Justice Committee on March 20th, 2007

[The Chair, Conservative, Art Hanger]

I call the Standing Committee on Justice and Human Rights to order.

It's Tuesday, March 20, 2007. Our agenda is before all the committee members, I believe, as well as the witnesses. It is a continuing study on the judicial appointment process.

I would like to thank you all for being here this morning as witnesses appearing before the committee. We have, from the Office of the Commissioner for Federal Judicial Affairs, Mr. Marc Giroux, acting commissioner; and from the Department of Justice, Judith Bellis, general counsel. As individuals, we have Mr. Sébastien Grammond, a professor at the University of Ottawa, who is not here yet, but I assume that he is on his way; and Mr. Peter Russell, a professor of political science at the University of Toronto. From the Canadian Bar Association, we have J. Parker MacCarthy, president; and Ms. Kerri Froc, legal policy analyst.

I would suggest that we follow the order as noted here on the agenda as far as the speaking order is concerned. I will turn the floor over to Mr. Marc Giroux.

[Marc Giroux, Acting Commissioner, Office of the Commissioner for Federal Judicial Affairs]

Thank you, Mr. Chairman.

Dear committee members,

I am pleased and honoured to have this opportunity today to provide information on the federal judicial appointments process and to answer any questions you may have. My understanding is that I have approximately 10 minutes to make introductory remarks, and I will do my best to keep them brief.

First, I would like to give you a brief overview of our office, especially for those of you who may not be so familiar with us. The Office of the Commissioner for Federal Judicial Affairs was created in 1978 pursuant to the Judges Act and its mandate is to safeguard the independence of the judiciary and put federally appointed judges at arm's length from the Department of Justice. In fact, our office is also independent from the Department of Justice.

I do not propose to go into the various services we provide to the 1,066 federally appointed judges, the 400 retired judges and the 350 surviving beneficiaries of judges but I will obviously be pleased to answer any questions about these. I will therefore move right into the topic of judicial appointments.

To give you some history on the federal judicial appointments process and its committees, the whole structure was announced in 1988 by the Honourable Ray Hnatyshyn, Minister of Justice, and was fully implemented in 1989 when the advisory committees created under the process became operational. At that time 12 five-member advisory committees were set up in each province and territory, consisting of one representative each from the Canadian Bar Association, the relevant law society, the chief justice of that jurisdiction, the attorney general of the province or territory, and the federal Minister of Justice. The committees were to advise the minister on whether each applicant was qualified or not qualified for appointment, and the Commissioner for Federal Judicial Affairs was given the responsibility for the administration of the process.

Now, a number of changes to the process were made by subsequent ministers of justice over the years, and I'll mention just a few of them. In 1991, for example, the two “qualified” and “not qualified” designations were replaced by three designations: “highly recommended”, “recommended”, or “unable to recommend”. As well, in 1994 the committee for Ontario was replaced with three regional committees, and the Quebec committee with two. Two other representatives of the Minister of Justice were added to the committees to increase the representation of non-lawyers. The then minister also stated his personal undertaking not to recommend to cabinet any new candidate not previously recommended by a judicial advisory committee. This undertaking confirmed the practice that has continued to this day.

Another notable change occurred in 2005 when a new code of ethics for judicial advisory committee members was drawn up and posted on our website and, along with the names of all committee members, new guidelines for advisory committee members as well as information about the number of applications for judicial office and assessments.

Today, how does this all work? Well, independent judicial advisory committees remain a very important part of the appointments process. It is the committees who have the responsibility of assessing the qualifications for appointment of the lawyers and provincial or territorial court judges who apply.

There is at least one committee in each province and territory. Because of their larger population, Ontario has three and Quebec has two. The terms of office of some of the committees have been extended to three years, while the others' terms remain two years. With the addition of one member representing the law enforcement community, each committee now consists of eight members, that is a judge who represents the Chief Justice of the province or territory; one representative of the province or territorial law society; one representative of the provincial or territorial branch of the Canadian Bar Association; one representative of the provincial Attorney General or territorial Minister of Justice; one representative of the law enforcement community; and three representatives of the federal Minister of Justice.

Judicial representatives are now automatically Chairs of the Committees but may only vote when necessary to break a tie, although the committees usually make their recommendations based on a consensus.

