Justice Committee on April 18th, 2007

[The Chair, Conservative, Art Hanger]

I'd like to call the Standing Committee on Justice and Human Rights to order. This being Wednesday, April 18, 2007, in this committee we'll be finishing our study on the judicial appointment process.

Of course you will note that there are cameras in this session. That was agreed to by the committee some time back.

For our witnesses today, we have two honourable gentlemen. We have Mr. Antonio Lamer, former chief justice of the Supreme Court of Canada. Welcome, sir. And we have Mr. Jacob S. Ziegel, professor emeritus of law, University of Toronto.

Thank you both for attending.

Going in the order that they appear on this agenda, I will ask Mr. Lamer, then, to begin his testimony.

[Antonio Lamer, former Chief Justice, Supreme Court of Canada, As an Individual]

Thank you, Mr. Chair and honourable members of Parliament and of this committee. I was very pleased to receive an invitation to come here. I never turn them down anyway. I feel it a duty for somebody who has occupied my various positions to make myself available to the elected whenever they want to hear from me or maybe take me to task.

I suspect I was invited to meet with you because of the remarks I made in two interviews with the press, one with Janice Tibbetts of CanWest News, and the next day or the day after with Hélène Buzzetti of the daily Le Devoir.

The interview with CanWest News lasted approximately an hour and a quarter. It was Janice who contacted me. I've known her for a long time because I gave her a number of interviews during the time when I sat on the Supreme Court of Canada as Chief Justice. It goes without saying that Ms. Tibbetts, as a result of the inevitable space constraints, was unable to reflect all the nuances in my remarks. One of the reasons why I'm very pleased to have been invited is that this will enable me to make them. It is also common knowledge that journalists have no control over titles.

I wish to say immediately that I've never said to Janice Tibbetts, and she never wrote, that I felt that my Prime Minister was trying to muzzle the judges. He was trying to do something else, but not “muzzle”. So that title is an inappropriate title. I would never say that of my Prime Minister unless he did it or tried to do it.

That is why I was happy to accept your invitation. With your permission, I would like to state what I consider are the criteria that apply to the composition of a committee of the kind that is the subject of this committee's hearings.

Having been out of the country for a while, I was unable to follow the debates in the House and the evolution of the status of the proposed legislation. But that's not today's subject anyway. Upon my return, I was given to understand that the opposition had agreed to some of the government's proposed legislation but is firmly opposed to other portions, such as, I am told, what is coined the “three strikes you're out” legislation.

Now back to the criteria. In staffing a committee, it is a truism to say that you must not lose sight of the committee's purpose and you must seek to have a committee that will best fulfill that purpose, and not staff it in a manner that will serve an ancillary purpose, a fortiori, an improper one.

What is the purpose of these committees? It is to select and put on a list, for the Governor General in Council, names from among lawyers who have expressed in writing a desire to become a judge of one of our superior courts, except the Supreme Court, or the Tax Court—not “except” the Tax Court, but “or” the Tax Court, which is not a superior court—and who meet the qualifications to fulfill such duties.

To fulfill that responsibility, it seems obvious to me that the members of the committee must know what the job requirements are, depending on the court's jurisdiction, and know, or at least know how to find out, if the postulating lawyer has these required qualifications to properly fulfill those duties. Now, it's that simple.

Other kinds of committees are best staffed by people from various walks of life and from different generations whose life experiences are, given the purpose of these committees, precisely what is needed to make meaningful contributions and best decisions if the committee is of a decisional nature, or the best advice if it is an advisory committee. But the committees we are talking about are not of that kind. That is why you need at least an experienced judge and senior lawyers. This is not to say that only judges and lawyers should be on these committees. As I said to the press, clerks of the relevant courts who day after day, over 20 to 25 years, have seen lawyers appearing in court, or journalists who have been covering the courts over the years, can make useful contributions without necessarily being lawyers or judges.

I did a bit of homework. I had to make a few calls because I'm not familiar with the workings of these committees and I've never been on one. They didn't exist when I was appointed to the various courts of this land.

