Justice Committee on Feb. 5th, 2007

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

I've never said this before, but I'm absolutely delighted you're in this position.

I have a quick point I want to put on the record before I ask my question, just for your knowledge.

There is an aberration in law so that currently the justices in the territories are called by a different name from that of chief justice, and the premiers and everyone asked to change that. The last minister said he would take that to the Prime Minister, and I hope you will follow up on that. That's not my question, though.

As you were formerly responsible for democratic reform, I know you like things to be democratic, so if this committee, as the justice representatives of a democratically elected Parliament, were to suggest changes to the JAC procedure or reverse it to what it was, would you endorse those?

[Rob Nicholson, Conservative, Niagara Falls, ON]

It seems to me it might be premature, Mr. Bagnell, to do that at this point when in fact we've got the process up and running. Certainly any change to that process right now would probably delay the judicial appointments process in this country, and as you know and as I indicated in my opening address, there are a number of vacancies that I would like to see filled. So I would suggest to you that the process already in place will work well, and I think it should have the support of all members around this table.

[Larry Bagnell, Liberal, Yukon, YT]

So you would never consider our input?

[Rob Nicholson, Conservative, Niagara Falls, ON]

We never say never, Mr. Bagnell, but the system has worked well. Again, when this was first proposed to me in 1988 or discussed with me then, it seemed an excellent process that the then Minister of Justice was implementing. There were modifications to it a number of years later, and I thought they were reasonable.

[Larry Bagnell, Liberal, Yukon, YT]

That's good. Yes, the system has worked well, and I think that's why the opposition didn't necessarily want it changed.

My understanding is that before you changed the system, a police officer or a police representative could be appointed under the lay positions. Is that true?

[Rob Nicholson, Conservative, Niagara Falls, ON]

That is correct.

[Larry Bagnell, Liberal, Yukon, YT]

So then it's not true what you've said, that the purpose of this expansion was to broaden the individuals advising the minister or, as you said in your opening speech, provide an opportunity for another group, because they already had that opportunity and could already be on the committee.

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's an additional perspective, there's no question about that. There are more individuals now giving input to the Minister of Justice on the exercise of his or her constitutional discretion. For instance, we have representatives of the provincial attorneys general. We could have done it without having them formally part of the process, but I think it's a healthy part of the process to have provincial attorneys general because of their responsibility in the administration of justice in this country. So to designate an individual on that is a good idea, and I think it can work well.

[Larry Bagnell, Liberal, Yukon, YT]

But the police could always have been involved before, so we didn't need this change to get them involved?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Any individual could be appointed by the Minister of Justice with respect to the appointments that he or she makes.

[Larry Bagnell, Liberal, Yukon, YT]

I think the biggest concern is that people see justice as independent from Parliament. Of course, you make the final decision; we don't quarrel with that. But don't you at least think that having a commission without a majority of your own appointments making recommendations would give the public more confidence that there's a separation between the judiciary and the executive branch of government?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think the whole process with judicial advisory committees is a step in the right direction, and I don't think you or anybody I've heard—I'm not sure—would want a constitutional change from the present situation we have, where the Minister of Justice makes those recommendations eventually ratified by the Governor General of Canada. Nobody's suggesting that the Constitution be changed.

In terms of getting input into those appointments as to whom the Minister of Justice should appoint, I believe it is a step in the right direction to have members of the police community make that input. I think it's a healthy part of our exercise.

Again, I don't accept the premise that there is some sort of combative or adversarial role that takes place within these committees; my understanding of them is that they work on a consensual basis, and I believe that will continue.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

Mr. Bachand.

[Claude Bachand, Bloc, Saint-Jean, QC]

Thank you, Mr. Chairman.

First of all, I would like to thank my colleague Réal for allowing me to use some of his time. I feel it is important to say something. Furthermore, I discussed it with him because I am one of the members of Parliament who does not have a legal background. I had already heard talk of the significance of appointing a policeman to the advisory committee, but I did not expect to find myself at the justice committee later on. It would seem important for me to give you my perspective on the subject.

First of all, the problem is not one of political partisanship, unless the minister is saying that he wants only Conservative policemen to sit on these advisory committees. I do not believe, however, that he wishes to go that far.

My colleague Réal Ménard is right: the issue is one of balance. In society, there is the executive, which is the cabinet and the Prime Minister, the legislative, which includes all of the members of Parliament and which votes on bills, as well as the judiciary. When we ensure that each of these three components can act in its respective context, we create an important balance in society. When we start to tinker with this balance, this challenges fundamental ideas about society. We must be very careful before acting.

I understand that it is the minister who, in the end, appoints the selection committees on behalf of the executive. He does not require a legislative instrument in order to make the change. However, he submits the issue to the justice committee and its members try and make a contribution in order to maintain a fair balance in society.

In my opinion, there is a problem on the judiciary front. In this case, there are two components that form the judiciary: the judges and the police. The latter carry out investigations and, depending on the province, it is either the police or the Attorney General who would lay charges. I have often read in court decisions that it is important that there be no conflict of interest in a judge's decision, but it is equally important that there not be any appearance of conflict of interest in the decision.

If we allow the police, even if they are in the minority on the advisory committee, to have a say in the appointment of judges, we are beginning to toy with an appearance of conflict of interest. Not that a judge will tell himself that a policeman supported his nomination and that he therefore owes him something, but there is nevertheless a certain appearance of conflict which, in my opinion, could jeopardize the perfect balance that we currently have.

