Evidence of meeting #54 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was judges.
A recording is available from Parliament.
Professor, Faculty of Law, Civil Law Section, University of Ottawa, As an Individual
If I may, Mr. Chairman....
Professor, Faculty of Law, Civil Law Section, University of Ottawa, As an Individual
Thank you.
This is a topic I've touched upon in my paper, on page five. So I think that, yes, although there is no specific requirement at this time in the case law about the appointment process, it's in the nature of case law to evolve over time to respond to new concerns as they arise.
Here, because we haven't seen this sort of giving voice to specific interest groups in the judicial appointment process before, it is highly probable that the courts will be asked to rule about the constitutionality of that.
In my view, it is probable that they will say, like in 1997 with respect to judicial compensation, that they will give guidelines, and these guidelines will have a constitutional basis. So my answer to that would be yes, it is probable.
Conservative
The Chair Conservative Art Hanger
Thank you, Ms. Jennings.
Was there another witness willing to comment on that particular question? That's fine.
We'll go to Monsieur Ménard.
Bloc
Réal Ménard Bloc Hochelaga, QC
I'm going to start with Professor Grammond, whose erudition and teaching ability I am familiar with since he was my professor not long ago. I hope no one will view that as a conflict of interest, since I have no judicial aspirations.
I am interested in page 9 of your brief. Ultimately, the committee wants to know two things. First, why is it not desirable for a particular interest group to have a reserved seat in the consultation process? You seem to be proposing that Parliament itself could ultimately be involved in the appointment process. I would like you to explain to us what you have in mind. We have nothing against police officers or any professionals whatever. That's not what is in question; you clearly state that in your brief. But why is it not desirable to appoint police officers to these committees?
I'd also like Mr. Russell to return to the subject. What is the meaning of the proposal on page 9 of your brief?
Professor, Faculty of Law, Civil Law Section, University of Ottawa, As an Individual
All right. There are two parts.
First, there is the aspect of giving a specific voice to interest groups. I think that judges must appear to be impartial, must be neutral. So they must be selected based on criteria of competence. However, if you give a specific voice to specific interest groups in the appointment process, you give the public the impression that those groups will be able to push to have the judges who are selected be favourable to their specific interests. I think that this is unacceptable, regardless of whether we're talking about police officers or unions. That is why, in the act I am proposing, it should be very clear that the people who are appointed to those committees are not there to represent specific interests. It is clearly understood that any person who is appointed may have worked for such and such a type of group in the past; that's fine. However, it must be said that they are not there to represent interests, to further interests or to verify the judges' ideological conformity, as Professor Russell said.
The second aspect concerns the way of appointing people who would not be representatives of interest groups. I think we should keep the present system, in which associations of jurists, that is the Canadian Bar Association and the provincial bars, can appoint a representative who becomes the voice of the legal community. The Canadian Bar Association does not exist to defend, for example, the interests of unions or those of lawyers; that is a well-known fact.
It is also desirable for appointment committees to have what are called lay members, that is to say non-jurist members, so that the judicial appointment process does not have the appearance of a phenomenon of self-reproduction among jurists.
What is currently done is that the minister, entirely at his discretion, appoints persons who are supposed to represent society at large. Obviously, as Professor Russell said, this process has not eliminated political partisanship. What I am suggesting here is that the lay members, the non-jurist members, be appointed by a resolution of two-thirds of the members of the House of Commons, which would mean that, in the circumstances—
Professor, Faculty of Law, Civil Law Section, University of Ottawa, As an Individual
That could be for each of the committees. I understand that that may entail a considerable amount of work, but the basic idea—perhaps you know of a better way to do this—being that no single political party usually holds a two-thirds majority, and that party would not be able to appoint people on which there was not a consensus.
Bloc
Réal Ménard Bloc Hochelaga, QC
Would you be open to the idea of there being a list of people who are respected in their community for their discretion, their judgment, and are not jurists? The Conseil de la magistrature could have a list of people that would be submitted to Parliament. An entire list would be adopted and the Conseil de la magistrature could distribute those individuals.
Obviously, if we had to vote every time a committee was constituted, that might become a little difficult. We understand your idea. There should be a somewhat more centralized mechanism.
Professor, Faculty of Law, Civil Law Section, University of Ottawa, As an Individual
I agree. As I said, you know better than I how to go about it. Perhaps lists of alternate members should be established every three years so that the matter does not have to go before Parliament again until three more years have elapsed.
Bloc
Réal Ménard Bloc Hochelaga, QC
Would you allow us to check with Mr. Giroux to see whether this idea is valid?
We're putting you in the heat of the action without having considered the matter. I understand the spontaneous nature of Professor Grammond's proposal. You no doubt did not have access to his brief. However, do you think that the idea of preparing a list and of you having to distribute the non-legal members among the committees would work?
Acting Commissioner, Office of the Commissioner for Federal Judicial Affairs
First, I'll start by telling you that we administer the system on the minister's behalf. It is up to the minister to determine how the system should work. We are not really there to make decisions as to how the system should work.
