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37th PARLIAMENT, 3rd SESSION

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

EVIDENCE

CONTENTS

Thursday, April 1, 2004

1105

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

Professor Allan Hutchinson (Osgoode Hall Law School, York University, As Individual)

The Chair

Professor F.L. (Ted) Morton (Department of Political Science, University of Calgary, As Individual)

1110

The Chair

Professor Peter McCormick (Chair, Department of Political Science, University of Lethbridge, As Individual)

1115

1120

The Chair

Prof. Allan Hutchinson

1125

1130

The Chair

Mr. Kevin Sorenson (Crowfoot, CPC)

The Chair

Mr. Kevin Sorenson

The Chair

Prof. Allan Hutchinson

Mr. Kevin Sorenson

Prof. Allan Hutchinson

1135

The Chair

Prof. F.L. (Ted) Morton

1140

The Chair

Prof. Peter McCormick

The Chair

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

Prof. F.L. (Ted) Morton

Mr. Richard Marceau

1145

Prof. F.L. (Ted) Morton

Prof. Allan Hutchinson

Mr. Richard Marceau

Prof. Allan Hutchinson

Prof. Peter McCormick

1150

The Chair

Prof. F.L. (Ted) Morton

The Chair

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

Prof. Allan Hutchinson

Hon. Lorne Nystrom

Prof. Allan Hutchinson

Hon. Lorne Nystrom

Prof. Allan Hutchinson

Hon. Lorne Nystrom

Prof. Allan Hutchinson

1155

Hon. Lorne Nystrom

Prof. Allan Hutchinson

Hon. Lorne Nystrom

Prof. Peter McCormick

Hon. Lorne Nystrom

Prof. F.L. (Ted) Morton

Hon. Lorne Nystrom

Prof. F.L. (Ted) Morton

1200

The Chair

Hon. Paul DeVillers (Simcoe North, Lib.)

Prof. Peter McCormick

Hon. Paul DeVillers

Prof. Peter McCormick

1205

Prof. Allan Hutchinson

Prof. F.L. (Ted) Morton

Hon. Paul DeVillers

Prof. F.L. (Ted) Morton

Prof. Allan Hutchinson

Prof. Peter McCormick

The Chair

Prof. F.L. (Ted) Morton

Hon. Paul DeVillers

Prof. F.L. (Ted) Morton

Prof. Peter McCormick

Prof. F.L. (Ted) Morton

Hon. Paul DeVillers

1210

Prof. F.L. (Ted) Morton

The Chair

Mr. Chuck Cadman (Surrey North, CPC)

Prof. Peter McCormick

Prof. Allan Hutchinson

Prof. F.L. (Ted) Morton

1215

The Chair

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

The Chair

Hon. Stéphane Dion

The Chair

Prof. F.L. (Ted) Morton

The Chair

Mr. Robert Lanctôt (Châteauguay, Lib.)

Prof. F.L. (Ted) Morton

Mr. Robert Lanctôt

1220

Prof. F.L. (Ted) Morton

Mr. Robert Lanctôt

Prof. F.L. (Ted) Morton

Mr. Robert Lanctôt

The Chair

Mr. Richard Marceau

Prof. F.L. (Ted) Morton

1225

Prof. Allan Hutchinson

Prof. Peter McCormick

The Chair

Hon. Stéphane Dion

Prof. Allan Hutchinson

1230

Hon. Stéphane Dion

Prof. Allan Hutchinson

The Chair

Hon. Stéphane Dion

The Chair

Hon. Stéphane Dion

The Chair

Hon. Stéphane Dion

The Chair

Hon. Stéphane Dion

The Chair

Prof. F.L. (Ted) Morton

Hon. Stéphane Dion

Prof. Peter McCormick

1235

Hon. Stéphane Dion

The Chair

Mr. Kevin Sorenson

Prof. Peter McCormick

Prof. F.L. (Ted) Morton

The Chair

Ms. Paddy Torsney (Burlington, Lib.)

Prof. F.L. (Ted) Morton

Ms. Paddy Torsney

1240

Prof. Peter McCormick

Ms. Paddy Torsney

Prof. Peter McCormick

Ms. Paddy Torsney

Prof. Peter McCormick

Ms. Paddy Torsney

Prof. Peter McCormick

1245

Ms. Paddy Torsney

Prof. F.L. (Ted) Morton

Ms. Paddy Torsney

The Chair

Mr. Richard Marceau

Prof. Allan Hutchinson

Prof. F.L. (Ted) Morton

1250

The Acting Chair (Mr. Chuck Cadman)

Hon. Sue Barnes

Prof. Allan Hutchinson

Hon. Sue Barnes

Prof. Allan Hutchinson

Hon. Sue Barnes

Prof. Peter McCormick

1255

Hon. Sue Barnes

Prof. Peter McCormick

Hon. Sue Barnes

Prof. Peter McCormick

Hon. Sue Barnes

Prof. Allan Hutchinson

Hon. Sue Barnes

Prof. Allan Hutchinson

Hon. Sue Barnes

The Chair

Hon. Sue Barnes

The Chair

Prof. F.L. (Ted) Morton

1300

The Chair

Mr. Chuck Cadman

Prof. Allan Hutchinson

Mr. Chuck Cadman

The Chair

Hon. Lawrence MacAulay (Cardigan, Lib.)

Prof. Allan Hutchinson

Hon. Lawrence MacAulay

Prof. Allan Hutchinson

Hon. Lawrence MacAulay

Prof. Allan Hutchinson

Hon. Lawrence MacAulay

Prof. Allan Hutchinson

Hon. Lawrence MacAulay

Prof. Allan Hutchinson

Hon. Lawrence MacAulay

Prof. Allan Hutchinson

1305

The Chair

Prof. F.L. (Ted) Morton

Hon. Lawrence MacAulay

Prof. F.L. (Ted) Morton

The Chair

1310

Prof. Peter McCormick

The Chair

Prof. Peter McCormick

The Chair

Prof. F.L. (Ted) Morton

1315

The Chair

Hon. Paul DeVillers

The Chair

CANADA

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

NUMBER 009

3rd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, April 1, 2004

[Recorded by Electronic Apparatus]

Á (1105)

[English]

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): Colleagues, I see a quorum. Let's get our meeting underway.

We're continuing our committee study of a mechanism to construct a parliamentary role in connection with the appointment of Supreme Court of Canada judges.

We have with us today three eminent persons as witnesses. They are Professor Ted Morton from the department of political science, University of Calgary; Professor Peter McCormick, chair of the department of political science, University of Lethbridge; and Professor Allan Hutchinson, Osgoode Hall Law School, York University.

Thank you, gentlemen, for being available to us to assist this committee in its work. I'm sure you'll have valuable commentary that will assist us.

Our usual format is to begin with opening statements and positions from the witnesses. For this we'll allow you a maximum of 10 minutes--I think that's what we've been following in this round--then we'll go to questions from colleagues.

Have you drawn lots as to who will go first, or shall we go in alphabetical order? If there is no order that you prefer, we'll simply go with alphabetical order.

Professor Hutchinson.

Professor Allan Hutchinson (Osgoode Hall Law School, York University, As Individual): I'd prefer if we went with the order on the sheet. I was asked only a day or so ago, and I know my colleagues have written remarks, so I'd prefer to go after them.

The Chair: That's fine.

If you're okay with that, Professor Morton, we'll start off with you.

Professor F.L. (Ted) Morton (Department of Political Science, University of Calgary, As Individual): I'd like to thank the committee for inviting me to Ottawa today to share my views on the issue of reforming the appointment process to the Supreme Court of Canada.

The importance of your committee's work is illustrated by the following two facts. First, until 2013, ten years after Jean Chrétien has left politics, his hand-picked appointees will still constitute a majority on the Supreme Court of Canada. Second, if the Liberals are elected to another majority government this year, Paul Martin will fill the two vacancies created by the departures of Justice Arbour and Justice Iacobucci. This means that eight of the nine judges on the court will be Liberal appointees, which is to say that a party that has averaged about 40% of the votes in the last four elections will have appointed 90% of the judges on the Supreme Court of Canada.

I submit that this kind of rule from the grave--one party's domination of the country's highest constitutional court--is inconsistent with democratic norms, and would frankly shock European parliamentarians and legal scholars. In recognition of the essentially political rather than legal character of national constitutional courts, all the major European democracies have designed an appointment process for their constitutional courts to ensure the kind of pluralistic representation expected in a contemporary democracy.

Similar appointment systems have been adopted by the new democracies of eastern Europe, and I would suggest it is high time that Canada abandoned the legalistic, autocratic, and outdated method of prime ministerial monopoly of judicial appointments and join the real world of 21st century democracy.

The most commonly discussed reform for this committee has been to have the Prime Minister's nominees for the Supreme Court reviewed by a parliamentary committee--presumably by this committee. I unreservedly support this reform, for all the reasons you have heard from other witnesses. However, I would urge the committee not to stop at simply public parliamentary hearings, and to consider the European models and how they might be adopted to Canada's federal democracy. Specifically, I call your attention to the following four practices.

The first is term limits. France, Germany, Italy, and Spain all allow a single, nine-year, non-renewable term for judges appointed to their constitutional courts. This term limitation precludes the American, and potentially Canadian, experience of a single president or a single party dominating the court long after they have been voted out of office. I note parenthetically that only three of the 50 U.S. states have tenure for life or tenure for good behaviour for their state court judges. It's not just a European phenomenon; it's also practised in the U.S.

Second is multiple appointing authorities. In France, Germany, Italy, and Spain, no single person, office, or institution has a monopoly on the appointing of judges to the constitutional court. Typically this authority is shared between several different offices and institutions. In the U.S. federal model, that appointment power is shared between the President and the Senate. That is a model we should consider.

Third is bipartisan appointments. In the European constitutional democracies, judicial appointments to their courts usually include both government and opposition nominees. Through the selection process, opposition parties are typically allowed to appoint judges to the constitutional court in numbers proportional to their own numbers in the legislative assembly. Some states in the U.S. follow that practice as well.

Ask yourself this: why should a party with 40% of the votes appoint 100% of the judges on such a powerful national court?

Fourth and final is the regional role on appointments. In federal states such as Germany, or quasi-federal states such as Spain and Italy, there are provisions for regional representation in the appointment of judges to the constitutional court. We have some of this already in our de jure and de facto representation of Canadian regions. We might have gone further in that direction in the Meech Lake accord with provincial nominating of Supreme Court judges. I would urge you to put that back on your agenda as well.

Defenders of the status quo--of course there are many because they are the beneficiaries of the status quo--will raise the usual bogeyman of judicial independence and politicizing the court. Let me first address judicial independence.

Á (1110)

We all believe that judicial independence is the cornerstone of our centuries-old rule of law tradition. Nothing is more important in a free society. But its application to final constitutional courts is only partial. Independence is essential to an institution whose function is to impartially apply rules that have already been made by another body.

To put the issue in context, at the start of the Stanley Cup playoffs we would certainly not tolerate the home team choosing the referees and linesmen--except possibly in Toronto. But when a national court of appeal is given the function of constitutional review, of supervising the laws passed by Parliament, it is no longer simply enforcing laws; it is also making law. In a 21st century democracy, law-making institutions are expected to be accountable and representative, not independent.

If you have any doubts about the illegitimacy of unaccountable law-making institutions, you need to only look across the street to the Canadian Senate. If you have any doubts about the law-making character of the Supreme Court's function, I can quote chapter and verse to you from statements by justices of the court themselves.

As for warnings that the public parliamentary hearings would politicize the court, it's a little late in the day for that kind of political prudery. There is already intense behind-the-scenes lobbying for Supreme Court appointments. Again, I can give examples of that, if you like.