There is also a new Judicial Advisory Committee for the Tax Court of Canada which is comprised of five members: one who is a judge of the Tax Court and four others appointed by the Minister of Justice in consultation with the Chief Justice of the Tax Court. This committee has been established as a one-year pilot project.

The Commissioner for Federal Judicial Affairs has the overall responsibility for the administration of the appointments process on behalf of the Minister of Justice. He is expected to carry out his responsibilities in such a way as to ensure that the system treats all candidates for judicial office fairly and equally. The Commissioner or his delegate, the Executive Director, Judicial Appointments, attends every committee meeting as an ex officio member and serves as the link between the Minister and the committees. As well, administrative support for the work of the committees, including information sessions and guidelines concerning confidentiality and other procedures, is provided by the Judicial Appointments Secretariat of our office. All committee proceedings and consultations take place on a confidential basis.

So, with this structure in place, what does someone who wants to be a judge do? Qualified lawyers and provincial or territorial judges who wish to be considered for appointment as a judge of a superior court in a province or territory, or of the Federal Court, Federal Court of Appeal or Tax Court of Canada, must apply to the Commissioner for Federal Judicial Affairs.

Candidates are asked to complete a personal history form, which provides the basic data for assessment by the appropriate committee. In addition to the usual information found in a resumé, the form includes information on the candidate's non-legal work history, other professional responsibilities, community and civic activities, his or her ability to preside in both official languages, a description of the qualifications for appointment, and personal matters such as the candidate's health and financial situation. Candidates are also asked to sign an authorization form, which allows our office to obtain a statement of their current and past standing with the law societies in which they hold membership.

Upon determining that a candidate meets the statutory criteria for a federal judicial appointment--and generally, one must have 10 years at the bar--our office will forward the candidate's file to the appropriate committee for assessment, or for comment only in the case of provincial or territorial court judges who apply.

Once an application is before the judicial advisory committee--professional competence and overall merit are the primary qualifications--committee members are provided with assessment criteria for evaluating fitness for the bench. Without going into all the details, these criteria relate to professional competence and experience, linguistic competency in the other official language, personal characteristics, and any potential impediment to appointment. Committees are encouraged to respect diversity and to give due consideration to all legal experience, including that outside of mainstream legal practice. Extensive and broad consultations in both the legal and non-legal community are undertaken by the committee in respect of every applicant. The committees are asked to assess candidates now on the basis of two categories: “recommended” or “unable to recommend”.

Once the assessment has been completed, candidates are notified of the date they were assessed. Assessments are valid for a period of two years, and the results are kept strictly confidential and are solely for the minister's use. Each candidate's assessment must be certified by the commissioner or his delegate prior to its submission to the minister.

Provincial or territorial court judges generally undergo the same process. However, in their case, they are not assessed per se by the advisory committees, but their files are submitted to the appropriate committee for comment.

To conclude, when the minister wishes to fill a vacant seat, our office will prepare the necessary recommendation for the Minister's signature with respect to the appointment of puisne judges, and for the Prime Minister's with respect to the appointment of Chief Justices.

Thank you, Mr. Chairman, I would be pleased later to answer any questions members of the committee may have.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Giroux.

From the Department of Justice now, Judith Bellis, please.

[Judith Bellis, General Counsel, Judicial Affairs, Courts and Tribunal Policy, Department of Justice]

Merci, monsieur le président.

As the chair has indicated, I am the director and general counsel of the judicial affairs section of the Department of Justice. To give you a brief overview of the role of my office, the judicial affairs section provides expert legal and policy advice to the Minister of Justice, the deputy minister, as well as all other government officials about any matter touching on the courts and the judiciary in Canada.

On the request of the Commissioner for Federal Judicial Affairs, my section also provides legal advice with respect to the administration of part I of the Judges Act and related matters. Those are the provisions relating to compensation and benefits of the Superior Court judiciary in Canada.

As director of judicial affairs, I support and provide advice to the deputy minister and minister on all major judicial policy and legal issues, particularly as they arise in the parliamentary and cabinet context. The judicial affairs section is responsible for the development and coordination of all legislative policy initiatives, including amendments to the Judges Act. My section develops policy and coordinates all government input into compensation and other issues having financial implications for the government. We prepare all necessary cabinet documentation and supporting materials and we provide legislative drafting instructions on all new and amended legislation.

