JUST Committee Meeting

37th PARLIAMENT, 3rd SESSION

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

EVIDENCE

CONTENTS

Tuesday, March 30, 2004

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1535

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

Hon. Claire L'Heureux-Dubé (Judge of the Supreme Court of Canada (retired), As Individual)

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1540

¹

1545

¹

1550

The Chair

Mr. Chuck Cadman (Surrey North, CPC)

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1555

Hon. Claire L'Heureux-Dubé

Mr. Chuck Cadman

The Chair

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

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1600

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

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1605

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

The Chair

Mr. Joe Comartin (Windsor—St. Clair, NDP)

Hon. Claire L'Heureux-Dubé

Mr. Joe Comartin

Hon. Claire L'Heureux-Dubé

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1610

Mr. Joe Comartin

Hon. Claire L'Heureux-Dubé

Mr. Joe Comartin

Hon. Claire L'Heureux-Dubé

Mr. Joe Comartin

Hon. Claire L'Heureux-Dubé

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1615

The Chair

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

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

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1620

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

The Chair

Mr. Chuck Cadman

Hon. Claire L'Heureux-Dubé

Mr. Chuck Cadman

The Chair

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1625

Ms. Paddy Torsney (Burlington, Lib.)

Hon. Claire L'Heureux-Dubé

Ms. Paddy Torsney

Hon. Claire L'Heureux-Dubé

Ms. Paddy Torsney

Hon. Claire L'Heureux-Dubé

Ms. Paddy Torsney

The Chair

Ms. Paddy Torsney

Hon. Claire L'Heureux-Dubé

Ms. Paddy Torsney

Hon. Claire L'Heureux-Dubé

Ms. Paddy Torsney

The Chair

Mr. Richard Marceau

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1630

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

The Chair

Mr. Robert Lanctôt (Châteauguay, Lib.)

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1635

Hon. Claire L'Heureux-Dubé

Mr. Robert Lanctôt

Hon. Claire L'Heureux-Dubé

Mr. Robert Lanctôt

Hon. Claire L'Heureux-Dubé

Mr. Robert Lanctôt

Hon. Claire L'Heureux-Dubé

Mr. Robert Lanctôt

The Chair

Mr. Joe Comartin

Hon. Claire L'Heureux-Dubé

Mr. Joe Comartin

Hon. Claire L'Heureux-Dubé

Mr. Joe Comartin

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1640

Hon. Claire L'Heureux-Dubé

Mr. Joe Comartin

The Chair

Hon. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.)

Hon. Claire L'Heureux-Dubé

Hon. Yvon Charbonneau

Hon. Claire L'Heureux-Dubé

Hon. Yvon Charbonneau

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1645

Hon. Claire L'Heureux-Dubé

The Chair

Mr. Chuck Cadman

Hon. Claire L'Heureux-Dubé

The Chair

Hon. Sue Barnes (London West, Lib.)

The Chair

Hon. Sue Barnes

Mr. Paul DeVillers (Simcoe North, Lib.)

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1650

Hon. Claire L'Heureux-Dubé

Hon. Paul DeVillers

Hon. Claire L'Heureux-Dubé

Hon. Paul DeVillers

Hon. Claire L'Heureux-Dubé

Hon. Paul DeVillers

The Chair

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

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1655

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

Hon. Claire L'Heureux-Dubé

Mr. Richard Marceau

The Chair

Mr. John Maloney (Erie—Lincoln, Lib.)

Hon. Claire L'Heureux-Dubé

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1700

Mr. John Maloney

Hon. Claire L'Heureux-Dubé

The Chair

Mr. Joe Comartin

Hon. Claire L'Heureux-Dubé

The Chair

Hon. Sue Barnes

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1705

Hon. Claire L'Heureux-Dubé

Hon. Sue Barnes

Hon. Claire L'Heureux-Dubé

»

1710

The Chair

Hon. Yvon Charbonneau

Hon. Claire L'Heureux-Dubé

Hon. Yvon Charbonneau

The Chair

»

1715

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

Hon. Stéphane Dion

Hon. Claire L'Heureux-Dubé

The Chair

Ms. Paddy Torsney

The Chair

Hon. Yvon Charbonneau

Hon. Claire L'Heureux-Dubé

Hon. Yvon Charbonneau

Hon. Claire L'Heureux-Dubé

»

1720

The Chair

Ms. Paddy Torsney

Hon. Claire L'Heureux-Dubé

Ms. Paddy Torsney

Hon. Claire L'Heureux-Dubé

Ms. Paddy Torsney

»

1725

Hon. Claire L'Heureux-Dubé

Ms. Paddy Torsney

Hon. Claire L'Heureux-Dubé

Ms. Paddy Torsney

Hon. Claire L'Heureux-Dubé

The Chair

»

1730

Hon. Claire L'Heureux-Dubé

The Chair

Ms. Paddy Torsney

Hon. Claire L'Heureux-Dubé

Ms. Paddy Torsney

Hon. Claire L'Heureux-Dubé

»

1735

Ms. Paddy Torsney

Hon. Claire L'Heureux-Dubé

Ms. Paddy Torsney

Hon. Claire L'Heureux-Dubé

The Chair

Hon. Claire L'Heureux-Dubé

The Chair

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CANADA

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

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NUMBER 008

l

3rd SESSION

l

37th PARLIAMENT

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EVIDENCE

Tuesday, March 30, 2004

[Recorded by Electronic Apparatus]

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[English]

    The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): I will call the meeting to order.

    Colleagues, we're continuing our study of a process to allow a parliamentary role in the process of selection or appointment of Supreme Court of Canada judges.

    We're delighted to have with us today a retired judge of the Supreme Court of Canada, Madam Claire L'Heureux-Dubé, and we are especially pleased for two reasons. One, Madam L'Heureux-Dubé is a respected legal mind, but perhaps more important than that is the fact that because of prevailing conventions we rarely have an opportunity to have judges or former judges appear before us in Parliament, in a parliamentary committee, and at this committee. This is a rare opportunity when we may hear from someone who has a long career as a jurist, in particular on the Supreme Court of Canada, and who may have some very important and useful information to provide us as parliamentarians as we look at this issue.

    So I'm going to allow our witness to present, as she wishes, and then colleagues on the committee will want to ask some questions.

    Hon. Claire L'Heureux-Dubé (Judge of the Supreme Court of Canada (retired), As Individual): Thank you, Mr. Chair. I appreciate the invitation. Apparently it takes courage, because many of my former colleagues have not accepted. I'm known for that, so there's no news there.

    I haven't prepared any written text. I'm too busy right now. Retirees can be very busy.

    I understand that you have before you the article I wrote in the Manitoba Law Journal at one point in 1991, which represents what I thought at the time, and what I still think today. You'll think that I may not have an open mind, but I reflected quite at length on that particular issue at the time. The same paper was presented at the Quebec Association of Comparative Law.

[Translation]

    In French, it's the Association québécoise de droit comparé. It's in both languages.

[English]

I understand this was given to you beforehand. It will be the gist of my presentation.

    Let me, if I can, start with my experience in the world of the judiciary. I have been privileged to be able to do a lot of judicial education throughout the world in the last ten years. I went almost everywhere in the world. I went to India and Pakistan--I just came back from Bangladesh--and to Moldova, eastern Europe. They were judicial education programs sponsored by CIDA, generally, or by NGOs all over the world.

    I can tell you by experience--and some people say they haven't heard this, but I have--that the Canadian judiciary is a model for the world. A model for what? A model because of the competence, independence, and integrity of the system itself, and of the judges, in particular.

    I can also tell you that our judgments are exported all over the world. We do it ourselves, but they are quoted all over the world. For example, South Africa has quoted us in decisions relating to equality. They have even adopted our definition of equality.

    There has been, either in Australia...and recently, the House of Lords or the English Court of Appeal--I don't remember which one, but I think it may be the Court of Appeal of England--has adopted one solution to vicarious liability for children who are abused, setting away their own jurisprudence and taking our jurisprudence as theirs.

    So I'm very proud to be here to speak about my almost 30 years in the judiciary, at all levels of the judiciary.

    It seems to me from reading the newspapers...and I took cognizance of what Justice Minister Cotler said this morning, as well as the Canadian Bar brief. I haven't read everything under the sun, but I'm knowledgeable enough about what goes on, what is said, to say that it seems pretty much a consensus that the American way is not our way. The American way doesn't seem to be in accordance with the Canadian way of life, of doing, and our own cultural and other differences.

    So I take that away. But when I look at what some have written about the parliamentary committee examining judges directly, it is exactly the American way. What is it? It's called a judicial committee; here we would call it a parliamentary committee. So I think we have to realize this when we talk about a parliamentary committee. I don't know if it has been advertised as the solution, but some of them have...and some of the professors who have been here, also. Although I detect the fact that most people say “Be cautious”.

    In my view, the system isn't broken. It has produced what you would like to have as justices of the Supreme Court--diversity, different people coming from different backgrounds. And don't think you can eliminate the person; we'll never be angels. I don't think Canada would like to be judged by angels. We'll be people--people who relate to other people and people who have a background.

    I am a woman. I'm a mother. I have that experience. My colleague, Sopinka, came from a farm. I came from the river. We have different experiences, and I don't think there should be any expectation that we wouldn't be who we are, just like the ones who elect you expect you will be who you are.

    So I think that's a given, that you cannot expect to have angels and you cannot expect to have people who have no ideas, who have never written anything, who haven't done anything.

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And that brings me to my next point, which is simply that we've been known all along. I was in practice for 22 years in Quebec City. Everybody knew that I was a family law practitioner, for five years at least in my practice; that I had a vast legal background; that I won the first prizes at university, and so on; that I was a commissioner of inquiry on immigration; and that I was a commissioner for the law reform revision of the civil code. I will just give you those as examples. This is me, but this is all the others that were considered as judges.

    Everybody knows that we have a track record, that we have a trail. I understand that when I was appointed there was a thorough review of all that I had written as a judge over nearly 15 years or almost 14 years. So the process that was used was done within the government. It doesn't mean it's a bad process; it may mean that it should be a little more transparent and be seen by more people.

    What I had written at the time and my reflections were the same as those of Bill Lederman, who was probably the best constitutional academic we ever had, and Jeremy Webber, who was probably one of the best academics at McGill, though he went on to Australia, and I don't know if he's back. But I was of the same view as these people, that what is important is to have the best choice possible. The minister this morning told you about the personal and professional qualities that are required for a judge.

    My worry would be that what has never been done in Canada, and what is done in the United States constantly, is that you would go into ideology and partisanship. That would be the end of the independence of the judiciary; that would be the end of the Supreme Court serving the public, as it has done for so many years, from 1875 onward. So that is my real worry, that there will be a process putting a candidate right in front of the public with the media in attendance, not looking for the best qualities generally, but looking for the failures, the little things.

