Justice Committee on March 28th, 2007
A recording is available from Parliament.
On the agenda
- Wallace Craig Retired Judge, As an Individual
- Edward Ratushny Professor, Common Law Section, Faculty of Law, University of Ottawa, As an Individual
- Tony Cannavino President, Canadian Police Association
- William Trudell Chair, Canadian Council of Criminal Defence Lawyers
- David Griffin Executive Officer, Canadian Police Association
The Chair Art Hanger
I call the meeting on the Standing Committee on Justice and Human Rights to order, this being Wednesday, March 28, 2007.
The committee will continue its deliberations and discussion on the judicial appointment process.
Witnesses appearing before the committee are some distinguished members of the judiciary: Mr. Wallace Gilby Craig, retired judge; Mr. Edward Ratushny, professor, University of Ottawa Faculty of Law; also, from the Canadian Police Association, Mr. Tony Cannavino and Mr. David Griffin; and from the Canadian Council of Criminal Defence Lawyers, Mr. William Trudell, chairman.
I am going to begin just as the individuals appear on the agenda and turn the floor over to Mr. Wallace Craig. Mr. Craig, you have the floor.
Wallace Craig Retired Judge, As an Individual
Thank you very much. I'm impressed by the gathering here. Unfortunately once again, I think I'm the oldest in the room. It doesn't give me any privileges or rights, but it does allow me to reflect on a number of things, and I hope I can do that very quickly for you.
What makes me uncomfortable, though, about being here is that judges generally never speak at all after they leave the bench other than to write a memoir or possibly something for university matters. In my mind, they close ranks, and they don't recognize that possibly there are problems in the criminal justice system.
I worked for 26 years in the provincial court of British Columbia at 222 Main Street. It is a criminal court with 20 judges, roughly, and it deals exclusively with criminal cases. The only cases that we don't deal with are those that go beyond the preliminary inquiry stage to trial by judge and jury, or before a high court judge sitting alone.
During the time I was a judge, the Charter of Rights came into existence, and initially it appeared that superior court Judges would be the judges who would deal in the main with charter issues.
But what happened is that in one case I dealt with and another one back east, in the course of conducting a preliminary inquiry on an indictable matter, charter issues were raised. I granted charter relief, and it went to the Supreme Court of Canada. They decided that inferior judges, as we were called, didn't have the capacity to deal with charter issues. All that meant was that the defence corps quickly decided that they could not afford to wait, and they would simply elect to have trial before provincial court judges. So the trial bench that deals in the main with charter issues is the provincial court.
That left me dealing with criminal cases and also with the other aspect of it, which you're not going to touch on, and that is the effect that charter issues have on the conduct of criminal litigation.
What I was able to do, though, was experience for 26 years a steady diet of probably 10,000 people appearing before me, one after the other, a conveyor belt that never ends, criminals of every kind, lawyers of every kind, and acquire a deep understanding of human nature. As far as I'm concerned, there are and always will be criminals among us. There are and always will be violent people who are either sociopathic or psychopathic, or beyond that, those who are simply swindlers, who are the same.
You learn to recognize evil when you see it. You don't see it too often, but it is there. So what is the response to that? The response, of course, is the imposition of a just and adequate punishment.
So what does all that have to do with what you have to deliberate on? Probably not much, but it explains my point of view.
In all the time I was a judge, I encountered police officers, both in front of me as witnesses and informally in the coffee shop that I, among other people, frequented. It was open to the public. Then I would see them on occasion at retirement functions and, of course, at the occasional funeral.
In the first two years I was a judge, an RCMP officer was gunned down at the office of the detachment in Richmond, leaving a pregnant wife and two small children. I understood then and forever after the fact that the police are an absolute in the criminal justice system. I say right out front that they are more important than the judges and they are more important than the prosecutors. Nobody dials up 911 and asks to speak to a prosecutor or a judge. You ask for someone in emergency health or the police or the fire officials.
Having that in mind and having then concluded my 26 years, I wrote a letter expressing my respect for the police force of Vancouver, particularly for officers and constables on patrol and for officers having special street duties. They're the real police. To use the vernacular, they do the grunt work.