The current system, rather than preventing the politicization of the appointment process, as its defenders would have us believe, simply drives the politics underground, beyond public knowledge and public scrutiny. You're all politicians, so it won't surprise you that it is an iron rule of politics that wherever power rests, influence will be brought to bear. What is wrong here is not that there is lobbying about judicial appointments, but that it is done in secret and behind closed doors. Your committee would be doing this country a great favour if it strongly recommended reforms that would bring the Supreme Court appointments process out of the closet and into the daylight of public scrutiny and democracy.

I'll close by saying there's no reason for this committee to stop simply at public parliamentary hearings. The Constitution of Canada belongs to the people of Canada. It doesn't belong just to the judges, the law schools, or the Canadian Bar Association. It doesn't belong simply to the government-funded rights advocacy groups that appear so frequently before the Supreme Court.

The Constitution belongs to all Canadians. You, the members of Parliament, represent all the Canadian people in all their diversity. You would be well within your democratic mandate and the tradition of parliamentary democracy to adopt reforms that make the Supreme Court, in its Constitution, reflect your own diversity. There is no reason to continue with a system in which a party that receives only 40% of the votes makes 100% of the appointments to our country's highest court.

Thank you.

The Chair: Thank you very much. You've kept within the time allowed.

The next presenter is Professor Peter McCormick, please.

Professor Peter McCormick (Chair, Department of Political Science, University of Lethbridge, As Individual): Thank you.

Well, always start with the obvious: the current appointment process to the Supreme Court of Canada is an absurd anachronism. A single individual makes the choice through a process that need involve little more than a phone call and a press release.

Earlier witnesses have told you there is a hypothetical danger of a Prime Minister stacking the Supreme Court, but of course this has never actually happened. I beg to differ, and my reference is to Trudeau's transformation of the Supreme Court in the 1970s. Most legal academics would regard those changes as a good thing, but good stacking is still stacking, and this is dangerous stuff. Major political institutions in a mature political order should not be driven by a single person's legal philosophies, political priorities, or, frankly, personal whim, even if that person is the Prime Minister of Canada.

There are three dimensions of the appointment problem that need to be addressed. The first is the professional dimension, one we're all aware of. In large part, we seem to take care of this by elevating judges from provincial or federal courts of appeal; that's overwhelmingly the largest group on the Supreme Court of Canada. This guarantees experience, it also gives an opportunity to observe performance. Of course, it also gives you a chance to adjudge political philosophy and legal priorities as well. But purely professional evaluation can never drive the process on its own. It is simply impossible in any objective, simple, direct, measurable, replicable way to identify the top two or 12 or 20 or 50 judges or lawyers in the entire country, listed in order of merit. So this is only one dimension, it can never be the whole story.

There are a couple of American academics who have suggested a tournament of judges, where you would rank district court judges in the federal court system and give them a score based on a variety of factors, and then the winners move on to vacancies on the courts of appeal, and that would break the deadlock that is currently driving the American judicial system crazy. With all the commentary I read, no one can decide if it's tongue-in-cheek or serious, but I sense from your expressions that it's tongue-in-cheek in Canada, so we'll move on.

The second dimension is the democratic. When a selection is being made from the reasonably broad universe of more than merely competent judges, some of the people involved should be elected officials, preferably more than one elected official, preferably in a larger setting, so we get some balancing of viewpoints and perhaps some containment of political game-playing.

The third, curiously absent from the recent discussion I've overheard, is the federal dimension, and it's a curious omission because of course it dominated for about 15 years whenever this topic was discussed. One function of a national high court in a federal system is to enforce in an even-handed way the federal-provincial distribution of legislative authority. Team national should not get to bring its own referee to the game of federalism, but of course in Canada it always has. So we need to provide for the meaningful involvement in the appointment process of some provincial actors as well as some national ones.

I was not invited simply to redescribe the problem to you, which is what I've just done. I was invited to suggest a solution, and I will try not to disappoint.

It seems to me that these three elements lead directly to an institutional package that I will label the federal judicial commission--just a label, nothing magic--to be constituted whenever a Supreme Court vacancy occurs. The first element of its membership would be five judges selected by and from the Canadian Judicial Council. The second element would be five premiers selected by and from the premiers conference--to be more trendy, we should call it the Council of the Federation. The third element would be five members from this committee chosen in such a way as to represent however many major official parties we have at the time. My only further constraints would be that no current Supreme Court justice could serve, that the commission could not propose one of its own members for appointment, and perhaps that the senior judicial member would serve as chair.

There are two different points in the process at which we could insert this commission. One is ratification. In ratification a single name is submitted and is either approved or rejected. But it seems to me ratification leads to two polar extremes, neither one of which is attractive. One is pro forma rubber-stamp approval, which is not always a bad thing if it carries symbolic value, but its defect is that it can never be seen as having any substantive effect at all. The other is confrontation, with the refusal to ratify constituting a direct challenge to the person who made the nomination. The extreme form of this is deadlock--welcome to the United States and the circuit court of appeal appointment crisis they're facing there.

Á (1115)

I think the better access point is nomination, generating through super-majority voting a set of names from which a final choice would be made by somebody else. I think this works better. A body balancing the appropriate set of concerns would have significantly constrained the selection process, but without having made the final choice. A list of five names seems to me about right, but I just seem fixed on the number five today--the number is a detail. I think committees tend toward bland decisions, but five or more names would give some scope for more unusual, although of course still fully qualified, individuals. Some research suggests that super-majority voting generates diversity in a list of names anyway, and it still leaves some real meaningful choice for the final decision-maker.

Who should the final decision-maker be? I notice that in Britain, which is also making major changes to its judicial system right now, a surprisingly recurrent theme in the literature is the assertion that of course the Prime Minister should not be involved in any way, certainly not by being the final decision-maker. In our context I would still disagree. I think the national government is the element I have downplayed--some of you might say ignored--in my judicial commission so far, so I would want to bring it back in at this point. I think the Prime Minister is precisely the person to exercise this final bit of discretion in a matter over which the Prime Minister used to enjoy total discretion.

There is also the question of whether the Prime Minister should have the right to reject the entire list. My own feeling is that he or she should not. The judicial commission I describe is important enough that it could not be hijacked, it's professional enough that it's given due consideration to ability, and I think it's disparate enough not to have its own secret agenda somehow. This being the case, rejecting a complete list looks like an instruction to keep supplying names until the Prime Minister gets the one he or she really wanted in the first place, and that would defeat the entire purpose.

My final piece of the puzzle would be for the new justice-designate to appear before this committee at a session like this one, only for the session to be web-cast and broadcast over C-SPAN--my students are disappointed that you didn't do that for me today, but I'll live with it. This is to provide an access point for the broader concerned public. It's not my thought that there would be any vote at the end of the session, as I don't think there's any need to add a formal ratification if a solid nomination process was at the other end of it, but some visible public exchange between the elected House of Commons and a newly appointed member of the Supreme Court seems to me entirely appropriate.

Thank you very much for this opportunity to present my thoughts on this very important matter.

Á (1120)

The Chair: Thank you very much.

We now go to Allan Hutchinson.

Prof. Allan Hutchinson: Thank you.

I'm in a rather invidious position, in that I have to agree with my colleagues, which is not something I would normally do, as they're only too aware. I think many of the suggestions they've made, although I might disagree with some detail, are clearly in the right direction. My stance, quite simply, is that almost anything would be better than where we are at present.

I have three preliminary points. First, too much of the debate is framed in terms of whether we should politicize the appointment process. That issue went a long time ago. The process is politicized. It's hard to imagine how it couldn't be in our present circumstances. Evidence suggests that with appointments, while prime ministers tend to appoint their own, they're even keener not to appoint the other side. Statistics show that with the Supreme Court, appointments of judges who are openly aligned with the opposition are extremely few.

Second, democracy seems to be a word that we just tag on to most things. It's almost a dirty word these days. I think democracy is important, and not just because we'll get better results; it's not just an instrumental thing. Democracy has value in and of itself. To me democracy is about participation and openness, and any process that smacks of being closed and lending itself to speculation about what goes on is not at all in line with our democratic traditions and our aspirations. So any process that is more open is a better process.

Third, and perhaps most importantly, what it is that judges do seems also important to this debate. We would like to think that judges can operate in some technical manner, but this is simply a wish. The fact is--and both my colleagues seem to agree--that the results of values and politics form an inevitable part of being a judge, particularly at the level of the Supreme Court of Canada. The notion of a slot-machine judge, a technical judge who does not resort to values or policies, is no longer valid. In thinking about the good judges, which I assume is something we are concerned about in this process, it seems to me that if we look at examples of good or great judges in Canada, they were great judges not in spite of the values and commitments they brought to the process, but in large part because of those commitments and values. Everybody has a different set of great judges, but it's usually in light of, not in spite of, the values they held.

So for me, it's important to recognize that judges do resort to values, that the law never speaks for itself, but has to be spoken for by the people who are charged with that power. Therefore, it's important that we know something about the people we appoint--better the devil we know than the devil we don't know. The pretence that if we don't ask questions we won't open up a hornet's nest of values seems to me misplaced, particularly in a democracy.

My saying law and judging are about values doesn't mean I think courts should simply operate as political organs in the way we think of the House of Commons. It is important, as my colleague suggested, that independence is strongly maintained, and we have many devices in place to protect courts from interference by the legislature or the executive. It seems to me, though, that if you're going to confer such powers upon these individuals to be free of interference and to decide according to their own values, it's even more important that we know what those values are before they assume those responsibilities. We need people who are meritorious, and that means looking at their strictly legal talents as well as their values. If we're going to pick the best people, we need to know something about those people. It's hard for me to see how a process that doesn't speak to their commitments and values can somehow produce the best judge. If it does so, it does so more by default than design.

Á (1125)

What would I prefer to see? As I said, almost anything would be better than where we are. I tend to be a pragmatist about these things, but I share many of the thoughts of my colleagues about establishing commissions. I'd have a slightly different mix than my colleague Professor McCormick. I'd like to see a mix of judges, politicians, and lay people. I think lay people have a role to play; after all, it is a democracy.

I notice that even in the United Kingdom--and people will guess that's where I'm from originally--they are considering reforms that would place them well ahead of Canada in any democratic reckoning. By way of parenthesis, however, somewhat ironically, those reforms have been stymied by the House of Lords. I say ironically because it seems to me the attempt to democratize the process has been held back by a profoundly undemocratic institution. However, I think we should take the lead from the British government in a willingness to recognize that we need a more open and democratic process.

I also share views about the tenure of Supreme Court judges being more limited than it is.

I'd like to end by urging you not to be too troubled by what happens south of the border. The spectre of an American confirmation hearing often looms large in Canada. People run this up as though it were the ultimate decision. I'd say a couple of things. It's a circus in the United States, in part because it's in the United States. Our own traditions are much lower-key and less polarized, and I can't really see a confirmation process operating in the same way. Second, for those people who don't like that process, it simply doesn't follow that if you get rid of the process, it will somehow depoliticize the process in the United States. It will simply, as Professor Morton said, push it underground. I believe that if we had a more open process in Canada, we would treat it seriously and in a suitably sober fashion.

So the suggestion that we should open up the process of appointing judges is not a way to politicize the process. It is to recognize an already political process and to deal with it as a largely political matter in a democracy. If we are to have a kind of aristocracy in the terms of a judiciary--and I have my views about whether that was ever a good idea, but the fact is that we do have a Supreme Court of Canada interpreting the charter, and will have for many years--at the very least, when they are appointed to that aristocracy, there should be a strong and robust democratic element to that.

Thank you.

Á (1130)

The Chair: Thank you, Professor Hutchinson.

Those were three very interesting viewpoints. I know colleagues have questions. I'll start off with seven-minute rounds. I'll just remind colleagues that we agreed earlier that the chair will interrupt at the three-minute mark in the event that a question has not been put by the member by that time.