A chief justice told me, because I phoned him, that the judge he or she had appointed to one of the committees reported back that two eminent members of a profession totally unrelated to the dynamics of our court system, at their very first meeting—and apparently they meet twice a year—candidly told the judge and the lawyers that they would have to rely on them to know if the postulant had the qualifications to become a judge of the kind of courts the list was being prepared for—that is, the superior courts; the Federal Court; the Tax Court; and the courts of appeal, including the Federal Court of Appeal. Given their different jurisdictions, which these two professionals were not too familiar with—I mean, they had an idea from reading the press and reading cases, but they did not have a thorough knowledge of the jurisdictional aspects of these courts—in effect they said, “We're going to have to rely on your judgment, because you're the ones who know. You know some of the lawyers, you know the people who have been given as references, you know if they are prominent or if you can rely on their judgment, and finally, you know who to phone to find out”.

In all honesty, I must tell you that two nights ago I attended a dinner at University of Ottawa to celebrate the 25th anniversary of the charter. While speaking with a lawyer who had been on one of those committees, I was told that the laypersons did make a contribution. I was told that. Before I had time to inquire as to what manner that contribution was made and what kind of contribution it was—given that I'm stuck in a chair, people come over to speak with me; I can't move around like a butterfly—two persons interrupted me and I never got the answer. So I don't know. I was very curious. I tried to get hold of this person, but there were lots of people at the University of Ottawa and I couldn't see where he was, and I couldn't walk around to find him.

I must tell you that one person I spoke to told me these laypersons can make a contribution without necessarily being my journalist or my court clerk. I was told that. I should add that I don't have any vicious feeling about their presence on these committees, but I don't see them making a meaningful contribution.

In preparing to meet with you, as I said, I had to speak to various people, including chief justices and a professor who testified before you, Professor Ed Ratushny, who is a friend of mine. He is a retired appeal court judge, who was on one of those committees to find out how these committees functioned.

They have no statutory or regulatory framework, as a result of which, I suspect, they proceed differently from one end of the country to the other. Some of those differences no doubt depend on their territory of jurisdiction. I should mention that, in my press interviews, I committed the error, out of ignorance, of saying that they could not inquire about the persons appearing on the list as references by the postulant. Without any regulation prohibiting it, they can and do this, and that's a good thing.

Having made my views public with regard to what has triggered your wanting to hear from me, I shall stop here. I am sure some of you will want to take up on what has been reported or ask me other questions unrelated to what I have said. I prefer not to take up my full 10 minutes, and I will turn what's left over to you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lamer.

There will be a question period. We will get to it right after Mr. Ziegel makes his presentation.

Mr. Ziegel, you have the floor.

[Prof. Jacob Ziegel, Professor Emeritus of Law, University of Toronto, As an Individual]

Mr. Chairman, with your permission, I'll make my address in English because that's easier for me.

Mr. Chairman, I appreciate the invitation to appear before this committee to share with the committee my views on the changes to the judicial appointments advisory committees introduced late last year and early this year by the Harper government, and on the changes that, in my view, are essential if federal judicial appointments are to be based exclusively on a merit basis and not on extraneous and irrelevant factors.

I've read the evidence given before this committee by Professor Sébastien Grammond and Professor Peter Russell. I fully agree with them that the unilateral changes made by the Harper government to the composition of the advisory committees and the assessments to be made by the committees are quite incompatible with the merit-based system of appointments and they will only further diminish public confidence in the integrity of the appointment process.

However, it is a serious mistake to assume that the advisory committee system was working well before the Harper government introduced its changes and that the present government is responsible for all the problems that have arisen. The truth is that the pre-Harper advisory committee system was deeply flawed because of the following reasons.

First, the advisory committee system, introduced in 1985 by the Mulroney government, and continued by the Chrétien and Martin governments, was only a screening system. Contrary to the recommendations of the Canadian Bar Association and the Canadian Association of Law Teachers, the advisory committees were not involved in the actual filling of vacancies and were not entitled or required to provide the federal government with a short list of the best-qualified candidates to fill the vacancies. Consequently, despite the introduction of the advisory committees, political patronage and political favouritism continued much as before.

