Justice Committee on Feb. 5th, 2007

[The Chair, Conservative, Art Hanger]

I would like to call the Standing Committee on Justice and Human Rights to order on this Monday, February 5, 2007. We will renew our study on the judicial appointment process.

I would like to ask the media if they wouldn't mind leaving now with their cameras. I appreciate that.

Before us, as noted on the agenda, the Honourable Rob Nicholson, Minister of Justice, will be testifying. He has two Department of Justice officials with him: Donald Buckingham, judicial affairs adviser; and Judith Bellis, general counsel.

Minister, I'd like to thank you for appearing. If you would like to begin, you have the floor.

[Rob Nicholson, Conservative, Minister of Justice]

Thank you very much, Mr. Chairman.

Thank you for this invitation to appear before the House of Commons Standing Committee on Justice and Human Rights concerning the federal judicial appointment process.

Our Canadian democracy is strong, in part because of its constitutional underpinnings, its respect for the rule of law, and the mutual respect extended by each of the three parts of government--the legislature, the executive, and the judiciary--one to the others. With respect to several matters, the three branches have interrelated but distinct roles to play. This is particularly the case with respect to judicial affairs. Once the Governor General signs an order in council naming a person to the federal judiciary, he or she enters the judicial branch of government and enjoys the rights and responsibilities accorded to the judiciary--independence and security of tenure, to name but two--outlined under Canadian constitutional law.

However, under the Constitution Act of 1867, part VII, the legislative and executive branches of government also have fundamental roles associated with judicial matters. Under section 101 of the Constitution Act of 1867, Parliament is charged with the constitution and maintenance of our federal courts as well as the determination of the salaries of federally appointed judges. The subject matter debated by Parliament and the passage of Bill C-17 in December 2006 was an exercise of Parliament's competence in this area.

The executive branch has been charged, under section 96 of the Constitution Act of 1867, with an important responsibility with respect to judicial affairs: the appointment of federal judges. This prerogative has remained unchanged since 1867, with the Minister of Justice tasked with the responsibility of making recommendations to the federal cabinet for approval for the appointment of individuals to the federal judiciary. Constitutionally speaking, this legal power represents the heart of the federal judicial appointment process.

As of February 1, 2007, the Canadian federally appointed judiciary consists of 1,054 judges: 825 of them acting as full-time judges and the remaining 229 acting as supernumerary judges. The latter of course are those judges who by virtue of the Judges Act and recent amendments thereto have been able to elect to move from their full-time function to a reduced load given their prior service to the Canadian judicial system.

All of these judges must retire at the age of 75. Thus there is a constant turnover of judges, with ebbs and flows requiring executive action in the appointment of new judges to replace retiring ones, ones who unfortunately have died in office, and those electing supernumerary status. It's the responsibility of the Minister of Justice to make recommendations to the Governor General through cabinet to name individuals to these vacancies.

With respect to the timely filling of federal judicial vacancies, when this government took over after the last general election of January 2006, there were 23 vacancies for federally appointed judges. This government has proceeded, and will continue to proceed, with all due dispatch to fill existing vacancies. Since January 23, 2006, 58 judges have been appointed--20 in Ontario alone. This is a respectable achievement given that in the entirety of 2004, for example, only 41 federal judges were appointed in the whole country. Still, I acknowledge that as of February 1, 2007, we have 45 vacancies for federally appointed judges.

It's important to note, however, that a full two-thirds of these have arisen since the coming into force of Bill C-17 on December 14, 2006. That bill, as you know, provided federally appointed judges with new options for electing supernumerary status. Thus the vacancy list, which was reduced to just 15 prior to the coming into force of Bill C-17, almost instantly tripled in size as the direct result of 30 judges from across Canada having elected supernumerary status under the new eligibility rules.

I am committed to filling these vacancies in a timely manner, as was my predecessor. I will continue to instruct my staff to assist me in preparing recommendations for cabinet approval for the appointment of new judges.

Since 1988, the Minister of Justice has been assisted in preparing recommendations for cabinet approval for the appointment of new judges by the judicial advisory committees.

Despite the fact that the administration of candidate applications and the operation of the JACs have been carried out by the Office of the Commissioner for Federal Judicial Affairs continuously since 1988, structural changes to the JACs themselves have been a fairly constant feature of the JAC process. Over the past 20 years, changes to the JACs have occurred--in 1991, 1994, and 1999--always with a view to creating a process that provides the Minister of Justice with advice on the merit and legal excellence of candidates aspiring to judicial appointments.

