Justice Committee on Dec. 9th, 2014

[The Chair, Conservative, Mike Wallace]

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

I would like to come back to the issue of opposition days and respond to my colleague. Opposition days are fine and good, but during some of the past opposition days, we had little time to carry out a study. And the government does decide when opposition days are to be held.

We all have our opinion on what would be the best system, and I do not think I have the monopoly on the truth. The idea underlying the motion is to carry out a study. That means we would hear from witnesses of all backgrounds. They could be former judges, university professors, constitutional experts or average Canadians with an opinion on the matter.

In Quebec, we managed to obtain the Commission of Inquiry into the Appointment Process for Judges in Quebec, or the Bastarache Commission. It didn't take 15 years, but a certain number of hearings had to be held. The commissioner, a former justice of the Supreme Court, managed to establish guidelines that have helped free the judicial appointment process in Quebec from accusations of partisanship.

To be totally honest, whether we are part of the government or not, I don't want us to be seen as peddlers of influence. I can feel some of that here. I repeat, we are all striving—since these are the words the minister is constantly using—for excellence. If we are striving for excellence, the political side of the issue fades in importance. Maybe this wouldn't take as much time as you think and would not require the testimony of 150 witnesses.

People think that this will not be heard. Our colleague Mr. Leef, a member for Yukon, sponsored a bill on fetal alcohol spectrum disorder. I do not want my bill to be set aside while I am being told that it will be studied. If that's what you are telling me, I am a bit surprised. I am taking note of the fact that my colleague Mr. Goguen, Parliamentary Secretary to the Minister of Justice, is telling us that, given everything we have to do, we will not have enough time to conduct this study, which would, therefore, be theoretical. We are being told that the study will be more complex. When it's to the Conservatives' benefit, they use this type of argument, but when it is not, they say the opposite. It's a bit hard for me to accept such arguments given the context.

When we had to study part 17—I think—of the Criminal Code, which concerned the language of the accused, trials and so on, it took some time, but we managed to get it done. I do not want to hear that kind of argument in situations where we think something is worthwhile. Tell me that this doesn't make sense, that you already have another process, or whatever, but don't tell me that we don't have the time. Let's adopt this and send a clear message. This is what we think should be done. If we manage to conclude the study before election is called, so much the better, if not, it won't be the first time a bill has died before an election campaign. It will be happily brought back later on. I could list pretty much all the private member' bills that are before the House at one stage or another and that are at their 18th version.

Mr. Chair, with all due respect, this is not a very convincing argument. We get the impression that the government probably doesn't want to review the process. Democracy is all very well, and you will vote as you like. Nevertheless, it seems to me that this heartfelt appeal is coming from many sources, but a comprehensive response is once again lacking.

I don' know whether people have read La Presse of November 29, like me. The newspaper said something along the following lines:

Former justices of the Supreme Court of Canada are calling for the creation of a new process for selecting judges who will sit on the country's highest tribunal.

These are not some dummies; these are people the current government often selects as heads of commissions. Some people actually disagree with that approach, as it emphasizes the status of former Supreme Court justices. Their opinion should not be heard only when it benefits us. Those people are calling for the creation of a new process. I find it interesting that they don't all agree on this. It's just like all of us around the table; we don't all have the same idea.

The other day, Mr. Casey put forward a motion that called for a fully public process—with lists and so on. His colleague Mr. Cotler, a former minister of justice, calls for a different type of system. Someone else might be in favour of another approach. That is where we are. This shows what we need to do. At the very least, we should send the message that we believe that, given everything that is happening, it is time to look into this matter.

Just so the government would not feel like too much of a target, I was not talking only about the Supreme Court of Canada. I felt very generous the day I came up with this. The whole appointment process can become beneficial. In fact, the same issue comes up when it comes to appointments to superior courts, courts of appeal and other tribunals.

This is not aimed at a specific tier, but I think the same principles should apply as a result.

[The Chair, Conservative, Mike Wallace]

Merci, madame.

Mr. Toone, the floor is yours.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Thank you.

I certainly agree with my fellow member, Ms. Boivin.

With all due respect to Mr. Goguen, I don't think holding an immediate debate in the House is the answer. That isn't necessarily the best place to have the debate since we wouldn't have the benefit of hearing from witnesses. We wouldn't have the opportunity to ask subject matter experts questions. There is nothing stopping an opposition motion from being proposed, but I think the right place to thoroughly study the matter is here, in committee.