I described them in what I wrote in a memoir in the first three years of retirement. I said:
At times they are foot soldiers in a dirty and dangerous war against violence, property crime and predatory drug trafficking. The men and women—working in a world of harsh reality, are the back-bone of the criminal justice system. More than that, they are the only ones who risk injury and even death each time they go to work.
I'm mindful of Sir Robert Peel's expression when he brought civilian police into existence as we know them today: “The police are the public, and the public are the police.” That bond ought to be firmly established in our communities, but it is not as firmly established as it should be.
To deny police officers the right to be represented on a justice advisory committee is, to me, an absolute denial of that proposition that the police are the public and the public are the police. It's an absolute denial of the fact that we want them, and that we want them to protect us. When it comes to expressing an opinion, and as I read, they're accused of having a law and order ideology, for want of a better expression. Of course, an ideology does not express and reflect reality.
With a great deal of passion and emotion when I speak about this, I really do believe a police officer can be a very functional and advantageous person to have on any justice advisory committee. In fact, I might pause and change direction a little bit. In British Columbia, there are at least five judges who are former police officers. You can't tell that from seeing them work. It's impossible. It may surprise you, or it may not, that the judge in the Pickton case is a former police officer. So if police officers can rise to the level of becoming judges, why can't they rise to the level, even while they're working, of being members of a justice advisory committee?
I think it best that I stop at this point, other than to say just in a few moments that on Tuesday, March 6, I went to a high school in Vancouver, Eric Hamber Secondary School. I've spoken to many groups in the time since I retired and since I wrote a memoir; I've spoken on radio talk shows, on television on occasion, to women's groups and professional groups, and to high school students on occasion. These students were in a planning course, planning their future. I explained to them what peace, order, and good government is all about. I explained to them my view, which was that of a virtual black sheep among judges. I explained that sentencing, in my opinion, is not adequate. I won't go into that, though, because it's not the purpose of your deliberations when you ultimately make them, I suppose.
Those students understood what peace, order, and good government meant when I discussed the concept with them in simple terms. It is a constitutional issue that reflects on the judiciary, the judiciary being recognized as an institution and as a branch of government. As a branch of government, the judiciary has to recognize sooner or later that when we have rampant crime, as we do in the city I come from, it's time for it to do something to further the fact that we are losing the peace and order in our communities.
How does that bear on what you're going to do? When I go back to Vancouver, I'm going to tell them I was at this session, I'm going to explain to them what generally took place, and I'm going to tell them that what I did when I left the session was leave you with the essays written by each one of those students. They're reflections on columns that I've written that all deal with law and order, with the presence of the police, and with the importance of the police.
I'm going to suggest to you that the functioning of the judiciary and criminal justice is very important, and these young people recognize it. I said to them that it's too late for me to do anything for them. My generation dropped the ball, and things aren't in very good shape when they go out at night, when they leave their houses, when they go out about in public, in terms of whether or not they're going to be safe. I said that what they have to do in the next few years, when they're in their twenties and thirties, is think more about their country.
When you take the time, if you ever wish to, and examine what these students have said, I think you'll realize that they are out there and they do expect you people, as parliamentarians, to do something. If not, they are going to take their turn at it, and hopefully do better than you might be able to do.
Really, what you do is not for your own benefit, as politicians or as judges or anything else. It's for that next generation, and I do think the criminal justice system is very important to them.
That's all I have to say for the moment.
The Chair Art Hanger
Thank you so much, sir.
Mr. Ratushny, please.
March 28th, 2007 / 3:45 p.m.
Professor Edward Ratushny Professor, Common Law Section, Faculty of Law, University of Ottawa, As an Individual
Thank you very much. It's an honour to be here before this committee again.
I want to comment on two aspects of the changes to the appointment process: the committee structure, at least, and the function of the committee. The first relates to police representation as an institution on these committees, and the second is the removal of the “highly recommended” category in the recommendations that are made by the committee.