In November 2006, my predecessor announced changes to the process, which would better assist the committee in providing the minister assessments of potential candidates. Changes were made to the composition of the JACs and to their operations, but the same fundamental purpose of accessing candidates and advising the minister as to their suitability for the federal judiciary was maintained.

With respect to the composition of the JACs, the JAC process has always included input from a broad range of stakeholders. These stakeholders have, since 1988, been represented by men and women whom the Minister of Justice selects. Stakeholders from the law society in each province and territory, the provincial branch of the Canadian Bar Association, the judiciary of a province or territory, the provincial Attorneys General, and the public have in the past provided the Minister of Justice with advice in the form of assessments of potential candidates for appointment to federal and provincial superior courts.

One of the November 2006 changes to the JAC process provides the opportunity for representation from another important community. A voice from the law enforcement community, a community no less implicated in the administration of justice than are judges and lawyers, will broaden the basis for examination of potential candidates and contribute a fresh perspective on the competent and qualified individuals recommended to me for appointment to the bench.

This change, implemented by my predecessor in November of last year, broadens the base of stakeholders who will contribute to the discussion and assessment of the competence and excellence required for the appointment.

From an operational perspective, the 2006 JACs will continue to assess candidates and report to me on their quality and merit for appointment to the bench. Almost invariably, the assessment of candidates by the JACs results in a finding of consensus and a recommendation to me. Thus, voting on the merit of a candidate rarely occurs. If it does, the results of that vote are recorded on the candidate's file comment sheet, which is directly relayed to me with each candidate's file. The outcome of this vote and the comments relayed to me from the committee are taken into consideration when I decide whether to recommend such a candidate for judicial appointment.

Another change announced for the 2006 JACs is that the judicial nominee will be made chair of the JAC. As a consequence, the judicial nominee will have significant control over the oversight of the flow of discussions, and will manage the operation and expectation of assessments of candidates. In rare cases, when a vote is required, the chair will abstain unless his or her vote is required to break a tie. Taking into account the important directive function of the chair, I do not believe the judicial nominee has any less influence in the 2006 JACs than he or she would have had under earlier JACs.

A final operational change announced in November was the elimination of the “highly recommended” designation given to some candidates. As is the case for other aspects of the process, the designations “recommended” and “highly recommended” have not always existed. I remember a time when the JACs were required to assess candidates only as “qualified”or “unqualified”. The designations “unable to recommend”, “recommended”, and “highly recommended” were implemented as a post-1988 change to the process. Unfortunately, there were no criteria based upon which the JACs could objectively determine who should be awarded the “highly recommended” designation. One wonders if such criteria could ever be defined, given the different practice contexts of Canadian lawyers.

Experience also showed that the use of “highly recommended” was in some cases losing its significance, as percentage rates for candidates receiving this designation varied significantly across the country. It's hard to imagine why, on a per capita basis, there could be a significant number of more highly recommended lawyers in one jurisdiction in Canada than in another. There also seemed to be a higher prevalence for the “highly recommended” designations for lawyers coming from larger firms than those from smaller firms or smaller cities.

Finally, the comment sheet provided by the JACs for each candidate is more explicit with respects to strengths and weaknesses of a candidate than any one- or two-word label like “recommended” or “highly recommended”.

All but one of the 2006 JACs have now been constituted, you'll be pleased to know, and several are already meeting to assess over 150 candidates from across Canada who are awaiting consideration of their application for a federal judgeship. I am confident that the 2006 JACs will continue to conduct their examination and assessment of candidates with the same expertise, diligence, and conscience as prior JACs, and will forward recommendations that will permit me to make judicial appointments in a timely fashion, from among candidates of merit and legal excellence.

Finally, I would like to add a brief word about a subject related to the federal judicial appointment process: the outstanding requests for additional judicial resources. I expect committee members are also aware that a number of jurisdictions have expressed the need to have additional judges added to their courts, over and above filling all current vacancies. I want to say I'm prepared to give these requests serious consideration; however, I'm sure all committee members would appreciate that the creation of additional judicial positions involves significant additional ongoing expenditure of public resources. It is therefore not only reasonable, but responsible to ensure that there is a clear, objective indicator of the need for that expenditure. Therefore, my first priority is to get all the vacancies filled in a timely way.

As I've indicated, I think we are making significant headway now that the new judicial advisory committees are in place. Once those vacancies are filled, I will be in a position to better assess the overall needs of the requesting courts, in light of their entire existing judicial complement.