Second, circumscribed as the roles were, the advisory committees were not involved and are not now involved in any meaningful way in reviewing applications for lateral promotions from provincial courts to provincial superior courts, in promotions from the trial superior courts to appellate courts, and in appointments to the Federal Court of Canada and, at least until very recently, in appointments to the Tax Court of Canada. Just as importantly, the advisory committees play no role in the appointment of chief justices of the provincial superior and appellate courts.

Third is the fact that the advisory committees are not required to interview applicants for appointments and are not required, indeed it seems not permitted, to publish an annual report whether on a provincial or national basis about their work and experiences. Also, it seems applicants for appointments are not advised of the results of their applications and therefore, of course, have no recourse if the advisory committee reviewing the application did not find the candidate of acceptable quality.

In short, Mr. Chairman, there is no more transparency and accountability in the operation of advisory committees than there is in the actual appointments made by the federal government. And if I may add here, I think what the Chief Justice has just told us exactly confirms what I have said about the problems he encountered in trying to ascertain how the committees worked and practised.

One of the ostensible reasons for the appointment of the advisory committees was to eliminate political patronage and to make merit the basic yardstick for the appointment of judges. There is strong, if not conclusive, evidence that this hope has not been realized. The CBA report previously referred to gave its own assessment of the continuing role of political patronage as of 1985. Similarly, Professor Peter Russell and I, in an empirical study we published in 1991 of judicial appointments made by the Mulroney government between 1984 and 1989, found that nearly half of the appointees had political connections to the Conservative Party at the time of their appointment.

Things did not improve during the Chrétien and Mulroney eras—I'm trying to be impartial, Mr. Chairman. Disclosures during the Gomery inquiry prompted several reporters working for the Ottawa Citizen to conduct an investigation to determine to what extent federal appointees to the bench had made contributions to political parties. Their findings were that more than 60% of the 93 lawyers who had received judicial appointments in Ontario, Alberta, and Saskatchewan since 2000 had made donations exclusively to the Liberal Party in the three to five years preceding their appointments.

Allow me also, Mr. Chairman, to draw the committee's attention to the important and comprehensive study of donations to political parties during the Mulroney and Chrétien eras made by three political scientists—Professors Riddell, Hausegger, and Hennigar—the results of which will shortly be published in the University of Toronto Law Journal. In my written submission I reproduce a table prepared by these authors of political donations made by future judges during the second period of the Mulroney regime and the three terms of office of Prime Minister Chrétien. What they show is that overall, of all the appointments made during this period, 30.6% are probably donors to the appointing government and only 5% of all the appointees had made political contributions to another party.

It's not difficult to see why, from the beginning of Confederation, successive federal governments have valued so highly the political patronage attached to judicial appointments. The Harper government is no different in this respect from its predecessors.

As of March 1 of this year, there were 1,052 active and supernumerary judges appointed by the federal government and 50 vacancies. About 50 federal judicial appointments are made each year. Judicial appointments are much sought after. The pay is very good—much better, I might add, than law professors' pay. The retirement and pension entitlement is probably the best in the public sector, and a federal judgeship is very prestigious. Judicial appointments also offer an attractive career path for a lawyer tired of the demands of private practice or wishing to play a more public role. Is it cynical to suggest that only overwhelming public pressure or a series of disastrous appointments could persuade federal politicians to surrender such valuable patronage plums?

In my view, a two-step solution is essential to put federal judicial appointments solidly on a merit-based footing, free from political interference and ideology. Here again I find myself in full agreement with Professors Grammond and Russell. The first essential step is to enshrine the judicial appointments process in legislation so that it will be transparent and clear for all to see and cannot be changed without parliamentary debate and approval. I cannot sufficiently stress the importance of legislation being adopted. Without it, all other recommendations of this committee will fall on deaf ears, as has happened so often before.

The second step is for the legislation clearly to spell out the composition of the advisory committees and their precise roles. This role should be not merely to screen and evaluate applicants for appointments, but also to provide the federal government with a short list of highly qualified and not just acceptable candidates from which the federal government, absent special circumstances, will be required to choose one when a vacancy needs to be filled.

As a model to be followed on these points, my preference is for the Ontario provincial judicial appointments advisory system, whose structure and operations were well described in Professor Russell's evidence before this committee. Just as important, Mr. Chairman, the mandate of the federally appointed committees must be extended to cross appointments, promotions of judges to a higher court, and the appointments of chief justices, as I previously mentioned. To the best of my knowledge, no rational reasons have ever been advanced as to why the role of the advisory committees should not be extended into these areas.

