Mr. Chair, thank you very much. It's an honour to be asked to appear here today on this very important topic.
It's always a pleasure to come before the committee, but this is a special day for me, because Professor Edward Ratushny dragged me kicking and screaming out of the first class at the University of Windsor Law School many years ago, and it is a real thrill to be sitting at the same table he is at. He was only nine; he was the youngest professor ever appointed to a faculty.
But actually, Justice Craig, I identify with you, because you see yourself as a black sheep among judges. I was a black sheep and remain a black sheep in many circles. So we have a lot in common. The white sheep from that class sits here to my right.
We appreciate being here; I appreciate being here, but quite frankly, I'm not going to get into the situation of finger pointing and that kind of thing. We believe, on behalf of the Canadian Council of Criminal Defence Lawyers, that this is about principles, not the process.
The government, the Minister of Justice, has the right to appoint. That's the way it should be. The politicians who are elected have their pulse on what's needed, and we don't question that.
We question a couple of things, however. You've heard it from me before on behalf of the CCCDL when we've been here. Consultation is so very important when you are going to change something so dramatically as legislation, or even this very important process. If I were to say there's one thing that concerns me greatly here, it's that there was no real consultation before this was done.
Do you know what? Appointing police officers to a committee to screen potential candidates to the bench in itself doesn't destroy the process. Police officers could have been appointed before. I served on the provincial committee in Ontario for five years, and the fact that a police officer—In and of itself, the earth is not going to collapse. Stripping a judge of a vote in and of itself doesn't mean the committee process is destroyed. Giving federal appointments the majority vote may not destroy the process. Removing “highly recommended” and replacing it with just “recommended” may not destroy the process.
But putting it in the context of what's happened here—I hope I have it wrong—if the Prime Minister said, “We want to make sure we're bringing forward the laws to make sure we crack down on crime, that we make our streets and communities safer; we want to make sure our selection of judges is in correspondence with those objectives”, that to me changes all of these factors and means that we have to look at the process. I as a Canadian, as a defence lawyer, with great respect, was taken aback and had to read this about three or four times.
If the Prime Minister and the minister just want to make it more representative of the community, that's fine. They can do that. But that's not what happened here. The Prime Minister said—and I apologize if I'm misquoting him, and I'm not pretending to quote him directly—we want to make sure that our political agenda is reflected in the committees. So when you take what happened in relation to the change of the committees, we have to be concerned.
Our concern here is that it's the principle; it's not the process. There are fantastic police officers, and there are even some fantastic defence lawyers in the world. But that's not what we're talking about here. We're talking about potentially politicizing the process, and that's not what we want in this country. I hope the Prime Minister didn't mean to say that.
I'm not here to represent the Chief Justice of the Supreme Court of Canada. She could do a lot better, for sure, and I'm not going to do that. But I think the Chief Justice, remarkably, was speaking about the principle, not the fact that there was a police officer on this committee.
When I look at “Canada's Court System: Keeping the system fair and efficient”, on the Department of Justice's website, it talks about the process, and under the heading “Judicial Independence”, it says:Judicial independence is a cornerstone of the Canadian judicial system. Under the Constitution, the judiciary is separate from and independent of the other two branches of government, the executive and legislative. Judicial independence is a guarantee that judges will make decisions free of influence and based solely on fact and law.
As I look at the comment, not what happened to the process, I wonder whether or not there's an erosion of this principle.
The third paragraph talks about tenure: A number of institutions foster judicial independence, notably the Canadian Judicial Council, the Commissioner for Federal Judicial Affairs and the National Judicial Institute. These institutions help maintain a distance between the government and the judiciary in areas like discipline, pay and benefits, and continuing education for judges
—and I would have thought, before these comments were made, the principles that we're dealing with here.
So at the end of the day, I really believe there seems to be a problem, and the problem seems to be really an optical one.
With the greatest respect to him—he works hard—the Prime Minister of this country should not be saying those things, because it blurs the lines. I have nothing against the police, but how many times have we heard in the last five years in this country, in the last year, politicians embrace the criminal justice system, the courts? How many times? Not enough. All through the world, our system is held up as an example. We go over to third worlds and teach. But where are the parliamentarians? Where are the leaders embracing the criminal justice system?
I have been at many committees, and with great respect, my criticism of the police, special interest group, lobby, or citizens, or associations, whether it be the CACP or this association, is that they don't seem to embrace the criminal justice system: the judges are not tough enough, or they're not getting it. That's the problem.
Those are the statements that we would like to make. It is not the process, it's the principles. It's my respectful submission that if you are going to change the principle, you have to consult. I would like later on, if I have time, to talk about the changes, because to me, the mediocre are entitled to appointments too, but with great respect, we are shaping the history of this country for our children, and we want highly qualified and highly recommended candidates—not superstars from the bar; that doesn't make someone highly qualified. In the most important thing that preserves our democracy, surely the minister should be able to choose from the highly qualified.
Last, I'd have to spend a lot of time on it, but my experience on the judicial appointment committee in Ontario is that a judge is very important. A judge is only one voice, but a judge should have a vote. Why strip a judge of a vote? It leads to kind of a vote thing as opposed to a consensus thing. Judges have so much to offer in terms of guidance. I don't understand, except in the context that we accept somehow that the committees were the private clubs of judges and lawyers, which is preposterous, because the committees in this country are jealously protective of the judges. We love the system we have in this country. I would think most people on committees would tell you that once they get in there, there's almost a sense of fear to make sure they're doing the right thing.
I don't care, personally, if people are members of any particular party or if they lobbied for a particular party. If they come out, and they're highly qualified—Let's say there are three of them. I'm the Prime Minister, or I'm the Minister of Justice, and I belong to one party, so I may appoint that person. This has been going on forever, and it will continue. But if they are all highly qualified, we've done the right thing.
So it is the principle here that is of great concern, not the tinkering with the committee.