Mr. Sorenson.

Mr. Kevin Sorenson (Crowfoot, CPC): Thank you, Mr. Chairman.

Again, welcome to all of those here today. This is an exercise that has become interesting over the last little bit, not only because of the testimony we've heard, but because Canadians in general are now starting to recognize that the process we currently have for appointing judges to not only the Supreme Court but the bench as a whole has been under scrutiny since the government and the opposition have talked so much about democratic deficit.

I don't think this exercise we are embarking on is because we have a dissatisfaction with the judiciary. I don't think anyone here really is saying the judges who have been appointed are bad judges. That's not why we're doing this. But we do want to look at the process and make sure it's a process we can have confidence in.

I liked what one of you said, that it wouldn't really matter whether this government or another government were in power; the process is flawed. This has really been held up to scrutiny over the last couple of years, given that the charter is in place. We see judges appointed by politicians given the power to strike down in the courts laws that have been made by the elected representatives of the people.

Maybe you could touch a little on judicial activism. That's one of the things we want to hear about. Another question I have, given that we have this judicial activism—and I know you've all talked about it, and we've all talked about the committees that might be formulated to nominate candidates to the bench—is, to what degree do we...I don't want to use the word “interrogate”, but question potential nominees? If nominees are questioned by parliamentarians, what qualities should we be looking for? Should they be qualities that are specific to decisions they've made in the past? What other characteristics should play? What role should ethnicity play? What role should gender play? There are a couple of questions there.

Do you believe, as one other individual who came earlier suggested, that in making appointments to the commission the council should include aboriginal organizations?

The Chair: Did you want to direct your question to anyone?

Mr. Kevin Sorenson: No, it's to anyone who wants to respond.

The Chair: It's for any one of the witnesses, then.

Prof. Allan Hutchinson: I'm happy to go first, but I don't want to—

Mr. Kevin Sorenson: Just to follow up, I know that specifically Mr. McCormick, I think, talked about five judges, five premiers, five members of this committee. What characteristics do we look for?

Prof. Allan Hutchinson: I'm happy to begin to answer that.

I don't think we should have to worry about saying there are bad judges on the Supreme Court of Canada. Of course there are bad judges on the Supreme Court of Canada. There are bad professors, bad politicians. It would be rather surprising if there weren't some not-so-good judges on the Supreme Court of Canada. Most people are prepared to name some of those people who have been there, if not presently, then in the past.

I don't think we should have a reluctance in such matters. We live in a democracy. Vigorous debate and disagreement about people's decisions are important. And although judges don't seem to like to be criticized, I've never quite understood why. It's hard to imagine being more secure in your position than being on the Supreme Court of Canada. They give out 100-page judgments about what they think, so why they should be worried about being criticized I'm not sure.

I do think it's important, if you believe that judging is about politics—not only politics; I don't believe they are ideologues at large—that the court should be representative of Canadian society. I think we should strive to make the court more representative. Given the fact that we're still only up to having—I hope this is right—four women on the Supreme Court of Canada in its history, and if we appoint another one she'll be the fifth; that there are no people of colour; that no aboriginals have ever been on the court; that there may or may not have been people of different sexual orientations on the court, I think we need to look generally at ensuring that the court tries to represent different views. I say that not because people somehow stand for constituencies, but because it seems to me that who you are in a society reflects the experiences you have and makes you able to perhaps better understand and hopefully empathize with the experience of others.

People worry about affirmative action. It seems to me we've had affirmative action a long time for middle-aged white men on the court. There's no reason why we wouldn't change that to benefit other groups. There seems, however, to be a reluctance, if we had a questioning process, a feeling that we would somehow be afraid to ask judges what their views are. I simply don't understand that.

These people have views, presumably, or we wouldn't want them on the court. If they have views, we're entitled to know something about those views. And it may well be that their views will change as and when cases arise. It's always difficult to know how one's general commitments will pan out in particular cases. So I would not be reluctant.

One of the qualities I would look for, clearly apart from some threshold qualities of competence and experience, is this. I think we need people not who don't have views—we've passed that off as somehow being “neutral”—but who have views, yet are open to considering other views, to putting their own views in play and not pretending they don't exist.

People change over time. There are good biographies of Canadian judges who were appointed being, let's say, quite liberal—I think of Bora Laskin in this context—who turned out to be quite conservative in their later years. The qualities of judges are not only those belonging to legal competence, but also to people who are capable of forming opinions, listening to opinions, and taking stands on difficult cases.

On a final point, because I'm hogging the microphone, the activism debate to me is a false debate. If all cases involve values, then all judges are activist. We tend to throw around the criticism of activism to those judges or decisions we don't like. If you don't like it, you call it activist; if you do like it, then you'll call it something else.

To those people who criticize activism, I always say, what would you want me to do that wasn't activist? What is this magical method I would use as a judge to stop being activist? The response is usually fairly quiet to that.

Thank you.

Á (1135)

The Chair: Professor Morton.

Prof. F.L. (Ted) Morton: Well, since Professor Hutchinson and I uncharacteristically agreed on everything we said earlier, I'll disagree with him on his last point.

Studies I've done, studies Professor McCormick has done, and also common sense all point to the fact that different judges reach quite different conclusions in the questions that come before them, and they don't do that just on an ad hoc or one-off basis; often it's very systematic. That's because they have different philosophies of interpretation and different philosophies or theories of constitutional interpretation. Some of that focuses on the extent to which judges should be faithful to the original understanding of the text, what's written in the Constitution, what's written in the charter, the parliamentary committee minutes behind that. If it's clear that a certain issue was not included, say in section 15, then other things being equal, the judges shouldn't add, they shouldn't amend the Constitution through interpretation. That view is called an interpretivist approach.

Other judges have an opposite philosophy, that constitutional texts are never conclusive, they're always open. There's often conflicting historical records as to what the original intent or the original understanding was behind that, and the judges have a mandate to fill in the blanks, if you like, to update the Constitution.

Strong cases can be made for both of these approaches. I happen to favour one. I think Professor Hutchinson probably favours another. But the Canadian people have a right to know what the constitutional philosophies of judges are before they're appointed to the Supreme Court. That would be one of the great merits of this committee in particular having open public hearings.

There's great talk about the defenders of the current court and its court record over the last decade, there's been incessant talk about charter dialogue, dialogue between Parliament and the courts. I think this dialogue is talked about a lot more than it occurs, but I think all three of us would agree on the fact that there's no reason to limit the dialogue to just the legislature's perspective and the court's. The Canadian people have a right to be included in this, too. The House of Commons and this committee could extend that debate by having public hearings.

So there are different approaches. Public hearings would bring those out and enhance constitutional democracy in this country and, I think, enhance the accountability of the party that makes the final appointments.

Á (1140)

The Chair: Professor McCormick.

Prof. Peter McCormick : Perhaps I could speak briefly to the representative aspect.

It certainly is true that the membership on the Supreme Court in recent decades has become considerably more diverse than it has been in the past. It's virtual representation to be sure, because there's no constituency, there's no selection process, there's no way the women get to pick which women judges serve on the court. It's virtual representation, which, when you study political theory, is the lowest form of representation, but nonetheless significant.

Also in terms of my nominating.... Always avoid being specific; it makes you the obvious target--I learned that too late. I wanted to set it up loosely. I'd rather not set up a body that is designed to generate certain kinds of judges or judges from certain kinds of groups. I've deliberately tried to decentralize who would select these people to three different bodies. Of course the advantage of the premiers' council these days is that it includes the territories, and the territorial premiers now are usually aboriginal. There's an easy mechanism there for that dimension of representation if it is desired.

I'm trying to leave a system that's flexible, not one that's predesigned to make sure groups A, B, C, D, E, and F are automatically always on there. That's a straitjacket that might be appropriate at one moment, but your list might change later on, or it might wind up predirecting the style of decision-making in a way that later on you might regret. That's why I preferred to leave it flexible. But I think any appointing or nominating body these days would be sensitized to the desirability of a range of diversity coming forward and would take this into consideration in its own assessments.

The Chair: M. Marceau.

[Translation]

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

I thank the witnesses for being here today. The three of you have been quite critical of the existing system and I share that position.

My first comment will be for professor McCormick. You said that the discussion had not dealt with the federal aspect of the nomination process. I can assure you that on the contrary it has been very much in my mind and in that of my colleagues during this discussion.

My first question is about the public aspect of the hearings you suggest, professor Morton. If we choose a public process, would there be some questions or some subjects that should not be mentionned? If that is the case, how can we make sure this doesn't happen? If not, aren't you concerned this could start a witch hunt?

[English]

Prof. F.L. (Ted) Morton: The one obvious question that cannot be asked a prospective nominee, a prospective appointment to the court, is how he or she would decide a case that is pending or that you can see is coming up.

The question that needs to be asked and is completely legitimate is, what do you think of the court's decision in this case or that case?

What would be a good example? What's a charter case that--

[Translation]

Mr. Richard Marceau: I think of same sex marriages, for example. If we adopted your process of public hearings to fill the two vacancies at the Supreme court, could this public committee ask the judge if he or she thought same sex spouses should be able to marry?

Á (1145)

[English]

Prof. F.L. (Ted) Morton: Because we know that case is coming before the court, that's precisely the kind of direct question that you cannot ask and that no prospective appointee could or should answer.

You could ask questions to the effect of how important it is that the record shows that sexual orientation was intentionally left out of the wording of section 15 when it was drafted back in 1980-81, or on the question of remedies in the Vriend case, for example, out of Alberta. There's been quite a bit of discussion about what the court did in terms of remedy, purporting to read or add new meaning to the statutes of Alberta after the Government of Alberta had three times considered amending that and not done so.

In those kinds of questions, retrospective questions, you can draw some general conclusions about what a judge might do in a pending or future case.

Prof. Allan Hutchinson: I will reiterate what I said before. I'm not sure of the great reluctance here, this idea that we should treat these people with kid gloves. Presumably if there's such a process, the end of the process will be to invest these people with enormous power. Why we would worry about the kinds of questions we would ask them seems to me a little unclear.

I agree, asking questions about precise cases that are about to be decided is problematic. But to ask them anything else seems, to me, important. They presumably do have views. They will in some way put those views into play in some sense when they make decisions.

[Translation]

Mr. Richard Marceau: Let's take abortion, a pretty obvious example. Could I ask the prospective judge what is his position on abortion or if he believes life starts at conception or at birth? Are these the kind of questions one could ask a judge?

[English]

Prof. Allan Hutchinson: My view is that you can ask whatever you want; it's whether they answer it that seems a more important issue, and what weight we put on their answers. For instance, I would be strongly pro-choice. I presumably will remain strongly pro-choice, whether--obviously this is hypothetical--you wanted to put me on the Supreme Court or not. The fact is I have a view. The idea that we would want to appoint people who have no view on abortion seems to me silly--or that somehow we pretend that they have a view, but we're just better off not knowing it. I don't understand that either in a democracy.

But it seems to me the right responses.... There are certain detailed questions that are not important to me as a judge. As a judge, I have to decide in accordance with the Constitution. We have decided certain of these issues already. They may come before the court again. I will listen to it again, but I will bind myself by decisions that have already been made. It seems to me that's appropriate.

I'm not clear what we are shying away from in a democracy when these people, as your colleagues said, have the power to strike down legislation and activities performed by duly elected people. It's reasonable that we're seen to know that.

An example would be Bertha Wilson, who was the first woman appointed to the Supreme Court . She gave a very important judgment regarding abortion in the Morgentaler case. It seems to me significant that we might want to know what her values were beforehand. She had them or she didn't have them; not asking won't change whether she had them or not.

It seems to me this all stems from the idea that the Supreme Court has something that we can't press too much, because if we press too much it'll all go up in smoke. I think the more the Supreme Court is seen as just nine people struggling to do a difficult job under difficult circumstances as individuals, then the better the process will be and the more democratic.

