Justice Committee on March 28th, 2007

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

My question to you is, if you are now on—Law enforcement is now there, and there was no prior consultation. If in three years' time the government, in its wisdom and with no prior consultation, decides that they're going to remove law enforcement, will you not be complaining, saying we should have been consulted, as should all of the other members?

[The Chair, Conservative, Art Hanger]

Mr. Cannavino.

[Tony Cannavino]

I don't know whether I should answer a hypothetical question, but I would say that I'm pretty sure you will not come out with that, because you'll think it was a great idea, with the results of the committees. The thing about it is—

First of all, on behalf of all the police officers I represent, thank you very much to all of you for saying that you really like the police officers, that you think they do a great job. I appreciate that. I'll send a message to all my members.

The other thing is, I don't get it. Why wouldn't the process be independent and impartial because there's a police officer there?

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

That's not it. It's the lack of prior consultation.

[The Chair, Conservative, Art Hanger]

Let Mr. Cannavino finish, please.

[Tony Cannavino]

It always comes back to that part. They will do the job like defence lawyers, crown attorneys, or criminalists would do it.

If it's about the process of consultation, it's a debate among all of you. If it's in a committee where we come here as witnesses, we think it's a great idea. We will be supporting that idea, and we'll try to convince you within—

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

That we'd take away your voting rights without consultation.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Cannavino.

Ms. Freeman.

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

In your presentation, Mr. Trudell, you stressed that this was about the principle, not the process. You also said that if we gave you an opportunity to state your views on this matter, you could explain how you see the advisory committee. Would you care to talk about that?

[William Trudell]

Can I just say this? It's not ever going to happen federally, because it can't. I've testified about this before, but one of the best systems is the interview process. An in camera interview process really separates the highly recommended political people from the people who probably shouldn't be there.

If this process is to remain, I cannot understand why the judge does not have a vote. It doesn't make any sense to me. It leads to the suggestion that a judge can vote when there's a tie, but I think what you and others have said is that you want a consensus and you don't want to get into voting. This is the spirit of these types of committees.

I think the judge should have a vote. Judges are there to give guidance. They know the types of judges who are needed. They know what the jurisdiction needs. They know the number of judges in the area and things like that. The judge would only be one vote.

I don't understand why they have no votes. It's a message that is not fair, and it's a message that says what? What does it say? Why can't the judge vote? This is a senior judge.

Secondly, I really believe this is an advisory committee, and the minister asks for advice. A committee that advises should surely be able to give advice on candidates who are more qualified or who they highly recommend, because it's what an advisory committee does.

The Minister of Justice is not going to go out to look for people and interview people. He has a committee to advise him. I think that if a committee is going to advise properly, they're going to say, here are the recommended candidates and here are the highly recommended candidates.The minister can choose from the highly recommended or the recommended, but he should have the information. It's the role of the advisory committee, and I believe it's really important.

The federal government has more appointments, and some people have therefore criticized the fact that they can outvote others. If you give the judge a vote, it balances it a little. You're not open to the suggestion that someone has more votes than others do.

The other thing is this, and it has already been talked about. If you're going to report to the House, if that's what going to happen, let's have a look at this again. It's been done without consultation, for whatever reason, and you're now consulting. I think it has to be looked at and visited again, within a reasonable period of time.

But the specific change I would make is to give the judge a vote. It's only one vote. This is about the appointment of judges. They have a lot to give. Secondly, you have to be able to say these are highly recommended candidates. The minister can choose from them or from the recommended ones. In terms of changes, I think that would be important.

I didn't really think there was anything the matter with the committees before. There will always be criticism about patronage in those kinds of appointments, but I think people strive to do the right thing.

The problem with it is that the committee was changed, with an announcement for the reason the committee was changed. The reasons, then, have to be balanced by making sure the committee is a fair one, nobody has more votes than anyone else, and the judge is listened to, and you can recommend highly recommended people.

Those are specifically the comments I would make.

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

Thank you, Mr. Trudell. I would like to ask you a question that is also for Mr. Ratushny.

In his third point, Mr. Ratushny mentioned that police officers could be involved and have a bias. He also mentioned that judges were a sort of buffer between citizens and police officers.

I would like you to tell me, Mr. Trudell, whether you think the presence of a police officer on a committee would have the same effect. Would the police officer be in a conflict of interest situation?

[William Trudell]

It's a problem. Police officers are one group. There are lots of other groups, as Mr. Ménard has said, that were not consulted about their representation.