I think the appetite is there for it. The recent developments concerning the Supreme Court, in which the process wasn't the same as it had been for Justice Wagner, I think bears some reflection; it behooves this committee to take a few moments to determine whether that was really the method that it wants to replicate.

It's a recent phenomenon. We haven't been doing this kind of review for very long. The Chrétien government was the first to bring it up. They didn't have time to strike the committee, of course, but they tried. We've now had a couple of occasions in which the Prime Minister has opened the process to a more transparent procedure than we had here. I find it unfortunate that the last time we were unable to have one.

I take good note of Madam Boivin's comment that the motion doesn't only mention the Supreme Court. I think, as she said, this is an attempt to try to broaden the interventions and also an attempt to give us an opportunity to hear from as many people as possible about where we need to go next. But I hear from people back home, from a number of people, that the process we have in place of just having the Governor in Council make the determination simply isn't sufficient.

Do we want to go all the way to the American system, in which the Senate has to ratify every decision? I don't know. I certainly have a problem with the way the Americans are doing it right now. But there was a famous judge—Cohn, I think it was—in the States, who made the interesting comment, “Don't tell me what the law is; just tell me who the judge is.” We need to be able to give some sort of solid foundation whereby people can have more faith in their justice system.

I have a problem with judges being appointed who just come out of nowhere. We have recently had the appointment to the Supreme Court of a judge whom nobody had expected. The person didn't have any experience as a judge. She certainly has had a very interesting career as a lawyer, but her point of view regarding many of the important questions today is simply not known. We're going to have to wait to see what happens.

I've made it clear that I'm actually quite pleased with the nomination, if only because the individual comes from the Gaspé. I think that's definitely a plus.

But I think it's important that we take it beyond this; that we have some very solid grounds whereby to expose what a judge's experience is and what we might expect from them come the decision-making process. The confidence people have in our judicial system depends on more transparency.

A number of witnesses have a lot to offer at this level. I don't know how much time would be required.... I take good note that this committee has a lot of responsibilities and that a number of bills have to be processed through the committee. That's certainly a responsibility that has to be taken seriously, but there's no reason that time can't be negotiated such that the various bills have all the time available to them. I'll add to that the fact that this committee has shown a willingness to meet outside of normal hours of procedure, if required. Maybe this is a case in which it might be required as well.

Regardless, the process is important. I think we need to answer to the Canadian public that the House of Commons is going to ensure that the nominations that the Governor in Council makes will be appointments that people can have great faith in right from the get-go. Right now the question is there, whether people can have confidence in those nominations. I think they will have; I think time will prove it.

Nothing makes that clearer than the advantage of doing things out in the open. Fresh air gives everybody a little bit more confidence in the process.

The process that we have here today, where a judge is named by Governor in Council, and only by Governor in Council, I don't think is sufficient. There are an awful lot of jurists who have made that clear. I think that we should take good heed.

We have to ensure that the Canadian public is going to have as much faith as possible in our process. I don't think the process that was recently seen in this place was adequate. I don't think that just announcing an appointment is a process that we want to replicate. I suspect that the Canadian public expects more of us.

If there's one task that I suspect the Canadian public expects of us, it is to ensure that the Supreme Court and our justice system are truly independent of the executive and the legislative branches. The only way to know that is if we hear from them before they're appointed. We need to hear from those individuals themselves. We didn't get the chance to do it recently and I think that was a grave mistake.

We need to ensure that people have confidence in the system. In Quebec we've tried that with the Bastarache commission. We also have shown great interest in ensuring that the public has faith in our judicial system, especially with recent decisions regarding people accused in criminal cases that have certainly pushed the limits of the confidence people have in our justice system. The Quebec government took the steps necessary to ensure the public's concerns are addressed.

I don't think we did the same thing here. That was a shame and we should probably take the opportunity to learn from our mistakes and improve on them. This would be a good start.

I don't think it would require all that much time. I would really like to see it done. If we go by the fixed date election cycle, we have until October. It's not like we don't have any time; we have close to a year. Even with all the bills ahead of us, there's plenty of time. I don't think we should discount that. We should take this responsibility seriously.

Madam Boivin's motion has a lot of merit. I personally would like to see it adopted.

[The Chair, Conservative, Mike Wallace]

Madame Péclet.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you, Mr. Chair.

I'd just like to add my two cents to the discussion. And, in fact, Mr. Chair, I'll keep my remarks as brief as possible.