Prof. Peter McCormick: In basic terms, the fact that most judges on the Supreme Court of Canada are appointed after a fairly extensive period of service on a provincial or federal court of appeal means an awful lot of these questions you could ask yourself by doing the research. Some of the research might be a bit tedious, but they've been handing down decisions, they've been delivering judgments, they've been articulating their legal and political philosophies and priorities for you at fairly extensive length for five, ten, or fifteen years. A lot of this is stuff you could already find out.

Basically I agree with my colleagues. The notion of having to defend these poor little judges from tough questioning just strikes me as a little unlikely. If they're going to buckle under that kind of pressure, you might as well find out early rather than after you've appointed them.

Á (1150)

The Chair: There's no more time for questions, but a short answer from Professor Morton.

Prof. F.L. (Ted) Morton: They're really quick points.

If a judge announced ahead of time his or her position on a pending case, the judge would be recused and forced to sit down, because any parties before a court have to have full confidence that the entire panel of judges is open to deciding the case on its merits. So that addresses one of your questions.

Then on judges' values, what Professor Hutchinson was saying, obviously a judge may have a view on abortion or gay rights, and so forth, but most judges also have what I called before a constitutional philosophy or a theory of judicial interpretation. It might very well be that a judge would say, I am pro-life, or I believe life begins at conception, but I see that attempts were made to put the right to life of the unborn into the charter back in 1980-81 and they were rejected; therefore, even though I am pro-life, I would reject judges basically amending the Constitution by reading their personal preferences in.

So it's not just a question of what a judge's view is on this or that policy issue, it's also their theory, what they think the proper role of a judge is vis-à-vis constitutional interpretation.

The Chair: Thank you.

Mr. Nystrom, for seven minutes.

Hon. Lorne Nystrom (Regina—Qu'Appelle, NDP): Maybe just to follow up on this, you mentioned Bertha Wilson, and it wasn't just she who made the decision, but there were several other judges, and some of them may have been what you call “pro-life”--which is also a term I dispute, by the way, as well.

Prof. Allan Hutchinson: It wasn't me that used “pro-life”, by the way.

Hon. Lorne Nystrom: No, but Mr. Morton mentioned the word “pro-life”, and so just to use his term--and I dispute that term, very much so--there may have been judges who had different points of view that were part of that decision as well.

I guess my question is, are we saying there's no legal element to judging, that they come at this because they have preconceived ideas as to what the end result should be? It seems to me that most decisions are based on the legal judgment calls that judges do make.

I was part of the constitutional stuff back in 1980-81, as I was a critic in those days. You mentioned a so-called pro-life amendment. There were two of us who moved a sexual orientation equality amendment at that time too, and it was struck down by the majority on the committee, and the record would show that.

Anyway, does anybody want to comment?

Prof. Allan Hutchinson: I just want to be clear. I think policy, politics, values are inevitably part of judging, but I don't mean it is only an exercise in deciding what one wants to do and one does it.

There is clearly an element of making an argument through the existing doctrine, but it's my belief, and I think this is evidenced by the Supreme Court of Canada, that judges do arrive at decisions that completely disagree with each other. They have strong disagreements. My view is that's largely because they have particular views themselves when they read the law, which seems to me important, but it's also important to ask that there are very few judges who make decisions and say “I strongly disagree with this result, but the law requires me to do it”. It is a rare judgment that I have read in the Supreme Court of Canada that would vaguely get close to that.

Is it just coincidence, therefore, that the decisions that judges make, they tend to agree with themselves, that they like the results? I think they do, partly because the process of the law and themselves cannot be separated. They're not always one and the same, but judging the law and one's own particular values are always part of the mix, in my view.

Hon. Lorne Nystrom: Just to follow up on a comment you certainly made, and maybe others did as well, that almost any question of a prospective judge sitting before a panel is fair game, I go back to my recollection of Clarence Thomas. Are you saying that personal questions, too, are fair game?

Prof. Allan Hutchinson: It seems to me—

Hon. Lorne Nystrom: Is there a line drawn, and where do we draw the line?

Prof. Allan Hutchinson: I think the line is drawn, first of all.... Presumably, if any committee takes its tasks seriously, they will have a reason for why they wish to ask questions of particular individuals.

Á (1155)

Hon. Lorne Nystrom: What about a marijuana reference: “Did you smoke marijuana? Do you still smoke marijuana?”

Prof. Allan Hutchinson: Sure, if they thought that was relevant.... It seems to me there are other questions that are clearly meant to upset or distress or discredit the individual, and presumably this is true of the work of any committee. If they're on a witch hunt, they will expose all kinds of people, but if they ask people those questions because they believe they are important, then it seems to me that it is a reasonable question for them to ask.

Hon. Lorne Nystrom: Is there any counter viewpoint?

Prof. Peter McCormick: Basically, we're talking about a body like this body.

You put me in a difficult angle. You're the ones suggesting that members of this committee would stretch the limits to the point that some would find irresponsible, and I'm the naive professor trying to say, you are elected public officials; you take your duties on this committee very seriously; you have important personal values and political philosophies, and a political party you support. That's all part of your agenda, and you bring that in here and you deal with people like us responsibly and courteously, directed toward a public purpose. I assume that would carry over.

Some of you might disagree as to where the limits of propriety would be in the hypothetical cross-examination of a nominee to the Supreme Court, but you would all know that there are such limits, and I imagine that you would discuss among yourselves, and perhaps empower the chairman to enforce what you'd agreed to, as to what exactly those limits ought to be.

We agree there are limits. I won't even bother giving examples, because it would be offensive. There are certain questions that all of you know you would not dream of asking a nominee to the Supreme Court. There are other ones that you might think are on the borderline, but worth asking, and the person beside you might think you'd stretched it a bit. That's just something to be worked out by this committee over time.

Hon. Lorne Nystrom: I asked the question because what might be appropriate for you might not be appropriate for me, and vice versa.

Professor Morton.

Prof. F.L. (Ted) Morton: Obviously, questions that are an attempt at character assassination should be off limits. The question is, how do you keep them off limits? I think I agree with Peter McCormick that it's a question of the self-restraint and prudence of the committee.

There are two things, and I think Allan said this earlier. I think that the House of Commons would not emulate the behaviour of the Senate judiciary committee. There are differences of style and tradition, and so forth. Just because it happens in Washington doesn't mean that it would happen here.

Also, I would remind everybody that the Clarence Thomas nomination and, and to some extent, the Bork nomination are very much the exceptions, and not the rule, in the history of American Supreme Court appointments. While there's always been a politics of appointment, and occasionally conflict between the Senate and the President, it has been nothing like what exists currently. So what we're watching south of the border right now is actually an anomaly or an exception, even in the context of American history.

One of the greatest liberal judges ever appointed to the Supreme Court, Benjamin Cardozo from the New York County Supreme Court, was appointed by Herbert Hoover in 1930 or 1931, before Hoover got trounced by Franklin D. Roosevelt and the Democrats came in. He did that with almost no opposition from the Senate.

Hon. Lorne Nystrom: I'd like to ask the panel, what is your definition or what do you mean by judicial activism? We hear that term a lot. I think that one reason why the courts determine more public policy issues now is that we do have a charter that is enshrined, so by definition they have to make decisions that they wouldn't have made prior to 1980-81. In the context of that, what do you mean by judicial activism?

I guess I'll just ask another question, Mr. Chair. I think Professor Allan Hutchinson mentioned that the process is politicized now. What do you mean by saying that it's politicized now?

Does somebody else want to comment on judicial activism and then the politicization of the actual current process? Yes or no, and to what extent?

Prof. F.L. (Ted) Morton: Judicial activism is used in two quite different ways, which unfortunately can translate into the opposite of the other. Judicial activism is used in its simplest and easiest to understand sense simply in terms of the extent to which a court overturns or reverses policy choices made by an elected legislative assembly. So the more statutes a court or a judge strikes down, the more activist that court or that judge is.

At a more complex but in some respects more important level, activism refers to, again, what I've called the judge's theory of constitutional interpretation and the extent to which the judge himself or herself feels bound to adhere to the original understanding--as he or she understands it to be--of that right or constitutional provision, or the extent to which the judge feels free to add new meaning, and in effect amend what is perceived to be the original meaning.

Let's look at the issue of judges and freedom of speech and press. You might think a judge who is activist in adding meaning will also be a judge who's activist in overturning legislation. That's true in some cases, like the gay rights cases. The court has added sexual orientation to section 15 through constitutional interpretation, through judicial interpretation. It's basically amended section 15 through interpretation, and in the process struck down laws in Alberta, Ontario, and federally in Canada .

But one can imagine in some of the free speech cases that the free speech, presumably in 1982, could have been understood to protect criticism of government policy. Yet the amendments to the Canada Elections Act starting in 1982 or 1984 began to prohibit third-party advertising in the context of federal elections. Now that's a fairly serious restriction on freedom of political speech.

In the area of freedom of speech, political speech is generally considered to be the most important or at the very core. Yet the tendency of the court, or of some judges at least, has been that even if an absolutist view of freedom of speech would strike down that law, the non-absolutist view should be adopted, that qualifications should be added to freedom of speech to uphold those types of restrictions. So there is an activist interpretation of the right to freedom of speech that actually leads to a self-restrained or non-activist result in terms of upholding the law. So those are two different things.

Â (1200)

The Chair: Thank you.

Mr. DeVillers.

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

I just want to start off by disagreeing with Professor McCormick when he said his precision would make him the target. I think it's just the contrary. I appreciate the detail you've provided to the committee and I think that would remove most of my questions, save one.

When you refer to super-majority voting, do you mean more than simple majority? Is that the use of the term?

Prof. Peter McCormick: Yes.

Hon. Paul DeVillers: Okay, thank you.

To the entire panel, we've had witnesses come before us and say that this is a very complicated issue in that the possibilities are very numerous and the composition of a possible commission or panel to review the appointments--whether you do it at the front end or as a ratification, etc.... They've been urging us to take all necessary time.

You know the fact that there will be two vacancies on the Supreme Court very shortly. I'd like your views on whether we should be looking at a process that would be, not necessarily a two-off, but one that would get us by this round of nominations--and who knows, there may not be another one for four or five years--and that we should take the time to come up with a more thought-out, road-tested solution down the line. What's your reaction to that suggestion?

Prof. Peter McCormick: First, obviously, you can never quite predict when a specific Supreme Court vacancy will come up. We've had two that nobody saw coming at all, perfectly demonstrating the point.

Obviously, we're not talking about constitutional amendments here. That's one of the problems. The way we appoint justices to the Supreme Court is not entrenched, so we could play any games we want with it. I would think the point would be not to delay, but to start changing and to start trying things, as soon as you can, to see if they work and to see if a new process can be worked out that will be satisfactory to people.

Certainly, I think almost anything would be more satisfactory than a phone call and a press release. I agree with my colleagues. If you were designing how not to handle appointments to the most important judicial body in the country, we have the one that you wouldn't pick right now. Delaying only means letting the opportunity go by.

You do get another chance when Major steps down. Within the next two years, there will be a vacancy. After that, I think you will wait awhile. Discussing something here and then saying that maybe in ten years we'll get to use it would be a disappointing way to deal with an opportunity for a very significant change in addressing—I'll use the jazzy term now—the democratic deficit.

Â (1205)

Prof. Allan Hutchinson: A piece of good advice, which I've not followed in my life, is “act in haste and repent at leisure”.

I'm torn as to what to respond to here. I'd like to suggest a similar path to Professor McCormick, but I realize that once you make a move, you may only get one move to make. If you put in place a temporary process, it might turn out to be the final process.