    I remember, and was in Florida at the time, when Justice Thomas was appointed, and I followed it from morning to night. I was totally disgusted by the process. I followed Rehnquist's appointment as the Chief Justice. The impression I had was that these people were terrible—and they were appointed.

    So I get the impression that it does nothing for the institution, and it does nothing for the candidates...who were all appointed after looking at the fact that Justice Rehnquist had signed a deal where the blacks were excluded, or something like that. He had these violations of the traffic act, or something like that. You will always find something in someone; nobody is perfect.

    I was appointed without being perfect, and all my colleagues were; but I don't think that's what the committee wants to find out. The committee wants to find out whether that person has good judgment; whether that person has integrity; whether that person can write, because if you're on a court of appeal or supreme court and you can't write, you just shouldn't be there; and whether the person is a decision-maker or is not. If you are not of that kind, then you just don't sit on those courts. You can be a professor or something else, but you are not a politician nor a judge, because you have to make decisions. And if you're not courageous.... To me, being courageous is the best quality of a judge, to do the job whether you're popular or not—and I know I'm not. I can tell you that apparently Rob Martin has written something that I shouldn't read...so much is bad, but who cares. I try to do my best, and I did my best with the idea that I can sleep soundly at night.

    So I say that, because this is my personal experience. The process as it is done in the United States does nothing to enhance either the quality of the candidate or the institution. It's the tendency to politicize, which has never happened.

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    It was mentioned in one paper that I was appointed in the time of Mr. Trudeau by Otto Lang, I think, who was Minister of Justice; then I was appointed by Joe Clark during his six months, and I always said it was the best thing he ever did; then the Supreme Court was Brian Mulroney, and I was supposed to be a Liberal. So you can see it was never a concern. I never felt it was a concern, which party you belonged to and which ideology you had.

    We talk about ideology, but very few of us have any. You may not perceive that, but we look at a case by first reading and knowing the facts and then reading the briefs, and then we make up our minds...preliminary. I can tell you something that will be reassuring for some lawyers who appear before us: that after canvassing my colleagues at the Supreme Court and other colleagues at the Court of Appeal, that we arrive there with an idea; we have everything in our hands.

    In some of the highest courts in the United States they deliver a judgment on paper; they don't have hearings. I am all for hearings, but I must say that we work on the bench, and between 15% and 25% of the time we change our minds.

    One big quality for a judge is an open mind. Depending on the advocacy--I have so many examples I could tell you about--we don't have a definite mindset when we come in but we have an idea. We have a good idea of the law and of where the case should go, but we do change our minds. Even later, in our conference we change our minds too. We have had a few cases where we unanimously said we would reject an appeal, and then eventually we unanimously allowed it.

    I can tell you that by trying in a few hours or in a few days to canvass the candidates publicly, you will not learn much, and the damage may be important to the judge, the candidate.

    One aspect of the candidates is that in general they don't announce that they want to be judges. They'd rather say no because they have a career in their firm, and if the firm knows they are going to go to the bench, it may change the pattern of their career. Generally, candidates are not eager to mention they are interested in the job, for many personal reasons but for that reason in particular.

[Translation]

    If you have no objections, I will continue my presentation in French.

    I have shared some of my concerns with you and I think that these are also reflected in an editorial published in this morning's Globe and Mail. The issue is risk.

    I think that in this area, we should not run the risk of first, looking for something that we couldn't already find by reviewing the candidacies and, second, of doing more damage through public scrutiny.

    This doesn't, however, mean that I am entirely against changing the process. I think that given where we are now, it would be difficult to change tack. A committee could easily take on the role that the government has been playing through its deputy ministers and public service members.

    One would simply need to strike a committee whose mandate it would be to receive applications, examine candidates and undertake any necessary research. This committee could include members of Parliament, for example, the Speaker of the House and the chairman of the justice committee, as well as the president of the Canadian Bar Association, the president of the Bar Association in the province the candidate has been working in, the chief justice of that province as well as the Supreme Court Chief Justice.

    Why include the Chief Justice of the Supreme Court? Because the chief justice is familiar with the needs of the court. At times there may be a need for an expert in civil law, criminal law, or constitutional affairs. The chief justice is familiar with the court's needs.

    This is a very interesting area because there has to be a diversity of experience, expertise, etc. We are not a specialized court, however we do deal with problems arising in, for example, marine law, bankruptcy and divorce law. We therefore need a diversity of experience in these areas. I think that the chief justice should automatically sit on this type of committee, as well as the president of the Canadian Bar Association. I don't mean specific people, but rather the position.

    And furthermore, members from all political parties could be appointed by their party to sit on this committee for a non-renewable term, for example, of five years. The positions of Speaker of the House or chairs of certain committees could also be included, and this could be institutionalized.

    This committee would do some very thorough work: it would hear and interview candidates and then submit three names, a short list, or only one name, to the Prime Minister. I do not have a set idea on how this would work.

    I should point out that this type of committee was recommended by Bill Lederman, Jeremy Webber and all the other people who studied this issue. I mentioned it in an article that I published at the time. I had also looked at what was happening in other parts of the world, but I did not find a system that resembled what was being proposed here. Most systems resemble ours. In Australia... Now South Africa has a two-step process. They have a committee of this sort. Apparently this committee currently has too many members and it has to be slimmed down. When there are more than nine or 13 members it doesn't work very well. I believe they have 27; they wanted to include God and his Father together.

    That, in essence, is what I think. I entirely support the Canadian Bar Association's brief, in particular this part of its introduction:

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[English]

    “The CBA supports an open and transparent process for judicial appointments based solely on merit, and ultimately representative of the diversity of society as a whole.” They would protect “the principles of judicial independence--accessibility, expertise, representativeness, efficiency and fairness...”. And “Candidates should not be subjected to a congressional type process of public examination and review. This would politicize the appointment process and detract from the principle of the independence of the judiciary.”

    I support that absolutely. I support what the Minister of Justice has been saying this morning, that perhaps this committee will not be ready in time for the next two appointments, but he has suggested what could be done in such circumstances. The minister could go before the committee and explain the nomination and everything, but I don't know if it would be possible. He has explained that the capacity, professional qualities, and personal qualities of a judge should be looked at.

    In a few words, these are my thoughts on the subject, since 1991 and up to date.

    Thank you very much.

    The Chair: Thank you very much.

    My colleagues are digesting your comments now. I can hear the wheels turning in their brains.

    I'm going to look to our colleagues now for questions. Based on discussions this morning, colleagues have agreed to a revised seven-minute-round process, which will cause the chair to intervene at the three-minute mark to remind of the passage of time so that the question can be put, allowing sufficient time to answer.

    Mr. Cadman, for seven minutes.

    Mr. Chuck Cadman (Surrey North, CPC): Thank you, Mr. Chair.

    Thank you, Madam, for appearing. It's an honour and a pleasure to have you here today.

    I know that it's difficult to get judges. We have one judge in B.C., Justice Wally Oppal, who likes to come out and talk a lot. I'm sure you know Wally.

    It's a pleasure to have you here.

    I have a very brief question. The appointment process has been criticized by some, certainly maligned by some, for whatever reason, basically, because people see it as secretive and not transparent. Now, we've heard evidence over the last little while that it doesn't appear to be that way. How do we get that to the public?

    First of all, you've mentioned some areas of change that you would support. Perhaps you might like to elaborate on those a little bit. How do we get that to the public? It's the guys in the street this has to be directed to, so that they have some faith—I won't say to restore their faith, but that they have some faith in the process.

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    Hon. Claire L'Heureux-Dubé: The process that I suggested would include members of Parliament. Some members of Parliament are representative of their people, so in that way that would be for the public. Also, members of the public could be members--informed members of the public.

    In the judiciary and the legal profession, we know each other. We all know each other. We know who is who. We know who is good, but the public doesn't really know. It takes people from the public who are informed about the legal community and about what goes on to really fully represent the public.

    There may be even a member of the media, but the problem is not that the media would be in that committee and would be at ease to report. It would be a process in itself. The report would be given by the chair to the Prime Minister. I wouldn't like to see a process where, while this goes on, everything that goes on is distributed to the media immediately. It's not my way of looking at the public.

    The public has been served so far with the process, I think. It has produced good people. I'm thinking of, for example, outstanding people such as Bora Laskin, Dickson, and Wilson, people who have made a big mark on the law. I wouldn't put it as essential that the public knows who is who immediately, before the process is finished.

    I remember a little bit of Quebec legal aid, which was chaired by the bar. We were all obliged to give pro bono work. There was no legal aid official. The lawyers who were most in the public face or public newspapers were the worst ones. They were the ones who were always asked, from us, to nominate them to represent clients.

    I think that kind of publicity does not really inform the public about who the candidate is, and so on. It's superficial. In my case, when I was appointed, there were all kinds of speculations, and this and that, which proved totally false eventually.

    In the way you look at the public, I would look at the public in the same way.

    Mr. Chuck Cadman: Thank you.

    Thank you, Mr. Chair.

    The Chair: Mr. Marceau is next, for seven minutes.

[Translation]

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

    Madam, it gives me great pleasure to see you here today, having often read your pieces when I was studying law.

    You mentioned earlier, and you're not the only one who has said this, that Canadian jurisprudence is quoted throughout the world. I do not want to discuss that with you, but it is most likely true.

    However, you didn't state that nobody in the world uses the Canadian appointment process. I would like to hear your thoughts on what Peter Russell, a professor at the University of Toronto, states. He said:

I must say that Canada is the only constitutional democracy in the world where the head of government has full authority to select who will preside over the highest court in the land...

    He's talking about absolute discretionary authority.

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    Hon. Claire L'Heureux-Dubé: You're talking about absolute discretionary authority. I'll stop you there because if I understood correctly, the caucus is informed and the ministers are involved. According to what I have understood, the Prime Minister is not alone in making those appointments.

    Mr. Richard Marceau: That is not what Minister Cotler told us earlier. He said that the caucus was not informed and that this was a process that involved only the Minister of Justice, his staff and the Prime Minister. There was no question of the cabinet being involved. In any event, what he told us today did not include the cabinet, the caucus, the government or any other body.

    Hon. Claire L'Heureux-Dubé: That's news to me because I had been told the opposite, that is the caucus was perfectly well informed and that there were strong arguments involved.

    Mr. Richard Marceau: I know that the Liberal Party doesn't require this to find reasons to argue but no, the caucus is not informed.

    So would you agree in saying that the process for appointing judges to the highest court in the land in Canada is rather unique?