One of the key roles my section plays for the department and for the government is in relation to the Judicial Compensation and Benefits Commission. I and senior litigation counsel, the deputy ADAG for civil litigation, are responsible for developing the government submission to the quadrennial commission and all aspects of that process before the commission.

Once the commission has reported, my section supports the Minister of Justice in responding and implementing commission recommendations through the cabinet and parliamentary processes, including before the House of Commons committee and Senate committee and, of course, has appeared at this committee a number of times in relation to those issues.

We also fulfill the policy development function with respect to the other acts governing what we refer as the section 101 courts: the Supreme Court of Canada, the Federal Court, the Federal Court of Appeal, Tax Court, Court Martial Appeal Court, and all related subordinate legislation. For example, we were responsible for the development of the policy and implementation of the Courts Administration Service Act in 2003. That services the section 101 courts other than the Supreme Court of Canada.

We have a number of other liaison functions with major judicial organizations, for example. We are involved in all major litigation that involves the judiciary in any way, up to the Supreme Court of Canada, so we would be instructing clients, if you like, to counsel in relation to cases such as the P.E.I. judges case and Bodner, which members are familiar with, I know.

That's a brief snapshot of what my section does, and what I do. I'll now explain what we don't do in the judicial affairs section, and that may help you appreciate why I may not be particularly helpful to the committee today, although I certainly hope I can be in some respects.

As Mr. Giroux has indicated, for reasons of independence--that is, to put judicial appointments at arm's length from appearance of influence by the chief litigator before our courts, the Department of Justice--the appointments process is administered by the commissioner's office. Neither the Deputy Minister of Justice, nor the judicial affairs section, nor any other official in the Department of Justice has any direct involvement in any aspect of the judicial appointments process. We are involved in neither the establishment nor the operations of the judicial appointments committees.

That said, where requested by the Minister of Justice, we do provide policy support for reforms to the judicial appointments process—as I said, if it has been requested. For example, in judicial affairs, we have provided major policy support to two successive governments, the previous government and the current government, in relation to developing options for reforms to the process changes for appointments to the Supreme Court of Canada. In doing so, we have undertaken comparative work that identifies the elements of the various commission models that are in place in Canada. We have charts that describe, on a comparative basis, the various elements of those processes. I also have material that provides a brief overview of the status of judicial appointments processes in a number of Commonwealth jurisdictions. I would be happy to share that with the committee if that were useful to your work.

That's essentially my overview, Mr. Chairman. I would be happy to answer any questions that I'm able.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Bellis.

Before we go to the next speaker, I want to acknowledge a former member of Parliament, Eric Lowther, and his wife. I know he brought a number of citizens from Calgary to sit in on this particular meeting. I certainly welcome them into the committee room, and I trust that they will find the meeting quite interesting.

Also, I would like to acknowledge that the media is here. The media will be televising the entire process. They have expressed an interest in taping this.

We'll continue on now with Mr. Grammond. You have the floor.

[Prof. Sébastien Grammond, Professor, Faculty of Law, Civil Law Section, University of Ottawa, As an Individual]

Thank you, Mr. Chairman.

My name is Sébastien Grammond, and I am a professor at the University of Ottawa. I will be speaking in both languages. I will essentially be summarizing, in two parts, the document that I had translated and that has been distributed to you.

First, the present system, as it has recently been changed, is unsatisfactory. It does not ensure the appearance of judicial independence.

Second, to correct the situation, Parliament should pass an act to provide a framework for the judicial appointment process.

So my first point is whether judicial independence has any role to play at the stage of the appointment of judges. If you look at case law, you will see that most of the framework or the rules dealing with judicial independence is related to judges once appointed; you should not decrease their salaries, and so on. But I think if you look at the basic principles, you will find it is absolutely necessary for the appointment process itself to be, and to be seen as, free from political interference.

On page 4 of my document, I quote from Chief Justice Lamer of the Supreme Court, who said that one of the goals of judicial independence is the maintenance of public confidence in the impartiality of the judiciary. So in my view, the appointment process, and especially the advisory committees, must be designed to make sure the public does not perceive any bias in the process. And the appointment process should not be used as a means to push for any particular public policy.