I'm not clear on what to say there about a pragmatist. That's a judgment that you have to make. If you think you can take a few steps now but not foreclose some in the future, then I'd suggest that. If you think that you only get one shot at this, then I wouldn't necessarily rush it through in the next, presumably, two months, because the appointment has to be by July 1.

I'd have a tendency to think that if you're serious about this, you should put in place either a temporary process that is clearly temporary, or perhaps hold off and develop a more thorough process, which I should say not only should involve the Supreme Court of Canada, but could extend more generally to federally appointed senior judges, let's say.

Prof. F.L. (Ted) Morton: I think a two-step approach would be the prudent way to proceed because of the timeliness of the appointments and the two anticipated openings. It seems to me it would be an extremely modest recommendation from this committee, particularly if it were unanimous, to ask the Prime Minister to hold public parliamentary hearings before this committee once he has made his decision with respect to the two appointments.

Among other things, it would have the virtue of slaying the dragon that says these hearings are going to be disasters. Presumably this committee could prove otherwise, that a public hearing here wouldn't be like the Bork or Thomas committee hearings in Washington.

That could be your first step over the next three months, but these other forms that are being discussed probably do require more time, more thought, and more consensus building.

Hon. Paul DeVillers: To the point of the public hearings, how public should the work of the committee be? Should they be in camera and reviewed, and then recommendations made? Should they be full public hearings open to the press, etc.?

Prof. F.L. (Ted) Morton: In fact, I showed one of my classes, last week, extensive video tapes of almost the entire Bork nomination hearing. I'd be happy to send copies of that tape to this committee. I think you would see, in fact, that the committee part of it was actually quite an interesting public constitutional seminar, and one that I suspect most of you would enjoy participating in, but one that, in my opinion, it is very important to be televised.

Prof. Allan Hutchinson: I would share those views.

Prof. Peter McCormick: At the ratification point, yes, but for a commission that was coming up, starting with a lengthy list of names and then shortening the list of names, I don't think it would be useful to have cameras running and have it broadcast. First of all, it would be the most boring bit of television you could imagine, but there'd be tidbits in it that could be extremely embarrassing, especially if taken out of context. I find that very dangerous.

The Chair: Yes, Professor Morton.

Prof. F.L. (Ted) Morton: I agree with Professor McCormick. The place for public hearings and television is at the end of the process, at the confirmation stage.

Hon. Paul DeVillers: And on that question, the difference between the up-front, as I call it, or the ratification, I think Professor McCormick has the two steps described in his proposal, but what would your opinion be on the work of this commission? How much should be done at the up-front, reviewing a full potential list of candidates, as opposed to at the end, simply ratifying a choice made by the Prime Minister or someone else under the current system?

Prof. F.L. (Ted) Morton: Is Professor McCormick's proposal that a list of five people would go to the Prime Minister, and then only the person chosen by the Prime Minister would then be interviewed by the committee?

Prof. Peter McCormick: Yes, that's my suggestion.

Prof. F.L. (Ted) Morton: You're asking whether or not all five--

Hon. Paul DeVillers: Do you agree with that proposal of whether you should have all five at the final process?

Â (1210)

Prof. F.L. (Ted) Morton: I think having all five would be confusing.

Maybe I'd take this opportunity to say that I can envisage two quite different types of nominating commissions. I like the model proposed by Professor McCormick, but I don't think I like at all the models proposed by my good friends Peter Russell and Jacob Ziegel, in which the choice of the nominee would basically be “depoliticized” by this committee mainly made up of judges and lawyers.

You cannot depoliticize power. In the same way as today the current system doesn't depoliticize it, it just drives the politics underground, lots of American states have experimented with what's called the merit selection plan, or the Missouri Plan. Political scientists like me have studied that extensively. It just drives the politics through other channels. It's almost as bad as university politics.

The merit that I see in Professor McCormick's proposal is that with five nominees and with a nominating committee made up by such a diverse set of constituencies--premiers, members of this committee, judges--and the requirement of super-majorities, based on my study of the use of super-majority voting for judicial nominations in Europe, what that means is that on that list of five, there would have to be some horse-trading. What the Prime Minister would get would be a very diverse set of candidates. That's good. That's excellent. Then the Prime Minister chooses his or her favourite, and then that person has to defend his or her views before the committee.

That keeps political accountability and keeps the politics in the open, whereas with the type of committees proposed by my friends Professors Russell and Ziegel, it seems to me the alluring promise of depoliticizing simply won't work out in practice.

The Chair: Thank you.

We'll now go to the three-minute rounds.

Mr. Cadman.

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

With respect to the question, I think most people would agree that there have to be some lines drawn that you don't cross when it comes to the questioning, but I just wonder if you have any ideas or could give us some guidance as to what kinds of questions. What are some of the key factors about which a committee should be asking?

We've heard references to a particular judge's theory on the constitutional role of a judge. Are there other areas that you think a committee should be looking for? Would it just be questions, wherever the line of questions seem to be going at the time, or are there some key factors that we should be looking at?

Prof. Peter McCormick: Well, just very quickly, the one kind of question that should not be asked is, how would you have voted on a past case, or how would you vote on a hypothetical case? I would think anything organized around “How would you vote?” would be outside the limits.

Prof. Allan Hutchinson: Presumably when these candidates come forward they're not exactly a dark horse, as Professor McCormick said. Most of them will be judges. Most of them have cases out there. They're presumably being considered because of that. It seems to me reasonable that one would go back and talk about those issues.

Again, though, I'd go back and say I'm not sure we should be quite as reluctant as we feel to ask questions. One can ask whatever one wants. Presumably many judges will avoid such questions, as politicians do. There's an art in being evasive, and people will make assessments about what they wish to do.

Again, I'm not really clear about why we would tread so lightly in asking these questions. I think most things are open. I'd share what Professor McCormick said. Asking about particular cases seems to me a bit much, but ultimately I'd say we're going to give these people enormous power, so let's not be too worried.

Prof. F.L. (Ted) Morton: I think I'd go even further and say you can ask about particular cases in the past. Most of the important Supreme Court decisions involving both federalism issues and charter issues are not unanimous. Obviously if one, two, or more judges on a court are divided already on how that case was decided, a judge can go in and defend one or the other without being completely outside the bounds of reason or law. The court itself usually disagrees.

Also there's the issue of asking them what their view is on the principle of precedent with respect to constitutional decisions. There's an interesting debate about that. Normally judges in common law countries like ours are bound by and try to follow precedent, but there's an argument made that since constitutional law is hard to change, maybe constitutional precedents and constitutional law shouldn't be considered so binding. And there's a counter-argument that with the notwithstanding clause legislatures have a chance to come back. So that's an issue.

But I have one question. If this committee does get the chance to ask questions here in the next two or three months, I have a question for you.

The Chief Justice of Canada sent a letter to all law school deans on about March 21 or 22, 2000. I'd be happy to supply a copy of that letter. The letter says that it's come to her attention that a law professor is sending unsolicited materials to the clerks, of course many of whom come from these law schools, discussing and making arguments for cases pending before the court. She goes on to say this of course is completely inappropriate, that all of these materials have been returned unopened, and that she requests that the law deans tell their faculty to cease and desist from this improper practice.

Of course it's more than just improper. It constitutes ex parte communications and is a serious issue. Since a number of former law professors are being mentioned as potential candidates for the Supreme Court, any of those people who come before this committee should be asked if they participated in this type of behind-the-scenes lobbying of the court.

Â (1215)

The Chair: Thank you for mentioning that to us.

The time is up. There's probably not a need unless.... Would any of the members like to have a copy of that letter or can we just take note of it as described by Professor Morton? Just take note of it.

Thank you for bringing that to our attention.

Hon. Stéphane Dion (Saint-Laurent—Cartierville, Lib.): We would like to have a copy.

The Chair: You would like a copy of the letter from the Supreme Court.

Hon. Stéphane Dion: Yes, in both languages.

The Chair: Is that possible then, Professor Morton?

Prof. F.L. (Ted) Morton: I only have the English language version. I stand by my offer to send you my copies of the Bork nomination tapes as well.

The Chair: Professor Morton, I want to assure you that you are fully capable and allowed to communicate with this committee in the official language of your choice. I don't care which language the letter is in, but please send it if you can. We'll distribute it to colleagues.

Now on the government side I have Monsieur Lanctôt, Dion, Torsney, Barnes. And we'll have appropriate second rounds for the opposition.

Mr. Lanctôt.

[Translation]

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

Mr. Morton, as a lawyer, I am concerned when I hear you make those remarks. The public will want to know where is the judicial balance in all those cases. Imagine that despite all the evidence adduced during the trial, the judge admits later that he based his decision on his personal values. His lawyer may have forgotten to present a particular piece of evidence.

Res judicata is one of the most fundamental principles of our society. Democracy is a beautiful thing but it is also very vulnerable. It is easy to see from the questions asked about a particular judgment that our judicial system has major flaws. I think there must be some limits, especially when the hearing is public. If you spoke about in camera hearings, I might agree with you. But when you publicly give an indirect right of appeal, I find that quite dangerous.

I don't know how you can think that all these questions could be asked.

[English]

Prof. F.L. (Ted) Morton: You're discussing the proposal for televised parliamentary hearings for nominees to the court. Is that what concerns you, that will undermine the public--

[Translation]

Mr. Robert Lanctôt: We are talking here about publicly asking questions about decided cases.

Â (1220)

[English]

Prof. F.L. (Ted) Morton: You're worried that will undermine respect for the judiciary and the rule of law.

[Translation]

Mr. Robert Lanctôt: Yes, for the judicial system.

[English]

Prof. F.L. (Ted) Morton: I think that in discussing these matters there's always the risk of confusion about constitutional courts and constitutional law and all of the other domains of law--civil law, criminal law, and public administrative law. Admittedly, there is incremental law-making through interpretation in all of those other domains. But I suspect all three of us would agree that when you get to the domain of constitutional law, which has risen from about 5% to 25% of the court's docket in the last two decades, we're not talking about the other 90% of fields of law. It's in constitutional law in particular--as Professor Hutchinson said and I agree--that the force of legal principle and legal rule begins to recede and the force of personal views and personal principles becomes a stronger force in the mix that produces a judicial decision. I think we just disagree. I don't see how that would undermine confidence in the judiciary or in the Supreme Court's role at all. I think it would just be that we'd have our eyes wide open. It would be an enhancement of constitutional democracy, not an undermining of it.

[Translation]

Mr. Robert Lanctôt: I am finished. Nevertheless, I completely disagree with that.

[English]

The Chair: Thank you.

Mr. Marceau, for three minutes.

[Translation]

Mr. Richard Marceau: Thank you, Mr. Chair.

At the present time, the Prime Minister goes more or less alone when it comes to choosing judges, even if he does consult a few people; when we talk about the division of powers between the federal and the provinces, he is sometimes viewed as judge and judged. He is the one who chooses the referee when the Supreme Court must decide a question of jurisdiction.

Since you seem to leave the final choice to the Prime Minister, at least that's what I understand, shouldn't the list of potential candidates come from the provinces? They could prepare a list of nominees from which a committee made up parliamentarians or people with diverse backgrounds could make a choice. This way the provinces could start the process by submitting a list of names. What do you think of this? I ask this question to the panel and Mr. Morton might wish to answer first.

[English]

Prof. F.L. (Ted) Morton: That is basically what was proposed in Meech Lake. Provincial governments would nominate judges and the Prime Minister would choose from that. That was one of the few aspects of Meech Lake that I liked, but it wasn't enough to get me to support it as a package. It seems to me that Professor McCormick's commission, with a proposal for five premiers, captures, in a way, the purpose of that approach. As you might expect, I'm extremely sympathetic to the idea of significant provincial input into the selection of a court of judges that acts as the arbiter in our federal system between provincial and federal jurisdiction.