Since the parliamentary secretary is suggesting that we proceed by way of an opposition motion, I hope he'll be able to answer my question. If the opposition were to put forward a motion to allow the Standing Committee on Justice and Human Rights to undertake a study on the process for the nomination of judges, would the government support it? I think that's a question worth asking.

Just a bit of history here, and I think the minister was quite clear on the matter. Prior to the Conservative government's election in 2006, no process for the nomination of judges existed. I think everyone agreed that we needed to do something about that. The Conservatives tried to put in place a process, which unfortunately did not work. Even the minister came here and told the committee that the process had unfortunately failed.

So I think the question that needs to be asked is this. What do we do in that case? No process used to exist, and the one that was put in place ended up not working. Does that mean we are simply going to go along with having no process in place? If so, the Conservatives would be going back on their promise to establish a more public and inclusive process. It would be a shame to go back to how things were prior to 2006 and to be deprived of any process at all. At least the government had a desire to establish a process. And, according to the minister, that process did not work. So it needs to be improved, reviewed or completely overhauled. If the government votes against our motion today, is it likely that it will change its mind in the House and that the outcome will be different? What will the government say? Will it say that the process it put in place did not work? Will it say that it tried but wasn't successful, and so it is better to have no process at all?

That would be pretty disappointing. But it would save the government a lot of headache, given the heat it took for its nomination of Judge Nadon. It was repeatedly criticized on the issue. As for the validity of the nomination process, I think it is in the best interest of every parliamentarian to try to achieve the best process possible.

Are the Conservatives telling us that, because the process they tried to put in place failed—we can all agree that it was less than perfect—we are going to go back to the days when no process existed at all, putting an end to any further democratic debate on the matter, which affects vital institutions? That would be quite disappointing, indeed. In a nutshell, I would just like the government to explain one thing. If it does not want to undertake this study, what message does that send to Canadians? Does the government not want to establish a process because it wasn't successful? Is it better to go back to how things were?

When I go back to my riding and my constituents ask me what we are going to do about the nomination of judges, am I going to have to tell them that, unfortunately, the government no longer cares to fix that problem?

That is frustrating for a young person like me, who studied law and sees the benefit of reviewing how judges are appointed and how our democratic institutions operate. It's frustrating for young people of my generation to see that the government tried to establish a process, which, by its own admission, did not work. We are in a black hole right now.

Thank you.

[The Chair, Conservative, Mike Wallace]

Before I go to Madam Boivin, we have officials here for another half an hour. Do we think we're going to get to the...? Yes? Okay.

Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Am I the last speaker?

It's going to be very short.

My colleagues made some good points. Having participated in two of the last three nomination processes, I would just make a minor correction. The same process was followed for the nominations of both Judge Wagner and Judge Nadon. In the first case, everyone was unanimous in terms of being satisfied with the outcome of the process. In the second case, however, everyone was unanimous in their dissatisfaction with the outcome of the process. The nomination even gave rise to a Supreme Court challenge and subsequent ruling. We may have been on the right track, but somewhere along the way, something went wrong. So it would be a good idea to take another look at it.

Picking up on what my fellow member just said, I have to say it would be unfortunate if my Conservative friends were to throw in the towel after making such a collective and significant effort to come up with a better process.

What a shame it would be to throw in the towel now, given that the Conservatives widely criticized how previous governments had handled the matter over the years. I agree with my fellow member on that point. We weren't raised that way. As the saying goes,

“If at first you don't succeed, try, try, try again”.

I think we were almost there. As my colleague, Philip Toone, said, it wouldn't take very long and we could always negotiate some time to do it, even if we had to meet outside normal committee hours. Robert and I sat on the Ad Hoc Committee on the Appointment of Supreme Court of Canada Justices that met during the summer. I was on it for two summers. We also did an intensive study of the prostitution bill at that time. Given that we're dealing with an institution as important as the Supreme Court of Canada, not to mention all other federal courts, I would think we could find a bit of time to do this study.

Although we can't reveal what the committees discussed, we may have a good idea about how to improve the process so we don't make the same mistakes.

It may not be as complicated as the government is suggesting. As I have already mentioned, this is an issue of interest to many. Conferences have been held on the subject. Let's not let others dictate what we should put in place. Let's show some leadership here.

That is my final word on the subject.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

We'll now vote.

[Françoise Boivin, NDP, Gatineau, QC]

A recorded vote, please.

