we must concede that even if the system has led to good appointments, it does not provide the transparency that our citizens are seeking. So, the following question remains: what is the best vehicle, the most adequate means to establish the potential of candidates in a way that would reassure the public, on the one hand, while preserving the independence of the judiciary, on the other?

It is essential that the process we choose ensure that the judiciary will remain independent. To accomplish that, it is essential that we not even consider a parliamentary review process where candidates would have to parade before a committee to respond to a whole host of questions relating to their values, theirs beliefs, their decisions or past experience.

¿ (0930)

We should set aside any attempt at instituting an American style parliamentary review which would scare away desirable candidates. Moreover, in last month's issue of National magazine, there is an article on the Supreme Court appointment process, and contributors, including the Chief Justice of Quebec, Michel Robert, expressed very clear assessments of the way in which our neighbours to the South choose their judges. What is the best vehicle?

I believe we should institute a formal consultation process by creating a special advisory committee, along the lines of the suggestion that we made in 1987. As we said at that time, an advisory committee should be struck whenever a vacancy arises on the Supreme Court.

This advisory committee could bring together the following people: the Chief Justice of the Supreme Court, the provincial Chief Justice for federally appointed courts, the president of the Bar Association, either the bâtonnier, the treasurer or president, according to the province, the president of the Canadian Bar Association and representatives of the Department of Justice. The committee would be tasked with finding and reviewing candidates and recommending a short list to the Prime Minister.

Such a committee could satisfy the public desire for transparency while responding to the Bar Association's concern for efficiency and the independence of the judiciary. For the sake of greater transparency, the Barreau du Québec would be prepared to support the participation of parliamentarians on the advisory committee. We are prepared to back the proposal made by our friends from the Canadian Bar Association whereby three or four members of Parliament could be selected by the House of Commons standing committee to sit on the advisory committee.

According to the formula put forward by the Canadian Bar Association, the four members who would sit on the advisory committee would represent political parties. Now, some may think that these members would be partisan in their approach. For that reason, in its brief, the Barreau suggests another option. Some feel that this type of parliamentary participation would not be partisan. Instead of calling upon four members each of whom would represent a party, we could ask the Speakers of the House of Commons and the Senate to sit on the committee. Because they are recognized as being impartial, we feel that they would add credibility to the process.

They are, of course, already very busy people. But appointments to the Supreme Court of Canada are not an annual occurrence and only involve a few nominees. Therefore, I believe that these people would be a welcome addition to the committee. It would involve making recommendations to the Prime Minister who would, of course, always have the final say.

This is our position, which we respectfully submit: notwithstanding the make-up of the advisory committee, the confidentiality of all of the consultations as well as the committee deliberations leading to the final recommendations to the Prime Minister, remains the primary consideration. Public hearings would not only be of little value in increasing transparency but could jeopardize the independence of the judiciary.

In closing, I would add that it is important to promote both the role and composition of the advisory committee. If the solution that we are advocating is implemented, we should promote a greater public awareness of the role and membership of the advisory committee, as well as of the criteria used in making the recommendation.

It's not a matter of becoming involved in the work of the committee, but rather of making the public aware of the role and membership, as well as the criteria that are used as an assurance of complete transparency and a guarantee that the criteria will lead to the choice of the candidate who can best serve the Canadian people. With the advent of the Charters, there is no denying the importance of the role played by Supreme Court judges.

¿ (0935)

So we must ensure that whatever we decide will maintain the independence of the judiciary. The solution must be a permanent one. We must proceed carefully and give this decision the careful consideration and attention that it deserves.

The Chair: We will now hear the representatives from the Law Society of Upper Canada. Mr. Caskey.

[English]

Mr. James Caskey (Co-Chair, Standing Committee on Government Relations and Public Affairs, Law Society of Upper Canada): Mr. Chair and members, as indicated at the start, my name is James Caskey. I'm here with Mr. Julian Porter. We are the co-chairs of the government relations committee.

We're representing the treasurer, who is not here today. He is presiding over convocation. At the present time he is calling to the bar of Ontario a very bright, young, diverse group of people who are all potential candidates for appointment to the Supreme Court.

I make that point, Chair and members, because whatever decision you come to in your deliberations will affect those people, and it will be in place for a very long time, perhaps not the 130 years that the present system has been in place, but it will very definitely affect the people who are being called to the bar today.

The law society works through convocation, as you know. Convocation has not yet had an opportunity to meet and come to a definitive position that they can put to this committee, but the law society believes it has a great deal to offer to this committee. So the basic position we come to you with is that we want to help and we think we can be of great assistance to you, but please give us the opportunity to put together a very reasoned presentation that has the consensus of the law profession in Ontario, so that you can go ahead with your deliberations in the knowledge that you have the support of the Law Society of Upper Canada in any decision that you come to. But we're constricted by the fact that convocation has not as yet met.

That observation having been made, this process will take time, it should take time, and we're asking you for the opportunity to be part of the process in a more meaningful way.

Those are my remarks, Chair and members, and I would now ask Mr. Porter if he'd be good enough to continue.

Mr. Julian Porter (Co-Chair, Standing Committee on Government Relations and Public Affairs, Law Society of Upper Canada): Have you had an opportunity...? Has our position paper been handed out?

The Chair: Yes, we have distributed of your paper.

¿ (0940)

Mr. Julian Porter: Thank you, Mr. Chair.

You'll see in it that we are adamantly opposed--even though we haven't consulted with the rest of the convocation--to the American system, as it operates. Years ago, Mr. Justice Frankfurter said he was strongly of the opinion that any candidate should not be discussing a matter that might be before the court. That means that if you have a concept of questioning, you're going to have to be very careful.

I was very impressed with the representations to you on Tuesday by Professor Weinrib and Professor Russell. You saw by looking at that how complicated this is and how the court doesn't just deal with constitutional matters but all kinds of other matters.

Professor Russell has been looking at this problem for 20 years. As a litigation trial lawyer, I suddenly late last night had the jitters because I thought what a convocation hasn't told me...and you all understand being part of a party caucus. If you step forward without having checked with the other members of the party caucus, you will have a frosty meeting next Wednesday. In any event, it struck me that this was very subtle and that the academics all agreed that the integrity and the independence of the judiciary is special, it's different, it's vital. And if it becomes tied up in the ebb and flow of your politics, it's a different system. It bears a great risk of creating judges who will become political. That's the risk.

I don't agree with Professor Russell's proposals of public quizzing of judges. Nevertheless, like Anthony Lewis in the United States...people who are not lawyers have terrific views about law and are perhaps some of the foremost commentators about it. So I do not take the position that because he's not “a lawyer” that.... He's very worthwhile listening to. He said get it right. What you do over this next little while, Mr. Chair, will last a long time. He agrees that good judges have been picked, but he says, don't rush; don't do it in the “snap of a finger”. If you can't do it before these two vacancies, “so be it”. What a wonderful phrase, “so be it”. He said, “Take your time. Do it well. Good luck.”There is a lot of generous wisdom in that.

And the academics made it clear that the other systems that were thrown at you so easily and quickly--Germany, Africa--all had very different backgrounds and different limitations.

