Thank you very much. It's an honour to be here before this committee again.
I want to comment on two aspects of the changes to the appointment process: the committee structure, at least, and the function of the committee. The first relates to police representation as an institution on these committees, and the second is the removal of the “highly recommended” category in the recommendations that are made by the committee.
Note that I say “police representation as an institution”. I of course share my colleagues' great respect for the police, the important role they play in our society, the crucial role they play; and in Canada we've been blessed by very good police officers and forces, as we have been blessed by very good judges and lawyers. However, I do not think it's appropriate for the police as an institution to select members to the nominating committee or at least the assessment committee.
The inclusion of representative law enforcement strongly suggests to me, through the circumstantial evidence—and I'll build the case a little bit—strongly suggests the desire to appoint judges who are not expected to be independent and impartial, but who are expected to judge in favour of police interests. What other explanation is there for providing a representative of that institution on this body as opposed to many other institutions in society?
Criminal cases represent only a very small fraction of the kinds of cases that come before the courts, a very small percentage. Police have no special knowledge of that vast majority of cases. What is more offensive to this notion to me is that the police are partisan actors in criminal cases. Their conduct may be on trial as much as the accused is on trial. They are being judged as part of the judicial determination in the case. That is not true of lawyers, but the conduct of police officers can be a central issue, which is determinative of a case.
An illustration of police partisanship is the series of royal commissions on wrongful convictions that we've seen in Canada recently. These cases are unusual; they're not everyday results, and they don't reflect the work of the vast majority of police officers. But in these wrongful conviction cases—Marshall in Nova Scotia, Parsons in Newfoundland, Morin in Ontario, Milgaard in Saskatchewan, and others—the royal commissioners have identified police misconduct as a central cause of wrongful conviction.
The term “tunnel vision” has been used frequently in these reports, the concept that a police officer is so convinced of the guilt of an accused that the officers will take shortcuts and engage in misconduct to achieve that conviction. It's sometimes called noble cause corruption.
The police have a difficult role. They see the victims, they deal with the victims. They see the consequences of crimes. When they become convinced that this particular individual is guilty, they stop at no lengths to achieve a conviction. That's why we have courts and that's why we have judges, judges who act independently and impartially. They stand between potentially innocent accused and an overzealous police force or police investigative team. Judges are to be a protection against such misguided conduct and not a vehicle to promote it.
The additional piece of circumstantial evidence that suggests to me that this is an attempt to achieve a particular result from judges rather than having them act impartially and independently is the comment of the Prime Minister in the House. I don't know the exact words, forgive me, but the gist of the comment was that we want judges who will help to advance our agenda.
It is not the role of a judge to advance the agenda of the government. The role of a judge is to act independently and impartially, according to the law and the judge's conscience, and not according to any other agenda.
That's why judges always come under attack in countries like Zimbabwe, and more recently, Pakistan. It is very inconvenient for dictators to have to deal with judges who decide independently and impartially, so they harass them and they force them to resign.
In Canada we've been blessed by an independent and impartial judiciary as well as excellent police officers and a strong bar. In Canada, I suggest that we should not even consider taking a tiny baby step in that direction of encouraging judges to carry out any particular agenda.
The second point relates to the category of “highly recommended”. I understand that now the committee will only say “recommended” or “not recommended”; it will not have this additional category of “highly recommended”. What this does is simply expand one vast pool for the government to feel free to select from.
Of course, the government is entitled to do that. The government ultimately makes the appointment. It is a cabinet decision, a government decision. And ultimately, the government will be judged in the big picture in terms of the kinds of judges they appoint, although there's a limited constituency that has a direct interest or knowledge of how well they're doing.
For that reason, I would suggest that the category of highly recommended should remain. Not only should it remain, but the government should report publicly on the number of times it has made appointments from the highly recommended category and the number of times it selected merely from the recommended category. This would give at least some public measure and accountability as to the extent to which the committee's recommendations were being seriously considered.
Of course, there may be reasons for departing from the category of highly recommended. It might be that there is a special need in a court for a particular kind of judge, someone who is an expert in bankruptcy law, for example. That may be a need that a court is lacking when there's no one in the highly recommended category who can fulfill that function. That would be a justification for departing from selecting from the highly recommended category. There may be issues of equity in the appointments, diversity on the bench, that would cause the government to select from the broader pool of recommended rather than the highly recommended category.
So there may be justification for it on occasion, but in my view, having the more specific advice of highly recommended versus recommended is additional information and opinion that can be helpful to the government in making its decision, and if there is reporting on the extent to which they appoint from one or the other category, that should provide some public accountability as well.
Thank you.