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.