In January I attended a conference in London on comparative judicial selection practices. There were several papers on international courts, in particular now that the European Union has an increasing number of courts that hear legal issues arising within the EU. For the courts that operate in those systems, the judges are nominated by the participating member states. So again, this isn't a Canadian idiosyncrasy. There's a strong international comparative precedent or parallel set of practice in federal or quasi-federal arrangements for the participating unit states to have a nominating function to the court that sits as the arbiter of disputes between the national and subnational units.

Â (1225)

Prof. Allan Hutchinson: My answer would be that I would not involve the Prime Minister in the selection of judges, that I would hand over this power to a commission suitably appointed, or to a committee such as this. This, of course, doesn't mean the Prime Minister wouldn't have any influence over the process, but I would take them out of the process, certainly in the way they are at present, and I would take them out in any direct or formal sense.

Prof. Peter McCormick: The problem with the current system is that it's not that we're suggesting.... No one has taken up this line that somehow the Prime Minister is always totally whimsical, or irresponsible, or deeply Machiavellian in some identifiable fashion. The point is that you're undermining the Supreme Court by having an appointment process that could be open to attack under certain circumstances.

The historical example would probably be when Saskatchewan went ballistic over the potash decision and the CIGOL decision in the late 1970s. And this was Saskatchewan, this was the helpful fixer; this was not Alberta, which gets ballistic frequently, just for fun. The Saskatchewan premier got enormously upset with the Supreme Court and made some comments about the Supreme Court of Canada that you would expect to be said by premiers of either Quebec or Alberta, but not the other provinces.

It seems to me you're creating a real Achilles heel, a real weak flank for the Supreme Court, that could, in the future, undermine its activities. That's the reason for addressing an appointment procedure, to protect the court from that kind of possibility.

The Chair: Thank you.

Mr. Dion for three minutes.

Hon. Stéphane Dion: Merci beaucoup.

I would say that we have heard three views in this committee. These three views suggest to us to change the status quo. Nobody came and said, don't change anything.

The first view was to say the system today is not politicized at all; the judges are great and considered as such in Canada and abroad. It's much more as a consultation process than a phone call and a press release, much more than that. The appropriate consultations are made. But we need to enhance the credibility of the process in making it more transparent.

The second view is to say the system of today is politicized; we need to depoliticize it.

The third view is the one you mentioned, with Professor Manfredi, that would say it is politicized; accept that it is politicized and then go with it.

I'm not sure that the conclusions at the end are so different. What the two other views are asking us to do is to have a judicial committee, but one that would be dominated by legal people--experts, deans of faculties, or judges, or the bar association--where parliamentarians may come, but it would be confidential. It would come with a recommendation to the Prime Minister, and maybe afterwards the chair of the committee would testify here in this committee to explain to explain what the process was.

Even though you yourself said it's politicized, I have noticed that you are embarrassed a bit when we push you--maybe except Professor Hutchinson--about what kinds of questions would be appropriate. You are suggesting that some confidentiality is necessary. So I will ask you again which question is not appropriate. For instance, to ask which party you voted for last time is not appropriate, I would guess.

If a candidate accepts to not answer the question, is it something against this person or something that will be in support of his or her candidacy? Professor Russell said if you give your personal views, it's shows that you're not ready to be a judge. You should be able to not give your personal view; it's perceived as something professional to do.

About confidentiality, no confidentiality at all or only public hearings at the end of the process? Confidentiality and questions--I will ask you what politicization means for you. Are there some areas that should not be politicized, but should be confidential and left for the experts?

Prof. Allan Hutchinson: My view--I think I'm very clear on this--is that you can ask whatever you want and the questioners will be guided by their own sense of propriety. And as Professor McCormick says, presumably the committee itself will be under scrutiny in terms of its own performance. I think most things are open. In regard to questions about which party you voted for in the last election, it seems to me I'd say it seems appropriate in a democracy that I don't have to reveal that kind of thing, and I wouldn't. If you asked, have you ever worked for, or are you a member of, any political party, I think that's entirely appropriate.

But I'm prepared to say there are tough questions. If somebody asks me, are you gay, as a question--and it would be naive to think that these things wouldn't come up--it seems to me that the person is entitled to make whatever answer they wish. I would say, no, because I'm not gay. I may say my sexual orientation isn't important; people may say it is.

Again, I'm not so sure what we're protecting these people from. They want to become powerful public figures; that's what they are. They call themselves judges, but they're also powerful political figures. You put yourself up to all kinds of scrutiny in entering the public sphere, and it seems to me that there's no reason why these people shouldn't also be under the same constraints. There are many questions you would consider inappropriate, in your positions as politicians, and I assume the same kinds of rules will apply to these individuals.

Â (1230)

Hon. Stéphane Dion: Would the hearings be confidential?

Prof. Allan Hutchinson: I think confidentiality should always be the exception and not the rule. It's not clear to me why there should be any necessary confidentiality about these hearings.

The Chair: On that very point, if I may interject--the chair so seldom asks questions here--it occurred to me, in my thinking over the last few days, that we have three branches, generally, of our government: the courts; the executive of government; and you have Parliament, as the legislative assembly. Every single deliberation and decision of our courts is made confidentially and in camera and it's made public at the end. Every single deliberation and decision of the executive of our government is made in camera, it's confidential and made public later. And even in our Parliament we have, by statute, made our Board of Internal Economy in camera, confidential, and our committees from time to time go in camera to do business.

So I appreciate that there's a principle of transparency and openness in governance, but I want to point out that all of that decision-making, the whole core of our governance process--it looks like about three-quarters of it, if I may put it that way--takes place with deliberations and decisions behind closed doors. I wanted to make that point to the witnesses. I don't want you to respond to me, but in replying to others you may make reference to it.

I'll go to Mr. Sorenson for three minutes.

Hon. Stéphane Dion: Mr. Chairman.

The Chair: I'm sorry, Mr. Dion.

Hon. Stéphane Dion: Mr. Chair, you took my time. I asked you--

The Chair: No, I didn't take you time.

Hon. Stéphane Dion: We were waiting for the two other professors to answer.

The Chair: I had assumed that they had completed their answers.

Hon. Stéphane Dion: Only one of them had the time to answer.

The Chair: Were there other responses to Mr. Dion?

Professor Morton. I'm sorry, I thought they had completed.

Prof. F.L. (Ted) Morton: You should look at some tapes of the Senate Judiciary Committee hearings on people other than Bork as well, because again Bork was an exception. He answered almost every question, and that turned out to be a mistake. But he had a high enough sense of his intellectual capacity that he was willing to take on the committee. But it's very common for Justice Ginsburg, Justice Souter, certainly Justice Thomas...they repeatedly refused to answer questions on the grounds that they thought it would be inappropriate, because it got too close to--maybe this goes to your question too--forcing them into a position of prejudging something that may come before them in the future.

So certainly it would be completely within the right of the nominee to refuse to answer a question on the grounds that it would be inappropriate.

Hon. Stéphane Dion: And he should know if it will be something for him or against him if he decides not to answer.

Prof. Peter McCormick: That would be up to the members of whatever group we're talking about to decide. Sometimes you respect a person for the things they refuse to answer, for the ways they step back from it, for the things they won't share; other times you would be critical of a person. But that's precisely the point of why you ask the question, why you give the person the opportunity to duck away from it if they want, and why you yourself would exercise the judgment in the end--he shouldn't have answered that question; yes, he ducked away from the question; or whatever your reaction is. How should we tell you how to react to the way a particular question is answered or not answered?

Â (1235)

Hon. Stéphane Dion: I think you said that some questions are inappropriate in the committee, not to the members.

The Chair: All right, good.

Now we have to go to Mr. Sorenson.

Mr. Kevin Sorenson: I just want a couple of statements, very quickly.

In response to what Mr. Dion mentioned--and I think one of you drew attention to it--sometimes poor questions don't draw any reflection on the candidate, but rather draw reflection on the commission or on the people who are doing the questioning. So anyone on that commission had better be very careful.

In this committee, we're discussing judicial appointments basically to the Supreme Court, but what about any changes to the way lower court judges are appointed? Obviously, many of those judges come right out of law practices. There would be a level of confidentiality. They don't want someone to know that they want out of their practice and they're considering becoming judges. Are there any changes that should happen there?

And one other really quick question is this. All right, we have had this charter in place now for some 20 years, and we've had basically two governments split that time. The Conservatives have been in power for eight years, or whatever, and now, for a long time, the Liberals have been in power. With that long tenure of political power perhaps come some problems. If there were a change in government, would it be problematic to put a Supreme Court judge on who would be maybe very conservative?

I know when you talk about boards and when you're running a business you want a board that can work together; you want a group that can work together. Is it problematic for a Prime Minister to come in and say, okay, we have a fairly right-leaning--let's say, to put it into the States--or a fairly conservative group in the judiciary; I'm going to put a liberal, a real left-wing liberal? Do you want someone on the far left, someone on the far right? How important is it that we have split decisions? How important is it that we have unanimity on some decisions? What balance should there be? Or should we not be concerned about it?

Prof. Peter McCormick: If I can just answer, since I accused Pierre Trudeau of stacking the court, I'd now like to back off in one respect. I think Trudeau reconstructed the court, and that involved a kind of stacking.

In another sense, what I always appreciated about Trudeau was that it wasn't just a click, click, click of appointments; there was diversity in the appointments. So you would get a Bora Laskin, but you also got de Grandpré appointed by the same Prime Minister. In the same context, on the one hand you got Wilson, but on the other hand you had McIntyre. It seemed to me that created dialogue on the court that I thought was quite exciting and quite valuable.

Whenever I start talking about an appointment procedure...and that's why I worry about committees; they're bland and they tend to go for the obvious. Maybe you're squeezing out any chance of that kind of breadth on the court and that kind of conversation, which I would regret.

So I think it's important that the court have diversity, because even within the judicial profession, even among very highly respected judges, there is considerable disagreement on the kinds of questions that come before the court. The important thing is to find a mechanism for translating that through onto the court itself.

Prof. F.L. (Ted) Morton: I agree completely with Professor McCormick.

The Chair: Okay, that's a wrap.

We'll go back to the government side. Ms. Torsney.

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

My main question was for Professor Morton.

Prof. F.L. (Ted) Morton: I'll be back.

Ms. Paddy Torsney: Maybe while he's out of the room, I would suggest to you, Mr. McCormick, that much as I wish it was true, I think your view of how parliamentarians might conduct themselves when the stakes are high is naive. It is. The stakes could be very high in a pre-election period. It could be in the opposition's interest to embarrass the Prime Minister's nominee. It could be that my view of judicial activism means something different from somebody else's. Maybe I want someone to be more activist and I won't put up with a candidate who isn't willing to make some waves.

So members of Parliament do not always conduct themselves in the nicest possible manner. You can put the question out there and someone can rule that it's out of order, but the damage is done, the words are stated, and the situation has been altered by the effect of what has been said.

Even yesterday in the House, we had a member ruled out of order, but what they had said still stands on the record in some capacity.

Â (1240)

Prof. Peter McCormick: Okay, not so much naive as polite, perhaps.

Ms. Paddy Torsney: Optimistic.

Prof. Peter McCormick: First of all, we're describing unusual circumstances most of the time, even in question period, which is the most circus-like aspect of anything the House of Commons ever does. Even there the behaviour is usually within broad limits that people can understand.

To repeat the point we keep making, we're talking about people who will exercise a very considerable degree of power for a very considerable period of time and who will, in a different forum, using different language, be dealing with enormously important issues that are before all of us. If these people can't take some potentially embarrassing confrontations, if they can't sit through some raucous proceeding of a House of Commons committee, I wonder why we would want them in the first place. Most judges have a very firm sense of what questions you answer and what questions you don't, what issues you explore in public and what issues you don't, and how to protect themselves, how to back away from questions they think are inappropriate. I don't think these are all hot-house darlings who couldn't stand a single embarrassing question.