In his testimony before the committee, Professor Grammond touched on some important constitutional issues. I agree with him that section 96 of the Constitution Act does not preclude the establishment of statutory advisory committees. The same assumption was made by the Canadian Bar Association and CALT committees in making their recommendations in 1985.

I would also argue that in determining how far the federal government’s appointing powers can be circumscribed by legislation, attention should be paid to the provisions of the Canadian Charter of Rights and Freedoms, notably the non-discrimination provisions in section 15 of the charter, as well as the long-established doctrines of judicial independence and tenure, as enshrined in section 99 of the Constitution Act and the unwritten principles of the Canadian Constitution.

I agree with Professor Grammond that there is a linkage between these provisions and section 96 that must temper and inform the exercise of the federal appointing powers. If necessary, the federal government should refer these issues to the Supreme Court of Canada for the court’s opinion on the constitutionality of the proposed statutory powers of the advisory committees that I have recommended.

Section 96 of the Constitution Act is a carry-over from the pre-Confederation colonial regime and reflects, I believe, an obsolete and unidimensional view of the role of the federal government in the making of judicial appointments. It should not have been adopted in its existing form to begin with.

Regrettably, an important opportunity was missed to democratize the provisions in 1982. However, it is not too late to do so now. Section 44 of the Constitution Act, 1982, grants the federal government the power, subject to sections 41 and 42 of the act, to “make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.”

Section 44 appears to have been used very little so far, and there is some doubt about what falls under the heading of “executive government”. Nevertheless, I believe strongly that an amendment to section 96 should be considered and, if necessary, a reference should be made to the Supreme Court for an opinion on the constitutionality of the proposed amendment to section 96.

So much time has been spent, for so many years, debating the system of appointment of judges that other equally important issues have been ignored. To offer just some examples, I point to the desirability of a system of probationary or part-time appointments for future judges, so successfully used in the United Kingdom for more than a century; tracking the performance of judges after their appointment; the merits of specialization among judges; and providing access to the justice system for the great majority of citizens with modest means.

Canada, it seems to me, needs an institute for the study of justice, in order to study these and many other issues important to the effective, fair, and efficient administration of justice. According to my estimate, the federal government spends a quarter of a billion dollars per year on judicial salaries and perquisites. It should therefore also be able to afford a few million dollars per year to sustain the kind of institute that I envisage for the study of these questions.

Mr. Chairman, complaints about abuses in the system of federal judicial appointments go back to the earliest days of Confederation. It is time to bring closure to the debate. One hundred and 40 years is long enough. The solution is there for all to see and has been adopted by several of the provinces in their respective spheres and by the United Kingdom in the constitutional reform acts of 2005. I respectfully urge this Committee to be firm in its recommendations that the federal government follow these precedents and that the highest priority be given to adopting the necessary legislation.

[The Chair, Conservative, Art Hanger]

Thank you very much, Mr. Ziegel. You've certainly given us some things to discuss and to think about thus far.

But I will now turn the questions over to Ms. Jennings.

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

Thank you, Chair.

I thank you both for your presentations today. I do have a question for each one of you.

Mr. Justice Lamer, you—

[Antonio Lamer]

Could I interrupt? In 1950, I gave my ears to the Royal Canadian Artillery. I'm an old gunner, so could you please speak a little louder?

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

That's not usually a complaint I receive. In the House I'm usually told I'm too loud.

[Antonio Lamer]

Well, when people get too loud with me, I just take the both hearing aids out.

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

Are you unable to wear the earphones that are on—

[Antonio Lamer]

No, I can hear you if you speak just a little louder. You have a very smooth voice.

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

This is the first time, Judge Lamer, that I'm being told to speak loudly, and I love it! I'm usually being told to take it down a few notches. Wise man. That's why you were the Chief Justice of the Supreme Court of Canada. Good judgment.

