Justice Committee on March 20th, 2007

[Prof. Peter Russell]

What I said I'm very unhappy about is the whole idea that these advisory committees are going to be kind of partisan, adversarial things in which a vote of four to three.... Imagine a vote of four federal government appointments against three. There won't be any role for the judge at all. He can't make a tie. So there you have a person being recommended for judicial appointment because four governmental appointees on the advisory committee think the person's all right, when the other three, including the provincial representative—and remember, most of these judges are going to serve in the provincial superior courts—don't think this person should be a judge.

To have a four to three vote.... I can tell you, having chaired the Ontario advisory committee through a number of years, that we just struggled and struggled to get consensus. By the way, that took a lot of work, and it also meant interviewing and discussing what we learned in the interviews, and all kinds of references. We took the job very seriously. I just think it's a pity to reduce this to saying, they've got all these names, and four people vote this way, and three vote the other way, and if there's a tie--I guess someone's sick or away and it's three-three--the judge can throw in the judge's vote. I think that's a travesty of how these committees should appoint them.

You don't have to reinvent any wheels. The provinces have been doing this for over a decade, and the results are tremendous. They are producing very fine provincial judiciaries. If Canadians hear that they can't have the same merit system at the federal level for the higher courts as they have at the provincial level--and they never will, because for most of them, their eyes just glaze over on this topic--I think they'll be disgusted.

[J. Parker MacCarthy]

I've spoken with several people who have served on the judicial advisory committees, and I don't think I've been told by any of them that the model utilized in the selection process is based on anything other than consensus. So the committees do struggle to come up with a consensus approach, or that has been the historical format.

I think that perhaps the difficult message, or perhaps the unsettling message, that is being given by putting emphasis on voting or on the removal of a vote from a judicial member is that what we are moving towards is a system in which voting will trump consensus. That is not the type of system that will see the best qualified candidates being recommended to the minister for appointment.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Thank you. How do you interpret the fact that the Conservative Party has changed the procedure without consulting you in any way?

[J. Parker MacCarthy]

The protocol has always been a broad-based consensus amongst those who have invested a great deal of time and resources into the process. That's the judiciary, the Canadian Bar Association's branches, the law societies, and also the ministers of justice or attorneys general in each province.

We were not consulted on this matter in a timely or meaningful manner. That is unfortunate, because we had some ideas and I think we could have brought a perspective to the process before the decision was announced.

[The Chair, Conservative, Art Hanger]

Go ahead, Mr. Russell.

[Prof. Peter Russell]

To me it's very unfortunate. The subcommittee worked on this for many months. They had submissions, not just from lawyers and judges--they certainly had that--but from people who aren't lawyers and judges but have a lot of experience and interest in how to choose good judges. The committee worked very hard. It considered a whole lot of ideas. It developed an approach. To just say, well, forget about all that, we're just going to do it this way, I think is not respectful of the parliamentary process.

I'm so pleased this committee is back and it is seized of the matter. I hope you will look at the report, from November 2005, of the previous subcommittee. I think it has a lot of merit.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Freeman.

Mr. Brown.

[Patrick Brown, Conservative, Barrie, ON]

Thank you, Mr. Chairman.

I have given some thought to this, and I was discussing it with some constituents last week. I had a group from our local MADD chapter come in to discuss the topic of the judicial advisory committees. They had always assumed that police would have a role in the selection process. They were shocked to hear this balance wasn't there. That was the word they used: “balance”. They're certainly supportive of the new initiatives. I think that's what these changes bring: a sense of balance.

I also heard, why a representative of police and not unions? Well, if you're putting together a hockey team, you're going to involve hockey players; you probably wouldn't pick a basketball player, a football player, or a politician for that matter. When we're dealing with justice issues, we should involve those people who deal with the administration of justice. It could be lawyers; it could be judges. It should certainly be police officers. To suggest they do not have a role in justice, I think, is short-sighted.

I too was a bit surprised in hearing comments today that the judicial advisory process was merit-based, was taken seriously, because the inference there is that it's not going to be merit-based, that it's not going to be taken seriously. I think those comments would certainly be degrading to the representatives of police who are going to be involved in this process, because I am certain they would take it seriously and that it would be merit-based.