Note that I say “police representation as an institution”. I of course share my colleagues' great respect for the police, the important role they play in our society, the crucial role they play; and in Canada we've been blessed by very good police officers and forces, as we have been blessed by very good judges and lawyers. However, I do not think it's appropriate for the police as an institution to select members to the nominating committee or at least the assessment committee.
The inclusion of representative law enforcement strongly suggests to me, through the circumstantial evidence—and I'll build the case a little bit—strongly suggests the desire to appoint judges who are not expected to be independent and impartial, but who are expected to judge in favour of police interests. What other explanation is there for providing a representative of that institution on this body as opposed to many other institutions in society?
Criminal cases represent only a very small fraction of the kinds of cases that come before the courts, a very small percentage. Police have no special knowledge of that vast majority of cases. What is more offensive to this notion to me is that the police are partisan actors in criminal cases. Their conduct may be on trial as much as the accused is on trial. They are being judged as part of the judicial determination in the case. That is not true of lawyers, but the conduct of police officers can be a central issue, which is determinative of a case.
An illustration of police partisanship is the series of royal commissions on wrongful convictions that we've seen in Canada recently. These cases are unusual; they're not everyday results, and they don't reflect the work of the vast majority of police officers. But in these wrongful conviction cases—Marshall in Nova Scotia, Parsons in Newfoundland, Morin in Ontario, Milgaard in Saskatchewan, and others—the royal commissioners have identified police misconduct as a central cause of wrongful conviction.
The term “tunnel vision” has been used frequently in these reports, the concept that a police officer is so convinced of the guilt of an accused that the officers will take shortcuts and engage in misconduct to achieve that conviction. It's sometimes called noble cause corruption.
The police have a difficult role. They see the victims, they deal with the victims. They see the consequences of crimes. When they become convinced that this particular individual is guilty, they stop at no lengths to achieve a conviction. That's why we have courts and that's why we have judges, judges who act independently and impartially. They stand between potentially innocent accused and an overzealous police force or police investigative team. Judges are to be a protection against such misguided conduct and not a vehicle to promote it.
The additional piece of circumstantial evidence that suggests to me that this is an attempt to achieve a particular result from judges rather than having them act impartially and independently is the comment of the Prime Minister in the House. I don't know the exact words, forgive me, but the gist of the comment was that we want judges who will help to advance our agenda.
It is not the role of a judge to advance the agenda of the government. The role of a judge is to act independently and impartially, according to the law and the judge's conscience, and not according to any other agenda.
That's why judges always come under attack in countries like Zimbabwe, and more recently, Pakistan. It is very inconvenient for dictators to have to deal with judges who decide independently and impartially, so they harass them and they force them to resign.
In Canada we've been blessed by an independent and impartial judiciary as well as excellent police officers and a strong bar. In Canada, I suggest that we should not even consider taking a tiny baby step in that direction of encouraging judges to carry out any particular agenda.
The second point relates to the category of “highly recommended”. I understand that now the committee will only say “recommended” or “not recommended”; it will not have this additional category of “highly recommended”. What this does is simply expand one vast pool for the government to feel free to select from.
Of course, the government is entitled to do that. The government ultimately makes the appointment. It is a cabinet decision, a government decision. And ultimately, the government will be judged in the big picture in terms of the kinds of judges they appoint, although there's a limited constituency that has a direct interest or knowledge of how well they're doing.
For that reason, I would suggest that the category of highly recommended should remain. Not only should it remain, but the government should report publicly on the number of times it has made appointments from the highly recommended category and the number of times it selected merely from the recommended category. This would give at least some public measure and accountability as to the extent to which the committee's recommendations were being seriously considered.
Of course, there may be reasons for departing from the category of highly recommended. It might be that there is a special need in a court for a particular kind of judge, someone who is an expert in bankruptcy law, for example. That may be a need that a court is lacking when there's no one in the highly recommended category who can fulfill that function. That would be a justification for departing from selecting from the highly recommended category. There may be issues of equity in the appointments, diversity on the bench, that would cause the government to select from the broader pool of recommended rather than the highly recommended category.
So there may be justification for it on occasion, but in my view, having the more specific advice of highly recommended versus recommended is additional information and opinion that can be helpful to the government in making its decision, and if there is reporting on the extent to which they appoint from one or the other category, that should provide some public accountability as well.