In addition, the government cannot simply act alone in providing additional positions even where their establishment is justified. Rather, amendments to the Judges Act would be required to provide necessary authority for the government to make those appointments. I would hope that all-party support would be secured for the quick passage of such an amendment in the event that the case for additional expenditure of public funds is justified.

Thank you for your attention and I look forward to any questions you may have.

[The Chair, Conservative, Art Hanger]

Thank you very much, Minister.

I'll now turn the floor over to Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chairman.

Thank you, Mr. Minister, for your comments. I'll get right to the quick, to the chase here.

I think there's a case to be made that this gerrymandering of the judicial advisory committees—the JACs, let's call them—is done to give the new government an opportunity to stack the committees, the JACs, and to therefore influence the recommendation process unduly, in a way not seen during the time of the Liberal government, and certainly not even during the time of a previous Conservative government in which you served, namely the Mulroney government.

Just taking the case of New Brunswick, which I know a little more about than the rest of the provinces, I put it to you that there were seven committee members. In short, three of them were from the federal side. Let's put it that way. They were federal appointees, lay people, generally speaking. They all came from different walks of life. The other four were from various stakeholders, including the Attorney General, although I think we're all familiar with the makeup.

What you have done here, what the previous minister has imposed upon you, is an eight-member committee in New Brunswick, with the addition of the police representative. I'm not going to ask about the merits of having the police alone visited on the committees, but I am going to ask about what is really the central issue for me. The concern I have is that with the chair being non-voting except in the case of ties—correct me if I'm wrong in the case of New Brunswick—that would mean four direct federal new Conservative government appointees effectively can overrule or outvote, if you like, three members from the rest of the legal community. Let's put it that way. That's my first question.

My premise on the question, really, is this. It's on the comments of the recent appointee who represented the police interests, so to speak—and it's a whole other question whether the chiefs or the rank and file should be represented. The comments made by the representative were that there's nothing wrong with the judiciary. She's had no problem with the judiciary in her life as a police officer. That would imply to me that there's no reason to change the system that has served us so well.

I am wondering if you, by implication as the new Minister of Justice who has served in this chamber as a parliamentary secretary and now as the minister, over a long political career, Mr. Minister, think there was something wrong with the quality of the judiciary, thus leading to its meriting this stack-the-committee, political gerrymandering proposition that's before us.

That's just a light question to start with, Mr. Minister.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I can't speak for the previous government, but certainly I can speak for the appointments that have been made under this government. Indeed, in the years that I did serve as a parliamentary secretary, as a member of this committee, and as a vice-chairman of this committee, I knew that the criterion was always the highest quality of candidates who were judicially competent, first-class legal mind people who are prepared to serve their country through sitting on the judiciary. Nothing has changed in that regard.

I was a member of this committee when Ray Hnatyshyn, who at the time was justice minister of this country, proposed it. It wasn't a question of trying to stack it in favour of the federal government, whatever that means. It was then, as it is today, an opportunity to get individuals who have a commitment to our judicial system and to ask them for their input and their advice. Indeed, that wasn't the last word on the subject. That was in 1988.

I believe there were five members then. I was part of the government that changed that again, in 1991, in order to have a couple more individuals on that committee. I believe the subsequent Liberal governments made at least two changes as well, in 1994 and in 1999. So over the last eighteen and a half years, since this concept was introduced, there have been changes. There have been modifications.

With respect to the latest modification that is adding a member of the police community, I think this is a positive change. Over the years, I've had the privilege of meeting with the police associations and chiefs of police. When I was in private practice, I met police officers in that forum. I can tell you that they are as absolutely committed as any of us to making sure our judicial system works. Having them—and that's the major change, Mr. Chairman, in that we have added another individual from the police community—I believe will work out very well. Again, I have no doubt about their commitment to our judicial system, and I think it will work well.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Murphy.

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

Welcome, Minister.

You probably know that your appointment was welcome as a breath of fresh air. However, the remarks you've made today show that you intend to continue in your predecessor's footsteps. Continuity has its advantages and its disadvantages. We see there being more disadvantages than advantages to the reforms you are proposing.

I think the committee has no doubts as to the integrity and the quality of our judiciary. You're going to have to explain how you intend to implement what you are proposing. Will you need to introduce a bill? How do you intend to change the composition of judicial advisory committees? Are you acting on purely ideological considerations? Is the reality not that the Conservatives want to move the justice system to the right, that they do not believe in judicial discretion and that they are convinced that they need to direct judges?