    Hon. Claire L'Heureux-Dubé: I don't know. Australia has a similar system, according to the information I had at the time. I don't know whether or not Australians have changed their appointment process. I have just come back from Moldavia, for example, where their system is like ours. There are many countries that have a system like ours. I think that if one were to look, one would find that there are many.

    However, whether one is unique or not unique has no bearing on whether one's system is bad or good. I'm not challenging that. It is quite possible that the system could be improved. I don't have a problem with that.

    Mr. Richard Marceau: One thing that has surprised me over the last while is how informal the Canadian process is. We've been told that usually the Supreme Court Justice is consulted, that usually the Minister of Justice in the province in question is consulted, that usually the provincial or regional bar is consulted. The minister himself stated earlier that he could not guarantee that a specific process had always been followed.

    Given the vast authority that Supreme Court judges have today, and given that this is a time when the charter is playing a very significant role in the state of Canadian law, do you not think that this extremely informal process should not at least be codified so that a very specific process can be used?

    Hon. Claire L'Heureux-Dubé: I have no objection to that. When one wants to change a process one can have rules and guidelines. I believe the Minister of Justice listed the personal and professional qualities that a candidate should have. There would be absolutely no reason to object to that.

    Mr. Richard Marceau: You mentioned that in the system that would eventually be chosen over the current informal process, you would approve of parliamentarians and provinces participating. Did I understand you correctly?

    Hon. Claire L'Heureux-Dubé: Absolutely, but I mentioned parliamentarians, I was thinking in particular of the chair of the justice committee, the Speaker of the House or someone else who would represent Parliament. I did not mean that 25 parliamentarians, for example, should interview the candidate. I meant that members of Parliament and parties should be included.

    Mr. Richard Marceau: That is what I understood.

    You seem to be completely opposed to doing this in public.

    Hon. Claire L'Heureux-Dubé: Yes.

    Mr. Richard Marceau: Yet you seem very open to the idea of having a committee made up of parliamentarians representing the provinces, and others, that would interview potential candidates behind closed doors.

    Hon. Claire L'Heureux-Dubé: Absolutely, yes.

    Mr. Richard Marceau: Then I understood you correctly.

    Hon. Claire L'Heureux-Dubé: Yes. There are justice ministers who have done this. I remember very well Turner going himself to see the candidates. In fact, it is said that he was the one who made the best appointments ever. The second was Otto Lang, the one who appointed me. Turner used to do that: he would go and see them.

    Mr. Richard Marceau: What would be your thoughts on the suggestion to have what is called a cooling-off period? The idea obviously would not be to prevent someone who is being politically active from eventually sitting on the highest of courts. On the contrary, I think that we should accept and even encourage involvement in political life.

    Hon. Claire L'Heureux-Dubé: Absolutely.

    Mr. Richard Marceau: However one would wait for two years, for example, after active political involvement on the part of the candidate before appointing him or her to a court.

º  (1605)  

    Hon. Claire L'Heureux-Dubé: Under those conditions we would have missed out on a good candidate: Judge MacGuigan, who's probably one of our best judges. He was Minister of Justice and Minister of Foreign Affairs. I would have reservations in establishing overly strict conditions. The process should be flexible. This idea may be a good one in principle, but there are cases where we would have missed an exceptional candidate had those barriers existed. He was not appointed to the Supreme Court but he could have been. That it why I would want the process to be somewhat more flexible.

    Mr. Richard Marceau: Fine. What do you think about having someone from the university sit on this committee? A dean of a faculty of law, for example.

    Hon. Claire L'Heureux-Dubé: Yes, absolutely. I mentioned 9 to 13 people, but that could include these types of people, people who are familiar with the candidates' personalities, of what their intellectual contributions could be, etc.

    Mr. Richard Marceau: Somehow, we have to have a list. We don't know where the list comes from. Do people sit down to think about it?

    Hon. Claire L'Heureux-Dubé: What list are you talking about?

    Mr. Richard Marceau: The minister didn't explain the process very clearly this morning.

    Hon. Claire L'Heureux-Dubé: Are you talking about the guidelines?

    Mr. Richard Marceau: No I'm not talking about the guidelines. I'm talking about the people who could eventually be appointed to the court. We don't know where the names come from. Apparently these are usually people from appeal courts, senior bar members, etc., but we don't know who decides, at some point, that there are 10 names and that those 10 names will be considered and consulted on.

    Hon. Claire L'Heureux-Dubé: Within the Bar, it's very easy to know.

    Mr. Richard Marceau: Yes?

    Hon. Claire L'Heureux-Dubé: Oh yes. When you're part of the Bar you know. We know everything that is happening.

    Mr. Richard Marceau: Well that was precisely my question. Do you not think that there should be a starting point, that is that someone proposes a list? I'm asking you because in the early 1990s, there was a suggestion that the provinces propose lists of names. That was also suggested by the Beaudoin—Dobbie committee, if I remember correctly. Do you agree on this, or do you not really have an opinion on that point?

    Hon. Claire L'Heureux-Dubé: I wouldn't talk about a list. I would say, as the minister said so eloquently this morning, I believe, that anyone or any province wanting to submit the name of a candidate should be able to do so. It should be very open. Why make a list of candidates? The committee in question could also seek out candidates that are not necessarily interested. I see it as a very open process. A member of Parliament could propose a list of candidates. In such a process, candidates would come from everywhere, and following that it would be up to the committee to eliminate certain candidates and make its own short list.

    I wouldn't talk of a list, because to me it seems too formal. I believe that it should be an open process which would allow us to even seek out candidates. I know this is done in South Africa. They talk about who would be a good candidate to sit on the Constitutional Court bench. The candidate is invited to come, there is a discussion, etc. I'm quite familiar with all the processes because I've studied the issue. In Israel, candidates are also sought out. They are even given training if necessary, etc.

    The process I am suggesting is very similar to that of South Africa and that of Israel, countries which have such committees, and which seek out candidates or receive their submissions, and review the candidates' files.

    Mr. Richard Marceau: Thank you.

[English]

    The Chair: Mr. Comartin is next, for seven minutes.

    Mr. Joe Comartin (Windsor—St. Clair, NDP): Thank you, Mr. Chair.

    Madame L'Heureux-Dubé, thank you for coming. It's a privilege. I have to say that the exception you gave of Mark MacGuigan is only because he came from Windsor. That's why he made such a good judge--in fact, he started up our law school there.

    Hon. Claire L'Heureux-Dubé: I just loved him.

    Mr. Joe Comartin: My observation has been that about 30 to 35 years ago, the quality of our judgeship changed noticeably, much for the better. If you agree with me, do you have any explanation for what happened around that time at the trial level, the court of appeal level, and the Supreme Court of Canada level? Did something happen at that point?

    Hon. Claire L'Heureux-Dubé: I always thought myself that the prime ministers were very proud of their nominations to the Supreme Court, in particular, so they would make every effort to be sure that the person they chose would be of the highest quality. It has happened, from what I understand, that the prime ministers were always very cautious to be sure that the person was the right choice. I wasn't born, of course, at that time, but was it because they were more careful at choosing, less patronage in their minds? Because at one point everybody knew there were patronage appointments.

    It doesn't mean they are bad. I am of the view that if you have had the courage to spend your life in politics, you shouldn't be excluded automatically from being a judge. It bothered me when I heard that in the last nomination Michel Robert was the president of the Liberals. Who cares? He was a good candidate; he was a person of substance. He's been named to the court of appeal. It bothers me to put patronage with the fact that a person has been involved in politics.

    That being said, the only criteria shouldn't be patronage, so it might be that the idea of patronage slowly goes down the road, I hope. I wouldn't know what you're saying, that the appointments have been better. I know that Mr. Mulroney, for example, was very concerned when he made an appointment, and so was Mr. Trudeau. I'm not talking about the present government because I don't want to talk about it, but it must be the same thing.

º  (1610)  

    Mr. Joe Comartin: One of my other law professors was Ed Ratushny. After he left law school, he went to work for the federal government. His specific responsibility, as I saw it and at least what he would brag about when coming back and telling us, was that he was instrumental, under the direction of both Prime Minister Trudeau and I think Justice Minister Turner, in getting the best candidates. Your political affiliation wouldn't hurt you, but it wasn't the cause for you getting the appointment. That happened around that period of time.

    Hon. Claire L'Heureux-Dubé: It might be that the adviser was more active in the field and was able to identify the candidates. Ed is a super guy. I've lots of respect for him. Perhaps that had an influence, I wouldn't know.

    Mr. Joe Comartin: I would like to make a quick commentary, Mr. Chair.

    I can tell you which political parties all of the appointments we have had in Essex County belong to. By the same token, as Madam Justice L'Heureux-Dubé has said, they have been excellent appointments, with a few exceptions. That's true of both Liberals and Conservatives.

    When we look at the selection process, and I don't have a sense that this has come up at committee up to this point, the vast majority of the appointments are going to come out of our existing judges. I think the percentage is running around 90%. Based on that, should the committee be looking at how the appointments are made at the lower court levels, the supreme courts in the provinces, and the court of appeal? In most cases, and I think you would agree with me, if the candidate is coming out of the Maritimes, there's only a possible list of perhaps 15 judges who we're going to look at there. You may draw from the private bar, you may draw from academics, but generally you're working with that list of about 15.

    Hon. Claire L'Heureux-Dubé: And it's a good way.

    If you're asking for my views on that, I'll give them.

    Mr. Joe Comartin: You're talking about the training ground that they get at the lower court level. It is a good way because it tends to improve the quality. We know the experience. If we have a dud, then we won't move them on from that point.

    I guess the point I want to get back to is this. Should this committee, in terms of this process, also be looking at how the appointments are made at the lower level?

    Hon. Claire L'Heureux-Dubé: There is a process in place, so it would perhaps duplicate the process that has a committee, and so on. So how could you balance that, unless you took the committee out and installed the new committee to look at all appointments from beginning to end? So there might be duplication, and it might be difficult.

    The next appointments will come from Ontario. There's a wonderful group of judges at the Court of Appeal of Ontario, a group of lawyers. These people already have records. Everybody knows if they write well, and if they are up to that. So would you want to go beyond that to how they were appointed to the first level, or something like that?

    Nothing prevents you from doing that, because surely you will have the whole record from the time the person was born, through university, and so on. You will have the track record from the court below that they were in. You will look at that, but will the process for nomination of those judges be replaced by the process of this new thing? That's another matter I'm not sure about. You'll have to look at the duality of processes, perhaps.

º  (1615)  

    The Chair: We'll go to Mr. Dion for seven minutes.