You made a couple of points. Two of the points you made were that you were not sure, given the limited amount of study and examination you've had an opportunity to do, of the benefits or meaningful contributions laypersons can bring to the judicial advisory committees; and second, that some of the problems that may exist with regards to the whole process of federal appointment of judges may come from the fact that there is no legislation and no regulation framing or providing a context for the actual work of the judicial advisory committees.

So with regards to the absence of legislation or regulation, are you recommending that this government or this committee look at the idea and possibly make a recommendation that there should be a piece of legislation that actually creates the JACs, clearly explains and describes the composition and the process of appointment of members to the JACs and the qualifications required, whether for laypersons or lawyers—and I won't talk about the judges, because in most of the provinces it is the chief justice of the province or the provincial courts who actually appoints the person, or the provincial chief justice who sits on the provincial equivalent of the JACs—and also provide, at least in a general way, if not necessarily in a very detailed way, the criteria that the JACs must take into consideration, in terms of evaluating the prospective candidates and determining whether or not they meet the merit?

So my question is, are you favourable to that?

[Antonio Lamer]

I agree with Professor Ziegel, who made that recommendation, that you do so. I raised the matter because I was hoping we would get to that.

They're not even sworn. When do they disqualify themselves? What if one of the members is related to—? There is nothing.

I didn't have time to get into asking various people how they proceeded. I just didn't have time. I was out of the country. But I spoke, at least, with the Chief Justice of Quebec about what he knew about how they proceeded. He said that they had sort of established a few rules, but they were skimpy.

So yes, I think you should recommend that there be a comprehensive book of regulations on how to proceed and on who should be on that and on what the criteria should be. Should they be sworn? I think there's nothing wrong with an oath. It helps out a bit, sometimes. And it should even stipulate how many times they meet each year.

In Quebec, they meet twice a year. Well, maybe that's enough, but I don't know how many postulants there are per year. That's kept secret.

Of course I was addressing the composition of the committees, but the professor went much further in addressing the appointment of judges. I'm postulating that the committees remain, and within those four corners. If there can be improvement moving away from committees, I don't know; but I'm postulating that there are going to be committees and that these committees are going to be staffed in the manner that, as I said, will be efficient.

Where I disagree, respectfully, with the professor is that I think the committees have contributed to setting aside this impression that it's political patronage, to a certain degree. I have confidence in the committees. Actually, I was told a story a few days ago. There is a committee somewhere in Canada on which there is a policeman, and in that province, a crown prosecutor who was known to be pretty demanding and severe on crime.... And there's nothing wrong with that. I'm against crime. And I have expressed that view that I sometimes look at certain sentences, and I figure, “Well, wow!”

I think that plea bargaining is going on a little too much, but I understand the crowns are overburdened, and the temptation is there to knock off a couple of years and then save 10 days of hearings. The temptation is there. They're human; they're overworked; they're underpaid. And I understand them, but it's not good for justice. The very word “bargain” gives the message of what's happening. Somebody is getting a bargain, and that's not justice. Justice has nothing to do with bargains.

This crown prosecutor, who was known to never plea bargain, was turned down. The policeman voted against him and said that the reason was that he was not flexible enough.

So my reaction is to what happened to the committees as a result of the changes that were recently made, and I'm saying that our police officers are capable of rising above any agenda, but I'm against their being on committees for a reason of perception. They are part of the prosecutorial process. It's no different for the president of LEAF or the president of REAL Women, people who have an agenda. And I'm for people who have agendas; they've helped the Supreme Court a great deal by intervening in cases, but they should not be on that kind of committee to try to advance their causes. I think some of them are so enthused by their causes that they might be somewhat biased when it comes to choosing somebody. They might go for the choice that furthers their cause or furthers their intent.

Yes, I completely agree with there being criteria and regulations, because what they're doing is very important.

I would also suggest you recommend that the Governor General in Council remain within the four corners of the list and not go outside. One Minister of Justice—I think it was Mr. Rock—made an undertaking to not go outside the list when choosing appointments. Others didn't make that commitment, and I think I remember one or two appointments—I wasn't watching them, as it's a big country and there are lots of appointments—that were outside the list. I remember that one of the two was criticized because there seemed to have been a political connection in regard to that person's spouse.

I would recommend that the government be limited to the list.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lamer.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

Thanks to both witnesses for being here today. You are closing our proceedings. Tomorrow we are going to give our research assistants directions for the report that we will table in the House of Commons.