The Chair Art Hanger
Thank you, Mr. Ratushny.
We'll go to the Canadian Police Association now. I understand, Mr. Cannavino, you will be presenting.
The Chair Art Hanger
Please go ahead.
The Chair Art Hanger
Thank you, Mr. Cannavino.
Now it's Mr. Trudell, with the Canadian Council of Criminal Defence Lawyers.
William Trudell Chair, Canadian Council of Criminal Defence Lawyers
Mr. Chair, thank you very much. It's an honour to be asked to appear here today on this very important topic.
It's always a pleasure to come before the committee, but this is a special day for me, because Professor Edward Ratushny dragged me kicking and screaming out of the first class at the University of Windsor Law School many years ago, and it is a real thrill to be sitting at the same table he is at. He was only nine; he was the youngest professor ever appointed to a faculty.
But actually, Justice Craig, I identify with you, because you see yourself as a black sheep among judges. I was a black sheep and remain a black sheep in many circles. So we have a lot in common. The white sheep from that class sits here to my right.
We appreciate being here; I appreciate being here, but quite frankly, I'm not going to get into the situation of finger pointing and that kind of thing. We believe, on behalf of the Canadian Council of Criminal Defence Lawyers, that this is about principles, not the process.
The government, the Minister of Justice, has the right to appoint. That's the way it should be. The politicians who are elected have their pulse on what's needed, and we don't question that.
We question a couple of things, however. You've heard it from me before on behalf of the CCCDL when we've been here. Consultation is so very important when you are going to change something so dramatically as legislation, or even this very important process. If I were to say there's one thing that concerns me greatly here, it's that there was no real consultation before this was done.
Do you know what? Appointing police officers to a committee to screen potential candidates to the bench in itself doesn't destroy the process. Police officers could have been appointed before. I served on the provincial committee in Ontario for five years, and the fact that a police officer—In and of itself, the earth is not going to collapse. Stripping a judge of a vote in and of itself doesn't mean the committee process is destroyed. Giving federal appointments the majority vote may not destroy the process. Removing “highly recommended” and replacing it with just “recommended” may not destroy the process.
But putting it in the context of what's happened here—I hope I have it wrong—if the Prime Minister said, “We want to make sure we're bringing forward the laws to make sure we crack down on crime, that we make our streets and communities safer; we want to make sure our selection of judges is in correspondence with those objectives”, that to me changes all of these factors and means that we have to look at the process. I as a Canadian, as a defence lawyer, with great respect, was taken aback and had to read this about three or four times.
If the Prime Minister and the minister just want to make it more representative of the community, that's fine. They can do that. But that's not what happened here. The Prime Minister said—and I apologize if I'm misquoting him, and I'm not pretending to quote him directly—we want to make sure that our political agenda is reflected in the committees. So when you take what happened in relation to the change of the committees, we have to be concerned.
Our concern here is that it's the principle; it's not the process. There are fantastic police officers, and there are even some fantastic defence lawyers in the world. But that's not what we're talking about here. We're talking about potentially politicizing the process, and that's not what we want in this country. I hope the Prime Minister didn't mean to say that.
I'm not here to represent the Chief Justice of the Supreme Court of Canada. She could do a lot better, for sure, and I'm not going to do that. But I think the Chief Justice, remarkably, was speaking about the principle, not the fact that there was a police officer on this committee.
When I look at “Canada's Court System: Keeping the system fair and efficient”, on the Department of Justice's website, it talks about the process, and under the heading “Judicial Independence”, it says:Judicial independence is a cornerstone of the Canadian judicial system. Under the Constitution, the judiciary is separate from and independent of the other two branches of government, the executive and legislative. Judicial independence is a guarantee that judges will make decisions free of influence and based solely on fact and law.
As I look at the comment, not what happened to the process, I wonder whether or not there's an erosion of this principle.
The third paragraph talks about tenure: A number of institutions foster judicial independence, notably the Canadian Judicial Council, the Commissioner for Federal Judicial Affairs and the National Judicial Institute. These institutions help maintain a distance between the government and the judiciary in areas like discipline, pay and benefits, and continuing education for judges
—and I would have thought, before these comments were made, the principles that we're dealing with here.