[Translation]

    Hon. Stéphane Dion (Saint-Laurent—Cartierville, Lib.): Good afternoon, Madam Justice.

    Like the vast majority of witnesses we have heard from, you are directing us towards a model which is often used abroad as well as in the lower provincial courts, that of a legal committee made up, by and large, of people the Minister of Justice currently consults on an individual basis. They would meet as a committee, and would be mandated to make a recommendation.

    The devil being in the details, I'm going to ask you a line of questions. Please tell me if your answer seems completely far-fetched, or if you are not too sure of the answer.

    Hon. Claire L'Heureux-Dubé: I will tell you.

    Hon. Stéphane Dion: Firstly, who should chair this committee?

    Hon. Claire L'Heureux-Dubé: The Chief Justice of the Supreme Court of Canada.

    Hon. Stéphane Dion: Wouldn't the chief justice overshadow the others with her prestige and her authority?

    Hon. Claire L'Heureux-Dubé: Her authority would not be overshadowing. If you agree that she has a role to play because she understands the needs of her court, you cannot leave her out. In any case, she's always consulted.

    Hon. Stéphane Dion: Would the committee have the possibility of choosing a candidate she did not like?

    Hon. Claire L'Heureux-Dubé: Certainly. I presume that you would have to find a way to decide. Compromises must be made. I agree completely and I believe that it's quite important. In Israel and in South Africa, for example, the chief justice chairs. It has already been tried out.

    Hon. Stéphane Dion: So the concern that her authority may overshadow that of the committee is not at all justified.

    Hon. Claire L'Heureux-Dubé: Absolutely.

    Hon. Stéphane Dion: I presume that it would be important, in order to not throw the prime minister's power out the window once decided otherwise, to make sure that the members of the committee are appointed through legislation. For example, my colleague Mr. Marceau mentioned what often happens abroad: someone from the academic world is appointed. If we allow the Minister of Justice or the Prime Minister to appoint someone from the academic world, that will slightly weaken the credibility of the process. One way to proceed would be to perhaps ask the deans of the region in question to agree on a person.

    But a problem could arise: if these are legislative appointments, it is possible that one of these people could very well be a person we would like to see appointed.

    Hon. Claire L'Heureux-Dubé: There are probably all sorts of ways to prevent that from happening. The person who would accept to be a member of this committee would know whether or not he or she is interested in an appointment. If one is not interested, one would not accept. I don't see how an interested person would accept becoming a member of the committee.

    Hon. Stéphane Dion: Well yes, under the law, the person would be obliged...

    Hon. Claire L'Heureux-Dubé: If such is the case, we could always delegate...

    Hon. Stéphane Dion: But the person must have a way out, because everyone would know that this person is interested once he or she refuses to become a member of the committee.

    Hon. Claire L'Heureux-Dubé: Perhaps.

    Hon. Stéphane Dion: There in lies a problem.

    Hon. Claire L'Heureux-Dubé: I don't see the problem. I'm saying that while stipulating that in the legislation, there must be enough flexibility. One has to be represented.

    Hon. Stéphane Dion: All right.

    Hon. Claire L'Heureux-Dubé: It's as simple as that. It's the institution in place.

    Hon. Stéphane Dion: You don't have any objections to proceeding by way of interviews, whereas others do object. In your opinion, what are the reasons for these objections and why do you not agree with them?

    Hon. Claire L'Heureux-Dubé: I don't see why there shouldn't be interviews. Minister Turner met with people. Therefore, there isn't any reason why this shouldn't be done. I believe there is mostly objection to public interviews. For my part, I would have liked to be called in for a private interview. I didn't want to go in any case. Someone could have called me to tell me that I was being considered. I would have liked that, but nobody called. So I have no objections to someone who wants to be a candidate being interviewed. I see no objection.

    Hon. Stéphane Dion: In a profession where everyone knows each other very well, is it worthwhile to interview people?

    Hon. Claire L'Heureux-Dubé: I know that it is done in South Africa, in Israel, and elsewhere because they want to meet with the person face to face. Otherwise, those representing the public would probably never have the possibility to meet with the person and get to know her. People know each other in this profession, but to be known, and to be interviewed are two different things.

º  (1620)  

    Hon. Stéphane Dion: This committee would be made up of close to 15 people.

    Hon. Claire L'Heureux-Dubé: I would say 13.

    Hon. Stéphane Dion: In this committee there are already four parliamentarians. How can we guarantee confidentiality? Are there not enormous concerns with respect to this?

    Hon. Claire L'Heureux-Dubé: I don't know of any. I assume that when you meet somewhere, you are going to...

    Hon. Stéphane Dion: We are not a model of confidentiality.

    Hon. Claire L'Heureux-Dubé: I believe there are oaths of office. I don't have any problem with that.

    Hon. Stéphane Dion: You don't know if this committee should recommend a short list of three people or just one person. It is very different.

    Hon. Claire L'Heureux-Dubé: I don't have any particular stance. I spoke of a three-person short list, but I don't really have a set opinion on the matter. It is what is currently done, isn't it? I'm told that the Prime Minister is given a list of two or three people. I would prefer for him to have some flexibility.

    Hon. Stéphane Dion: In order to maintain this process and to improve it over time, do you object to having the chair of the committee come and appear before this committee, a parliamentary committee, with journalists being present? The chair would not reveal anything confidential, but would describe what was learned over the process.

    Hon. Claire L'Heureux-Dubé: Are you talking about describing the process itself? By several?

    Hon. Stéphane Dion: By the chair of the committee, so that improvements can be made from one time to the next.

    Hon. Claire L'Heureux-Dubé: Personally, I have no objections to having the chair of the committee appear, but I believe that he should not be obliged to reveal everything the committee has learned about that person, aside from things such as...

    Hon. Stéphane Dion: He could talk about the kind of consultations which were undertaken, and similar things.

    Hon. Claire L'Heureux-Dubé: Yes, yes. I have no objection in principle to that. I don't know if it's necessary...

    Hon. Stéphane Dion: To learn.

    Hon. Claire L'Heureux-Dubé: Yes, to learn. I don't know if it is necessary, but I have no objection in principle. I don't think the chair of the committee would have any objection in principle to that either, but one never knows.

    Hon. Stéphane Dion: Thank you.

[English]

    The Chair: Very good. That was under seven minutes.

    Now we'll go to three-minute rounds.

    Every one did extremely well this afternoon, including Madam L'Heureux-Dubé. Congratulations to all.

    Mr. Cadman.

    Mr. Chuck Cadman: Thank you, Mr. Chair.

    This is a personal question, but it's not very often I get to question a judge. In your own personal case, would you mind letting us know at what point in the process you became aware that you were being considered as a candidate? When you were appointed, how were you informed of that, and who did it?

    Hon. Claire L'Heureux-Dubé: I'll tell you very frankly. Everybody knows. Rumours were circulating at the court. I was at the court of appeal, and the judges used to lunch together. Somebody said “Tonight is the night someone will be called”. I didn't know anything about that. My name had been circulated, with others. So I said “Oh, I don't want to go, so I'm going to hide in my office”--which I did. I stayed in my office until about 11 o'clock. I was so happy I didn't get the call--and then I got the call from Mr. Mulroney. That was it. That was all I knew. I said I was not interested in going to the Supreme Court. He started to say you will like it, and this and that.

    I told him I really had to think about it--it was 11 or 11:30--and he said “At 8 o'clock tomorrow morning you have to call me back”. I said “I have to call my daughter”, who was at Yale at the time. He said “We're signing it at 9 o'clock”--which I did.

    It was not an easy night, I must tell you. So that was the process. I didn't know anything about it before that. That was it.

    Mr. Chuck Cadman: Thanks, Mr. Chair. That's all.

    The Chair: Thank you.

    On the government side, Mr. Charbonneau.

    Oh, I actually have Ms. Torsney's name. I should stick with the list. The clerk is keeping the list. I have Ms. Torsney's name next, for three minutes.

    I do have your name, Mr. Charbonneau.

º  (1625)  

    Ms. Paddy Torsney (Burlington, Lib.): I'm following up on my colleague Mr. Cadman's question.

    Is it conceivable, then, that you would have agreed to appear before some kind of committee of experts, parliamentarians, or what have you? If so, what kinds of questions would have been appropriate?

    Your presentation has been more on the front-end process, rather than on once the Prime Minister has a person to nominate, some parliamentary review of that. It was more how do we get this list of people who should be appointed or could be appointed.

    So thinking about that front-end process, this committee that you envisage that would have perhaps the chief of the Supreme Court and a number of individuals who would be sworn in for a five-year term--I guess I should check how many appointments are coming up in the next five years--would generate a list, interview people and what have you. Would that be something like the current judicial review process for federal judges, where there are a lawyer and a couple of lay people who review applicants--which you wouldn't have been, I gather? Would they keep a running list of these individuals who are possible?

    How do you see that working on a national basis when a number of the individuals who would be on this committee wouldn't have civil experience, they would be perhaps from B.C. or other places? How do you deal with this list of individuals who are available, as in the current judicial process? Do they get ranked? Are they a possible pool? Should someone retire, would the Prime Minister be obliged to pull from this list? How exactly would it work? And how would you ensure, over the five years that your name could be sitting there or that these individuals are on that committee, that we really would have the proper kind of security?

    Hon. Claire L'Heureux-Dubé: The committee, from what I understand, would work when there is a nomination to be made.

    Ms. Paddy Torsney: So they would only strike at that time.

    Hon. Claire L'Heureux-Dubé: Yes, because you cannot put a list. Candidates die. They move on to something else. You have to do it at the time there is a vacancy. So people are named when there is a vacancy. They get together or they have a secretariat that collects all the information. They meet once in a while. They discuss. They receive all the papers--as we do for all kinds of committees that we're members of.

    So I think that's not such a very heavy thing. We're talking about the Supreme Court of Canada. There's a vacancy once in three years, once in five years.

    Ms. Paddy Torsney: Ironically, we have two in the next two months.

    Hon. Claire L'Heureux-Dubé: It happens that we have two now. Generally, this is a committee that functions.

    If you're talking about a committee that would do the job of the committees in different provinces, that's quite another matter. They are there. They have their way of proceeding, which seems to be going very well. I don't see a problem there.

    Ms. Paddy Torsney: So would you suggest, then--

    The Chair: Three minutes.

    Ms. Paddy Torsney: Sorry, I'm just trying to clarify this.

    Is your committee generating names and reviewing people who then the minister or the Prime Minister appoints, or does it review after the Prime Minister or the minister has recommended?

    Hon. Claire L'Heureux-Dubé: No, no, it's before. When there is an appointment, that committee gets together first and says we will collect the information about possible candidates. They may think that one person should be a candidate, and they will approach that person, or people may send their candidacy to this committee. They get all the information they need, their judgments, then they get together by e-mail or they meet. I don't see it as a very big problem.