Professor Weinrib said that on April 19 the University of Toronto Faculty of Law is going to have a whole day-long seminar analysing this very problem. My learned friend, Monsieur Denis Jacques, said that from June 3 to June 5, the Barreau du Québec is going to be meeting on this very issue. So I ask you...this is really complicated.

Last night we talked to about 15 of the benchers who were together and we said, “We're going down to Ottawa”. They said, “You're doing what?” “We're going to Ottawa”. The opinions were vastly varied, vastly emotional. So I realize that what you think is simple and common sense may not be.

The one thing I can talk to you about that hasn't been unfolded is how the Superior Court committees now in fact operate.

¿ (0945)

Margaret Rose Jamieson is here, and she is the secretary of the committee that advises the Minister of Justice. You should understand how that process works. Anybody can apply to be a judge provided they are out more than ten years. They write and they set out in as many pages as they wish why they want to be a judge. It's interesting; they rarely mention the fact that they want to avoid answering telephones, arguing with partners, and trying to collect bills.

In any event, most people who apply to be judges are truly idealistic, and it's quite refreshing. But then they go through their whole life and what's important to them besides law and what they've done in law. They give you a detailed description of what they've done in law, the kind of practice they've had, the kinds of clients they've had. Then they talk about their charities, their personal life, where they were born, raised, the influences on them. Then they put down five or six names who are their references. Then they put down a list of names who you can consult of other lawyers who know about them, know what they are like.

In the committee I sit on, the greater Toronto committee.... There are 16 committees across Canada--Ontario has three, Quebec has two, Quebec east and Quebec west. Each of these committees is doing the same function. There's a member of the Court of Appeal; there are three lawyers, one representing the bar association, one the law society, and one the Minister of Justice; there are two lay people who are appointed by the Minister of Justice by order in council. The two lay people phone the five references; they're the ones who phone the references. They spend about 20 minutes on the telephone--unless you suddenly bump into a reference who says “No, I don't really like the person, just agreed to be a reference”. It happens. That shortens the process, but there aren't many of those. Then the three lawyers phone around, and we can phone people on the list or other people. If we know who the applicant is and we know people who have worked with them, we phone them, not just the people they identify, and we say, “I'd like to have a confidential conversation with you. Will he suffer from 'judge-itis'? Does he work hard? Is he smart?” You begin to get a feel.

I assure you, the only people who can really tell you what a potential judge is going to be like are the people who have actually worked with them on a court case, because at a certain distance you can't tell.

We meet once a month. For about four hours we review ten applicants a time. We spend about 20 minutes on each person, and there's a debate. We either approve or not approve, and it goes on to the Minister of Justice.

It's a pretty good system. All of it is confidential; none of it leaks. That's how the system is.

I'd like to be able to come back with Mr. Caskey and give you a more recent presentation from convocation because there are a lot of brains about on this issue. But the independence of the judiciary may be a fragile plant, and if it withers we'll all regret it.

Those academics all said the Supreme Court of Canada carried immense respect throughout the world. Occasionally some judges are not up to some person's view of par. But what's par? They work hard. What you want from a judge is somebody who has discipline and somebody who will only answer the question before her or him and will not opine on the world. Once they become judges they become more solitary, because it is a lonely job. So they're special creatures.

¿ (0950)

We can answer questions, but if we go and hear the Barreau du Québec on June 3, 2004, or to the University of Toronto on April 19, 2004, we'll have more and better ideas.

Thank you.

The Chair: Except for one small question on lexicon, they were wonderful presentations. Perhaps later colleagues will inquire what “judge-itis” is.

Mr. Julian Porter: “Judge-itis” is that!

Some hon. members: Oh, oh!

The Chair: There goes my judicial appointment, then. All right. We're going to have to be more flexible around here, and that's an order.

I'll go to the usual round of questioning, seven minutes. It's either the subject matter or the members of the committee, but we seem to be going way out beyond the seven minutes as we do this. So at around the six-minute mark I'm going to do something to attract the attention of the questioner to stop the speech, put the question, and allow the witnesses to answer.

We'll go to our first, Mr. Sorenson, for seven minutes.

Mr. Kevin Sorenson (Crowfoot, CPC): Thank you. I can assure you, Mr. Chairman, that I will not take my seven minutes.

Our lead here is the former Attorney General for Manitoba, Vic Toews, and he usually takes the first round, and then Peter MacKay, a former crown prosecutor, usually takes the second round.

To be quite frank, when we started this whole process, I thought, what could we think up in this committee that could be more boring than how we're going to be appointing judges?

In the last few meetings we have had I have been fascinated by the process and by the people who we have had come before us, both the last day--I think it was Tuesday or Monday--and now today. I want to thank each one of you for your presentations, for coming, and for what you have added to this discussion.

This exercise is an exercise that was brought on really by my colleague here, Richard Marceau, and by the committee, who unanimously recognized that we should be studying the process.

It's a study that, as I said, has become more and more interesting as we go along. It's not only the process of how we appoint judges, but it has become the process of how judges are appointed around the world. Certainly some jurisdictions, some nations, some countries that have a process...it may work for them. We recognize that not every process would work here in this country. I think the more we look at it, the more we see that we're pretty fortunate to have the system we have now, but perhaps it could be tweaked, perhaps it could be fixed, perhaps there are certain things we could do that would answer some of the public's uncertainty as to how the operation works.

I don't believe for one moment that this is an exercise that our committee is embarking on because we have a huge dissatisfaction with the judiciary. Perhaps, again, as I said, it's more of a perplexity with the process.

In this Parliament and in this place, around committees, and maybe over the last few years more than before, we hear a lot of words like “democratic deficit”. There are certain questions. Should every process look to a more democratic way of accomplishing some end goal?

I have a number of questions. First of all, with the charter in place, we see more judges, who are appointed by politicians, given the power to strike down laws that have been made by the elected representatives of the people. We refer to this as “judicial activism”, and the perception is, whether it's right or wrong, that judicial activism is growing, perhaps even in the last number of years more than in the first 20 years since we've had the charter in place.

My question to each one of you is, how would you respond to that critique of judicial activism? What role do you believe the judiciary should play in building Canadian policy, or what role should it play in Canadian policy? How has the role, not so much of provincial courts or lesser courts, but how has the role of the Supreme Court changed, in your opinion, since the enactment of the charter?

I have one other quick comment and then I'll get to the question.

Mr. Johnson, you spoke quite a degree about the criteria in choosing Supreme Court judges. You mentioned ethnicity, you mentioned coming from each different region, perhaps gender. I'm not sure anyone mentioned age, but if age is a consideration, do any of you believe we should look at a term of a Supreme Court judge?

There are about three or four questions in there. Whoever would like to respond, I would be interested in hearing from you.

¿ (0955)

The Chair: Mr. Johnson, are you volunteering?

Mr. William Johnson: Yes.

On your activism comment, the judges do not activate the cases that come before them. It is the citizen or the government that initiates the case that comes before the judge. In the Supreme Court of Canada case, they see only the cases that have national importance. The initiators are not the judges, so they don't play a social policy role in bringing the case before themselves; the litigants do, assisted by counsel.

Judges do not have a role in social policy. That is your role, as lawmakers. It is the citizen's right to come to court to canvass issues of social policy in the context of the particular lawsuit, which the citizen chooses or the corporation chooses to present.

