Justice Committee on March 20th, 2007

[Prof. Peter Russell]

I have never seen it. As an ideological test, certainly political background has been important, both for the Conservative governments and the Liberal governments. We did an empirical study of the judges appointed under the system, and we found—

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I'm sorry, Professor, but can I interrupt you? Was that study you're referring to just at the federal level, or did you look at the provincial governments?

[Prof. Peter Russell]

The federal level.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Can I ask you to limit it to that? I really want to know if, at the provincial level—

[Prof. Peter Russell]

Oh, I'm sorry.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

—whether it was the Parti Québécois in Quebec, NDP governments in other provinces, or the Liberals or the Conservatives, any government has tried to introduce ideology into the appointments of their screening committees.

[Prof. Peter Russell]

I can say this. In Ontario it's a 13-person committee. I was its first chair. There was a very careful attempt to balance the committee. We did have lay people. If we had someone from business, we also had someone from the labour area. If we had a defence counsel, we also had maybe someone who had Crown experience.

It was difficult to find people who had no background in any area of life. We were looking at citizens who are involved in Canadian life. They all have perspectives from whatever role they play, but there was a very deliberate effort to balance the membership of the committee.

[J. Parker MacCarthy]

I would say that has probably been the British Columbia experience. The committee is much larger and it does in fact interview candidates, which is different, of course, from the federal appointment system.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Again, you hear the comments from the Prime Minister that he is appointing these people, whether they're from victims' rights groups or police representatives, because he wants to be sure that our judges get tough on crime. Have you seen that kind of approach from anybody else, from any premier of any political stripe at the provincial level?

[J. Parker MacCarthy]

I'm not aware of those types of comments being made. There have been, at times, issues taken in various provinces, where issues have arisen concerning the selection process and concerns expressed about overactivity, let's say, by the Minister of Justice, but I would suggest that it's not a common experience.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

I'm certainly more convinced at this point that the government made the right decision on this than I was at the start of this meeting.

To the Canadian Bar Association, you've said that the process in the past has worked reasonably well. Maybe those around the table would agree that it would work reasonably well, and I would suggest that in the future, with the changes that were made to the advisory committee, it will continue to work at least reasonably well.

On that, it's interesting to note that all judicial appointments that have been made so far by the government have been made under the system that was in place under the previous government. I think that's an important point at this point, but I think it's going to be an improved system with a broader spectrum of input. But one of the things that I see developing—and I've never heard this expressed before today, actually—is that the police are somehow a special interest group. I don't think the police are any more of a special interest group than some of the representatives who are already on the judicial advisory committee.

I guess I'll address this to the Canadian Bar Association. The Canadian Bar Association is here today saying that there should not be a police representative. Yet there is a representative from the provincial bodies of the Canadian Bar Association on the judicial advisory committees. Professor Russell has said that the police have a set of attitudes. I would tend to say that it's too broad to put every police officer into one boat.

The comparison was made by Professor Grammond on not having a unionist on here. Well, the people who are on these judicial advisory committees, except those who are selected at large, have an interest in the working of an effective justice system, that Canadians are served by a justice system that they are all participants in.

Where I draw the distinction with the analogy you made is that the police are a part of the justice system, and I think they have an interest in quality judges being selected. I think they have the same interest as the Canadian Bar Association, or the law society, or anyone else has.

I'll use this as an example. I've sat here on the justice committee many times dealing with legislation that previous governments have brought in and dealing with legislation that this government has brought in. The Canadian Bar Association has appeared as a witness and sometimes has given testimony, purporting to represent all lawyers in Canada, that ran counter certainly to my opinion on the legislation--very much behaving, as I would see it, as a special interest group, bringing forward a perspective on a piece of legislation, certainly not being neutral on a piece of legislation. We've also heard representations from police groups.

So I don't think it's fair just to say that the police are somehow a narrow special interest. I see them as players in the justice system, the same as lawyers, the same as judges are, who have a real interest in quality judicial appointments, the same as we all do. Ms. Jennings said that as a lawyer she's concerned. I know the Liberals are mostly concerned because they're not in government, not making these judicial appointments.

I raised the objection to using specific examples. We could do that all day with previous actions of the previous government. But I'm also a lawyer and I'm pleased with this direction.