To illustrate this, I'll give you an example. It may sound funny, but suppose for one moment the government of the day decided to put a representative from unions on these committees. Unions are quite important, as they represent an important proportion of the working population, so it's quite important that a large sector of the population be represented in the judicial appointment process. Now, of course, you would say that's not fair, because unions are usually pushing for one set of interests, and that if one wanted to have a balanced process, management should at least be represented as well. But apart from that, I think the basic problem with such an approach is that you should not view the appointment process as giving specific voice to particular interest groups, such as unions or management or—and you will see where I'm going with this—the police.

So I think it should be made clear that people who sit on the judicial appointment committees are not there to represent any particular constituency.

The second point I would like to raise is that it seems to me the judicial appointment process should be provided for by law. As we have seen in recent years, the composition of the committees has been altered without the judicial community being consulted. Among other things, that has given rise to the kind of problems I have just outlined. To afford greater stability and transparency in the process, I believe it would be desirable for an act to state the main parameters of the system, rather than leave that to the minister's discretion, as is currently the case.

You will say that what I am proposing is impossible because of section 96 of the Constitution, which states that judges are appointed by the Governor General, thus by Cabinet. You must clearly understand the exact scope of section 96, which states the level of government that has the power to appoint superior court judges.

Let's look at the history of section 96 to determine the desired aims of the Fathers of Confederation. Those aims are of two types: first, to guarantee judicial independence and, second, to ensure the creation of a unified judicial system based on the British courts model, thus a judicial system that would have authority to rule on matters falling within the purview of federal and provincial statutes. That is not like in the United States, where it is really the state tribunals that decide cases involving state laws and the federal tribunals that have jurisdiction only where a federal act is at issue.

So there is a unified system. Given the unified nature of the system, it was said that the jurisdiction of those courts would be shared, if you will. The establishment of courts and civil procedure are under provincial jurisdiction. Judicial appointments and compensation are under federal jurisdiction. However, there is absolutely nothing in the history of section 96 or in the aims I have just mentioned that specifically states that this is a discretionary authority reserved for Cabinet and that Parliament has no authority to pass framework legislation for the process.

I note that Parliament has, in actual fact, passed such legislation, because section 3 of the Judges Act states that only persons who have 10 years' experience as members of the bar may be appointed judges. However, that limit does not appear in the text of section 96. Either this is invalid, or we must conclude that Parliament does indeed have authority to oversee the appointment process. I would simply add that all this is compatible with our structure of government, in which there is a very distinct separation of powers between the executive and legislative branches, on the one hand, and the judicial branch, on the other, but no separation between Parliament and the executive, at least no constitutional separation.

In our country, unlike the United States and France, where the executive has its own powers which Parliament cannot touch, the executive is generally considered subordinate to Parliament. An act providing a framework for the judicial appointment process would thus violate no constitutional principle and would be compatible with section 96 of the Constitution.

I'll just make some brief remarks now about what this statute should contain. There are models available elsewhere, and I don't want to go into the details, but in my mind there are two main features this statute should contain.

First, the law should set out what the membership of these committees would be. I think we should make sure that not all members are selected by the same appointing authority. At present, it seems to me—if you take into account the fact that the presiding member does not, under most circumstances, have a right to vote—the Minister of Justice has the power to appoint a majority of committee members. I think this should not be the case. You should distribute the authority to appoint, including possibly by ensuring more provincial involvement, to make sure these committees represent a broad cross-section of opinion and are not just a means for the minister to make his or her views known in the process.

The second thing that's crucial is the method of implementation of the recommendations. At present, the work product of the committees, if I may say, is a simple recommendation. The minister is not bound to recommend any particular person, and given the number of people who are recommended, the minister may select from a quite large pool of people.

Contrast this with the process in Ontario, where the law says the committees must give the minister a list of two or more people for each particular position who should be appointed. So that restricts the discretion of the minister much more. And contrast this with the example of the reform of the appointment process in Britain, where the list is very short—it's one name. The Lord Chancellor, who formally appoints the judges, has almost no discretion to refuse. The only case where he can refuse is where he has problems with the merits or competence of the person.