I have a few other things to go through, but that's something I'd like to get some comment on. How, in any fashion, would involving a police representative take away from it being merit-based? Would you seriously suggest to this committee that a police officer wouldn't make his advice on a merit-based process?

There was some reference--and I'm glad Mr. Russell clarified it--that a police representative would not be a special interest. I appreciate that. I thought we went down the wrong track when we began this hearing by suggesting that. We're always going to get different perspectives. I think all the groups involved in the judicial advisory committee bring good things to it. You can always look for small faults, but at the end of the day they all represent different sides of the justice system and they provide valuable advice.

I agree with the assessment of Mr. Moore that there's no difference in getting input from a representative of police than there would be from the Canadian Bar Association. There are obviously going to be different perspectives.

Mr. MacCarthy, I have a quick question for you. You mentioned the cooling-off period. Would you suggest a similar cooling-off period for members of the Canadian Bar Association who have a role in this process?

[J. Parker MacCarthy]

Under the code for the committees, they have a one-year period whereby, if you are serving on the committee, you cannot then be a candidate and be considered by the committee.

[Patrick Brown, Conservative, Barrie, ON]

That's good, because I looked at the different groups when I was preparing for the meeting today. I looked at the Canadian Bar Association website and noticed that on December 18 there was a press release, issued by you, bringing in Kevin Carroll as second vice-president. Certainly it's good to have him in the leadership of the Canadian Bar Association, but he's very active within a political party and has a set of beliefs that would be different from a police representative.

In the different leaderships and the different dynamics involved in the various groups, you're going to get different perspectives. I would never hold it against the Canadian Bar Association. Certainly no one should hold it against the police union that they have different viewpoints, but there are different viewpoints. Mr. Russell has made it clear that there are some different overall generalities.

I think we lose the balance if we say we're only going to get input from the Canadian Bar Association and we're not going to get input from police representatives. It would be like putting together a hockey team without a goalie. You need all parts. It would be like throwing a football player a net and saying.... That would be a tangible analogy to saying you should have a representative of a union, but not of police. The police are part of the administration of justice.

Perhaps I could get some comment on why they would not take it seriously and make merit-based selections--or if that was not what was meant when it was suggested.

[J. Parker MacCarthy]

I think we have to be very concerned about the messaging or perception that Canadians will hold when we move to people such as the police in what the committees are now looking for. The risk is undermining the credibility of the system, where you may have a perception of some bias coming into the process.

I can tell you that the people who are recommended and serve from the Canadian Bar Association are not tied to the Canadian Bar Association. We simply put forward names for the minister to select from, and these people then consult broadly with the profession about candidates on a confidential basis. They don't come back to the Canadian Bar Association, as an organization, asking for direction on who should be appointed; that's not the process.

We have to be careful in the balancing and structure of these committees that we give a sense that they are adhering to a higher calling that puts ideology, partisanship, or a specific interest in outcomes at trial aside to make sure the best possible candidates are recommended for appointment by the Minister of Justice.

[The Chair, Conservative, Art Hanger]

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Giroux, can you confirm that under the old system, before these dramatic changes, police could be appointed to any of the three positions the minister had the ability to appoint?

[Marc Giroux]

They were the minister's nominees, and the minister could appoint whoever he or she deemed--

[Larry Bagnell, Liberal, Yukon, YT]

Right. So they could have appointed three police officers under the old system.

Thanks to everyone for coming.

For the press, I think Mr. Russell and Mr. MacCarthy really outlined comprehensively the reasons that this side of the House, the majority of parliamentarians, and many of the press and legal experts in Canada condemn these changes to the system.

To Ms. Bellis, in the justice committee we've had other examples of bills from this government. In the normal process of coming up with bills and policy changes, the department quite often recommends these changes. We had bills that, much to our astonishment, the Department of Justice couldn't even recommend. They didn't come from them; they came from the top down. I assume this is the same, and none of these dramatic changes were recommended by the Department of Justice to the minister.

[Judith Bellis]

I can't say what advice the minister may or may not have received about these changes. My section was not asked to provide advice.

[Larry Bagnell, Liberal, Yukon, YT]

Okay. That's what we assumed.

Mr. Grammond, although I think we all believe this affects the independence of the judiciary, you've said it was more traditionally other things that were important in keeping the judiciary independent, including wages. But we had a case in which an independent committee recommended wages. The government had decided that judges were going to get the wages, and all of a sudden a new government came in and retracted that. So I would assume that this would be a movement against the independence of the judiciary and it would not give confidence to the public about the independence of the judiciary.