Mr. Kevin Sorenson: The Supreme Court does choose what cases may come before the Supreme Court, doesn't it?

Mr. William Johnson: They decide which matters are of national importance. They decide based on the submissions of counsel, speaking on behalf of their clients. The citizens urge the court to hear their cases. The court dismisses the vast majority and chooses some that are of national significance.

Mr. Kevin Sorenson: That's what I thought.

Mr. James Caskey: Mr. Chair, if I might address the issue of a fixed term, in your considerations, I want you to think of the candidates, once one gets to be a candidate for that very important position. They're giving up their practices to go to the bench. At the end of the day, if it's a fixed term, what do they have left, other than the fact that they've been on the bench for 12 years, or whatever length of time it is? Before you arbitrarily go and impose some finite term on these people, I'd like you to walk a very short step in their shoes, consider the individual candidate, and wonder, who in the world would give up their practice in order to spend 12 years on the bench?

Mr. Garry Breitkreuz (Yorkton—Melville, CPC): We do it.

Mr. James Caskey: That's absolutely right. I do greatly admire, as my member knows, those who stand for public service.

This is a little different, members, to running for a political position. This is a position where judges give up an awful lot. When you're considering that, I would ask that you not take into consideration a fixed term.

Now, having made that observation, that is, of course, my personal view. It may be, if it goes to convocation, that there would be a different view expressed, but I doubt it. I would think that everyone would understand that the judiciary should serve pending good behaviour.

The Chair: Monsieur Jacques.

Mr. Denis Jacques: On the first question, I think the judges of the Supreme Court have always had a very huge role in their functions. Before having to decide interpretations of the charter, before 1982, they had questions of great importance for every citizen about the division of powers between the provincial government and the federal government. Those issues were also affecting all the citizens in their everyday life.

The role of the court is still important. It has perhaps been even more important with the charter, but I don't think that has changed their role in any way.

On the second question about activism, I think the judges have to give an interpretation of the charter. They can give an interpretation of the charter giving a protection that will be large and liberal. They can give an interpretation of the charter that will be strict. In the end, maybe it will be called activism, giving a very large liberal interpretation to the charter, but it's their role. I think they are doing their job. They're doing exactly what they have to do. If that's activism, I don't think that's out of their function. I think those are their functions.

À (1000)

The Chair: Merci.

Monsieur Marceau, for seven minutes.

[Translation]

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you Mr. Chairman. I would like to thank the witnesses for their very interesting presentations. I have a number of questions.

First, much has been said, recently, about the importance of having parliamentarians included in the process, in some way or another; just how that will be done remains to be determined. I would like to hear your opinion on the role that could be played by the provinces in appointing judges. Of course, Supreme Court judges must rule on very important issues, including those involving the powers that reside within various levels of government. It could be argued that the federal government, and even the Prime Minister, in being the only one to appoint judges, might be seen as both judge and defendant whenever there is a conflict between the federal and provincial governments. This could be considered as a conflict of interest for the federal government.

Since, in law, there must not only be justice, but the appearance of justice, do you not think that the provinces should have an official role to play, and if so, what would that be? Should it go as far as the Meech Lake Accord or even the Dobbie-Beaudoin Commission, on which my colleague sat, which said that the list of names to be considered should be submitted by the provinces?

Mr. William Johnson: Maître Marceau, first of all, Parliament recognizes the importance of the regions in the Supreme Court Act. Quebec has three seats on the Supreme Court. Secondly, we suggested that at least one and maybe two members of the special committee created to advise the Prime Minister should come from the region from which the judge is to be chosen. Those are two means by which the provinces would have some direct involvement in the process.

Mr. Denis Jacques: Of course, I believe that in addition to a representative of the provincial bar association—or, in the case of Quebec, the bâtonnier—a representative of the provincial Department of Justice should sit on the committee. I believe that would address your concerns.

Mr. Richard Marceau: That was the third point. I would like to hear the people from the Law Society of Upper Canada, of which I am also a member.

[English]

Mr. James Caskey: The difficulty we have is that we have been unable to formulate a position on that, and I regret that. It would be a personal observation that I have.

[Translation]

Mr. Richard Marceau: I would like to hear your personal observation.

[English]

Mr. James Caskey: My personal observation is that there should be some representation from the area; that is, whether it's the province of Quebec or Ontario or wherever that appointment is coming from, there should be representation from that area to give input. That, along with the parliamentary assistance, would make sure that the public interest is well served.

Mr. Richard Marceau: Okay.

Mr. Julian Porter: But you should be consulting on this process with all of the attorneys general. I would have thought that would be a wise thing to do. They've got their own systems, and they'll have their own opinions. Not only are people from their province going to the court, but I'd ask that you check with them in this process now.

[Translation]

Mr. Richard Marceau: The current process is rather nebulous, in as much as it all seems rather informal. There is nothing in writing. Some people may be consulted. The list of possible appointees to the Supreme Court seems rather... Yes, it has been spoken about in the media, decisions by a given judge have been read... It's all very vague.

What do you think should be the starting point? Who should establish the list of 10 or 15 men and women to be considered? Should the committee decide that this person or that one is the right candidate for the job? Who should be responsible for drafting the list of people to be evaluated? The process should be made formal, since, up until now, it has been, as you said, Mr. Johnson, very murky. Mr. Johnson, then Maître Brosseau or Maître Jacques may respond.

À (1005)

Mr. Denis Jacques: First of all, there are people who would like to sit on the Supreme Court, but there are other judges, namely Appeal Court justices, who might not want to sit on the Supreme Court and who are perfectly happy sitting on the Appeal Court or Superior Court benches, or even in private practice, since we could also consider practising lawyers.

If the Chief Justice of the Supreme Court and federally appointed chief justices of superior courts sit on the committee, then the community will be aware of that fact. Judges or high-profile lawyers who might be interested in a Supreme Court appointment would, naturally, hear about it from the people who sit on the committee.

Mr. Richard Marceau: Maître Jacques, I believe you are the one who spoke about the American system. You rejected it entirely. I also feel that it is a circus. We can state that openly, because it is also the way the public sees it. I would like to hear your comments on what Professor Manfredi told us last Tuesday. He said that since 1937, there have been 39 vacancies on the United States' Supreme Court, and 3 nominations have been rejected, 1 has been withdrawn, 15 have been approved by a voice vote and 24 have been approved by an average of 75 to 15. He concluded that what we had in mind was the nomination process for Bork and Clarence Thomas, but that was only a very small part of the process and it cast our perception of the American system in a negative light.

I would like to hear what you think. You believe that public hearings are all that bad?

Mr. Denis Jacques: I share the opinion of those whom I mentioned earlier, people who were interviewed by the National magazine last month, which noted the following:

Must we imitate our American neighbours by convening public hearings to confirm the judicial appointments made by the Prime Minister? The American experience has not always been a healthy one.

It might at times have been the right one, but it has not always been beneficial.

These hearings, which take place in a highly charged atmosphere before the American Senate Judiciary Committee have often degenerated into ridicule and rhetoric. During election years, they have sometimes resembled witch-hunts. Judges are forced to explain previous decisions and to express their opinions on cases that they did not hear. "In the United States, it is ridiculous", observes Judge François Rolland of the Superior Court of Quebec. "They are losing good candidates for the Court [...] Once the judges begin to justify their decisions, it can become a popularity contest."