I'd like to put this to the Canadian Bar Association. Do you honestly see that the police are somehow a special interest group; and if so, are they any more of an interest group than the Canadian Bar Association?

[J. Parker MacCarthy]

I'd be pleased to respond to that.

First of all, putting it into context, for very good public policy reasons we empower our police forces with a whole host of different rights and duties--arrest, seizure, things of that nature. So the court system often oversees the police in terms of the exercise of those duties and responsibilities. So the police are in a very unique position in terms of their relationship with the courts. I think Canadians as a group, respecting police as they do, also want to know there are reasonable limitations being placed on the exercise of those duties and responsibilities. So the relationship of the police with the courts is very unique in Canadian society.

In terms of the Canadian Bar Association's approach, what we do is represent a broad base of lawyers and a broad base of views. When we make submissions to this committee or to any other committee, we are doing that on the basis of policy and consultation with a wide range of people within our organization.

As a former Minister of Justice publicly stated within the last couple of years, when we heard from the Canadian Bar Association, we were concerned about whether we were going to be getting a pat on the back or a slap on the head. We do try to bring a balanced approach, an informed approach, to any submissions we make. We also make sure that we are hearing from a broad base of constituents within our organization before bringing forward recommendations on legislation, whether it be the Competition Act or criminal justice reform.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you for that.

I thank all of the witnesses we have here today for what I think are thoughtful submissions. I agree with you that the police play a unique role in the justice system, and that's part of the reason this government has decided that the police should play a role on the judicial advisory committees. To suggest, as some members opposite have, that this is somehow earth-shattering, I certainly don't see that.

I see in your submission, Mr. Giroux, that you've made mention of some of the changes that have taken place over the years, from “qualified” and “not qualified” to “highly recommended”, “recommended”, and “unable to recommend”. Now it's going to be “recommended” and “not recommended”. There have been other changes made. So this is certainly not the first time that the judicial advisory committees' composition has in fact been changed. I would suggest it's probably not the last time that they'll be changed. I think if they were working reasonably well before, they'll continue to work reasonably well in the future.

Any one of you may want to comment on the fact that, as I see it, the police play a role in the justice system that some of the other parties that were named as special interest groups do not play. The police have a unique role, as has already been mentioned, and it is for that reason we feel they should be included.

At the end of the day, the decision remains, as it always has been, with the minister and with the Governor in Council on the appointment. Now we're hearing from a broader spectrum of individuals who are interested in the justice system and in fact have a vested interest in the working and the success of our justice system.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moore.

I don't know if there's any comment. Monsieur Grammond, go ahead.

[Prof. Sébastien Grammond]

On that point, if there's some time left, we have an adversarial justice system, and the function of a court, of course, is to find the truth. How we go about doing that is that we have two teams, if you will, presenting both sides of the issue--and presenting them in the most vigorous way they can. Believe me, as a former litigation lawyer, I know we push hard for our vision of the truth.

So what happens in a criminal trial is this. There are two views put before the judge, and invariably the police line up behind crown counsel. So from the perspective of the accuser, from the perspective of any member of the public, in the context of the criminal trial the police would not be seen as impartial. They would be seen as part of one of those two teams.

So that's why I said that the police are a special interest group. Perhaps it's not the most accurate description, but I think the idea is there. They push for one vision of the truth, and in that sense they are not impartial.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Drummond. I guess it would be up to the judge then to decide what the truth was.

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chairman.

As a preamble, I'm a bit shocked—dismayed, really—that the parliamentary secretary to the government for justice and the chairman of the justice committee would not realize that there are separate roles for the prosecution, the police officers, the defence lawyers, and the judge. I might recommend to them the learned preamble to the show Law & Order, which says that the criminal justice system is served by two separate and important entities, the police who investigate the crimes.... Anyway, I could write that script. The point is, since we're on television, Mr. Chairman, I thought I'd allude to that.

More seriously, on the question Mr. Moore raised to Mr. MacCarthy about the CBA, I've been a lawyer for 21 years and one month—sitting here, I calculated that—and I've always paid my dues, by the way. I've always been very proud of the CBA. I thought it was an advocacy group; I thought it was a membership group—until I got here. Not that I'm not proud.