(Motion negatived: nays 5; yeas 4)

[The Chair, Conservative, Mike Wallace]

Thank you for that discussion. We'll go now to the clause-by-clause consideration of Bill S-2, an act to amend the Statutory Instruments Act.

We have four amendments, and they all deal with clause 2, but pursuant to Standing Order 75(1) consideration of clause 1, the short title, is postponed until the end.

(On clause 2)

We start with amendment NDP-1.

Madame Péclet, you would like to speak to it.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

The first amendment basically reiterates what the Standing Senate Committee on Legal and Constitutional Affairs did. The amendment addresses questions raised by the Standing Joint Committee on Scrutiny of Regulations.

The amendment has two parts. The first concerns section 18.1. All it does is clarify the definition of the term "document" as it applies to that section. According to the analysts, any document or federal law would also include the standards and regulations. So that is the first part.

The second part seeks to establish guidelines. We discussed that at length in our first hour. It would authorize the governor in council to establish guidelines, which are quite important. As we've discussed, we are sort of in legal limbo given the absence of any guidelines on the use of incorporation by reference.

[The Chair, Conservative, Mike Wallace]

Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Chair, the government does not support this amendment.

This amendment would have the effect of limiting the material that could be incorporated by reference pursuant to this proposal to only federal and provincial legislation. The amendment fails to recognize the vast array of material that is already incorporated by reference and would make the legislation far less responsive and modern, in our opinion. The amendment would mean that the standards developed as part of the national standards system of Canada could not be incorporated pursuant to this authority, nor could the standards that are developed internationally.

For example, the standards that are developed by the standards development organizations under the umbrella of the Standards Council of Canada, whom we just heard from, such as the Canadian Standards Association and the Canadian General Standards Board, or any international standards-writing organization such as the International Organization for Standardization, ISO, certain international agreements, internationally accepted rules, such as the generally accepted accounting principles and legislation of other jurisdictions, including the United States and the European Union, all of which currently exist as incorporated by reference in various regulations, would be limited and prevented by this amendment were we to adopt it.

Standards represent a significant amount of the material that is key to responsive, effective regulations, and is essential to achieving goals of regulatory alignment in cooperation and protecting the health and safety of the public. The effect of the amendment would leave much of the outstanding legal issues with respect to the scrutiny of regulations report unresolved which was a main purpose of this legislation.

For all those reasons, Mr. Chair, we will not be supporting this amendment.

[The Chair, Conservative, Mike Wallace]

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

To the point made by my colleague, Mr. Dechert, I would defer to our experts from the Department of Justice.

Would the amendment proposed by my colleague, Ms. Péclet, limit enabling legislation, such as the agreement with the European Union or the legislation of another jurisdiction? Would the amendment exclude that authority from Bill S-2 and prevent regulators from being able to incorporate documents by reference in a regulation?

[Jacinthe Bourdages, General Counsel and Director, Advisory Services and Legislative Revision Group, Legislative Services Branch, Department of Justice]

On a case-by-base basis, a department could sponsor a specific piece of enabling legislation for that type of incorporation, but it would be excluded from the framework legislation, Bill S-2.

[Françoise Boivin, NDP, Gatineau, QC]

Yes, it would be excluded from the overarching legislation.

[Jacinthe Bourdages]

Precisely.

[Françoise Boivin, NDP, Gatineau, QC]

I just want to make sure we're clear in case there are any misunderstandings.

Bill S-2 is meant as framework legislation. Everyone it applies to has the authority to incorporate documents by reference in regulations.

My colleague's amendment seeks to limit that authority to provincial and federal legislation, but there is nothing stopping other things from being included. My colleague told us that the purpose of the bill is to allow that. And the government is still free to do that if it wishes. If the government wants to proceed through incorporation by reference in some specific cases, all it has to do is introduce legislation to that effect. As I see it, that approach would afford us better oversight.

[Jacinthe Bourdages]

Yes, it would be necessary to specifically establish enabling legislation on a case-by-case basis, instead of having that option automatically, as Bill S-2 seeks to provide for.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you.

[The Chair, Conservative, Mike Wallace]

Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

I have one further point, Mr. Chair.

The officials did provide us an example last week under the softwood lumber products export permit fees regulations, which incorporate by reference the consumer price index published by the U.S. Department of Labor and Bureau of Labor Statistics. That's an example of something that would be prevented, as I understand it, if we were to adopt this amendment.

[The Chair, Conservative, Mike Wallace]

Madame Boivin.