    Ms. Paddy Torsney: Okay, and because my time is up, could you perhaps send the committee chair a list of questions that you think this candidate would answer? I just think it's ironic that you wouldn't have appeared before that committee and we would have lost the benefit of your years of experience.

    Hon. Claire L'Heureux-Dubé: You know, you asked me whether I would have appeared before a committee. I wouldn't mind. That kind of committee I would have appeared before. Probably in my case, I would have said no immediately because it would have been another hurdle that I didn't want. So many people would have been so happy if I had said no--from what I read.

    Ms. Paddy Torsney: The public of Canada wouldn't have been so happy.

    The Chair: All right. We're all winners here.

    Mr. Marceau, for three minutes.

[Translation]

    Mr. Richard Marceau: Thank you.

    In your introduction, you said you agreed with what Irwin Cotler said this morning. He said that the first criterion to be taken into consideration was obviously that of merit. He talked about professional abilities, personal qualities as well as diversity. In concrete terms, how do we balance all of these things? Sometimes there may be a conflict, or a perceived conflict between diversity, gender, region, ethnic origin, religion, etc. and merit. How can a committee balance all of that in concrete terms?

º  (1630)  

    Hon. Claire L'Heureux-Dubé: In any case, Supreme Court appointments are made province by province. We start with candidates from a given province, from a region. Already, we have files; and if two files have the same merit, it is decided whether or not diversity will come into play, whether or not a man, a woman, a person of a different ethnic origin, etc. will be appointed. It is a decision that has always been made by the Prime Minister. When they wanted to appoint a woman, they appointed a woman. It is a political decision that the committee can make.

    Mr. Richard Marceau: If it is a political decision, then the make up of the court is already politicized to a degree. I'm not talking about partisan politics.

    Hon. Claire L'Heureux-Dubé: No, I'm talking about politics in general. The committee itself could say that at this point in time, it would be important to appoint a particular person, that this person has a very good record and that the committee will recommend him or her. I think that's how we would proceed. I see this in practical terms.

    Mr. Richard Marceau: What do you think about the idea of limiting the length of judges' term? This is done in certain countries. Rather than serving until the age of 75, judges would have a 10 or 15-year term, for example, so that there could be new blood more often in the Supreme Court.

    Hon. Claire L'Heureux-Dubé: I'm satisfied with the retirement age of 75 years. It was a bargain that was struck at one point. American judges are appointed for life. They do not receive a pension; they are paid at the same salary until the day they die. On the other hand, Canadian judges have accepted the limit of 75 years with respect to salaries, benefits, etc. Herein lies the idea of having what is known as terms. This goes completely against the independence of the judiciary. If you look at the Principles of Bangalore, the Declaration of Montreal and the Declaration of the United Nations, you will see that this is a function that must be permanent.

    I completely disagree with the attempt to set a limit, because there's a history, a continuity in a court. For example, to bring down the age of retirement would go against the current, in my opinion. In Bismarck's time, the age limit was 65, but today people are living longer. For example, Judge Dickson told me that he was sad to leave at 75 years of age, he would have liked to continue being a judge. He had the ability to continue on: he did many things later on.

    Therefore, I believe that bringing down the age limit is not a good idea. I also believe that appointing people for 5 or 10 years is not good for the judiciary independence. I believe that one can now pursue a career in the judiciary.

    Mr. Richard Marceau: Thank you.

[English]

    The Chair: On the government side I have Messieurs Lanctôt, Charbonneau, Devillers, and Ms. Barnes.

    I will go to Mr. Lanctôt for three minutes.

[Translation]

    Mr. Robert Lanctôt (Châteauguay, Lib.): Thank you.

    Madam Justice, after listening to you, it seems that in your opinion, such a committee or such a process would serve to evaluate all of the candidates being considered, whether there be 8, 9 or 10 . There are other possibilities, and I would like to hear your thoughts on that.

    Is there a possibility for the committee to evaluate everyone or evaluate only two or three of the people chosen for the short list in order to not over politicize the process? Here's another possibility: the committee could review the candidacies after having made its choice. I would like to hear your thoughts on these three possibilities if you have considered them. It would be a democratic process. Without keeping the status quo, we would be able to keep what already exists. If our Supreme Court is so well respected internationally, perhaps the process isn't so bad.

º  (1635)  

    Hon. Claire L'Heureux-Dubé: I think so.

    Mr. Robert Lanctôt: We have such good judges, would it be possible to do this only afterwards? What difference would that make?

    Hon. Claire L'Heureux-Dubé: In my opinion, no. Why? Because the process, which is good, is precisely carried out beforehand. Right now, this is done by the department, but it would become a responsibility of this extended committee which would include everyone. I think if we were to do so afterwards, that would not guarantee the quality of the suggested candidate.

    Secondly, I don't think we can evaluate everyone. The process must not be encumbered. We know very well that there are people who make perfect trial judges, but who have no business being court of appeal judges. I think that candidates should either put their names forward or we should seek out the candidates. I think this is the best way to evaluate them. At that point, we would sort out the best candidates, just as a company head does when he hires his chief executive officer.

    Mr. Robert Lanctôt: Would the candidates be first suggested by the Minister of Justice and then evaluated by the committee, or would the committee itself seek out the candidates?

    Hon. Claire L'Heureux-Dubé: It would be the committee. That's how I see it. The committee would be in charge of the entire process and would submit the names to the Prime Minister, which is what the Minister of Justice does currently, and the Prime Minister would choose among the candidates. I don't like the idea of listing them a posteriori. I believe that is absolutely useless, because in such a case, when a person is appointed, the media start poking around. The person is known in any case. I don't see how that would add to the process afterwards... I think it's much more important to do so in the beginning and to make sure that we have the right candidate.

    Mr. Robert Lanctôt: What can you say to convince us that this process should be kept in-camera? I believe it is the right thing to do in order to preserve independence, but is that the only argument for holding this process in-camera?

    Hon. Claire L'Heureux-Dubé: There's also the issue of people's privacy. When a person is not yet appointed, he or she must continue working professionally. In this field, if we know that a person is interested in becoming a judge, his or her law firm already starts looking for another partner. Therefore, I believe it is important to keep the process in-camera. That's one thing.

    Secondly, I don't know how a public process could add to the one I'm suggesting, a process that would be carried out in detail, which would include all relevant aspects. The public process can only be superficial and it would not add anything to the findings, in my opinion. So I don't see any benefits. If I had been asked publicly whether or not I was for or against something, I would have said that I did not know because I had not seen the file. One can have opinions, but that has nothing to do with being a judge.

    Mr. Robert Lanctôt: Thank you.

[English]

    The Chair: Mr. Comartin, for three minutes.

    Mr. Joe Comartin: Thank you, Mr. Chair.

    To pick up on one point of Mr. Marceau's about the fixed term, would you agree with me that if we did that--

    Hon. Claire L'Heureux-Dubé: Are you talking about the fixed term for a committee? Oh, no, for judges.

    Mr. Joe Comartin: --for judges, that would limit the number of candidates we would have? There would be a number of judges who would not want to lead the court of appeal.

    Hon. Claire L'Heureux-Dubé: That's the problem. If you take an appointment for ten years, what do you do after that? Then you're left in limbo; you're a partner in a big firm and then, who knows? That would be a problem, I think.

    Mr. Joe Comartin: On the issue of diversity, I read your article in the Manitoba Law Journal. Maybe it was Mr. Justice Coulter—no, I think it was the justice minister today. I'm sorry. He was suggesting today that he would take recommendations based on gender, ethnic, religious, racial, or whatever grounds. Somebody else, and maybe it was in your article, suggested that there would be some role for groups--for example, first nations--to actually make recommendations as to who would sit on the commission. That's another possibility. The third possibility is to actually have representatives on the commission--again, take the first nations.

    Do you have a preference as to how that would be handled?

º  (1640)  

    Hon. Claire L'Heureux-Dubé: If you start that, you are going to have representatives of the world. If you want a committee that can work through the representatives of the public, that would probably be the way to integrate some groups. But if you start, you will have to have the Tamil and the other one and the other one.

    I'm not too favourable on having an immense committee that won't be able to reach a decision. I think the number should be sufficient to have good representation. There's no objection to a group saying we would like that person to be named. LaForme was mentioned at one point in the process. So there's no objection to that. But to have a representative on a committee from this group, that group, and that group, it would be a bit difficult to work it out. There's no objection in principle, but just a practical objection to seeing the committee so enlarged. If you don't get one when you should invite the other, that would be a problem.

    Mr. Joe Comartin: Thank you.

    The Chair: Mr. Charbonneau, for three minutes.

[Translation]

    Hon. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.): Madam Justice, I'd like to go back on the issue of diversity. We're talking about transparency, etc. We also have to talk about credibility and confidence. I would like to ask you to speak again on the issue of diversity, not of the committee but of the court.

    Would you argue for the importance of the courts to include a judge of aboriginal origin for instance,or of another minority? We know that as a rule we must take into consideration regional background as well as gender. Would you argue for the courts to be more representative of the Canadian population in the way I have just mentioned, or for you, is this issue secondary to the issue of sheer professional competence?

    Hon. Claire L'Heureux-Dubé: I think the two are important. We must have competence, and if we have competence with diversity, all the better.

    It was often said that there was not a sufficient pool of women, but there is one now. There was a lot of diversity on the Supreme Court bench. Justice Sopinka was Ukrainian, and Justice Iacobucci is Italian. Therefore, there has been an effort to achieve diversity. There was an Acadian, Justice Laforêt. There are even three women. Therefore, this isn't something that has been ignored. I believe that we have to preserve the degree of competence necessary all the while seeking diversity. The two can go very well together.

    Hon. Yvon Charbonneau: I want to go back to the issue of length of term. Currently, mandatory retirement is at age 75. If judges were appointed for a period of 10 years, for example, during pleasure, and if their term was renewable...

    Hon. Claire L'Heureux-Dubé: It would be even worse. Then...

    Hon. Yvon Charbonneau: May I just add an argument or two?

    For example, a person is appointed at the age of 61. Ten years later, certain qualities of this person may be enhanced, and certain characteristics of this person may start eroding. The person was appointed at age 61, but at 71 , he or she may have experienced tragic circumstances such as health problems, stress, and may show less patience, and be less inclined to be a team member. At the end of 10 years, there may be some things which were very good in the beginning, but which may have started to deteriorate.

    Is there something, for the sake of confidence and credibility, which could be improved if after 10 years, there was an evaluation of the judge's term to confirm that all is well?