What I'm saying is that there have been aspersions cast upon the CBA at this committee on several occasions due to the fact—and I'll be quite blunt with you—that there are section chairs and subsection chairs who often write letters under the same letterhead as yours, the CBA's, who purport, I suppose, if you don't read how it's signed, to represent all the members. Well, they don't. They signed it very clearly as a member of the criminal law subsection.

Today—and it is very important for everybody to pay attention—Mr. MacCarthy is writing a letter and making a submission on behalf of the CBA. So I must ask you, when you make the comments that this does not serve Canada well, to underline briefly for me how it is that you represent the views of the CBA, if you didn't call Mr. Moore to ask him his view on this.

[J. Parker MacCarthy]

We are a democratic organization, but we use a representative system. The highest policy group within our organization is our national council. For lack of a better analogy, it's our Parliament. It has 244 voting members who are elected by the membership from across Canada, and they serve to consider, debate, and pass resolutions that deal with a whole host of topics, including the issue of judicial appointments.

The Canadian Bar Association has been concerned about the judicial appointment process going back to actually the turn of the 20th century. If you read through the McKelvey report—in which Professor Russell had a very big hand, in terms of some of the work that went into that particular report—you can see that we are not latecomers to the process.

In terms of my comfort level in being able to say that what I am doing is representing the views of the Canadian Bar Association, this is through a very diligent process by which we seek consultation and input. Like Parliament, we do not have referenda of all the members on every issue that comes before us, but the record is pretty clear over the years that the view of the Canadian Bar Association is to support transparency in the selection process, and a merit base.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you very much.

Professor Russell, you said you have “barrels of evidence” that suggest police officers have a certain perspective. I might ask, in light of your recommendation number 8, I believe it is, in your brief, whether you are suggesting you're anti-police officer.

I'll expand this to Mr. MacCarthy if there is time.

It has been suggested on the floor of the House of Commons by the Minister of Justice—a Queen's Counsel, an honourable man, in fact—Mr. Nicholson, that anybody who is against this step is anti-police officer. Are you, Professor Russell, anti-police officer?

[Prof. Peter Russell]

Not at all, and I would think police officers make good members of these committees. But to say that is the one group we have to get on these committees and just zero in on them is very foolish. These committees have to assess judges for all kinds of roles. A police officer will certainly bring something valuable to it.

By the way, this “special interest” group talk is just cheap rhetoric. All groups are interest groups. What's special about any of them? That's just a way of insulting all kinds of groups, including police officers and crown counsel. Let's just get that rhetoric out. There are just groups in society. There are no special groups; there are no non-special groups.

Of course police officers could make a contribution, and so could many other kinds of people. It's just that when you zero in on them you seem to be trying to get one general perspective.

And I know there is diversity among police officers. Some of my finest students are police officers, and they have very different attitudes from a lot of the men and women they supervise. But we still know that there's a general pattern. To just stock up these committees with that point of view is a mistake.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Again, Mr. Russell, this is on a different point, but an important one. You said there have been a lot of miscarriages of justice by superior court justices. We know the famous ones, but is it empirically true that because of a lack of perhaps background research on the nominees, there's a connection with the miscarriages of justice? Is the number that large, really?

[Prof. Peter Russell]

I don't know that, but five people spending years and years in jail for crimes they didn't do is five too many. And what it underlines is how important it is to find the very best. That's what I don't hear anyone talking about.

Why do you throw out the role of a committee to advise the government on who is highly qualified? Would you do that anywhere else? Would you do that when you were advising a bank on who should be the president, or a university on who should be professors? In any business, would you say, sure, go out and look at some candidates, and as long as they're okay, then you can recommend them, but don't tell us who the best are? Say you were doing sports, and you were picking your Olympic team, would you say, well, of all the athletes, of all the runners, don't tell us who are best, just have the ones who can run reasonably well?

I think it is really an insult to the Canadian people to say we don't want these committees to tell the government who we think is best. Until you address that, that's way more important than the composition of the committees, because committees are virtually useless—I said that—if they're not advising government on who they think are the best candidates.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Russell.

Ms. Freeman.

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

I would like to thank every member of this committee for the presentation. We know that we are all here to try to see that the judicial appointment process ensures judicial independence.

I have a question for Messrs. Russell and MacCarthy.

How do you interpret the fact that the government is withdrawing the right to vote from judicial representatives on the committees? Because, unless there is a tie, the only person who would not have a right to vote would be the judge.