Aside from police officers themselves, who is asking to have police officers sitting on these judicial advisory committees? Do you not understand that there is something worrisome in this? Yesterday, I asked for written material on this subject. Civil society, right-leaning and left-leaning, does not support your reforms in the least. Why? Because police officers have no place intervening in the process to select judges.

Would you be able to name one country operating in a comparable way to Canada which has done the same thing or intends to? Could you tell us what is behind this decision, who is asking for this and what possible benefits there could be? Once again, are you not simply governed by ideological considerations which will disrupt the balance we thought was wisely established?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much for that question.

Going back to the first part of your question, these judicial advisory committees are already up and running, with the exception of one. Some of them have already had their first meetings. So this is something that's already taken place.

In answer to the second part of your question, on whether this requires an amendment to a piece of legislation, it doesn't. These committees are set up to assist the Minister of Justice in his or her constitutional responsibility to appoint Superior Court judges. Because they are for the assistance of the minister, there is no legislation governing this particular aspect, nor would any be necessary. I don't think anybody is suggesting that we change the Canadian Constitution.

That being said, I disagree with you about the addition that has been made of a member from the police community. I have found in my lifetime--you may have had a different experience, but if you did that would surprise me--that the police officers I have been in contact with over many years, as a member of this committee, as a parliamentarian, and as a lawyer, were absolutely committed to the criminal justice system.

[Réal Ménard, Bloc, Hochelaga, QC]

Who supports this type of reform? When you turn to civil society, to those who have written on the matter or worked in this area, it gives you pause. Are you not concerned that you may be upsetting a balance?

I have the greatest of respect for police officers. My older brother is a police officer. The work these people do in the field is important. But in keeping with the legacy of Montesquieu, you need to make a distinction between the judicial, the legislative and the executive branches of government.

You are about to upset this balance. Why? There is an unhealthy ideological motivation behind it, you'll admit. You would be well advised to maintain the status quo. We believe in the quality of the judiciary. Your motivation is purely ideological and you are about to create an imbalance which is not desirable in a democracy, it has to be said.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I don't think it is. I think this is a system that has worked well. When I discussed this, as a member of this committee, with Ray Hnatyshyn in 1988, there was no suggestion that this was the final word on it, or that this was going to be entrenched for all time. I remember back in 1988 that it was more of an experiment to try to get some input to the Minister of Justice, and there have been modifications to it over the years.

On the other part of your question, about other countries, it's very difficult to compare. I live in a border community, and every couple of years I'm inundated with American programming about judges running for election. How can we compare it to that system? I've studied the German Constitution, and it's a very complicated process. We have what is known as the Westminster model, whereby in our Constitution it's the Crown that makes these appointments, in the person of the Governor General, on recommendations.

[Réal Ménard, Bloc, Hochelaga, QC]

We're not talking about the American model. I am trying to understand who is asking for this. Where does this idea come from?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I can tell you that the Minister of Justice, in an effort to broaden the kinds of individuals who were advising him about his constitutional responsibility, deemed it appropriate and a step in the right direction. Over the years, various ministers of justice have made modifications because they wanted to get the best input possible. They wanted to get people who were dedicated, competent individuals, and this is another part of that ongoing process.

[The Chair, Conservative, Art Hanger]

Thank you very much, Minister.

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

Thank you, Mr. Minister, for being here.

Let me pursue this along the same lines. My feedback from the legal community in particular is that this is just another step on the part of the government to politicize not only the judiciary, but our police forces. I don't know about the last few appointments, but of the first eight, not one from the police came from the police chiefs; they all came from the police associations. It's no secret that the Association of Chiefs of Police has been more judicious in its assessment of crime legislation and how the criminal justice system should be dealt with than the police associations. The gun registry is probably the highlight of their taking a different position initially from that of the police associations.

As a practising lawyer and a person who's been involved in the legal system your entire career, do you not see the serious risk you are perpetrating here of politicizing both the judiciary and the police associations? At the very least, even if you say that's not happening and not your intent, would you not agree with me that the vast majority of lawyers in this country, and the general community, see you doing just that?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I wouldn't agree with that. I've made the point that it's very difficult to make generalizations with respect to the attitudes of people in the police community, just as it would be difficult and wrong to make conclusions as to what defence lawyers believe, or what they are looking for.

Adding to this process in no way politicizes it, and I think it strengthens the input that is given to the Minister of Justice.

I think the process has worked well in the past and I think it will continue to work. And I believe that process will continue to work with an additional perspective, and that will be from a member of the police community.