º  (1645)  

    Hon. Claire L'Heureux-Dubé: I'm not in favour of that at all for several reasons. I will tell you that in the Supreme Court there was a case of a person who had mental problems as a result of pressure. That person retired. Therefore, there was no problem on that front, and the same goes for all judges. There are disability benefits as is common in all other jobs. Therefore, that's not where the problem lies.

    The problem with respect to renewing a term is that of the trust vested in someone. One can say that if a judge wants his or her term to be renewed that he or she will do what is needed to not cause any waves. There is always that fear, and this possibility totally goes against the judiciary's independence. It is perhaps an illusion, but one must keep in mind the appearance of justice.

    In fact this criticism is often directed to administrative tribunals. Members of these tribunals are told that they are appointed for a period of three or five years, but if they slip up and if the government doesn't like them, their term will not be renewed. Obviously, this would happen less if a more independent committee was set up, but I don't believe that this would be the path to take. We could perhaps tell the judges that they may leave after 10 years of service in the Supreme Court. I am not personally in favour of such things. I believe that a judicial career is a career in itself and that one is expected to serve until the very end of his or her career, barring illness. There are some cases in which judges had to retire for this very reason.

    The things you mentioned also happen in the Supreme Court. There are people who have become sick. People who were not able to take the pressure, etc. The normal exit is to resign.

[English]

    The Chair: Mr. Cadman.

    Mr. Chuck Cadman: Thank you, Mr. Chairman.

    On the same point, to play devil's advocate, you suggested that in the interest of judicial independence, the appointment be permanent or to age 75. Is the public not entitled to an expectation that an individual will honour that and stay in the position at least until they are unable to function any more, and not leave early?

    Hon. Claire L'Heureux-Dubé: I listened to your question in French, but I'll answer it in English.

    I think everybody expects a judge to pursue his or her career to the end, but things happen, as in the case of Madame Arbour, which is maybe what you are referring to, where there's another career at one point. That doesn't jeopardize the independence of the judiciary at all, because that person is out of the system. I was talking about reappointing someone after ten years. This is a different story. A career is a career, and perhaps the career will be shorter than the other careers before, but that doesn't impinge on the fact that if you are going to be a judge, you should expect to be there until 75 and the public should expect you to fulfil your mandate.

    The Chair: Mr. DeVillers, and then Mr. Maloney, Mr. Charbonneau for another round, and opposition members in due course.

    Hon. Sue Barnes (London West, Lib.): Am I not on this list?

    The Chair: I believe you wanted to wait until other members had spoken.

    Hon. Sue Barnes: I'll be last on our side if there's time, please.

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

    My sense of the evidence we've heard so far is that the current system for nominating the judges of the Supreme Court is a good system, but that for the sake of, as Professor Russell said, the maturing of our democracy, we should have more transparency. This leads me to be somewhat concerned at the haste with which we will have to change the system. There are many questions before the committee that are going through our minds, possibilities, etc.

    When the panel of academics were here, I tried to get them to grade the performance of the Supreme Court, and they were all too wise to bite.

º  (1650)  

    Hon. Claire L'Heureux-Dubé: I read it all.

    Hon. Paul DeVillers: It didn't give us a grade, so I won't ask you that question, but I will ask for your opinion. Because of the complexity and our being urged to take our time to do this job correctly, rather than hastily, what would the harm be in filling the two vacancies that are in need of filling with the current system, as opposed to making these changes in haste?

    Hon. Claire L'Heureux-Dubé: I share your concerns, very much so. Many of the bar, for example, and others have said be cautious and take your time to get the best system in place. It needs some research. Mr. Marceau has made a reference to what goes on in the world. I think it would be a good idea to examine that. I don't think you should rush into anything. As you say, the system is not broken, the system has worked very well so far. We can understand that you want to move on, because there are so many voices that have asked for that, and you want to do the right thing. But for the next appointments, I think it would be early. How can you put a system in place in such a short time? The court needs these judges at least a month before they start in October, so in September. That doesn't give you time.

    So I would support those who said be cautious and do the right thing. Take a little bit more time to do some analysis, and we will see what we can do later.

    Hon. Paul DeVillers: And fill the vacancies with the current system? Would that be acceptable?

    Hon. Claire L'Heureux-Dubé: Yes. The Minister of Justice said he would be happy to appear before the committee to explain the process and everything, so that might be a solution appropriate for this particular timeframe. It's very important, as you say, when you change a system, to be sure you replace it with a system that is better, not worse. That's why it takes a bit of reflection.

    Hon. Paul DeVillers: Thank you, Mr. Chair and Madame.

    The Chair: Thank you.

    Mr. Marceau, then Mr. Maloney.

[Translation]

    Mr. Richard Marceau: Given the fact that the vast majority of judges who are appointed to the Supreme Court come from the courts of appeal, do you believe that a similar process should be applied when it comes to appointments to courts of appeal, given the importance of these courts?

    Hon. Claire L'Heureux-Dubé: Absolutely.

    Mr. Richard Marceau: It is something that is similar to the Supreme Court right now. Should a similar process be established?

    Hon. Claire L'Heureux-Dubé: I believe it already exists. Those committees work in about the same way.

    Mr. Richard Marceau: It applies to the superior Court, but not to the courts of appeal, as we are told.

º  (1655)  

    Hon. Claire L'Heureux-Dubé: There isn't such a process for courts of appeal? I would not have any objection, because the professional skills of a lower court judge and those of a court of appeal judge are completely different. For the Court of Appeal, it isn't complicated: the name of the game is writing. I recall what Justice Jessup said, he was sitting right there at the end of the table. He was giving a lecture and told us: “Don't forget, the name of the game is writing!” It was quite frightening. It would probably be useful to set up a committee for appointments to these courts, similar to the one established for the Superior Court appointments. I have no objection to that.

    Mr. Richard Marceau: I want to come back to the issue of judges' terms. You said that judges should not have a fixed time limit to their term because this would go against judicial independence. In the beginning, you talked about Germany as a case study. Yet, judges of the Constitutional Court of Germany are appointed for a period of 12 years, non renewable. And yet, this court is considered to be one of the best constitutional courts in the world. As you know, Germany has a federal system. Are a fixed term and judicial independence necessarily contradictory?

    Hon. Claire L'Heureux-Dubé: It is not the fixed term which undermines judicial independence; it is the term renewal.

    Mr. Richard Marceau: Their terms are non renewable. Therefore, if the terms were non-renewable, you would be less worried.

    Hon. Claire L'Heureux-Dubé: Yes, but there's another problem: who would agree to a career of just 10 or 12 years? In that case, would they be appointed only once they get older? These days, judges get appointed relatively young. I'm not questioning the wisdom of that. As long as the person meets all of the criteria, age is no issue. But then that brings us back to the dilemma that Mr. Comartin raised earlier: either you agree at age 30 to be there for 12 years and then pursue another career, or you accept that appointments will only be made later in life.

    Mr. Richard Marceau: Between you and me, do you really think that someone ending a term at the Supreme Court at age 45 or 50 would have a hard time finding a job at a major law firm?

    Hon. Claire L'Heureux-Dubé: No, not necessarily. I don't know whether it's based on age in Germany. Since they're appointed older, it is known that they'll have a full career and leave at age 75 anyway. I don't know the details. There's no objection in principle, but there may be practical objections. It's certainly not the way we do things. It doesn't mesh with our system, and that's always problematic. That needs to be given some thought.

    Mr. Richard Marceau: Thank you.

[English]

    The Chair: Mr. Maloney, Mr. Comartin, Ms. Barnes.

    Mr. John Maloney (Erie—Lincoln, Lib.): Thank you, Mr. Chair, Madame L'Heureux-Dubé.

    I'm getting perhaps some mixed messages from your testimony today. You've indicated that the process is not that bad. You caution us, however, to avoid the risk of adding nothing to the process and causing more harm by public scrutiny. You suggest that transparency is very important, and we agree, and maybe we should have a commission to review the candidates; some may be informed members of the public, as well as parliamentarians, who are by nature pretty partisan. But then again, you say we won't learn much by canvassing those individuals for a few hours or a few days. Could you explain that conflict?

[Translation]

    Hon. Claire L'Heureux-Dubé: I see what you're saying.

[English]

    There is probably an advantage to an interview by the committee of this candidate. I don't see any disadvantage. They may not learn more than they had, but they would have an occasion to talk to the person. The public questioning doesn't have this built-up knowledge of the person, because this is done by the committee and so on. You can only ask questions for which you would probably have no answer. These questions may be interesting for the public, but may not have as much relevance for the judge. You ask, are you for abortion? I would say I can't answer that question. It would be as simple as that.

    You can see what happens in the American process. The judges are coached for days and days, they go to see senator so and so. We don't want to see that happen here. So that aspect would be very superficial, questions that probably will not go to the heart of what you want as a judge, whereas the interview that can be held by a board that has knowledge of the candidate, has studied.... The interview is not essential, by the way, but it's the public interview that will play particularly to the media, and as you said, your people want to know who the person is.

    I'm not sure it will get you where you want to go, and that's my problem. Because you want a good candidate, you want a person who has good judgment. But questioning the person publicly on his or her beliefs and a number of issues may not at all give you any hint of what that person really is as a candidate for judge.

»  (1700)  

    Mr. John Maloney: It was interesting in your appointment that you were advised by Mr. Mulroney at the very last minute, and you had some reluctance. The process we were discussing would bring the candidate in much sooner. I assume you think it a benefit to have the candidate involved much earlier in the process.

[Translation]

    Hon. Claire L'Heureux-Dubé: Most judges know that they're potential candidates.

[English]

    Most of the judges know they are possible candidates. The names are circulated in the papers. So I'm not thinking of candidates having the opportunity to know they're on the list, I'm thinking of the process as guaranteeing the best person possible. My name was circulated all over the media, so there was a certain knowledge that the name was there. Even if you have this interview or you are considered, it's only a consideration; you have no assurance that you will be the nominee. So I don't see it, from the point of view of candidates, as a great advantage or disadvantage. I think it's kind of neutral in this situation. I would have preferred not to know, to be frank.

    The Chair: Thank you.

    Mr. Comartin, for three minutes.

    Mr. Joe Comartin: I'm trying to be objective on this one. Is there any advantage to having a retired Supreme Court justice on the commission to establish it?

    Then maybe here's a secondary one while you're thinking about it. It seems to me--the committee is looking at this and the Prime Minister has spoken on it--there is a perception in the community generally, in the country generally, that the process is overly politicized. Will the establishment of the commission do anything to reduce that perception, in particular given the involvement of parliamentarians in it, or will it actually increase the risk that this would be seen as more politicizing of the process?