I mentioned Chief Justice Robert. He was quoted as follows:

As for Judge Robert, he feels that the confirmation process in the United States places the judges in an untenable position. Instead of making the process less political, this type of forum has the opposite effect.

I am of the same opinion. I don't think it is desirable and I even believe that, as Mr. Duceppe said recently, we should not embrace that type of model, which can...

Mr. Richard Marceau: Let's not promote it.

Mr. Denis Jacques: No, no but I am telling you that I agree with what Mr. Duceppe said, that is, that we should not follow the example of our American neighbours.

M. William Johnson: I have two points to add, if I may. First, we will clearly be discouraging good candidates. I forgot the second, but it will come back to me in a few moments, Mr. Marceau.

À (1010)

[English]

Mr. Julian Porter: He should retire early. That's a senior's moment. Three of those and he's out.

Some hon. members: Oh, oh!

Mr. James Caskey: To the member on this issue, but not to belabour it, the statistics on the acceptance or rejection are not the issue. The damage to the candidate on the way through, even though accepted, by way of the encroachment on their independence is the issue.

[Translation]

Mr. William Johnson: That was my second point. Do we know where the Supreme Court judges come from? In the United States, I think that they do know. That is not the case in Canada, because our Supreme Court judges are apolitical. And if they are subjected to a public committee process, even if they make every effort, they will be seen as sitting on one side or the other of an issue. That's what happened in the United States.

Mr. Denis Jacques: Statistics are all very well but even one problem case would be one too many. The entire system must be sound. We can't simply say that things will work out 50 per cent of the time. We have to ensure that good candidates will not be ruled out. A number of good prospects will not want to be subjected to that type of scrutiny and we stand to lose high-quality candidates.

[English]

The Chair: Thank you.

Mr. Nystrom for seven minutes.

Hon. Lorne Nystrom (Regina—Qu'Appelle, NDP): Merci, monsieur le président.

First of all, I want to welcome everybody here this morning.

I have three very quick questions, which I preface by saying I've spent 10 years on the constitutional issues, from patriation in 1982 to Charlottetown in 1992, and I know some of these questions are very complicated.

My first one is a follow-up on Kevin Sorenson's question about judicial activism. I agree with your answer that judges don't initiate; it's governments or persons that initiate cases, and judges make decisions. So I don't think there is a concern or a lack thereof of judicial activism since the charter. But I think what has happened since the charter, since it has been enshrined in the Constitution, is that judges, by the very fact that there is a charter in the Constitution, have more power over public policy now than they did before. I think we did transfer some policy from the legislatures to the courts. I think that's what has happened, Kevin.

I just want a little bit of response on that, because that has been my interpretation after following this for a number of years. We collectively, the parliaments and legislatures, made that decision back in 1981 or 1982. Patriation, of course, occurred in 1982, and then the equality section of the charter went into effect three years later.

Am I generally in the ballpark in what I'm saying?

Mr. James Caskey: Yes, Mr. Nystrom. In fact--again, speaking for myself--it seems to me that once Parliament, through the Charter of Rights and Freedoms, gave that right to the courts, saying, you are to interpret this when some citizen comes before you with an issue, surely Parliament at that time knew that was the process that would be followed and must have anticipated that there would be some judicial interpretation of the actions taken by government bodies. So I've always taken the position that once you get the judiciary to do the job they're appointed to do, if you want to change that, you're going to have to change it not by changing the nature of the judge and by fishing for their political views so that you can exclude them from a particular post because of their views; what you do is you put the best qualified people forward, ones who are going to be fair, objective, and try the case on the merits, listen to the facts, apply the law as they see it, and do that in an objective way. That's what the process is designed to do to end up there.

If Parliament does not like the way in which the Charter of Rights and Freedoms has given the judiciary that role, it can overrule that. That provision is there. It was put there, I'm sure, by Parliament for the very reason that Parliament anticipated that there might be some pronouncement that Parliament didn't care for collectively.

Hon. Lorne Nystrom: You're referring, of course, to the notwithstanding clause.

Mr. James Caskey: To the notwithstanding clause.... However, Parliament may not want to exercise that, and that doesn't make the judicial process faulted.

Mr. William Johnson: I have two comments, Mr. Nystrom, if I may.

My first comment is that I come from Saskatchewan, as do you, as does Mr. Breitkreuz, and we all remember in Saskatchewan the views of our former premier, Allan Blakeney, who sang from that song sheet with great vigour and has been proven right.

My second comment is that the Canadian Bar takes the position on this line of questioning that lawmakers need to pass the laws themselves. Lawmakers have the law-making power. You make the decisions in your arena; that's your job--if you follow my meaning.

À (1015)

Hon. Lorne Nystrom: Yes, I do. I share the constitutional ideology of Alan Blakeney. I think he was a person who had it right in terms of the balance between the judiciary and the parliaments. He did play a key role at that time.

Arising out of this, if I can prejudge what we're going to do, we're going to have a more open process in terms of judges being selected for the Supreme Court. We don't know what that process will be, but it should be more open. If we get into a situation where we're going to question judges, where do you draw the line on appropriateness?

I'll refer to a very contentious issue that will be coming up shortly. Two new judges will be joining the Supreme Court before the reference on same-sex marriage is dealt with. Do a judge's personal views, writings in the past, or previous judgments become fair grounds for questioning? I'm on one side of that issue, and others are on the other side. I'm not saying we should be doing it, but where's the line? What's appropriate and not appropriate?

I want to ask one more question. Like Mr. Johnson, I'm from the west. By tradition or practice, we have three judges from Ontario, a couple from the west, and one from the Atlantic region. We're going to have a more open process. Do you have any advice as to what we should be talking about in terms of a regional balance, a gender balance, aboriginal input into it, and a visible minority balance? Should we be pronouncing on some of those issues as well? We're getting more and more of those questions. For example, on gender, I don't see how we could not have as a very major factor that we have to have more gender balance in the courts. I think that's where society has been moving. What advice do you have for us on those issues?

These two questions are not related, but I think they're questions we have to address as a committee.

The Chair: Mr. Jacques.

Mr. Denis Jacques: On the first question, I think the line is obvious. From our point of view, there should be no questioning of the candidates. Even for the candidates to have to answer questions that would not involve their judgments or their moral values, they would have to say to everybody, “I'm a candidate. I want to go to the Supreme Court.” If he is not appointed, he has to go back to his court. We will lose good candidates, because in the past, most of the people who were appointed to the Supreme Court came from the courts, the Court of Appeal, mostly, and those candidates don't want to tell everybody about their interest in the job. They want the process to be confidential. So any questioning, in my view, wouldn't be acceptable.

Mr. Julian Porter: This is a personal observation, not endorsed by anybody. There are two issues: whether you are going to question in confidence or publicly, so you might have two different series and rules, and whether you are going to question just those the Prime Minister puts forward or a wider range. So it's a before and after process, and your questions may be entirely different for each process.