If you adopted a system like that, it would go a great length towards reducing partisan influence over the judicial appointments process.

Those, briefly, were my suggestions for the reform of the process.

I am available to answer your questions.

Thank you, Mr. Chairman.

[The Chair, Conservative, Art Hanger]

Thank you, sir.

Mr. Russell.

[Prof. Peter Russell, Professor, Department of Political Science, University of Toronto, As an Individual]

Thank you, Mr. Chairman. I'll speak in English.

I'm a professor who's spent a good part of my life studying how judges are appointed in Canada and elsewhere in the world. I've always been interested in improving a process. I have been following with great interest the discussion of the current government's changes in the federal appointing system. I've come here today to put 10 points before you. I put them in the press earlier, and I'll elaborate on them, because I think they may help clarify what's at issue here today.

My first point is that in terms of patronage appointments to the judiciary, there's nothing to choose between the Mulroney Conservative governments and the Martin and Chrétien Liberal governments. They all gave--wait for it, here it comes--undue influence to political considerations in making judicial appointments. The political considerations of those three governments had more to do with party and personal connections than with ideology.

I think Canadians are very tired of the two parties, Conservatives and Liberals, both saying, “You think we're bad? They were just as bad.” I think that is just breeding cynicism among Canadian citizens.

I'm here today--and I support very much my colleague, Professor Grammond--to plead with you not to bring your partisan biting at each other into the consideration of how judges should be selected. There's been far too much partisanship in this process in the past.

My second point is that appointing lawyers who've been involved in politics is not necessarily a bad thing. Just because you've been in politics doesn't mean you won't make a good judge. You might make a terrific judge. It is only when political or ideological considerations outweigh considerations of professional legal ability that it is wrong. That's my second point.

Third, the advisory committee system, which was introduced, as Mr. Giroux told us, in 1988 at the federal level, permitted the undue influence of political favouritism to continue. It was really a camouflage system, and here's how it worked.

The committee received lists of candidates who met the requirements of 10 years' professional experience. They would then indicate--the committees would have a long list--which of the candidates on the list were highly recommended--really good, terrific, the A-list, tops, all-stars, really good--and then they would have others who were simply recommended.

Any person listening to that would say, “Well, surely the government would appoint the highly recommended.” No. Very often those who were simply recommended, who weren't as good in terms of the assessment committees--five people and then seven people assessed them as not as good as others on the minister's list--got appointed.

A number of us studied this process very carefully. They went over the highly recommended down to the recommended in order to appoint their political friends, playing politics with who gets to be a judge in the federal system of Canada, the superior courts of the provinces and territories and the federal courts. I think that's just shameful. I'm ashamed of it as a Canadian.

Fourth, in November 2005--not so long ago, just before the last federal election--a subcommittee of this committee that had been working on this very topic for many months and had heard many witnesses' public submissions, that had worked hard on it, had studied it, reached a consensus. Some of you were on that. I recognize some of your faces. The committee reached a consensus that the advisory committee should be reformed. By the way, part of that consensus was from members who are now in the government, including Mr. Toews.

The committee system should be reformed to provide the Minister of Justice with a short list--Professor Grammond's key point--of three to five of the persons assessed to be--and here I quote--“the best suited” for a particular judicial opening. They would send a short list of the very best; that's all. The sin of the long list would be discarded. It's the sin of the long lists that permits political favouritism to have undue influence. Unfortunately, the committee had just got to that point when the election ensued, so it never completed its final report.

Fifth is that the reform called for by the parliamentary committee I just referred to would bring the federal system of appointing judges in line with reforms of provincial appointing systems. Most of the provinces some years ago established--I might add to what Mr. Grammond said--by statute, balanced, independent bodies to assess candidates for judicial office and submit short lists of the best qualified candidates to government. I was the chair of the first of those committees in Ontario.

Ironically, this means that the judges of the so-called lower provincial courts are selected through a more rigorous merit system than judges of the provincial and territorial superior courts, who are appointed by the federal government. Some people who didn't make the cut in our provincial system were appointed federally because of their political ties to government. I'm ashamed of that.