Acting Commissioner, Office of the Commissioner for Federal Judicial Affairs
That said, that's another idea. I think the purpose of considering where the other representatives the minister appoints to the committees come from is, among other things, to ensure a certain balance within the committees. That is the case, for example, if we don't have enough women on one committee or if, on some committee, the Nova Scotia committee, for example, all members are from Halifax and no one comes from the regions. There's also the matter of language that must be respected, and the matter of minorities. In short, then, all that has to be taken into account.
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Ménard.
There is one point of clarification that I would like to seek from the witnesses as well as the committee.
Being a former police officer, when I went through my career as an officer, there was in a way an overview of what happens in a courtroom. You have the defence, the prosecution, the police, and the judge working with one goal in mind: to determine the innocence or guilt of a party. Now I hear words like police are “special interest”, judges are here, prosecutors are there, and there is this huge division developing amongst the so-called team that should be driven by the purpose to find the guilt or innocence of a person.
So are police now considered the special interests in this whole affair of the justice process? I guess I'm at a loss here as to when that happened, but several times I've heard in this committee that now all of a sudden the police are a special interest.
Professor, Department of Political Science, University of Toronto, As an Individual
I'll catch that.
I wouldn't use that term, but we have barrels of evidence of surveys of police officers, as compared with the rest of the public, that they have a set of attitudes generally that have a special focus. They are more likely to want very severe penalties than the average Canadian. They are more likely to find, in particular, young minority accused less credible than are other Canadians. The problem is in taking that particular group and giving them a position on the committees, and this is the point of Mr. Grammond, that it is loading it in one direction.
Let's take another group, defence lawyers. Or let's take the committee for those who have been falsely convicted of crimes. Those groups, call them what you will, are very concerned about the errors courts have often made in convicting people. If you're going to have the police presence there, you should at least have the others.
But I agree very much with Mr. Grammond that once you start doing that.... And look at the kinds of jobs these judges are doing. Very few of them are in the crime area; they're doing tax, they're doing administrative law, they're doing all kinds of stuff. So what are you going to do? You're going to take tax law, you're going to take people from the poverty community, you're going to take big business--are you going to build all these committees around all the different points of view? I think that's a crazy way to select judges.
Conservative
The Chair Conservative Art Hanger
That's an interesting comment, sir.
I'm not going to get into debate with you, although I do have other opinions over the matter. I think that broad, rushed statements, though, really are not effective overall in trying to determine what the best solution is, even for the selection process.
Monsieur Comartin.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you, Mr. Chair, and thanks to all of you for being here, in particular for the written presentations you've made.
Professor Russell, I want to follow up on your final point about the percentage of cases that are in fact in front of these courts that are of a criminal law in nature. You used the percentage of 2%, and Mr. MacCarthy, you used 5%. I'm going to ask both of you where you got that from.
Mr. MacCarthy, in particular, I'm assuming you got yours from your chief justice, who went public with those figures three or four weeks ago. Am I correct on that?
Président, Canadian Bar Association
That's correct.
It varies throughout Canada in different jurisdictions. For example, in Prince Edward Island the provincial court does essentially all of the major criminal work. That's where it's done. So each jurisdiction will have variations, and the figures are anywhere from probably 2% to 5%, something in that range. The interesting point, then, again arises of what is the amount of time that it takes. That's what the courts are utilizing. So there is a variation across Canada.
Professor, Department of Political Science, University of Toronto, As an Individual
My figure is from the Canadian Centre for Justice Statistics and an article written by two criminologists, including Cheryl Webster, from your university, and Anthony Doob. It was published in The Criminal Law Quarterly some years ago and will be in a book that I have edited, called The Trial Courts of Canada, which will be coming out. I've just finished delivering the page proofs. Theirs will be chapter 3, and they show that over 98% of the criminal matters are now dealt with by the provincial courts.
However, to support a point you've just made, Mr. MacCarthy, the criminal work of the superior courts is still important. That work is mostly in homicide cases and jury trials. Outside of Quebec, jury trials and homicide cases must be dealt with in a superior court.
Though they're not a large percentage, they're often long and they're very serious cases. They're cases in which I'm very uncomfortable that those picking the judges are specifically choosing them, from the federal government's point of view, to be tough on crime and to have that point of view. We have had a lot of terrible miscarriages of justice in those criminal murder trials in Canada.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Mr. Giroux, on the promotion of provincial court judges to the superior courts, do you have any absolute numbers or percentages? How many of the provincial court judges are moved up to the superior court?
Acting Commissioner, Office of the Commissioner for Federal Judicial Affairs
Mr. Comartin, I don't have those numbers, but I could get them for you. You are aware of the process by which provincial court judges are assessed. They are not given a rank, if you will, of “recommend” or “unable to recommend”, but their candidacies are provided to the minister with comment by the committees.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Professor Russell and Professor Grammond, let me put two things to you, and perhaps you as well, Mr. MacCarthy. In terms of the approach taken by this government—that we have to get tough on crime—have any of you seen at the provincial level any other government that has tried to make appointments to the selection committees or the screening committees, in terms of introducing an ideological element to the appointment of those? Has any government of any political stripe done that?