So at the end of the day, I really believe there seems to be a problem, and the problem seems to be really an optical one.
With the greatest respect to him—he works hard—the Prime Minister of this country should not be saying those things, because it blurs the lines. I have nothing against the police, but how many times have we heard in the last five years in this country, in the last year, politicians embrace the criminal justice system, the courts? How many times? Not enough. All through the world, our system is held up as an example. We go over to third worlds and teach. But where are the parliamentarians? Where are the leaders embracing the criminal justice system?
I have been at many committees, and with great respect, my criticism of the police, special interest group, lobby, or citizens, or associations, whether it be the CACP or this association, is that they don't seem to embrace the criminal justice system: the judges are not tough enough, or they're not getting it. That's the problem.
Those are the statements that we would like to make. It is not the process, it's the principles. It's my respectful submission that if you are going to change the principle, you have to consult. I would like later on, if I have time, to talk about the changes, because to me, the mediocre are entitled to appointments too, but with great respect, we are shaping the history of this country for our children, and we want highly qualified and highly recommended candidates—not superstars from the bar; that doesn't make someone highly qualified. In the most important thing that preserves our democracy, surely the minister should be able to choose from the highly qualified.
Last, I'd have to spend a lot of time on it, but my experience on the judicial appointment committee in Ontario is that a judge is very important. A judge is only one voice, but a judge should have a vote. Why strip a judge of a vote? It leads to kind of a vote thing as opposed to a consensus thing. Judges have so much to offer in terms of guidance. I don't understand, except in the context that we accept somehow that the committees were the private clubs of judges and lawyers, which is preposterous, because the committees in this country are jealously protective of the judges. We love the system we have in this country. I would think most people on committees would tell you that once they get in there, there's almost a sense of fear to make sure they're doing the right thing.
I don't care, personally, if people are members of any particular party or if they lobbied for a particular party. If they come out, and they're highly qualified—Let's say there are three of them. I'm the Prime Minister, or I'm the Minister of Justice, and I belong to one party, so I may appoint that person. This has been going on forever, and it will continue. But if they are all highly qualified, we've done the right thing.
So it is the principle here that is of great concern, not the tinkering with the committee.
The Chair Art Hanger
Thank you, Mr. Trudell.
Now to the questions. Mr. Murphy.
Brian Murphy Moncton—Riverview—Dieppe, NB
Thank you, Mr. Chair.
It's quite amazing; we have people here today of seemingly divergent views, and yet all of them make complete sense—to me, anyway, although I might just be having an off day.
If we can have a moment of self-reflection here, I think it opens up a larger issue: we're not really studying the appointment of judicial officers here, we're having a political debate. Sometimes, perhaps unfairly, the opposition might say that the government is anti-judiciary, anti-judge. I'm sure they're not. I'm sure the lawyers—there are at least three of them over there—can't be anti-judicial, anti-judge.
Quite frankly, when the Attorney General gets on the floor of the House of Commons and says that the opposition—in this case, the Liberals—are anti-police, that's equally false. By my background as a practising lawyer for some 21 years, and as a former mayor, I can't be either anti-police or anti-judge. My late uncle was a provincial court judge in the city of Moncton, where occasionally there is serious crime. It's not Vancouver or Toronto, but—For 35 years he developed very close relationships with prosecutors, defence attorneys, and for sure, the police.
So that's where I come from. We all come from communities.
I guess where I'm going with this line of questioning, Mr. Chairman, is that we're here discussing who should be, as Mr. Trudell says, on the committees. We're here discussing process, as if somehow this is going to be a debate of principle and attitude. I think we may be wasting our time discussing the judicial appointment process, because the very presumption, by the government's enunciated policy of change, is that there's something wrong with our judiciary. But I'm not hearing that from the retired judge, from the police officers, or from the defence attorneys.
What is wrong with our judiciary that would lead the Prime Minister to announce a statement that would divide the parties, that you're either pro-police or anti-police? It's pure politics.
