Procedure and House Affairs Committee on Feb. 25th, 2016

[Blake Richards, Conservative, Banff—Airdrie, AB]

May I ask you then whether these groups were approached or did they have to apply? On what criteria were the groups chosen and how has the board interacted with those groups?

[The Chair, Liberal, Larry Bagnell]

This is the last question.

[Prof. Daniel Jutras]

Thank you.

I think, again, those questions go to the process that will be reported on in the document I've just mentioned rather than to my qualifications.

I can refer back to what was said by our chair, Huguette Labelle, in her testimony before your committee, that the process was a very open one. As you know, the committee set up a website inviting nominations and applications, and I think it would be fairly easy for a person on your committee to identify the different elements that were engaged in by the committee in order to generate nominations and applications from very eminent Canadians and highly respectable Canadians.

[The Chair, Liberal, Larry Bagnell]

Thank you.

Our next intervenor, for five minutes, will be Ms. Petitpas Taylor.

Just before you start, I want to say to the committee that I am normally a very flexible person, but I have called every party out of order on this. We should be strictly sticking to what the Standing Orders say we're allowed to do, because hundreds of orders in council will be coming up, and some committees look to us as a precedent. So of all committees, we, as much as possible, should stick to the directions in the Standing Orders.

Ms. Petitpas Taylor.

[Ginette Petitpas Taylor, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

Good morning, Mr. Jutras. Thank you for coming before this committee.

Your professional skills are obviously up to par. Your resumé is very impressive. Could you talk a bit about your personal background and tell us how it will help you accomplish the tasks of the advisory board?

[Daniel Jutras]

I am not sure I understand your question. What do you mean by “personal background”?

[Ginette Petitpas Taylor, Liberal, Moncton—Riverview—Dieppe, NB]

We have heard quite a bit about your professional achievements, but I would like to know something about your personal qualities. Perhaps you could tell us more about that and about your personal background.

[Daniel Jutras]

That is a very difficult question. I am not sure I can give you an intelligent answer.

I am now part of an university environment associated with higher education. That is basically my professional life. That said, it may be useful to know that in my family, my generation is the first to have a university education. Neither my father nor my mother studied at university. Both my parents valued education enormously, but did not have themselves the opportunity to get that type of education.

On a personal level, I am an ordinary Canadian. I come from a middle-class family. My father was a municipal official and my mother a secretary in a school board. I completed my secondary education in a large high school, namely a public school on Montreal's south shore. I continued my studies at a public CEGEP in Quebec.

On a personal level, although my background is associated with academic life and institutions, there is an area of my life that is grounded in the reality of middle-class Canadians.

I do not know if I can tell you much more about this. I do not think the rest would interest you. Hobbies do not seem to be relevant to carrying out my duties in this board.

[Ginette Petitpas Taylor, Liberal, Moncton—Riverview—Dieppe, NB]

Indeed. Thank you.

In your view, which qualities are truly essential to carrying out your future duties?

[Daniel Jutras]

Since there is a lot of work to be done, I consider it essential to be efficient in evaluating files, and reading resumés and letters of recommendation. There is also the ability to spot certain key elements of a person's life in these documents. That is not always easy to do with documents filed before this kind of board to help assess candidate applications.

It is a bit like the exercise you are going through today. You have my resumé, which is four or five pages long, and you are trying to evaluate who I am and what my qualifications are. The experience of having read candidate applications is, in my view, truly relevant to the exercise.

That said, I will go back to what I was saying earlier. The fundamental qualities are in particular a reputation for impeccable personal integrity—and I think I can lay claim to this quality—good judgment, ability to work independently and in a non-partisan manner, and a good understanding of the Canadian constitutional structure and of the role of the Senate and the people who will be called to sit in that chamber when they are appointed by the Governor General.

[Ginette Petitpas Taylor, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you.

[The Chair, Liberal, Larry Bagnell]

The next questioner will be Mr. Schmale.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Thank you very much, Mr. Chair.

Thank you for taking our questions today, Professor. We do appreciate it.

I only have a few minutes, so I will be quick. It's unfortunate that we can't talk about the process, because I think with that under way, it's very important to get some answers on this. We can't talk about accountability, so using your experience, let's talk about the current makeup of the Senate.

You look around that room of current senators and you see all different backgrounds. Looking at the mandate letter, and what you're looking for, I'd like to say that education is very important but it's not everything, but I see it is weighted a lot toward the education part. I have a lot of business people in my riding who are very successful and have a lot of common sense.

How are you, using your experience, going to ensure that you're getting people not just from the academic side but also from other fields, who have a lot of common sense, I would say, but not a heck of a lot of letters after their names?

[Prof. Daniel Jutras]

Again, I think that goes primarily to the criteria that we were asked to use and not necessarily to my own qualification. I'm going to refer you back to the annex that was provided by the minister on qualifications and merit-based assessment criteria. I think they're well defined and they're not all focused on letters after people's names. I think there's a very broad range of merit-based qualifications that the committee is required to assess.