Ms. Paddy Torsney: So Professor McCormick, who is the better professor, the one who publishes and does great research or the person who engages students in a classroom?

Prof. Peter McCormick: I come from an institution that values research and teaching both. If you can't do both, you don't get very far at my institution. Administrations tend to like the ones who publish, and that's one of our constant problems.

Ms. Paddy Torsney: Professor Morton, you talked about judicial activism. There have been a number of examples where people who could have been perceived as being activists in fact made decisions that were not very activist--the spanking laws that were upheld, the Keegstra decision, the recent, shocking perhaps, case of the prenuptial agreements the lawyers entered into. Isn't judicial activism really something you tag on sometimes when you just don't like the decision?

Even in asking the questions or trying to establish what people think their roles are, I think you are starting to politicize what their future judgments are. So isn't it better that we expect that the people who are making these decisions look at the case that is presented before them and not try to fit it into right wing, left wing, or this and that? Even if I'm pro-choice or anti-choice, it shouldn't be a matter of forcing every case to fit my decision; I should be evaluated on how I make decisions on the information that is presented to me in the cases that are fought.

Prof. Peter McCormick: To take your last point first, that's a very good theory of the judge, but certainly as political scientists, even as law professors, we simply know different judges with different world views and different theories of constitutional interpretation make very different decisions faced with the same facts and the same precedents. Since this isn't simply a rule-enforcing body any more, but it is also a rule-making body, the Supreme Court, those background views of constitutional theory, political view, and world view are going to be major factors in their decisions. Since they're exercising, in effect, a policy veto over the work of the elected Parliament of Canada and over the work of elected legislatures of each province, I think it's an enhancement of democracy for the people to know what kinds of judges are being appointed.

With respect to your first point, judges are not uniformly activist or self-restrained across a broad variety of cases. Some of the quantitative research I've published showed, for example, what other people knew intuitively. Certain judges are, if you like, very activist in social policy and equality charter cases, but just the opposite in criminal cases. It can get even more specific than that in cases involving feminists or feminist-related issues. Justice L'Heureux-Dubé, I think in 28 cases, never voted once against what can be characterized as the feminist side or position in the cases she sat in that involved those issues. That may not sit very well with judicial or legal theory, but that's the real world of constitutional law.

Â (1245)

Ms. Paddy Torsney: My time is up, but I just want to say, Professor Morton, that in fact they may have an interpretation that may act as a veto for a time, but parliaments make laws, and if we don't like the interpretation that the Supreme Court gives to a law we have passed, it's our obligation to change it. So they provide information and, for a while, some context for how laws are interpreted, but it's Parliament that makes laws.

Prof. F.L. (Ted) Morton: I'm a great supporter of the notwithstanding clause, and I'm heartened to hear that here in Ottawa.

Ms. Paddy Torsney: There are other ways to achieve that goal without the notwithstanding clause.

The Chair: Monsieur Marceau, for three minutes.

[Translation]

Mr. Richard Marceau: Thank you very much, Mr. Chair.

Professor McCormick has presented a solution. He made a suggestion about the membership of the commission. I would like to have the views ot the other two witnesses on this. More precisely, could this proposed committee be also made up of , first, representatives of the provincial and regional bar associations, and second, representatives of universities?

[English]

Prof. Allan Hutchinson: There's probably enough of the chattering class as part of this without having more academics as part of it too.

My suggestion was for a similar kind of process to Professor McCormick's, but I'd have a different makeup. It seems to me that five judges and lawyers can represent all views within the legal profession. Five members of the House of Commons, it seems to me, can represent political views, and five lay members are important.

I'm keen on there being lay members because, to me, democracy is about closing the gap between the governors and the governed, and the more opportunities we have for people being involved, the better. The argument usually is that this is all far too technical for lay people. I disagree with that completely; I just think it serves people's interest to present it in that way.

I'd be open to a variety of mixes that attempted to represent all parties—not to depoliticize it, and not to repoliticize it, but just to recognize that there are politics involved and that we need to go in there not with eyes wide shut, but with eyes at least partially open.

Prof. F.L. (Ted) Morton: And definitely keep out the academics; they have had way too much influence on how the charter has developed already.

While I'm in favour of having lay people involved at the provincial level in terms of judicial recruitment, I think it's impractical for the Supreme Court. You're going to get people who are called laypersons but in fact, of course, won't be. How do you select five people out of a nation of 32 million or 33 million? If you do it randomly, Lord knows what you'll get, and if you don't do it randomly, you're just going to get people who are picked for specific agendas already.

I think the composition proposed by Professor McCormick is a good one—five judges, five premiers, and five members of this committee. With the five nominations, you could get a real diversity. You could almost certainly get a nominee that has some, say, NDP perspective. How long has it been since we've had a judge with some NDP orientation?

On a related subject, as Professor McCormick pointed out, the overwhelming majority of Supreme Court appointees come from the provincial courts of appeal. Even though this is outside the mandate of your committee at the moment, one of the most significant respects that could be made to improve the diversity of people coming to the Supreme Court would be to return the appointment of provincial judges to the provinces.

Canada is in the unhappy position of being one of only three nations among the advanced democracies where provincial or state judges are appointed by the federal government. The others are India and Austria, for reasons I don't understand in Austria; but in India and Canada, it's simply an outdated element of British imperial rule from the 19th century, and it has no place in a 21st century democracy.

If you had provincial appointment of provincial courts of appeal, it would mean that you would have had in the last two decades lots of NDP and PQ judges appointed in Quebec and western provinces, and you'd have a much more diverse pool from which to draw.

As it is now, for the last 10 years, every judge appointed has been by a Liberal Prime Minister or by a Liberal administration here; and in the studies that have been done, at least 50% of the judges appear to have Liberal Party connections.

So that would be another way of improving the pool of candidates for the Supreme Court.

Â (1250)

The Acting Chair (Mr. Chuck Cadman): Are there any other comments from the panel?

Thank you.

Ms. Barnes.

Hon. Sue Barnes: Thank you very much.

I was very interested in all of your testimony this morning. Thank you for sharing it with us.

I know that other developed democracies have worked very hard and long at amending the way their processes change and evolve. I note that even in Canada right now we are really just starting to get engaged in this. We've heard about some panels that are being put together in Toronto, I think next month, April sometime, on this area. We're getting it in the public conversation. I believe that's very good and I think that's positive.

Our system has to be modernized in some way. It's a matter of doing it properly and not making an error, because once they're in place, these justices are in for a long time in our current system. We have to be very careful.

For instance--just a very quick answer, Professor Hutchinson--how long has Great Britain been working on their re-evaluation of their process and how complex was that consultation?

Prof. Allan Hutchinson: Clearly in some sense one could go on forever, but only for a few years have they been doing this, and a report was issued by an appropriate department.

Hon. Sue Barnes: My point is that it's not a couple weeks or a few months.

Prof. Allan Hutchinson: No.

Hon. Sue Barnes: And I think all of you would concur with that, that you need to be careful. Yes.

Professor Morton, yes, too? Yes.

Professor McCormick? Absolutely. All right.

We've been getting a lot of different suggestions--again what I will term front-end suggestions and back-end suggestions--and I know this committee is trying to develop their thought by listening and evaluating and perhaps changing their ideas over time. One of the suggestions earlier on was a mixed panel of what I'll call experts, eminent persons, some knowledgeable persons, mixed in with representations of politicians to do an interview with the end candidate. At that time they were talking, I believe, about just one candidate, so this is an end-of-process thing. I like your idea of mixing representatives from the four parties.

I'd also like to comment on what you've given us as a front-end process suggestion, another one of the options, and I note that it involves a lot of politicians. Whether it is a premier or a federal member, the individual is still an elected politician. Again, you're going for diversity and groupings among both federal and provincial levels, and all of them are going to have different members. We're obviously talking about an ad hoc composition of a front-end process that would change over time, because provincial/territorial governments have elections; people are in session or not in session. The same applies to the federal government. You will have changing members.

Are you talking about always adjusting this thing, because de facto you could never have a static body? Would you wait and have extra...? Do you see? I'm thinking very practically here. I'm just trying to get some detail from you.

Prof. Peter McCormick: I'll respond to three different points.

First of all, the British reform system is not really one you can compare your operations to. They are doing away with the office of Lord Chancellor and the House of Lords as an appeal body. They are reconstituting a new supreme court for the devolving system they're creating. If you were being asked to reconsider section 96 of the Constitution now, you'd be closer to the ball game they're playing. Compared with what they are messing up—and messing up is the only way to describe it—you have a much smaller and more manageable job.

The second point would be about involving a greater diversity of individuals. Part of what I was looking for in my rough sketch for you was that I wanted to be generating membership that would come from pre-existing bodies with their own credibility, their own structures, their own ongoing membership.

Â (1255)

Hon. Sue Barnes: That's the point.

Prof. Peter McCormick: It's a double devolution away from just naming a group to do it. Actually, I copied that from the British as well. They've worked a double devolution for a nominating process, and I thought that was valuable. Mixing in members of the general public is attractive, but what is there corresponding to this committee or the premiers' conference or the Judicial Council? If I couldn't find a plausible body that could, in addition to its other real publicly oriented activities, add this to the list, I wasn't sure that just adding more “wouldn't it be nice to haves” to my list would help.

Thirdly, what I was thinking of was an ad hoc body. As soon as a vacancy occurs, you have your membership and go with it. I wasn't thinking of it as a two-year search for perfection—I don't even know what timeframe I was thinking of—I was thinking of it as a more time-contained thing. Therefore, getting ambushed by an election right in the middle, where a government is defeated, is a headache I had not contemplated. I take your point.

Hon. Sue Barnes: I won't politicize that answer because that's not what we're here for. We're here to try to come up with some vision of what a more modernized system could look for.

At the end, if you had a ratification session, how, practically, would that end? Would there be a vote? Would it be that two hours are up for our hearing, or our in camera session is over, and we are satisfied? What happens if you get consent?

Again, there's where I can see it being an in camera situation. When you're talking about a potential nominee to the Supreme Court, I think you have to be very respectful of where that person is coming from.

You know my question. Go ahead.

Prof. Peter McCormick: For the reasons that I indicated in the presentation, I backed away from the ratification route and went for the nomination route instead. Therefore, what I was contemplating was, frankly, sheer publicity, an opportunity for the public to see the candidate interacting with a set of elected representatives in a fairly formal setting, such as this one, not culminating in a vote.

Hon. Sue Barnes: Professor Hutchinson.

Prof. Allan Hutchinson: I don't have much prescience, but there is still an undercurrent in your question, and in some others, that these judges are special people out there who should be treated specially.

Hon. Sue Barnes: I think the position is special.

Prof. Allan Hutchinson: I think the position is special. They need to be treated respectfully, of course, but this idea that we may be afraid to ask them certain things, or they may have to go through meetings that might be difficult for them, or they might not actually get the job, to me, is a challenge that everybody faces in most jobs. Why should it be any different?

My view is that the more we can see these people as not special, in some sense, then the healthier it will be.

Hon. Sue Barnes: Can I follow that up, then?

The Chair: I appreciate that we're making good ground here and colleagues aren't making major objections, but we're at seven and a half minutes. You've done a wonderful job.

Hon. Sue Barnes: In fairness to my elders, okay.

The Chair: Mr. Cadman has a question. Mr. MacAulay and Ms. Barnes may want to come back.

Professor Morton.