    Hon. Claire L'Heureux-Dubé: I don't think so. I think that if you're a committee that has a variety of people, it will give the process a better chance of being seen as more transparent because there are more people involved. There is the fact that the guidelines will be known; we will be asking this and that; we will be looking at this and that. I don't see that.

    As I say, I start with the proposition that the nomination process has worked well so far, but I can accept that we can better it. I don't think it would be a disadvantage to have a retired justice. I wouldn't fudge it with judges so much; there would be the chief justice and the chief justice of the court of the province where the person comes from. If there were a nomination from Quebec, I would see having the president of the Quebec bar plus the chief justice of Quebec because they know their people and so on.

    But to have retired judges, well, we're not bad people, but it wouldn't be one of my particular recommendations at all. They may represent the public or something like that.

    The Chair: Thank you.

    Ms. Barnes.

    Hon. Sue Barnes: Thank you very much, and thank you very much for coming and joining us today.

    My colleagues have covered a lot of the questions and I've heard your answers, but I still want to be very clear on what you're telling us. You've said that the existing process provides sunlight, if I can use the word, and transparency in and of itself, and it's produced good results. I think this committee feels there can be modernization and more transparency, and I think there's some desire to involve representatives of Parliament at some stage.

    It's a question of where and how, and there are different parts of this process. There's what I call the end part, towards the end, and there's the beginning part, where you start doing the processes currently done inside government; we'll say it that way. You've talked today about parliamentarians being involved, and you've talked about interview and you've talked about evaluation. The files part seems to me a front-end process. Are you also talking about involvement with parliamentarians potentially at that end too? I know the CBA had that idea in mind. I've also heard you talk about the interview; is that only towards the end, when the files have maybe been narrowed down to a certain group, or are you talking about both?

    I'm really just trying to understand exactly what you said.

»  (1705)  

    Hon. Claire L'Heureux-Dubé: I haven't really made much of a distinction. You're not going to interview every candidate who submits his name and everything. You're going to do an evaluation of the files, and when you find you have three candidates you would like to propose, then you interview them. It could be done for ten, twenty, or fifty people, but I don't think that would be as useful as when you have narrowed it down to a certain number of people; then you can interview them before, and there may be three or there may be five.

    Sometimes when we choose our law clerks we have the files, but the interview changes everything. It's important sometimes to have a certain knowledge of the person himself or herself.

    Hon. Sue Barnes: Let's pretend I was in an interview situation with, let's say, the final candidate. What type of question, in your opinion, would be appropriate and what would be value-added in those questions?

    Hon. Claire L'Heureux-Dubé: The questions were set out by the Minister of Justice this morning, and I think they have to be relevant to the job. For example, how would you consider the capacity to manage stress? How about, if you've had stress in your life, did you have to resort to drugs or whatever to control it?

    I can't tell you how heavy the pressure of the Supreme Court is. You will never know, I know, but it takes good mental and physical health. It's very difficult. It's very lonely, and you bear the isolation, for example. Would you be away from your family and would you live here or there? There's decisiveness. These are the pertinent questions, the relevant questions. There's proficiency in the law, for example. Have you been a member of any legal organization, perhaps an association of comparative law? To what extent have you bettered your skills? I think these are very good questions.

    There are also awareness of social contexts, bilingual capacity, and special expertise required for the Supreme Court, particularly in charter jurisprudence, as well as impartiality and humility, all of these. Integrity and ethics are usually not a problem, but we have seen judges who said things on the bench that prompted their resignation, so you have to ensure the person has good judgment and so on. I think these are the questions.

    It's not, “How would you judge this situation?” It's not, “What's your philosophy?” Judges, as I see it, don't have a philosophy, and make no mistake about that. They're not there for their own opinion. If you ask me what my position on abortion is, I might have an opinion, but it's not relevant to the case I'm dealing with.

    So that's the type of question I think is important.

»  (1710)  

    The Chair: That's a good issue.

    Now we have second rounds from Mr. Charbonneau and Ms. Torsney. Mr. Charbonneau.

[Translation]

    Hon. Yvon Charbonneau: Madam L'Heureux-Dubé, I'd like to ask you a question that may have to do with the structure of the Supreme Court and its mandate in terms of judge selection.

    In our system, the Supreme Court is also the constitutional court. It's the court that has to rule or give opinions on issues involving the application and interpretation of the Charter. Those are highly specialized areas, and each of the nine judges is required to have that kind of expertise, because they all have to be pretty equal professionally, none of them can leave it up to someone else, etc. There are, of course, individual areas of expertise, but all nine judges have to be able to decide Charter and constitutional issues very expertly. Doesn't that severely limit the choice of judges?

    Trial and appeal judges can spend their entire careers judging crimes of all kinds without having to deal with those issues. When they get to the Supreme Court, all judges have to develop these skills. Isn't that a severe limitation? Doesn't that make you think that maybe we should have a specialized court for constitutional and Charter issues?

    Hon. Claire L'Heureux-Dubé: Heaven forbid! I will tell you why. The law is one thing. In any case, i am against specialization. In this day and age, all judges in Canada have to know about the Charter and be experts on the Charter. Whether we are talking about criminal law, administrative law or civil law, the Charter is there to protect fundamental values. Everyone has to know about the fundamental values. All judges in Canada have to know the Charter. We are all specialists, to various extents. Obviously, judges sitting on the Supreme Court are dealing with more difficult issues.

    Whether the case is about tobacco or something else, it will have had to come through the Superior Court. Those judges have all had to decide whether freedom of expression, such as in the RJR Mac Donald case, was more important than the right to pass regulations to protect people's health. They have all had to discuss that. The Charter can no longer be considered a specialty. All judges have to know the Charter and the case law associated with it. That is why our work as judges today is much more difficult than it ever was before. It is very difficult to know everything and read everything. There is a huge amount of case law internationally. We need to be familiar with the court decisions on human rights issues around the world. Judges always need to be informed about the Charter. That is just the way it is. The duty of keeping abreast of these things is a very heavy burden.

    I will tell you, in passing, that our National Judicial Institute is really the best in the world. Our educational institute for judges has an excellent reputation around the world, and judges receive ongoing training there on the Charter and all sorts of topics. They are up-to-date on the latest rulings, in Europe and elsewhere, particularly in the human rights field, since our Charter is based on human rights and international conventions, which is totally different from the American Bill of Rights. I can say, if this reassures you, that judges here benefit from a judicial education system that is admired around the world. Judges from all over come here and we export our system. We have contracts with the Philippines, China, etc.

    So judges need to make much more effort to be well informed than before and always be up-to-date, even in trial courts.

    Hon. Yvon Charbonneau: May I continue, Mr. Chairman?

[English]

    The Chair: We're way beyond, but with colleagues' permission, you can.

    Is there any objection? There is a second round requested by Ms. Torsney, who is temporarily not....

    You're happy to take her time? All right, and Monsieur Dion as well.

    I think we should go to the others and I'll come back to you. We'll probably have a few extra minutes at the end.

    I'll go to Monsieur Dion.

»  (1715)  

[Translation]

    Hon. Stéphane Dion: What we are talking about is not so complicated, when it comes down to it. There would be a legal committee made up of those who are currently consulted on an individual basis, and it would be presided over by the chief justice of the Supreme Court, who would produce a list. The initial list would be fairly predictable. We know basically who is considered, interviews would be done with a few people who seem to stand out, and a recommendation would be made. Afterwards, things are less clear. If someone stands out very clearly from the others, that person would be recommended. On the other hand, if the candidates were more or less equally qualified, three or so names could be recommended to the Prime Minister.

    Let us talk about the decision-making process of that committee. If there are parliamentarians on it, there may be disagreements. Should the members vote?

    Hon. Claire L'Heureux-Dubé: I think that it is the same as in any committee where a decision has to be made. There is usually a compromise, if I understand correctly. The committee decides on one person and the members agree that it may be the other person next time, etc. You would probably need to decide, for example, whether a majority vote or a two-thirds vote would be necessary. The committee itself could decide that. In my opinion, it is not a big problem for a committee of a dozen people. I believe that committees are capable of making decisions.

    Hon. Stéphane Dion: We need to make a recommendation. Are you suggesting that we propose a uniformed decision-making procedure for all the committees, or should we let each committee decide for itself?

    Hon. Claire L'Heureux-Dubé: I think that it would be better to let each one decide. In some committees, things may not look good, but in others they are better. Personally, I would not establish set rules. I prefer flexibility. I always say that when people are closed up in little boxes, it is hard to get out. We should not make too many little boxes.

    I always accuse my anglophone colleagues of making little boxes and putting us in them. Francophones generally do not make little boxes. We are much more flexible: that is the influence of our Civil Code. I am not in favour of little boxes.

[English]

    The Chair: Thank you.

    Ms. Torsney, Mr. Charbonneau, and then your chair has a question.

    I could go to Mr. Charbonneau now, if you'd like.

    Ms. Paddy Torsney: Go to Mr. Charbonneau.

    The Chair: Mr. Charbonneau.

[Translation]

    Hon. Yvon Charbonneau: You mainly focused on the part of my question earlier about knowledge of the Charter. My question was broader in scope: I was talking about the Constitution. The Charter is included in the Constitution. It is quite rare for people who have been in the legal profession for 45, 50 or 30 years never to have given their opinion on social or moral issues, as you pointed out. You mentioned abortion, assisted suicide, euthanasia, drug use, same-sex marriage. After 30 years in the field, people have expressed opinions, written articles, come down on one side or the other, sometimes had ties with certain groups and been involved in movements and organizations. When it comes time for these people to be selected for the Supreme Court, all that does not disappear, does it?

    Hon. Claire L'Heureux-Dubé: No, and it is a good thing, since they have had the courage to express their views.

    Hon. Yvon Charbonneau: Everything cannot disappear. So it is a bit pointless to say, if you are asked these questions, that you do not know and that you will look into it. In the context, in the background, there are necessarily things that have been written, and opinions and positions that have been expressed in the past. How can all that be erased when people raise the issue of Bill 101 and the right of parents to send their children to English school? They do not need to review the case 100 times, since it is still the same case: these are still English-language parents who want to send their children to English school. Whether their name is Joe or Normand, it is the same thing. They have opinions that they have expressed and biases that they have shown over the years. How can there be a clean slate?

    Hon. Claire L'Heureux-Dubé: A judge's mission is not to give his or her opinion. To begin with, there are nine judges and therefore nine different opinions. But that is not our job. There was the case of Mr. Justice de Grandpré. When he was the head of the Quebec bar, he came out against abortion, and people called on him to step aside when there was an abortion case. I do not know whether it was the Morgentaler case. He did not step aside and he ruled on the merits of the case. A person may have expressed opinions on various topics. As you say, we live in the real world, etc., but when a case comes before us, we have to judge it objectively.