That, Mr. Minister, is where the problem lies. I am asking you for further explanations because I would prefer the police continue to carry out their investigations, and in some provinces, to lay charges. The poor guy who has been charged but who knows he is innocent would want to be absolutely sure that the judge hearing his case does not owe his appointment to anyone, other than those members of society who have the power to appoint him, that is to say you, yourself and the executive, the cabinet.

I therefore need to be reassured because I have the impression that we're opening the door to the appearance of a conflict of interest. If we want Canadians, in Quebec as well as in Canada, to have confidence in their justice system, we must separate the police from the judges. Their work is complementary. We cannot proceed with appointments or decision-making that could lead citizens to think that society is not functioning as it should.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much for your comments.

We have members of the judiciary on that committee; in fact, they will chair that committee. I think that's a healthy component of the process. I believe that members of the police establishment will make a positive contribution. I don't see this as a group of individuals who are at odds with each other. I have known crown attorneys in my life. I've known judges. I know members of the defence bar, and I know members of the police establishment. For the most part, and almost invariably, they have the best interest of the judicial system at heart. I'm sure you are aware, as I am, of police forces that have innovative concepts in dealing with the difficulties they experience on a day-to-day basis. I don't look at it that they are at odds with any particular component of the judicial system. I firmly believe that the different components involved with our judicial system are there for the best interest of the rule of law and our judicial system in this country.

I believe you will see that and that you will approach me some day and tell me you think it really worked out well to have members of the police community, that they made an outstanding contribution to the process, and through that process they made an outstanding contribution to their country. I look forward to that opportunity.

I say to please keep an open mind about this decision that has been made, because I think it's in the best interest of the administration of justice.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bachand and Mr. Nicholson.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

Mr. Minister, thank you for being here today. We appreciate your appearance. You mentioned that in the past these advisory committees were in place to provide to the minister a list of, as it used to be, recommended, highly recommended, or not recommended. You alluded to some changes that were made in the past. There seems to be, on one hand, some thought that we had an absolutely perfect balance on these advisory committees before, but in fact changes had been made in the past. Can you speak just a little bit about some of those? And can you speak to the suggestion that now we go back and somehow narrow the advice that you can get by taking the police off the advisory committee? The suggestion has been made to narrow the broader judicial community's input into the advice that you get. Can you talk a bit about what value there is to having a broader spectrum of advice on these committees?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Any time that an individual has to make a decision, to get input from a number of areas or a number of individuals I think is a healthy thing. I believe this is the fifth modification, in a little over 18 years, of the judicial advisory committees, made by a couple of different governments.

Again, going back to their creation, it wasn't written in stone. It wasn't to be the last word, if I remember the conversations, and I think I do fairly clearly. There have been a number of modifications, and the success of each of those can be judged. But it seems to me that getting a number of people or a number of groups that have an absolute commitment to the best interests of our judicial system is healthy, and I certainly am one who will look forward to the input from them. It's a huge constitutional responsibility to appoint judges to the Superior Court. I have to believe that expanding that group of individuals who are able to provide advice and are willing to provide advice is a step forward.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

Can you speak a bit, Minister, about the change that eliminated the “highly recommended” category? You did mention in your speech that there was some blurring of the line between recommended and highly recommended and that there was perhaps inconsistent application. Can you speak to how having simply not recommended and recommended is going to improve your ability to make these decisions?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I can understand why the distinction between the two “recommended” categories was eliminated. The recommendations that we were receiving across the country were very uneven. In some provinces the majority of those recommended also came as highly recommended. In some provinces a fairly small minority of lawyers received the “highly recommended” designation. At the same time, we noticed that you were much more likely to be highly recommended if you came from a larger law firm or one of the larger cities across Canada. I'm at a loss to explain why that would be, but I'm not at a loss to make the point that people who come from small communities and small law firms are just as qualified to serve on the bench in this country as are those from larger firms.

So inasmuch as there weren't any objective criteria to say why a person was highly recommended as opposed to just recommended, it was deemed appropriate to eliminate that particular category.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moore.

Ms. Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

How much time do I have, Chair?

[The Chair, Conservative, Art Hanger]

You have approximately five minutes.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

First, did you or your predecessor consult our judiciary and the Canadian Bar Association prior to changing the composition of the committee from seven positions to eight--having four appointed by the federal government instead of three? You've made the point very well that over time there have been modifications to the way the federal government appoints judges, and many of those have been very welcome. My understanding is that in most of those cases, the government actually consulted the judiciary and the bar association before moving forward to make those changes.

Second, you've said that of the 13 judicial advisory committees, 12 are up and running. So you've gone forward with the change that your predecessor made to increase from three to four the number of members appointed by the federal government. One of those four members is from law enforcement. How many of the 12 members from law enforcement come from the Canadian Association of Chiefs of Police--are high-ranking police officers who have the managerial skills and are there to put into place performance evaluations, operational procedures, and all of that?

You've stated on the one hand that you don't really have any statistics on the appointments made by the government preceding you. But in your response to Mr. Moore you talked about how a number of those who were highly recommended appeared to come only from large firms in some provinces, whereas in some provinces that wasn't the case. So I'd like you to bring forth all of the statistical information you have--without the names, obviously--on the recommendations that were made over the last five years under your government and the previous government. Of the 13 JACs, how many were highly recommended, how many were recommended, and how many were not recommended? Which cities did those lawyers come from? Were they large cities? Did they come from large firms, small firms, or were they sole practitioners? You don't have to give us the names, so no personal information will be violated.

You've made those points several times in your responses to members of this committee, so you obviously have this information. I would like you to send that information to the members, through the chair.

Thank you.