With regard to this idea of a protocol, if it's in the public, somebody will break the protocol. It happens with lawyers and politicians. You have the protocol, and you say, “You're not to ask questions that are....” Immediately somebody says, “What do you think about abortion?” The question by itself is such a polemical question. Once asked, everybody says, “Oops, you shouldn't have asked it.” It's there, and you've destroyed something in the process. But if you have things done in confidence and if the members of Parliament are part of the process and agree to treat it in confidence, that's a whole separate matter. I'm sure that as members of Parliament you sit on a good number of committees where what you review is confidential, certainly in terms of foreign affairs.

À (1020)

Mr. William Johnson: Let me say, Mr. Nystrom, that both Mr. Jacques and Mr. Porter iterated in their remarks earlier, and now in their answers to your question, the fundamental starting point, which is that, in our opinion, the process must not be a public scrutiny in the American style.

Why do we say that? Because that approach, that public approach, will necessarily politicize the process, politicize the candidate, and will, in our opinion, undermine Canadians' view of our judiciary as independent from politics and independent from government. And Canadians must have confidence in the justice system.

So I echo what they said, that we must be very careful with that starting block.

[Translation]

Ms. Carole Brosseau (Lawyer, Research and Legislation Service, Barreau du Québec): If I may make a final comment, I would say that if we make the hearings public, we could weaken our judiciary and, by extension, the quality of justice in Canada. We want to ensure a greater transparency in the process. But would an American style confirmation hearing add anything whatsoever to the process? That is the question that you must ask yourselves.

To my mind, I don't really think hearings would be of any use. On the contrary, as Mr. Johnson said earlier, our justice system would not be improved, but weakened. That's why I would lean toward our recommendations to maintain the confidentiality of these discussions.

In terms of transparency, the citizens would be better served if the methods for arriving at the nominations and the committee procedures were made public. This would be more reassuring than having the candidates express their own personal views. For reasons of judicial independence, potential judges could not answer that type of question, particularly those who already sit on lower courts like the Court of Appeal or the Superior Court. That could happen. I don't think they would able to answer that type of question, unless they were asked to comment on evidence or facts that were submitted to them.

[English]

Ms. Tamra Thomson: Just to follow up on that, asking any candidates those kinds of questions assumes that you can predetermine how they would decide in any given matter. We have an assumption, as Canadians going before the courts, that the judges will be there with an open mind to hear the facts of the case in context. So to ask opinions about those social issues before their appointment may lead very well to the assumption that they will not have an open mind when litigants come before them.

The Chair: Thank you.

We'll go to Ms. Torsney for seven minutes.

Ms. Paddy Torsney (Burlington, Lib.): Thank you.

In terms of the process and the statistics that Mr. Marceau identified, it really does depend on where you start evaluating it. The last number of cases have been horrible in the American Supreme Court. Clarence Thomas commented yesterday on the CBC that even though he got the job, it wasn't worth the process he went through. I thought that was quite stunning, that someone who was elevated to that high-level a job would still say the process wasn't worth it.

[Translation]

I agree with Carole and Denis; I think the committee membership and the criteria that they use should be made public. Moreover, I think Canadians should be better acquainted with the role of the government and that of the courts.

À (1025)

[English]

It's the very cases they decide that drive everybody crazy. They say it's activism, but....

Mr. Caskey, in your exchange with Mr. Nystrom, you talked about how they interpret, and then we have a process for overruling them with the notwithstanding clause. Sometimes we also can just change the legislation. Sometimes they're identifying a problem with the way we struck the law.

So that protection, in some cases minority protection, is fundamental to whether or not each of us at some point is treated fairly before the courts and given our rights and freedoms. That's the part I don't think a lot of people understand, that it's for us, if we don't like their decision, to come back and say, okay....

In my previous tour of this committee several years ago, we did that on several issues, and we're doing that now with the pornography laws. They figured out there's a problem. It's a legitimate problem. We'll find another way to get to what we all want to achieve.

So I totally agree that there needs to be a lot more education in terms of the process and the criteria.

I'm also wondering about a couple of other things. In terms of the committee,

[Translation]

I believe, Mr. Jacques, that you mentioned lawyers. Does the public have a role to play? I am not a lawyer myself, but I think it is essential that the public trust them.

[English]

Is there a way to ensure this committee is in fact representative of the public?

Sorry, guys. The four men have spoken--the two women spoke in the last round--but you are here to represent your organizations. You're not representative of the Canadian public. I'd argue that the court could be more representative.

Is there a role for ensuring that the very committee that reviews...? And how would you suggest we do this...gender, aboriginal, and other minorities that might need to be there, especially given that you identified chief judges of the Supreme Court, chief judges of the provinces, presidents of the Barreau? Most of them are going to be white men.

Mr. William Johnson: You're absolutely right. That's fundamental to the recommendation the CBA made 18 years ago--citizen involvement on the advisory committee, minority involvement. The Saskatchewan committee I sat on included a member of the aboriginal community. The Saskatchewan committee right now has six women and one man on the advisory committee.

Ms. Paddy Torsney: You have to watch that gender balance.

Mr. William Johnson: Exactly. If the message hasn't come through in my earlier remarks, it is there. You're right on. And that will come through your committee as well.

Ms. Paddy Torsney: Well, it does and it doesn't, Mr. Johnson. Frankly, only 20% of the House is female, and there are not enough representatives. We're getting there, but we're not there in terms of minorities.

I think, Mr. Jacques, you identified four members from the House. Then there was some more discussion about speakers, perhaps--two white men.

We have had five parties in the House. If you talk about four members of Parliament, there's the House and the Senate. How do you make sure, if we're going to get the confidence, that this committee doesn't become so unwieldy...?

I'm probably running out of time.

Ms. Thomson, you mentioned looking at people's opinions at various points in time. Yesterday we heard about how there is a jurisprudential profile done of these individuals and you can see whether their cases were overturned, whether they were upheld in other courts, what kinds of decisions they have taken.

There are two things. Couldn't that information, at least, become more public? We talked yesterday about how a first-year law student would be able to do that kind of analysis. Isn't even that too boiled down, because the person would have been considering the points of law and debate that were brought to them at that point in time over their career, and the cases they're going to hear could be completely different?

A case on abortion or on same-sex marriage was completely different 20 years ago or 15 years ago. Today there are new precedents. How do we make sure we have that accountability, and what other things should we be considering?

I gave you a lot of things. Now you get to comment.

Mr. James Caskey: Could I just ask the member to clarify her position? When you're asking for that accountability, do you mean on the committee, or are you talking about potential judicial appointments?

Ms. Paddy Torsney: In terms of the representation?

Mr. James Caskey: Yes.

Ms. Paddy Torsney: I think the committee should at least be representative. Over time, hopefully, the Supreme Court will be more representative.

We know people tend to choose people like themselves for jobs, so maybe we need to make sure that at the first call at least the committee that's making the decisions is thinking more broadly.

À (1030)

The Chair: Mr. Caskey.

Mr. James Caskey: Thank you, Mr. Chairman.

It seems to me that your committee...and be cautious that you don't make one that's too unwieldy. If you try to cater to every constituency, you could end up.... You could send out a poll every time you wanted to get the consensus of what the committee was going to do. You can't function in that milieu. It just doesn't work.