    It is the same for ministers. If a file is submitted to you, you may have expressed a prior opinion on the issue, but you know you have to make a decision and you will look at all the arguments. That is how we work. Having an opinion does not disqualify you, far from it. I think that people who have had an opinion are people who have shown courage, who have taken a stand, who have moved things ahead, and when they are judges...

    The best answer that I can give you is actually a ruling from the Supreme Court of South Africa. These are all friends of Mandela. Chaskalson, who is the president or chief justice of the court, was Mandela's lawyer, and the case was Mandela v. SARFU. People called for all the members of the bench to step aside, and the judge made a decision that we cited when Mr. Justice Bastarache had to rule on the francophone history issue. He had been criticized for serving as legal counsel for Manitoba francophones before the court. He refused to stand aside and cited the South African ruling.

    To summarize that ruling very simply, I would say that, as soon as judges put their hand on the Bible, what they did before is over, period. They cannot be asked to stand aside for that reason, since their function is totally different. They are judging the issue differently. Why would lawyers come before us? As I have told you, we change our minds 15 to 25 per cent of the time. We may have an opinion, but we have sworn on the Bible—generally, at least—that we will rule in accordance with our mission, which is to render justice. That has to be the starting point to understand the process.

»  (1720)  

[English]

    The Chair: Thank you.

    Ms. Torsney.

[Translation]

    Ms. Paddy Torsney: Ms. L'Heureux-Dubé, I believe that the problem, when we talk about changes, is that everyone is talking about another system and everyone has a different idea of what the best system would be.

[English]

    If we're going to make some changes, is it better, in your opinion, that we give the Canadian public some time to discuss the merits and drawbacks of the changes being proposed, or that we implement the new system in advance of June?

    Hon. Claire L'Heureux-Dubé: No, I just said--I think in answer to your question, Mr. DeVillers--that it's good to have some time of reflection. You can't rush into changing a system from what it was, that worked well.

    Nobody has said the system doesn't work--

    Ms. Paddy Torsney: Right.

    Hon. Claire L'Heureux-Dubé: Before you rush to another system, it takes time.

    The public has debated that. I was writing that in 1991, so it has been on the burner for a long time. It's not so much the public but the reflection now that has to go into the formula that you will adopt.

    Ms. Paddy Torsney: But the very reason it's on the front burner for some people in the public is their misunderstanding of judicial activism, or a perception that Parliament no longer makes the law, that the Supreme Court is making the law. So that's where I have some problem with how the questions are going to proceed.

    If the question is “What do you think of the role of the provinces or the federal government” or “What is the role of Parliament versus the courts”, and somebody says “Rightfully, we have our own places”, well, maybe you're too activist for this committee, or maybe there's a need, or certainly I could imagine there would be various opposition parties, perhaps, or governments that wanted someone to be less or more activist.

    I know you already answered--and I apologize for having left the room for a second--some of this issue of what kinds of questions people could ask, but I think there needs to be more debate or discussion about this interviewing process and what kind of people we have, and whether people actually understand the role of interpretation and of our separate roles respectfully.

»  (1725)  

    Hon. Claire L'Heureux-Dubé: That's right.

    What the public doesn't understand is that the role of the judge is to look at legislation in regard to the Constitution. Is that legislation constitutional? That's what we did before; that's what we do now. We do it in different criteria. Before it was either the provincial or the federal government impinged on the powers of the other. Now it's just more fundamental rights. That role has never changed, the role of the courts to decide whether that legislation is in conformity with the Constitution.

    So perhaps you're right. That role may not be understood perfectly, but how long would it take to have the people maybe debate more? I'm not against that at all, but you are asking whether we should let that happen over a period of years, perhaps, or months, and then eventually look again at this. That wouldn't be a bad idea at all.

    Ms. Paddy Torsney: I think particularly of the Sharpe decision: “Who do those Supreme Court justices think they are, promoting child pornography?” It became the most absurd debate as the government--

    Hon. Claire L'Heureux-Dubé: I was dissenting.

    Ms. Paddy Torsney: Okay, well, we won't get into the substance.

    But as the government is even trying to amend the bill to make sure that it is appropriate and achieves what is everyone's objective, respectful of what the Supreme Court told us and respectful of the objective all of us have, we're being pummelled with “You support child pornography, for God's sake.”

    The simplest solution, of course, is invoke the notwithstanding clause. The implications of some of these things are not well understood. The more politicized this process is, even in terms of having some other committee do this work or interview people, I think creates a more political process, not a less political process. So I'm interested in your testimony, and I'll check the rest of it to see where the questions that you recommend would be appropriate, and so on.

    Hon. Claire L'Heureux-Dubé: Well, saying you shouldn't rush into the change because there's no urgency and permitting more debate on the subject are certainly not bad ideas at all.

    How do you explain this process to the public? That's the question. The media have had their say for years on that.

    I have no solution on education of the public, but I wish there were, because I feel the role of the court is not understood properly. There's a lot of criticism that shouldn't be there. We're not perfect, and we don't mind criticism. The only thing I mind are personal attacks, as I've said. They don't advance anything. They just kill the messenger, and the message is never discussed. That's another matter.

    It would be interesting to see if you could devise a process by which the public would better understand the role of the court. It would be wonderful for the court, the public, and everybody. We would stop talking about activism, which in my view is such a bad word. You only use that for people who are supposed to tell Parliament that the legislation is no good, not for people who are reactionaries or activists. The reactionaries are pushing their agenda.

    Nobody is pushing an agenda, as a matter of fact. There's an article today by Dan Gardner, who says there is no such thing as an agenda for the court. I support that entirely. We're trying to do our best in difficult cases, where very often Parliament has not been able to settle the problem. We have to deal with it.

    So I think there's a contradiction in terms. We are given the case because the government has not been able to settle the problem, and we are told that we are running the country. It's very disturbing for judges, because that's not what we're doing. We are trying to do our best.

    I'm not there any more, so I don't defend them.

    The Chair: I'm going to take one stab at this question, because we rarely get a former judge in front of us. Most lawyers would take the answer to be pretty self-evident, but not all laypersons, people who are not lawyers, might grasp it.

    Why doesn't it matter very much, when we're selecting a judge, what the judge's personal views on particular social or political issues might be? Why isn't it important, given that the judge's role is to decide on the law, and the judge has learned for many years that it's a decision based on the law?

    I'm partly trying to answer the question. This is an opportunity for you to help us nail down, on the public record, precisely what you've been doing for your whole career. You're not applying your personal views arbitrarily, or prejudging a case based on your views of man, nature, and religion. Could you put some meat on the bone and try to elaborate on the core job a judge does?

»  (1730)  

    Hon. Claire L'Heureux-Dubé: The first thing that I can say on that is that a judge is there to render justice, and the law is a way to render justice. So we have to adjust the law to justice. It's very basic. If you know the law, there will be no injustice. There are some judges who are known to be so knowledgeable in the law that they will never have rendered an injustice.

    When you have this black-letter law, there is a danger. Legislators make law for a purpose. It's very rare that the legislature does legislation for nothing. So we have to understand why the legislation was made. We have to understand what's the evil or the mischief that the legislature wanted to correct. And we have to understand the timeframe in which it was made, the context and so on. So a judge has to take into account a number of factors that have nothing to do with his own opinion. That's the first thing.

    We're just there to decide the facts. The Supreme Court will rarely discuss facts. At times every judge has to decide the facts and the law. We have to take into account the whole area of context within the law, context in the application of the law. We have to apply the law to living people today, not the people of 1800 and so on. So you have to take into account the real lives of people, not the myths and stereotypes--that women are not credible, as an example; that was 200 years ago.

    This is the job, and then we hear the people. There are always two sides. There is usually, in constitutional court, the government side and the people's side, the other people's side. So the function is to read, to be informed, and to hear, and then, when you put all this together, to decide.

    We have very often hesitated to go one way or the other. The Keegstra case, for example--freedom of expression--was very difficult. The tobacco cases are very difficult cases. Where do you draw the line? Everybody agrees with the charter. There's no doubt about that. But some us of read the charter differently than others. Some would read the charter as a libertarian--civil liberties: me, myself, and I, and I have all the rights, society has none. Others, like me, say no, society has rights. We have to make a balance between the two, because that's what the charter says.

    The charter is a human rights document, not a civil liberties document. The Bill of Rights is a civil liberties document. The charter is built on human rights. So depending on our reading of the charter, and section 1--what is reasonable in a free and democratic society--we sometimes draw the line differently.

    Generally, what we're trying to do is render justice. By hearing and looking and informing ourselves, that's how it's built. It has nothing to do with our personal opinion, because we're not there for that.

    The Chair: Thank you very much.

    Ms. Torsney says she has a question and an interrogatory.

    Ms. Paddy Torsney: If you interpret the charter versus the Bill of Rights and this kind of thing, that would be a question that someone would ask. Nonetheless, you could be faced with a case, and you come in with this predisposition that it would be society who has some rights, but in the case that's before you, you could make something that others could interpret could be contrary to that view. Is that not possible?

    Hon. Claire L'Heureux-Dubé: Absolutely.

    Ms. Paddy Torsney: So what's the point in doing that?

    Hon. Claire L'Heureux-Dubé: In some cases there is prominence given to individual rights and in others to those of society. Generally, there are some colleagues who will read the charter in some ways, who are very well known, and say “I'm a libertarian”, and so on, and others will say no, it's more.... It's very subtle.

»  (1735)  

    Ms. Paddy Torsney: But all of them would review the evidence that's before them and make a decision on the case that's before them.

    Hon. Claire L'Heureux-Dubé: Absolutely, absolutely.

    Ms. Paddy Torsney: So they could flip backwards on those.

    Hon. Claire L'Heureux-Dubé: Absolutely. It generally follows a certain pattern, which is not a set of mind at all. It's just that when you expand on the charter, you have to do that. Everyone does that balance, but some, in some cases, will go on one side, some on the other. There's nothing set in cement in all that. This is a personal disposition of judges, who may have a certain view and reading.

    I'll say that French Canadians are used to the charter because the civil code is a set of principles, which is contrary to how the common law world is made. So it makes a difference.

    The Chair: On behalf of my colleagues, Parliament, and the public, thank you very much for braving a political context today and for being with us with your valuable insight.

    Hon. Claire L'Heureux-Dubé: Thank you very much. I enjoyed every minute of it.

    I hope you followed my ideas.

    The Chair: I did.

    Colleagues, we're adjourned until Thursday, when we have three witnesses from the legal community.

    Thank you very much.