Sixth, the reforms recently introduced by the federal government have weakened an already faulty federal system. The worst thing they have done is remove the advisory committee's function of identifying who are the best candidates, who are the highly qualified. If you have a committee working to advise you on the candidates, surely that's the advice you want. Taking that away renders the committees, whatever their membership, virtually useless.

Seventh, the Conservative government reforms have weakened the capacity of the committees to assess qualifications by taking voting power on the committees away from one judicial member, the judge. In my experience as a layperson chair at one of these committees at the provincial level, the judicial member is very often the very best-informed person on the needs of the court--the kinds of skills and specializations we are looking for, and the professional ability of the candidate.

I was glad to hear from Mr. Giroux that in the case of a tie the judge can cast a deciding vote. But I can tell you, having been on these committees, it's much better when you work hard to get a consensus rather than having a vote of four to three, or four to four. Then you're going to be recommending people who half the committee don't think will make good judges. Do we really need that? Do we really want that in Canada? I hope not.

Eighth, the addition to the committee of persons with police backgrounds, restructuring the committee so that four federal government appointees form the majority, and the Prime Minister's statements that he wants judges who will be “tougher on crime” all point in the direction of transforming the committees into ideological certifying bodies rather than bodies responsible for identifying the most qualified candidates for the judiciary. This shift to ideological assessment is particularly threatening to judicial independence in considering the promotion of judges who might well come to believe that their chances for promotion in the federal judiciary are diminished if they do not apply criminal law in the tough way that the majority on the advisory committees are looking for.

Ninth, what appear to be the Conservative government's main concerns in selecting judges have little relevance to many of the judicial positions that federal government fills; they're mostly about crime. Most of the work of the Federal Court, the Tax Court, and the provincial superior courts involves the conduct of civil trials, requiring high levels of competence in such matters as torts, contracts, intellectual property, taxation, and administrative law. Less than 2% of the criminal cases in Canada are tried in these provincial superior courts, yet that's what the emphasis seems to be on--a very marginal criterion in looking for people who are tough on crime and from the police community.

My final point is that changes made by the Conservative government in appointing the federal judiciary constitute a move to Americanize the Canadian judicial system, without the checks and balances that operate at the federal level in the U.S.

Like American presidents, Prime Minister Harper plans to appoint judges who will serve his party's ideology, but these selections will not be subject to public review and confirmation by a legislative body like the U.S. Senate. The Senate judiciary committee's examination of presidential nominees usually assures that candidates chosen for their political views meet reasonably high standards of political competence. There is no such check, balance, or public accountability in the Canadian federal system of appointing judges.

To sum up, the new system of appointing judges being instituted by the present government abandons consensus proposals for reform recently put forward by a parliamentary subcommittee of this committee and moves us away from a merit selection process toward an American emphasis on ideological considerations without the checks and balances of the U.S. system. Such a change should not proceed further without being carefully examined and approved by Parliament.

I'm very pleased that Mr. Ménard's motion was supported by the justice committee and that the government's changes to the system of selecting the federal judiciary will receive close scrutiny by Parliament, as they should.

Thank you very much.

[The Chair, Conservative, Art Hanger]

Thank you, Professor Russell.

Now, from the Canadian Bar Association, we have Mr. J. Parker MacCarthy.

[J. Parker MacCarthy, Président, Canadian Bar Association]

Mr. Chair and honourable members, thank you for the invitation to address you today concerning the federal judicial appointment process in my capacity as president of the Canadian Bar Association. I am a practising lawyer. I live and practise on Vancouver Island in British Columbia.

Canadians want to know that when they appear in court, the judge is going to be impartial. That means impartial between the parties and also impartial about any government interest in the case. In other words, the public must have confidence that when its case is decided, judges are not factoring in how the outcome furthers or hinders the agenda of the government of the day.

The Canadian Bar Association's approach to judicial appointments is anchored in the principles of independence, transparency, and merit. We have long espoused this approach. For example, a resolution we adopted in 1957 states that judges should be appointed from leading members of the profession, without regard for political affiliation.

The CBA's McKelvey report on judicial appointments in 1985 provided a road map to how political influence in the judicial appointments process may be curtailed. The landmark report recommended the establishment of a judicial advisory committee process with safeguards to ensure appointments are depoliticized and based on merit. The approach was adopted by the Mulroney government in 1988.