It seems to me that you're very cautious when you're setting up your committee. I've always looked at you people as being the representatives of the people. You're elected by the people. You represent the views of Canadians in Parliament. It seems to me that if you have a number, whether it's three, four, or five.... I don't think you need a great many, because you'll bring the diverse backgrounds and the views of so many Canadians to the table.

I think that's the public interest that I see you bringing to any deliberation, and it's a very essential part, as far as I see it. Again, I'm concerned; I think there has to be that representation on the committee. I think that then brings the public into play, because you are the representatives of the public here.

Mr. Denis Jacques: In our first report in 1987 we differentiated between the committee that would stand for the Supreme Court appointments and the others that we have in place now for the superior courts or the courts of appeal. We have to consider that the Supreme Court is very specialized; it's the highest court. That's why we have specialized people forming the committee--the Chief Justice of the Supreme Court, the chief justices of the courts of the provinces, the presidents of the bars, the president of the CBA. We were willing to add some parliamentary members. I like the answer of my friend from Ontario who said that the members of the public are represented by the parliamentary members.

We agreed on the proposition of the CBA to have four parliamentary members. It could be five; it could be three. The choice of who those members would be would be yours. That's why we also came with another solution, to have the Speaker of the House of Commons and the Speaker of the Senate, to have members who have impartial roles.

So if it's too much trouble to determine if it would be three, four, or five, and who those four or five would be, then maybe you would prefer the possibility of having those members of Parliament be part of the committee

[Translation]

Ms. Paddy Torsney: Mr. Jacques, I am not sure that there is...

[English]

The Chair: Excuse me, Ms. Torsney.

Ms. Paddy Torsney: Sorry, just a second.

The Chair: You have five seconds to clarify.

Ms. Paddy Torsney: Are there any female presidents of the bar in any province, or are there any female superior court judges?

Mr. Denis Jacques: Well, the Chief Justice of the Superior Court in Quebec is a female and the Chief Justice of the Supreme Court is a female.

Ms. Tamra Thomson: In any given year, the presidents of the branches of the Canadian Bar Association...in many years we have more women than men. The bar leadership itself is becoming more representative of women. In terms of parliamentary representation, I believe that is the subject of one of your other committees.

The Chair: Thank you.

Now, we've finished the seven-minute rounds. We have about 20 to 25 minutes remaining. There's another committee moving into this room at 11 o'clock. I'd like the three-minute rounds to be fairly crisp.

I'm reminded that we adopted a motion that takes us back and forth for these rounds, but I point out that we have five members on the government side who have not had any questions put yet. I'll check with the clerk while we go to this round.

Mr. Breitkreuz is clearly next with a three-minute round.

À (1035)

Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): Mr. Chair, I have a point of order. I really have to object. We have less than 35 minutes left with these very important witnesses, and for members on this side of the table to have so little time is really unacceptable.

The Chair: Well, I'll work with that while this next round is going on.

Mr. Breitkreuz for three minutes, and I'm going to intervene to make sure it's only three.

Mr. Kevin Sorenson: Next time, show up on time.

The Chair: Mr. Breitkreuz, please.

Mr. Garry Breitkreuz: I have seven questions, and I want to get through them very quickly. I will do my best. You can pick and choose the questions you want to deal with.

First of all, are the advisory committees that you are suggesting we have going to just screen the candidates or will they also recommend candidates for appointment?

Second, would the Minister of Justice or the Prime Minister be required to make appointments from that list or could they go outside of the recommended list or the screened candidates?

Third, sometimes, because politicians often appoint judges, is that not already politicized? Often appointments will be made quickly before someone leaves office, in order to create a favour or whatever.

Is it possible that lawyers and judges can be so immersed in the law and its technicalities that they are often oblivious to the overall impact of their decisions? I take the case in Saskatchewan, which you may be familiar with, that's causing a huge furor right now. I am of the feeling that the purpose of the law is to keep order in society. Sometimes we have to be aware of these, and that should also be a factor, I think, in appointing judges.

Next, because the Supreme Court is so selective in the cases it hears, by screening them out is it not already pre-judging them? Why would we not be very careful who those judges are and what their opinions are, because that is a great determining factor on what cases they will hear?

The next question--

The Chair: Mr. Breitkreuz, you're at two minutes and 23 seconds, and we're going to have to allow time for an answer.

Mr. William Johnson: There were five questions. Number one was simply on screening or recommending the way the committees work now, and the way the Canadian Bar recommends the special advisory committee should work is to recommend or not recommend the particular candidates.

The second question was, does the Prime Minister have the right to look outside the list of recommended candidates to somebody else? The way the committees operate now, the answer is no; that's the convention, and it has never happened that the Minister of Justice has stepped outside the list. Our position is that the Prime Minister must not step outside the list as a matter of convention.

The third question was about whether the process was already politicized; I think that was your question. That was a concern 18 years ago, and the action was led by Bob McKercher from Saskatchewan. A special committee was struck and the committee came up with a recommendation to depoliticize the process. The McKelvey report does that; our recommendation depoliticizes the process.

Fourth, are judges and lawyers oblivious to the results of their decisions in the community? Absolutely not, but remember, the judge's task is to decide the cause set forth before the judge by the parties; he or she is driven by law to do that and not engage in social policy.

Ms. Tamra Thomson: There's just one more thing. To further depoliticize the process, the CBA has recommended a two-year cooling-off period before anyone very active in the political process could be appointed to the bench.

Mr. James Caskey: If I may, I'll just speak to the one point about the Supreme Court and the necessity to get leave. At one point in time you had an absolute right to go to the Supreme Court of Canada if the matter in issue had a value of more than $10,000. That was changed legislatively.

The Chair: Mr. Breitkreuz, you have a great argument, but we don't have time to put it.

Mr. Jacques.

Mr. Denis Jacques: Just to answer that last question, I'll say that it's not prejudging; it's judging. One of the criteria to hear a case is that it has to have national interest, so they are judging. When they are not going to hear a case, they are judging; they are not prejudging.

À (1040)

The Chair: Thank you.

We got a lot of questions and a lot of answers there.

Ms. Catterall for three minutes.

Ms. Marlene Catterall: First of all, if anybody didn't see The West Wing last night about the appointment of the Supreme Court chief justice, I strongly recommend you see it. It was brilliant, I thought, and very enlightening as to some of the decisions we have to make.

I personally have many of the problems you have with the idea of a parliamentary committee reviewing a proposed appointee, for the reasons you mentioned, but also from the point of view of how that would influence the choice in the first place, it being known that this person would have to come before a committee.

Second, I don't think any judge in his or her right mind who wanted to assume this high a position would answer the kinds of questions politicians would want to put to them because it would prejudice their position on the bench.

We've been asked to deal with something very important very quickly. Many of you have given us the caution to take it slow, so I'm prepared to look at an interim process for the first two here. You've talked about the fact that this is not a transparent process. I, frankly, think that is one of the biggest deficits, but what I'd like to know is your opinion on what the defects of the process have been in the past, other than transparency.

Second, are these advisory committees that pure? Frankly, I have heard complaints that biases come into the advisory committees too in terms of members' personal opinions of names that might be considered by them.

I'm almost coming to the conclusion in this first round that if we want to think through this fundamental constitutional question, we really cannot do it in the next few weeks. Maybe we need an interim process where it's the Minister of Justice we call before us to justify the recommendation he has made and explain the process he has gone through, taking the time we need to change a process that's been in place for 130 years.