So I don't see that at all.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

What do you say to the first nations or women's groups who are saying, “Wait a minute, we use the system”—and certainly in the case of first nations, they are oftentimes the victims of the system—“why aren't we given special consideration in terms of the input we could give to judicial appointments?”

[Rob Nicholson, Conservative, Niagara Falls, ON]

If that's a suggestion you're making, Mr. Comartin, you're entitled to make it, but I have complete confidence that the individuals appointed by the attorneys general across Canada will take matters like that into consideration when they are making recommendations to the Minister of Justice in the exercise of his or her constitutional discretion. I have complete confidence that members of the bar association, and in this case the people from the police community, will take that into consideration. They have a responsibility when making recommendations to make sure that all interests in society will be heard and be fairly treated. That's the basis, quite frankly, of the judicial appointments process. We have to have individuals who have a fair outlook and who will understand that this country is diverse, that there are many opinions and groups who need to be heard and represented. I'm quite sure that the judicial advisory committees as constituted will live up to that responsibility, as have others in the past. I have no doubt of that.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

But certainly you're not going to suggest that the present composition in any way accurately reflects our communities, and not nearly as much as at the provincial level?

The composition of our committees is heavily weighted towards the legal side, and now you're bringing in the police. But the consumers of our courts are not in any way proportionally represented on those committees at this time.

[Rob Nicholson, Conservative, Niagara Falls, ON]

One of the things we have to struggle with, Mr. Comartin, is to make sure that in the actual judicial appointments, those individuals and groups.... I remember that back in the 1980s and the early nineties, women were very much under-represented on the bench, as it indeed continues, and a push was made to make sure....

So we are of course looking—

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

But we've been much more successful doing that at the provincial level than at the federal level, because—

[Rob Nicholson, Conservative, Niagara Falls, ON]

I don't have statistics comparing that in terms of the judicial appointments I have made or my government has made. They extend back only the last 12 months, so for the appointments in the previous 12 months, I don't have any statistics in that regard. But it certainly is a priority and certainly we want to have people who represent all communities. They have to see that on the bench, and I think this is only fair.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

Mr. Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

Good afternoon, Mr. Nicholson.

I have a question for you. I'm going to read a motion that was voted on in the House of Commons on June 7, 2005 which stated the following:

Pursuant to order made on Friday, June 3, 2005, the House will now proceed to the taking of the deferred recorded division on the motion moved by Mr. Marceau (Charlesbourg—Haute-Saint-Charles, seconded by Mr. Côté (Portneuf-Jacques-Cartier): That the House denounce the recent remarks made by Mr. Justice Michel Robert stating that it is acceptable to discriminate on the basis of political opinion when appointing candidates to the federal judiciary and that it call on the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness to create a special subcommittee with the mandate to examine the process for appointments to the federal judiciary and make recommendations for reform, with the primary goal of eliminating political partisanship from the process, by October 31, 2005.

There were 157 votes for and, of course, there were 124 against, and you know who they were.

I would like to know if you intend to respond to this wish within the strategy you are devising. Earlier on, Mr. Murphy asked whether or not the committees were being “stacked”. That was the term that was used; it was translated in that way from the English to the French. In 2005, that is to say last year, a Chief Justice crossed the line and said that partisanship was not a valid reason for not nominating a person. The Bloc Québécois wisely decided that indeed, that should change. I do not know why he has changed his mind today, but that is the situation.

Do you believe, as Minister of Justice, that this change or what you are proposing as a change, can answer to the order made in the House at that time, in which indeed the Liberals were being criticized for being a little too partisan in their appointments? The House came to a decision on it.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I don't know if there's much point at this time in my attempting to analyze appointments that were made by the previous government, or what motivations went into them, and I should point out to you that I'm not proposing a new system. A system is already up and running that was proposed and implemented by my predecessor.

I should be very clear about how these judicial advisory committees work. They're not part of our adversarial system. In many ways, we generally think of decision-making in this country along adversarial lines. We can think of the House of Commons: we have the split between the government and the opposition parties. If you attend in court there is the crown attorney--or the plaintiff--and the defendant, or the accused. We are used to an adversarial system and so we assume that is the way things are organized.

That's not the case with the judicial advisory committee. My experience at this point is that these committees overwhelmingly come to a consensus one way or the other, and it's not a question of having the government against any other particular group. These individuals work together, and I believe they do work together. We can be very proud of the individuals who have been appointed to the Superior Court bench in this country, and we shouldn't apologize for it. I don't think we should fret that somehow something has gone amiss when in fact we have an excellent system, an excellent process, and we have great individuals who have stepped forward to serve their country.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

Mr. Bagnell.