Prof. F.L. (Ted) Morton: I think this last question is important. My understanding is the same as Professor McCormick's. This isn't a ratification hearing, it's a public education hearing. Even if it were a ratification hearing, presumably a majority government has a majority of people on the committee to approve it. So it's not as if the House of Commons or this committee is going to block a Prime Minister's appointment. It's rather a question of informing the House of Commons, the people's representatives, and informing the people at large through television, whether they're getting a Bertha Wilson or a McIntyre, or whether they're getting a La Forest or a L'Heureux-Dubé. These are huge differences. With nine of any of those judges, as opposed to nine of the others, get totally different results.

It's particularly critical that this be public knowledge, both in the House of Commons in Ottawa and across the country, and that the final appointment authority does rest with the Prime Minister. That's where the accountability is. The accountability is not to the individual judge in these cases. The accountability is to the party of the Prime Minister who makes the appointments. If some Prime Minister comes in and wants to appoint nine L'Heureux-Dubés or nine Bertha Wilsons, then some people might take that into the factors on how they vote for that party the next time, or vice versa if somebody comes in and appoints nine La Forests or nine McIntyres.

It is a national seminar. It's a wonderful opportunity, a seminar in constitutional democracy, that this committee would be at the centre of. It would be a wonderful enhancement of our democracy.

· (1300)

The Chair: Thank you.

Mr. Cadman.

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

Briefly, Professor Hutchinson, you suggested a make-up of five lay persons. Professor Morton alluded to how that could become somewhat problematic at some point. What is your idea of a lay person? How would you go about finding five lay people?

Prof. Allan Hutchinson: Clearly that is difficult, and in many ways I make a proposal thinking that whether that's likely to be accepted is a different thing.

But I think there are lots of ways that we can canvass people. There are people in business, there are worker representatives, there are trade unions; there are all kinds of institutions that can put forward suggestions. There are problems about making those choices, but I'm very much committed to making government less specialist, where people become hostages to their particular interests, and trying to keep the process more open and accountable.

Mr. Chuck Cadman: Thank you.

The Chair: Mr. MacAulay definitely had a question.

Hon. Lawrence MacAulay (Cardigan, Lib.): Thank you.

I consider myself a commoner from the House of Commons and I would just like you to evaluate for me what I've heard over the last while.

You use terms like “judicial activists” and judges making decisions that probably don't reflect opposition to their own gender, a number of things like that. Can you tell me what kind of process we can put in place and how we would ever find somebody who would not be involved or would not make a decision like some of the decisions that have been made? And listening to what you have to say, I would gather you might feel that some of the decisions by some of the justices were not what you feel they should have been.

I'd just like you to comment on that. Were the decisions not appropriate?

Prof. Allan Hutchinson: I understand this desire. If only we could find the kind of neutral, perfect judge who was above all political intrigue and the like--I understand this aspiration. I'm never clear, though, whether it's a dream or a nightmare ultimately; but either way, it's not a waking reality. The fact is that to a greater or lesser extent all judges call upon themselves to make decisions, partly because I'm not really clear how you would make a decision without consulting some set of commitments or values.

But the question is this. There are all kinds of problems in devising an appropriate method, but everything is relative, so would it be better than where we are? We shouldn't let the best be the enemy of the good. If we can't come up with a perfect process, the answer is surely not, do nothing. Right?

Part of this is, if you understand--as we all seem to agree, the three of us--that this involves politics, then any process for appointment must accept that and must try to deal with it in a political way. This will not go away by our hoping and pretending that it will.

Hon. Lawrence MacAulay: What you're telling me then is that if you appoint somebody, it's not politicized. Is that why you would feel that this process we're going through is so important--that it's not politicized? We would have better people, a better court system?

Prof. Allan Hutchinson: As Professor Morton says, we'd have a more informed citizenry. At the moment, all these factors are in play and the question is whether we keep them behind closed doors or bring them more out into the open. It seems to me that the democratic impetus says that really this is no choice at all--we should bring it more out into the open. Bringing it out into the open will not politicize it; it will just render those politics more public.

Hon. Lawrence MacAulay: Would it make the court system better or not, in your opinion? Will it improve the system?

Prof. Allan Hutchinson: I think it would make our system better, whether it improved particular decisions--

Hon. Lawrence MacAulay: Would it improve the bench?

Prof. Allan Hutchinson: It would depend on who was appointed. At the end of the day--

Hon. Lawrence MacAulay: But that would mean you feel that the ones who are appointed to this point are not the appropriate appointees.

Prof. Allan Hutchinson: I wouldn't say they're not the appropriate appointees; but I would say most citizens have no idea what appointees' views are and labour under the belief that these people are giving justice from some neutral point. The sooner people are made aware of the fact that this isn't the case, then the better it will be. These people don't just speak from nowhere; they speak from their own political viewpoints.

Hon. Lawrence MacAulay: But you don't see that this is going to improve the bench. It's just going to improve the public's knowledge.

Prof. Allan Hutchinson: It will improve our overall political process and it will make people realize that justice is not some gift from the gods when it's handed down by the Supreme Court. It is just another forum in which politics plays itself out.

· (1305)

The Chair: Professor Morton.

Prof. F.L. (Ted) Morton: There are two ways to defend the suggested reforms, on principle or on which will produce better results. On principle, again, I agree with Professor Hutchinson. If you're committed to the democratic part of constitutional democracy, these reforms would enhance the democratic aspect of our constitutional democracy.

In terms of results, it's impossible to predict how opening up the process--either slightly, with parliamentary hearings, or more broadly, with the idea of opposition appointments or provincial nominations, as has been suggested as deeper reforms--but you would get a different type of court. You can't say in advance whether it would be more liberal or more conservative.

What you can say, at least if it's done with parliamentary opposition participation, is that you will get a more diverse court, and one that's more in tune with the diversity of opinion across the country. I would say that the court that's been active for the last decade or decade and a half is drawn from a slice of the judicial pie that is relatively narrow ideologically. I think a broader selection process with multiple actors or multiple nominees would give us a different judiciary.

Would it be more liberal or more conservative? You can't say. But you can say it would be more reflective of the actual division of opinion in Canadian society, and I think that would be good, too.

Hon. Lawrence MacAulay: On where I was coming from, it's not whether they're more liberal or more conservative; it's whether they can view the case itself as the case. If I understand it, we want the ultimate judge to be the one who can look at the facts only.

You've told us they cannot look at the facts only, that their own personal feelings are always going to come into their decisions. The process will not change that.

Prof. F.L. (Ted) Morton: I think all three of us are saying that there's a big difference between a provincial court judge sitting and hearing 50 cases a day of break-and-enter and run-of-the mill, garden-variety criminal cases, where he's just applying rules to facts and banging off the judgments every 15 or 20 minutes, and a Supreme Court of Canada judge, who sits at the top of the pyramid and applies these very broad and important principles to large public policy. In the latter case, the background of the judge and lots of the subjective characteristics of the judge are factors in the end result. I think all three of us have said that.

The Chair: Thank you.

Keep in mind that this initiative began more as an attempt to improve Parliament's role in impacting on the mechanisms of governance in Canada, rather than an initiative to try to fix something that was broken in the Supreme Court of Canada. In any event, all of these things are coming together.

I have one question, because you've alluded to some circumstances here today that may vary from testimony we've had earlier. That has to do with the values an individual judge may bring to the bench.

We heard from an experienced former judge that the legal mind brought to the bench by all of these judges on the Supreme Court pretty much operates using legal principles, the law, and the paradigms of legal decision and conflict resolution that are already in place, and there isn't much room for values.

I accept that if there's a gap in the law and the court has to fill it, and there's nothing else you can hang your hat on, a judge's own personal values may influence where that judge goes to find a benchmark to lead to a decision.

None of you has sat on a bench, but you may have some insights here. Can you convince me that these values that you say are brought to the court by every judge have a tangible role or tangible impact on the decision-making in the end?

· (1310)

Prof. Peter McCormick: The most basic observation to make about the Supreme Court of Canada is that 45% of its decisions are not unanimous. Judges disagree on either what the appropriate outcome is or what the appropriate way of justifying the outcome in law is. These disagreements are sometimes pretty thin, and sometimes extremely substantial.

By disagreeing with the majority, judges do not demonstrate incompetence, nor do they accuse their colleagues of incompetence. They do in the U.S., but it's a different style. In Canada, that's not how the disagreement operates. The judges on our Supreme Court live with the knowledge that when they approach certain kinds of issues--different sets of issues for different judges--they will do so coming from a different value structure, a different set of priorities among principles they all share, and a different sense of what is at play and what is appropriate at play in certain kinds of cases.

We're not talking about their saying, I like my group and I'm going to defend my group and the heck with yours. I'm not insulting our judges by saying that has anything to do with it all. It's not that they come owing debts to people they pay off in their disagreements. The political philosophers of the modern age sit on the Supreme Court of Canada, and they're discussing grander, broader philosophical value issues. It is at play.... When you read the arguments between Sopinka and L'Heureux-Dubé, or between La Forest and Lamer, they're not just saying, here's what I like, or here's what people in my neighbourhood favour; what they're talking about is what is the best way of understanding law. In the end, they respect each other and still say, you're wrong, I disagree, I'm still where I started.

That's a very important dimension of what's going on in the Supreme Court of Canada. You can't read any sweep of decisions from the court and not pick up on their awareness of their own value spread and the need to articulate that in their reasons.

The Chair: When you say “values”, you're including personal values and public interest values, generically all values, or any values that happen to be there in the mind of the judge?

Prof. Peter McCormick: I would go along with the judge you indicated to the extent of suggesting that most of what remains on the Supreme Court of Canada is philosophical differences about legal values, about the exact meaning of legal principles, about their application to the case in hand. It's not very often purely emotional, purely personal--you know, gee, I just like that kind of movie. I would never reduce it to that. It's a debate about values, and the term “values” covers a wide range. Members of this committee have those differences come up, so do judges, and so do judges in the process of being dispassionate, professional, analytical, careful, cautious, and staying within the law.

The Chair: Okay.

Prof. F.L. (Ted) Morton: The fact that Professor McCormick points to, that the judges disagree amongst themselves, and often vigorously, shows that it's not just a question of legal plumbing or technical law.

A second point would be that American constitutional history, which is longer in this respect than ours, shows that there are dramatic political or ideological changes in the court following certain changes in the appointing authority. So there's no question that the overall orientation of a court changes over time, depending on what coalition of interests controls the White House and the Senate.

Finally, I would just read to you Justice Bastarache's own comments from a 2001 interview he did for Lawyers Weekly. With respect to the Supreme Court's 1999 Marshall decision expanding aboriginal fishing rights in Atlantic Canada, Bastarache said he was concerned with the public's perception “that the court was very result-oriented and was inventing rights that weren't even in the treaties that were brought before the court in that case.” When he was asked what he meant by “result-oriented”, he replied, “It's when your own values and your own personal convictions become the predominant factor in deciding the case, the result being, of course, that what you think the law should be, rather than what you think the law actually is right now, is written.”

Judges have a professional obligation to deny the fact that their decisions are based on factors other than law, because their authority comes from the perception that it is rule driven, not result driven, but in their more candid moments even Supreme Court judges admit that it's not quite that way.

· (1315)

The Chair: Okay, that's been very helpful. Thank you for addressing that.

We're about to close. First, let me thank the witnesses. It has been a very interesting hearing. Your views have been very illuminating and refreshing. I know colleagues have benefited. Thank you very much for coming, all of you, on relatively short notice--Professor Hutchinson, I think, on really short notice. We really appreciate your efforts to assist us in this exercise.

For colleagues around the table, we'll have a scheduled meeting on Tuesday. We have three witnesses. We believe we will have one from the U.S.A., one from the United Kingdom, both of whom participated in the conference--

Hon. Paul DeVillers: Which Tuesday?

The Chair: I'm sorry, the Tuesday when we return.

The third witness is possibly someone from the Canadian Council of Criminal Defence Lawyers. So it could be a three-person panel.

Now we can adjourn. Thank you.