Again, I go back to what I said to your colleague a few moments ago. The exercise that we're engaged in requires the ability to make judgment about individuals. It's not that different from the one you're engaged in right now, making an assessment of my qualifications and competence. I assume that not everybody in the room there is a person with numerous degrees. There must be a wide range of qualifications around your table, and I'm absolutely convinced that your committee is well equipped to make an assessment of my qualifications. I would say the same of my own competence to make that assessment.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Thank you, Professor.

That also goes back to democracy and how we're elected. We're based on our constituencies and people making that decision of whether or not we are qualified. That's why I asked you. I don't want it to be a Senate of elites. I want to see a wide range of backgrounds. As I said, one of the main things that we keep going back to—and we heard it yesterday at the Senate committee—is education. How do we ensure there is, in your experience and your background, accountability and also that you are representative of all aspects of Canada, including those who may be successful in business but may not have a huge number of degrees?

[Prof. Daniel Jutras]

What I want to say on this is that you're interviewing me, obviously, but there's a large committee that is addressing this. We have three committees, as you know, provincially constituted committees of five, and there's a very broad range of expertise and competence in this very fine group of people. Obviously, I'm one person; I have a particular profile and that profile is not replicated in the other members' careers. Everyone brings to the table something enormously valuable in making exactly the assessment that you've just identified.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

We talk about it being a new non-partisan Senate, which I think is very difficult to happen, because in any group, whether you're in a minor hockey association or chamber of commerce, you always migrate towards people with similar trains of thought.

Using your experience in looking at all of these CVs and letters of recommendation, the minister said yesterday that political experience will not necessarily disqualify you from being a candidate. However, using your experience , how are you going to ensure that they actually stay non-partisan after the fact?

[Prof. Daniel Jutras]

Frankly, what happens after the fact is not something that the board can control. I'm not sure I can answer that particular question.

There are extraordinary Canadians from all walks of life who have applied for this, I can assure you. What we're trying to do, based on our own qualifications, is to make an appropriate assessment of the ways in which the individuals who have applied for this position meet the criteria that have been provided to us, the merit-based assessment criteria we must work with in making recommendations to the Prime Minister. That's the only thing I can say.

All of us are committed to abiding by the terms of reference and to doing this work very seriously. I think it requires each of us to step outside of ourselves for a minute and to think more broadly about those qualifications.

[The Chair, Liberal, Larry Bagnell]

The next questioner is Mr. Arnold Chan.

[Arnold Chan, Liberal, Scarborough—Agincourt, ON]

Thank you, Dean Jutras, for appearing before this committee. I want to reiterate what many of my colleagues around this table have indicated. We are incredibly impressed and thank you for putting yourself forward in public service in advancing this process that we are constitutionally bound to do.

I want to get back to some of your opening comments with respect to your experience, particularly as it relates to your experience in constitutional law. I note that you put on the record that this is not necessarily your core professional competence and that you focus more on civil procedure and law of contracts. I do want to explore your experience in the area of constitutional law in particular.

I recall in your opening remarks that you indicated this was a focus of your graduate work at Harvard Law School, and I note that you are a recipient of the Frank Knox scholarship, a very prestigious scholarship. I think my brother has one. I want to know more specifically about some of the research that you did, and how that might inform you in terms of the work you are doing now for this advisory board.

[Prof. Daniel Jutras]

Very briefly, my graduate studies at Harvard were a little over 30 years ago. The focus in constitutional matters, as you can imagine back then, was the Canadian Charter of Rights and Freedoms. This was the mid-1980s, and everybody with an interest in public law was particularly focused on human rights and constitutional guarantees for civil liberties. That was the focus of my studies back then.

I wrote my masters thesis at Harvard on the scope of section 1 of the Canadian Charter of Rights and Freedoms and possible interpretations of limitations to rights as flowing from section 1. I should say that this piece was written well before the Supreme Court jurisprudence evolved on section 1, and has become obsolete 30 years after the fact.

After this, I really kept my focus on private law for the longest time, until I went as the executive legal officer of the Supreme Court of Canada, where I had the opportunity to work on constitutional matters, both in relation to charter issues and in relation to the division of powers and institutional aspects of the Constitution.

Since that time, I've kept my interest in and read widely in this area, even though I don't now publish or engage in research in this area.

[Arnold Chan, Liberal, Scarborough—Agincourt, ON]

Thank you, Dean.

I want to look a little at your additional experience. You noted that you had been the principal investigator.... There was an anonymous research grant where you looked at rule of law in Russia.

Did that particular work get to the issue of division of powers, or help inform you in terms of dealing with bicameral parliaments or the drafting of constitutional processes, or the like?

[Prof. Daniel Jutras]

No. That work that we did.... This is a group of McGill professors who are engaged in this effort and the work that we did had to do with judicial structures, the administration of justice issues, and also corruption aspects or corruption controls that one might imagine for a federation like Russia. So no, the focus was not on division of powers or bicameral governance at all.

[Arnold Chan, Liberal, Scarborough—Agincourt, ON]

I myself might be straying into something that is out of order, but I'm going to ask, based on your understanding obviously as a lawyer and as a professor, would the decisions of the Independent Advisory Board for Senate Appointments be binding on the Prime Minister and the executive council?

That may be a procedural question.

[The Chair, Liberal, Larry Bagnell]

Sorry, but that's a procedural question.