Let me be perfectly clear about the distinction between partisanship in the judicial appointment process and judicial candidates' being involved in political activities. This is a theme that Professor Russell has just touched upon. Involvement in politics should not exclude a person from consideration for appointments. On the contrary, such involvement shows a commitment to community and country. However, recommendations for judicial appointment must not be based on partisan considerations. To this end, the Canadian Bar Association has recommended a two-year cooling-off period before those who have been active in politics are considered for judicial appointment.

The record shows that the CBA has worked with governments of all political persuasions to make improvements to the judicial appointment process. You can understand our extreme disappointment that the changes announced in November came without consulting those familiar with the process. It was all the more surprising as the advisory process has worked reasonably well. It was not perfect, being after all a human endeavour, but the arbitrary fashion in which the recent changes were introduced has serious implications for the way Canadians view the fairness of the system.

Let me turn away from the way the changes were announced to the impact of the changes themselves. First, we agree that the staggered terms for the judicial advisory committees could improve the system, although we believe a better approach would be to stagger the term of individual members of each committee to ensure continuity. Second, we welcome a special advisory committee for appointments to the Tax Court, although we believe the committee should include members nominated by legal organizations with tax expertise. However, the other changes lead to a perception of partisan considerations being brought into the deliberations. This undermines the basic purpose of the committees, namely, to ensure appointment of the best qualified candidates. We believe these changes should be reversed.

Let me outline three serious flaws.

First, our association is concerned about the designation of a representative from any specific community that could be perceived as being more in the interests of the outcome of judicial decisions than in the character of those appointed to the bench. The committee's role is to assess the merit of judicial candidates in an impartial manner. We recognize the importance of including community members on the committees to gain their perspective on the administration of justice. For that same reason, our legal system includes trials by juries of peers. However, members should not be added for the purpose of diluting the voice of lawyers and judges. This makes no more sense than reducing the role of lawyers and judges at trials just because there's a jury. It fundamentally misconceives their role.

On judicial advisory committees, lawyers bring knowledge of the pool of candidates, and judges bring knowledge of the qualities required of judges and the needs of their particular court. Judges and lawyers do not seek candidates who will prejudge particular issues or bring a particular bias to the bench. Including a representative of a special interest group could lead to the conclusion that candidates are assessed on criteria related to that group's interest, rather than solely on merit. In our view, the minister's three at-large appointments provide ample scope for community perspective.

The second flaw is removing the judge's vote except in the case of a tie, combined with the addition of an eighth member to the committee. This appears to stack the deck in favour of the minister and risks politicizing the process and creating the opportunity for patronage appointments.

Third, we recommend that the category of “highly recommended” be reinstated. Our view is that a list of exceptional candidates provided by the committees can be an added check on the influence of partisanship. If the designation is being applied in an inconsistent manner, then guidelines are the appropriate solution.

A 2006 opinion poll by Canada's Leger Marketing showed that in terms of respect, judges ranked near the top of the Canadian professions. Canadian jurisprudence is cited regularly by American, British, South African, Israeli, and Australian courts. I see these as positive signs of respect. They are a tribute to the calibre of the judges now on the bench, their independence, and their commitment to the rule of law. Obviously anything that creates a perception of compromising judicial independence will place the integrity of the Canadian legal system at risk.

Any person appearing before a federally appointed judge deserves to have confidence that the judge is qualified and will be impartial. This is a fundamental tenet of our democracy and a constitutional requirement. Accordingly, relations between the government that appoints the judges and the judges themselves must be depoliticized. This means the government cannot put political pressure upon the judiciary, nor can it be seen to have done so.

In conclusion, the recent changes to the appointment process mostly do not serve Canada well. We urge this committee to recommend that the changes to the appointment process, listed in the letter we have sent to the committee and distributed to you, be reversed.

Thank you. I'd be very pleased to answer any questions the committee members may have.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. MacCarthy.

Now to the committee members.

Ms. Jennings, you're first on the list.

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

Thank you, Chair, and thank you all for your presentations.