My problem is that the government says, we want judges who will follow our law and order agenda and we are going to put police officers there. So it's a problem of perception. There are lots of great police officers who may do the job properly, but my respectful submission is that there's an inherent potential conflict if the reason for their being there is that we want different judges.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Trudell.

Mr. Ratushny, I believe you were going to reply to this.

[Prof. Edward Ratushny]

I think that's essentially what I said in my presentation. So I agree with Mr. Trudell.

[The Chair, Conservative, Art Hanger]

Thank you, sir.

Thank you, Madam Freeman.

Mr. Trudell.

[William Trudell]

Can I just say one thing, Mr. Chair? One of the things that really struck me is when Professor Ratushny said “police as an institution” as opposed to “individual”. That was very helpful to me in trying to understand the concerns—not as individual citizens of the country, but as an institution. That might be helpful too.

[The Chair, Conservative, Art Hanger]

Thank you very much, sir.

Mr. Brown.

[Patrick Brown, Conservative, Barrie, ON]

Thank you, Mr. Chairman.

I see the judicial advisory process as being important to have balance. I'd suggest that with the addition of a police officer or a representative of law enforcement on the committee, you're helping bring balance to it.

Certainly this has been an evolving process. I think we need to recognize that. We're acting as if this is a radical change without recognizing the fact that there have been numerous changes before, whether it was when Brian Mulroney and his Minister of Justice initiated this in 1988, or with the evolution that came in 1991. This is just another step to make sure we maintain that balance. I would be concerned that without having law enforcement there, we have a very significant voice in the judicial system not recognized.

When you look at a courtroom, when you look at the whole judicial process, there are lawyers, there are judges, and there are certainly police officers. That's why the comparisons with police officers don't wash, because union representatives, teachers, or any other group that has been mentioned around this committee aren't involved in the judicial process, and police officers are. That's why I think they make a very valued contribution.

My question is related on a few fronts. There have been suggestions that this is going to take away from judicial independence, that it's going to harm the process. The question I have is, are we saying that judges weren't qualified prior to 1988? If this change is happening today and it's somehow going to affect the process, what happened prior to 1988? What happened prior to 1991, when these changes were happening? It's contradictory to make the suggestion that somehow well-intentioned representatives from law enforcement are going to harm judicial independence.

Perhaps I could get a quick comment on that from Mr. Cannavino, and then I'll have a follow-up comment to make as well.

[Tony Cannavino]

Your comments are exact. You said exactly what we have saying since the debate started on that. It's exactly that. How could it harm the process? How could it be biased? How can they be biased in those committees? I don't see that.

[Patrick Brown, Conservative, Barrie, ON]

Another concern that has been raised is that there are many aspects of the roles the judges would play, and that the criminal aspect is only one. Maybe, Mr. Cannavino, you could touch upon what other contributions law enforcement could make rather than just criminal. I note something that hasn't been mentioned around this table. With this announcement there was a reference to an advisory committee related just to tax law. So when I heard comments at previous hearings that on tax issues there wouldn't be a valued input, I think we're forgetting that there is that pilot project to get advice on tax issues.

Maybe you could comment on the types of contributions law enforcement could make and why it's not solely limited to criminal law, whether it be police and law enforcement involved in family matters or the various avenues that the police play in their very important role in the community.

[Tony Cannavino]

At the beginning of my presentation, I talked about the commitment of police officers to their society and their community. One important aspect of their work has to do with their training. From the outset, they are taught to be honest, upright and impartial. When they arrive at the scene of an incident, they must not have any bias with respect to the individuals involved. They must be objective and see what is happening. They then gather the information and gradually come to some conclusion about the incident and the way it occurred. They are taught in their training to be objective.

We have seen police officers sit on boards of directors or on committees on ethical matters and other matters as well. They must be objective and analyze the case before them. Police officers are not excluded from selection boards. They conduct interviews; they are familiar with the process. They follow the rules. At the first meeting, they are told how the committee works, and they follow that procedure.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Brown.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

I think the police do a tremendous job. But that's not the issue here, so I won't talk about the police.

I have one question, and then I'll give the rest of my time to Monsieur Ménard.

I think that the independence of the judiciary—relative independence—is one of the reasons Canadians have such great confidence in the system.

I have a simple question for each of the four witnesses: do you believe in the independence of the judiciary? That's how I'll make my decision.

[William Trudell]

It's sacrosanct to our society, and that's what the concern is.

[Tony Cannavino]

For us, it's the same thing. And we know it won't be tainted with our representatives.