[Prof. Sébastien Grammond]

Oh, you mean the fact that the recommendations of the wages committee were not put in place or were not implemented.

[Larry Bagnell, Liberal, Yukon, YT]

That was what the government had originally recommended. A new government came in and actually reduced the wages of judges.

[Prof. Sébastien Grammond]

Yes.

I have not inquired into this matter fully, but I can tell you that under the guidelines set by the Supreme Court in the P.E.I. reference, the idea is that the government should implement the recommendations of the committee, unless it gives reasons for not doing so or for doing so partially, and then this decision can be contested. For example, in Quebec courts, decisions of the government not to give effect to wage recommendations have been contested and in some cases have been found to be inconsistent with judicial independence.

So that's the way it works.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

We'll go to Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

Thanks for being here.

Mr. Russell, you and I will probably have a conversation, and taking a look at you, I think you and I have bounced around this world for about the same amount of time and have experienced a lot of different things.

I'll quickly relate something to you. There was a board of eight people--two farmers, a bar owner, a hotel manager, an auto mechanic, an auto dealership owner, an ex-school teacher, and a retired police officer. They interviewed this guy to find out how he would manage a situation that required a lot of judging and a lot of controlling and looking after a situation. They wanted this individual to run a tight ship--in other words, to be tough on crime.

Being tough on crime isn't a bad thing. Crime is a bad thing. I think we should be tough on bad things. That statement doesn't bother me. I think that could come from people from most any walk of life. In fact, if you look around the country of Canada, you'll find citizens all over who are saying, for Pete's sake, get tough on these guys.

I've talked to a lot of lawyers who tell me that they actually have had clients who judge-shop. They know who tends to be more lenient and who tends to be more difficult, or harder, so they judge-shop. They postpone hearings to wait for the right judge.

I think all that's a bunch of nonsense. I think you have to get some consistency in fighting crime. And that aspect of sitting on the bench and making decisions has to come, in my view and I believe in the view of millions of Canadians, in a system that says that crime is bad and has to be dealt with--crimes at all levels.

This guy went through his interview, and he proposed the 4-F system: if you give me this position I'll be fair, I'll be fast--I won't waste time, I won't take forever to deal with the situation--I'll be firm, and the decision will be final. That individual convinced these board members that he should be the man for the job. That was me, when they appointed me principal of a high school.

Believe it or not, when you're a principal of a high school, you sit in a judging position. You have to make decisions. You have to be firm. You have to be fair. At the end of a year, checks and balances, which you mentioned, were always there. How did you perform? How are you doing? I guess I did okay, because I was there for 15 years. And I agree with checks and balances.

Now, in the States, you've said, there is a system of checks and balances that runs through the Senate committees and what not. Would a system of checks and balances, in your view, be an answer to the judges, who have a responsibility to run a system for the benefit of our society, and would that require some serious democratic reforms?

[Prof. Peter Russell]

I'll just deal with your final question.

I'd be in favour of a legislative confirmation at the highest level, the Supreme Court. I might even be interested in it possibly for courts of appeal. I know that's anathema to a lot of the legal community, but I think those are such important positions, Mr. Thompson, that they should be reviewed, as they are in other countries, by a balanced legislative committee.

But for the trial judges—there are 50 or 60 of those appointments a year, and they're often, for many, first appointments—my experience is that you don't want a lot of exposure to those who are being considered for judicial appointment. If they don't get it, their careers can be badly hurt, their partners can be annoyed, and so on.

When I was chairing the provincial committee that was selecting trial judges, we went out of our way to be absolutely confidential about who had said they would be considered for a judicial appointment. We didn't want to ruin people's careers. We wanted to protect their good names.

That's what most of these positions are about. They're mostly first appointments for lawyers who are in practice. I think a U.S. Senate-style confirmation hearing would not be a good idea for that reason, sir.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Thompson. I'm sorry, this meeting is concluded. It's actually over by five minutes, Mr. Thompson.

I would like to thank the witnesses for appearing today. I believe we've had a pretty thorough discussion. I would like it to continue, and I know the other committee members would. But thank you for your input. It's very much appreciated.

The meeting is adjourned.