Anyway, I would appreciate knowing what the defects we're trying to fix are and how impartial and pure the peer review of the advisory committees actually is.

Mr. James Caskey: I think they are perceived defects; I don't think they are defects. I think what you're talking about is a lack of knowledge of the process. The process has worked for a very long time, and it has resulted in some very wonderful appointments to the Supreme Court of Canada. I think it's just that if the public had to know the vetting that went on, they'd be much more comfortable. I think it's a perceived defect in the process.

For these two appointments that are coming up now, perhaps your suggestion of calling the Minister of Justice and saying, you're coming forward with a name and we're going to ask you how you arrived at that process.... But I don't think it would be one that would involve the individual by way of an appearance...going back to the present system.

You're right. I think the key to this is, take the time to come up with the right system.

Mr. William Johnson: With the greatest respect to Mr. Caskey, I must say there are two fundamental defects that led the Canadian Bar 18 years ago to come up with the committee system we're all talking about today. The first one is that the old system was too political, so the advisory committee's recommendation was to depoliticize the appointments process; that was the first defect.

The second defect was that the public didn't understand the process; it wasn't transparent. We came up with the committee process so the public would be involved. We've talked about it constantly, but obviously not successfully enough as the Canadian Bar Association, because it's our idea. Let the public know these committees are out there, and let the commissioner of judicial affairs advertise that to the public and lawyers. It's not transparent; that was the problem. We've made it more transparent. More needs to be done to make it more transparent.

That's where our recommendation goes. Make the process transparent so Canadians understand what it is and understand the merit criteria that are applied in the process. Those are the two fundamental defects in the existing system.

À (1045)

The Chair: Thank you.

Monsieur Jacques.

Mr. Denis Jacques: Well, I agree with my colleagues that the biggest problem is transparency. As I said before in my presentation, the results we got in the past years were good results. The appointments were good appointments. We have a very strong Supreme Court right now. The main problem is the transparency for the public.

You also asked if the committees we had at lower levels were pure. Well, no system is perfect, but I think it's pretty good. We have seven people coming from different communities who are part of the committee, and I think they give pretty good results in the end.

The Chair: Thank you.

I have to go to Mr. Marceau for three minutes. He's had a previous round, so I'm going to be really strict on this one.

Mr. Marceau.

[Translation]

Mr. Richard Marceau: There appears to be some consensus among the academics we heard from at the beginning of the week and the lawyers' representatives that are before us today on the fact that parliamentarians and the provinces must play a role in this process. That is my initial rough conclusion.

I would like to ask three questions.

First of all, if we want members of the public to sit on a committee such as the one described by Mr. Johnson, how should we go about selecting them?

Secondly, if we want to appoint candidates on the basis of their merit, how can we balance this essential characteristic with another one which, in my opinion, is just as important, namely, that we have a bench that reflects society, which considers the members of minority groups and equitably represents both men and women?

Thirdly, earlier you said that we could not really consider the decisions made by the candidates at, for instance, the Court of Appeal level. However, we have been told that, with the current process, we were already doing jurisprudence profiling—Paddy Torsney referred to this earlier—of potential candidates and that this was taken into account in the process. If we really want to open the process up, how can we not give any consideration to the candidate's jurisprudence profile?

[English]

The Chair: Thank you.

Ms. Brosseau.

[Translation]

Ms. Carole Brosseau: If I may, I will answer the second question pertaining to the merit of the candidates. Naturally, the gender question is of great interest to me, as is the issue of diversity.

As for the merit of the candidates, you need to understand that, regardless of what selection committee you're talking about, they all have to establish their own rules. Society has evolved and application of the Charter is not the exclusive domain of the courts; this responsibility belongs to all citizens of Canada. We currently talk about our fundamental values, and that includes equality for all.

We did have a problem with respect to the merit of the candidates, but this has been remedied over the years. The Canadian Bar Association mentioned these criteria in its 1992 report on diversity. Indeed, the very criteria that we use to appoint judges may not favour women and minorities. For very personal reasons, we often make traditional choices that, for all intents and purposes, may harm candidates of all kinds.

When we examine the criteria set out in the 1999 report released by the Commissioner for Federal Judicial Affairs, we can see that research was done to find candidates from the ranks of women and the minorities. The most recent appointments confirm that an effort was made to find candidates among women and minorities. So efforts have been made in this direction. As for diversity, the choice should be made on this basis.

As for merit in its strictest sense, I think that we have to consider both the personal and professional experience of a candidate. It is the many facets of an individual's experience that will make him or her a good judge. In my opinion, merit is based both on an individual's work experience and social commitment, etc. These are all aspects that can be taken into account. With respect to diversity, these are the initial criteria which are important.

Mr. Denis Jacques: As far as your first question with respect to the public is concerned, from what I can gather, committees established to make appointments to the Supreme Court did not include members of the public directly. Aside from parliamentarians, the Chief Justices and members of the bar associations and the Canadian Bar Association, representatives of the public were not included directly. At least this is what we have understood at the Barreau du Québec.

Secondly, as far as merit is concerned, the current policy for appointments to the federal judiciary already provides a list of criteria, including competence and professional experience, which are verified by the committees. Obviously, all of these criteria—namely legal competence, varied legal experience, commitment to the law, ability to assume the duties conferred by the Charter, standards, professional reputation, maturity and objectivity—could also be considered when the merit of the candidates is examined.

Another aspect needs to be taken into account. We know that the Chief Justice of the Supreme Court sits on the committee. We need to consider the requirements at the court level. Do we really have any requirements for a specific stream of law? Are there any shortcomings in public law? To some extent, this matter could also be reviewed by the committee.

As for the jurisprudence profile, I think that every time an appointment is made, the individual's jurisprudence profile is made public following his or her appointment. I think that the people sitting on this committee could include this as one of the aspects that they review before making their recommendation.

À (1050)

Mr. William Johnson: Mr. Marceau, we need to start by asking two questions: who will serve on each committee and what criteria will be used to evaluate a candidate's merit? In our brief, we suggest criteria that could be applied to determine merit. So then, these are two good questions that should be asked at the outset, namely who will members of the committees be and who will the potential candidates be? In our view, these are two things the committee needs to consider.

[English]

The Chair: Now, Monsieur Dion, I have to be very honest and realistic here. We're down to the last five, six or seven minutes, so I'm going to suggest that we get questions as opposed to discussion. I don't want to take more time. I have members here who haven't put questions yet.

So, Monsieur Dion, please.

[Translation]

Hon. Stéphane Dion (Saint-Laurent—Cartierville, Lib.): Thank you very much. Three minutes go by quickly and there are so many issues to consider.

[English]

I'm starting my three minutes now.

[Translation]

I would like to ask the three organizations how much time they would need in order to submit a more detailed proposal because, you see, the devil lies in the details in this type of thing.

As for the issue of criteria, is it not true, as Mr. Jacques has just said, that there are also criteria related to the circumstances? Right now we're going to have seven justices because two are leaving. These seven justices have a certain expertise. The court has certain requirements that already define the work somewhat. But is it not also true that it is difficult, when a justice from the Quebec region leaves, to appoint a justice from Montreal? You have to indicate, in writing, what weight needs to be given to the circumstantial criteria in comparison to the weight to be given to criteria pertaining to diversity and expertise.