I have to say that as a lawyer I share your preoccupation about the changes that have been brought to the system of selection of judges, both on the side of the process and on the side of the composition of the actual committees. My concerns and those of my party are that with the changes that have been brought, we have actually stepped back in time in terms of ensuring the process, which has been developing for two decades now, of putting into place a system of nomination of judges at the federal level that was as independent, impartial, and transparent as possible so that, as the mores of society evolved and society demanded higher standards, it could bring in changes to meet those higher standards.

Mr. Russell, you talked about the work of the subcommittee of the previous committee of justice under the previous government, and the work that it was going towards, which would have in fact met higher standards.

With that as a base, I'd like to know from you, Mr. Giroux--because you talked about a code of ethics that was put into place in 2005, if I'm not mistaken, for the members--whether under that code of ethics a recent appointment to the JAC for Alberta, appointed in January 2007 by Minister Nicholson, named Gerald Chipeur, a Calgary lawyer....

My understanding is that he represented the Conservative Party just recently in the nomination challenge against member of Parliament Rob Anders; he registered as a lobbyist on February 20, 2007, to represent the Canadian Association of Police Boards for the creation of the centre to address Internet cybercrime; and he has registered to lobby Justice Canada, the PMO, MPs, the Senate of Canada, and a host of government departments like Public Safety and Emergency Preparedness Canada, Foreign Affairs and International Trade, National Defence, and the RCMP.

Would your code of ethics allow for someone who is registered as a lobbyist and who represents the party that is the governing party to sit on a JAC?

[Marc Giroux]

Thank you, Madame Jennings.

I'll just give a little bit of background on the code of ethics. It was adopted in 2005 following a meeting with the then minister and the chairs of the advisory committees across the country. It was prepared in consultation with the chairs, adopted then, and posted on our website at that time. There are also guidelines for judicial advisory committees, which existed before, and which were also posted in 2005. The minister then asked us to post both documents on the website.

I want to be clear that the code of ethics, which was adopted by the minister and was accepted by the successive ministers since then, does not deal specifically with the issue of the lobbyists. There are a few matters, which I will point to, that are dealt with by code of ethics. One is that a member of committee must show discretion and neutrality, and no questions concerning a candidate's political views or political affiliation are to be raised during committee deliberations. If a candidate for the bench has been active in a political party, no inference, either favourable or unfavourable, should be drawn from that.

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

I am going to interrupt you. I'm talking about the members of the judicial advisory committees, not candidates for judicial appointment.

[Marc Giroux]

I'm also referring to the code of ethics for members of the committees.

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

Okay.

Is there anything in the code of ethics that was adopted by the Minister of Justice in 2005 and by the judicial advisory committees that would require Gerald Chipeur, who is a lawyer and who sits on the JAC...?

Yes?

[The Chair, Conservative, Art Hanger]

There is a point of order, Ms. Jennings.

Go ahead, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

I have two points. One is that I don't know if it's appropriate for us to be considering individual cases. And second, if Ms. Jennings wants to go down that road of considering individual cases, and if you think that's appropriate, then we can certainly do that all day long, all week long, on the previous government.

It's up to you, Chair, but I don't think it's appropriate to be asking the panel about specific individuals on the JACs or about appointments or otherwise.

[The Chair, Conservative, Art Hanger]

I would ask the witness to continue his explanation of the specific point that Ms. Jennings just put forward.

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

My question is about the nature of the code of ethics.

[The Chair, Conservative, Art Hanger]

I think the committee understands, yes.

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

Yes, thank you.

[The Chair, Conservative, Art Hanger]

Speak to the code of ethics, if you would, Mr. Giroux.

[Marc Giroux]

I won't make any special reference to the particular member. I will only paraphrase the code of ethics in saying that it was, as I said, adopted then by the minister. We published it.

There are two matters that may interest the members of this committee. One is that generally a member of the judicial advisory committee must remain neutral and not draw any favourable or unfavourable inference from a candidate being active in politics. The other is that a member of the committee shall not receive an advantage or a reward or anything with regard to their participation in the committee work.

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

Thank you.

My other question is for any of the witnesses.

Given your preoccupation with the changes to the actual composition and role of the JACs by the Conservative government, do you think there is a real chance that challenges could be made by parties in the future, with respect to judges who have been or will be appointed under this new system, concerning the lack of independence and impartiality of those judges, given the process that the current government has put into place? And could that actually call into question the very constitutionality of our judicial system?