I don't expect you people to comment on the politics. We're making a fine enough mess of that up here on both sides. We don't need your expertise on that. I guess I would ask each person, starting with the retired judge, what is so wrong with the level of the Canadian judiciary that we have to have these fairly large changes to the process? What is so wrong with our judiciary that the Prime Minister had to make this change?
Retired Judge, As an Individual
I can take you back and deal with that very simply. There has been a generational shift in judges. It has nothing to do with the appointment process; it's a matter of attitude.
Judges who were what Tom Brokaw called “the greatest generation”, those who grew up and went through the Depression, those who fought the war, those who made Canada what it was in the last 50 years of the twentieth century, they knew what to do when they were dealing with vicious criminals. They would sentence on a global basis to 35, 37, or 40 years. The same judges now in the courts of appeal across this country will limit global sentences to probably 20 at the most, and when you take into account early parole and other factors that are weaseled into the system, such as giving credit for time spent in custody awaiting trial and sentencing, what this means is that the price of crime is pretty low. Crime pays. Criminals continue to become almost serial criminals in property matters simply because there is no punishment, and that's mainly the fault of the provincial court that I was in, not the high court judges.
What I'm saying is that the boomer judges just don't get it. They will not protect the public through the sentencing process, and that is because many of them will openly say, anything but jail comes first. Look at the conditional sentence and it will tell you what it's like in the hands of judges.
I'l give you one brief example. The first day it came into effect in the court where I sat, a lawyer came up to me and told me I wouldn't know what was going on in Judge X's court, and when I asked what, he said it was a feeding frenzy. That judge, who was anti-police and anti-everything, jail included, was granting conditional sentences as quickly as he could. He probably granted 20 that day.
Now, what I'm saying is, where the hell does he come from with that notion? What I'm saying is that there can be judge-shopping. There can be manipulation of the process. Plea bargaining is rampant in this country. All of that turns judges into rubber stamps when there are plea bargains. I don't like it. I am ashamed of the fact that the judiciary has not done its job in the sentencing process under the Criminal Code, and the appellate courts, with their sentencing guidelines, have literally told Parliament they don't care what Parliament says in its legislation called the Criminal Code of Canada, which is the second most important piece of legislation in our country.
In our constitutional law, beneath the Constitution, where it says “a maximum in aggravated assault of 14 years”, can anybody tell me when they've last seen one? I haven't. The sentencing guideline in British Columbia is five to eight years, and that's ridiculous.
In other words, that's what's wrong with the judiciary, if I might say it in simple terms.
The Chair Art Hanger
Prof. Edward Ratushny
I'm afraid I have to disagree with my learned colleague. I think the judiciary has evolved, and the society has evolved. I think there's a lot more information available. There are a lot more studies, including studies that show the inadequacies of imprisonment, how imprisonment generally is counterproductive. We've got greater insights into the nature of the people who commit crimes.
There are some evil people who should be locked away for a long time so that they're not allowed to continue to prey on society, but there are a lot of other shades of grey in terms of people who come from broken homes, people who have all kinds of psychiatric problems, mental problems, and that sort of thing, and I think sentencing has become a much more sophisticated process because of that knowledge. The idea that anything but jail should come first is a principle of sentencing, and I think a very sound principle, particularly where you talk about a first offender, someone who has not gone to jail before, someone who is a young offender where there's hope for rehabilitation. That principle I think is a very valid one.
There are other principles of sentencing that say that in certain circumstances a person must go to jail, even though there's almost no likelihood of recidivism. A person who is in a position of trust, a lawyer, an accountant, who has trust responsibilities and who abuses those responsibilities, even though it may be as a result of a rough time through addiction or whatever the case may be, such a person has to go to jail. That's a sentencing principle, because in that situation general deterrence must be prevalent.
So I think we've evolved in our understanding of sentencing. There have been studies done showing that when lay people were asked what kind of sentence they would give for a certain set of facts, they've come down very hard as a gut reaction. When they learned the circumstances, the kind of information that would come before a judge on a sentencing hearing, their result changed to come out to just about what the judges had decided in these cases. There are actual criminological studies that demonstrate—