My next question deals with the composition of the committee. Who chairs such a committee? The chair plays such an essential role. Is it necessary that the Chief Justice sit on the committee? Is it possible for the Chief Justice not to chair the committee when he is part of it? If he is part of the committee, wouldn't he intimidate everybody a little bit, because he would have all this prestige compared to the other members?

In its submission, the Canadian Bar Association referred to a representative of the Chief Justice. Who is this representative of the Chief Justice? When you talk about a representative of a federal department, does that mean it has to be the deputy minister? Do you have to be more specific? Since we're talking about the provinces, it would be wise to include a representative from the provincial department and not only a representative from the provincial bar association. Would it not be a good idea, as is done in some countries, to ask the deans of law faculties in the region or the province to choose a representative from the academic world? I would like you to give more thought to the make-up of the committee.

Let's look at the way that you work. You have told us that everything needs to be confidential, which makes your call for transparency somewhat ambiguous. You want people to be aware of the process, but you want the actual way that the process is carried out to remain strictly confidential. You said that this was not a lack of transparency but rather a requirement. From what Mr. Jacques has said, I have understood that there will not even be any meetings or interviews with potential candidates. It's not just that these meetings will not be made public, they simply will not be taking place. The committee will really be working in camera. It will base itself on files, knowledge and consultations. Will the committee be consulting with anyone, and what will these consultations be about? I would like you to explain the advisory committee's consultations.

And then, will there be a vote? It is possible, particularly if parliamentarians are sitting on the committee, that no agreement would be reached. If you have parliamentarians sitting on this committee, the likelihood of disagreement will increase. In that case, what would you do? Do we need to provide for an official decision-making formula or do we leave it wide open?

I have so many questions, but I'm using up my time. I will ask you one final question. Would it not be worthwhile to learn something from this whole process? The advisory committee, perhaps through its chair, could testify here, before the parliamentary committee, after the fact, that is once the judge has been chosen. Without revealing anything confidential about the process, the chair could tell us what was learned and what steps are being taken to improve the process. We could be given a written, formal report explaining how things unfolded.

Finally, what does the committee do? What type of recommendation does it make? This question has already been asked, but does it submit a short list to the Minister of Justice? Does the committee suggest a specific candidate or does it make a more general recommendation?

Mr. Chairman, I have so many questions. This demonstrates just how right both Mr. Porter and Mr. Caskey are when they say that we really need to study this issue more thoroughly before we proceed at full speed to make changes.

À (1055)

[English]

The Chair: Excuse me, we may actually run out of time before we have all the answers, and I know there were other questions.

I'm speaking with our research person here, Mr. Rosen, and if there are answers that the witnesses would like to give in writing later, they may do that.

Hon. Stéphane Dion: Do you have time to send these answers to us?

The Chair: I would encourage the witnesses to please feel free to provide written answers to any of the questions, smaller or larger, as you see fit.

Hon. Stéphane Dion: My question is, how much time will it take you to deliver to us these kinds of clarifications that are so essential?

[Translation]

Mr. Denis Jacques: Obviously, we are at the disposal of the committee. If we are given enough time, we will be able to respond by the deadline. We have already indicated that we will have a plenary session at our convention, where 500 lawyers and judges will be sitting together in the room to discuss the process. But if you have a tighter deadline, we are of course prepared to cooperate fully with the committee.

You are right to say that we must not act hastily. This was, moreover, my conclusion as well as the conclusion drawn in our report. We want any changes to endure and this issue is so important that we certainly do not want to do things quickly. The sub-questions you raised demonstrate just how delicate this issue is.

Should decisions be made on the basis of a majority? Should the decisions be unanimous? Should the committee make anywhere from two to five recommendations? We had already thought that the committee could make between two and five recommendations to the Prime Minister. It is not the Minister of Justice but indeed the Prime Minister who determines who will be sitting on the Supreme Court. Could the committee representative testify to inform you about his experience? We need to reflect further on this whole matter.

[English]

The Chair: Perhaps we could consider this as the opening up of a dialogue between the three institutional witnesses, the actual witnesses, and the committee. I'd ask the clerk and the researcher to facilitate responses to the questions that have been put--new questions and new answers. Clearly it's not over in terms of our dialogue.

I want to thank you all for coming and commencing.... The committee may wish to recall some or all of you later, if you're available. We're not sure yet.

Ms. Barnes.

Hon. Sue Barnes (London West, Lib.): Could I at least ask my questions even if there's not time for the answers?

The Chair: Yes, you can put a question on the record. Go ahead.

Á (1100)

Hon. Sue Barnes: Yes, I would like to do that.

Clearly, at the end of the day the Prime Minister constitutionally has this right to name the final justice. I think there are two different issues and--

The Chair: Ms. Barnes, if I could ask you to put the interrogatory without the preamble....

Hon. Sue Barnes: Okay. What is the difference between people to be consulted and people to be part of a potential advisory committee? Would it be a different process if the current process had some light, with a final candidate coming forward to a potential committee? What would that process conceivably be, as opposed to another process--and I'd like to hear about both--where you have involved a wider committee? The membership of that wider committee could be different from the people being consulted by that wider committee. I think the differentiation there is important.

Thank you.

The Chair: Thank you.

Two more--and it's just questions, Mr. Breitkreuz.

Mr. Garry Breitkreuz: Yes.

The Chair: Mr. Breitkreuz, it ends with a question mark.

Mr. Garry Breitkreuz: Thank you, Mr. Chair.

I just want to point out that--

Ms. Paddy Torsney: On a point of order. There are several other questions. Would it not be simpler if we wrote out our questions and asked the clerk to give them to them?

The Chair: Members have asked to put their questions on the record.

Mr. Breitkreuz, please put your question quickly.

Mr. Garry Breitkreuz: I believe there's a perceived contradiction in your--

The Chair: That's not a question. Please put your question.

Mr. Garry Breitkreuz: Okay. Is there not a contradiction in your presentation in regard to the criteria? On the one hand you argue that judges' personal opinions don't affect their judgments, but on the other hand you say we should have judges representing gender, race, colour, creed, religion, etc. If justice is blind, why would it matter what the background of the judge is? To me, there seems to be a contradiction, and I wonder if you don't see that contradiction in your presentation.

The Chair: There's your question mark. Thank you.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): My question is to Mr. Porter. We've heard a lot of commonality this morning from our panel on selection criteria and committee representation. You also indicated, in contrast with that, that you had dinner last night with 15 benchers who had a wide range of diverse views. I'd like to hear what some of those diverse views are, without naming who those individuals are.

The Chair: All right.

Ms. Paddy Torsney: It's a technical point.

The Chair: Sure, go ahead. Just put the question, Ms. Torsney.

Ms. Paddy Torsney: Recommend, don't recommend, by consensus, vote, or majority--if you're going to have opposition members, it's entirely possible that you're going to have some people who absolutely disagree. So how does it work?

The Chair: On the advisory committee.

All good questions. Thank you, panel. Thank you, colleagues. I'm sorry we ran out of time so quickly.

We're adjourned.