I have three questions. The first is similar to that of Ms. Jennings. The fact that there are laypersons does not trouble me. I don't believe that all the members who are asked to consider the potential qualifications for becoming a Superior Court judge have to come from the legal community. I believe it is possible to have a say and to make a contribution even if you don't come from the legal community. However, you must state—I hope this will appear in our report—that the police officer is in a particular situation. You said that he is part of the prosecutorial system. Very often, he himself will lay the first information.

The government has often given us the argument that the reasoning concerning the police officer was not valid, since lawyers are often both judge and party. Some lawyers sit on the committee and also plead before judges. As honest and deserving as their contribution to society may be—that's not at all what is being called into question—what distinction should be drawn between a police officer and a lawyer from the standpoint of the operation of these committees?

That's my first question. I'll have two more, time permitting.

[Antonio Lamer]

First of all, we're not sure the police officer meets one of my two criteria, that of knowing the lawyers or knowing exactly whether such and such a lawyer has the desired qualifications. Some police officers never go to court. That may be one of these police officers. That's strike one.

In addition, a police officer goes to court as a witness. He is there to testify. He is examined and cross-examined by lawyers. Sometimes the cross-examinations are not pleasant. Unfortunately, matters cannot be different. There is a danger that that officer will vote against the person because the latter caught him embellishing the facts in a given case.

There's also the public's perception. The public believes that police officers will do what my Prime Minister is doing: try to keep his election promises and be candid about his reasons. I have a lot of respect for Mr. Harper, and I admire him for his candour. Whether one agrees with his reasons or his programs is another matter. But he at least had the merit of having the candour and honesty to reveal to the House—this is in Hansard—that his purpose in appointing police officers and in making the other changes was to bring about a crackdown in criminal law. So the public will get the impression that police officers will say they've been appointed to do that.

[Réal Ménard, Bloc, Hochelaga, QC]

May I continue with the second question?

[Antonio Lamer]

It's not up to me to grant permission; it's the Chairman who grants it.

[Réal Ménard, Bloc, Hochelaga, QC]

I'm sure my ministerial colleagues will definitely want you to be quoted in the report on the Prime Minister's qualities.

I'd like to know your opinion on the fact that the judicial representative—the number is being increased from seven to eight—is losing his right to vote.

[Antonio Lamer]

That's one of the peculiarities I was thinking of when I used it. Why take away the vote of the person who best knows the requirements of a judicial position? He's the one who knows this the best. Ordinarily it's not a recently appointed judge. It's a judge with a certain amount of experience. Why take away his vote? I've never understood why. I'd like someone to tell me. That seems to go against the committee's purpose.

The other peculiarity was to include law enforcement people. These are ordinary police officers. I believe he appointed a police officer.

[Réal Ménard, Bloc, Hochelaga, QC]

If I have the time, Mr. Chairman, I'll quickly ask a final question.

Many people have been concerned about the fact that the “highly recommended” designation will be eliminated. Some said it should be maintained. Others said that would result in a certain incoherence within the committee. What do you think of that? Do you think we should still use these types of distinctions?

[Antonio Lamer]

I think that, if we've gotten to the point where we can't say “highly recommended”, that means we're talking about a person who shouldn't be on the list. In my opinion, people who are highly recommended are the only ones who should be on the list.

As regards the categorization—I'm talking about the old committees—I wonder why one should appoint a person who is not highly recommended. If I were the minister, I would wonder what's wrong with that person. Would it be because that person doesn't have much knowledge of the law or because the vote was divided? I don't know how that works. If the votes were divided, perhaps the members of certain committees said that, when the votes are divided, it's recommended, but, if it's unanimous, it's highly recommended.

Personally, the fact that the distinction was removed doesn't trouble me very much. However, I hope you will recommend that there be a regulatory framework and that you ensure that only persons who are prepared to recommended highly are placed on the list.

[The Chair, Conservative, Art Hanger]

Thank you, Messrs. Ménard and Lamer.

Mr. Ziegel, would you like to comment?

[Prof. Jacob Ziegel]

Yes, thanks, I'd like that very much.

I'd like to address the last point raised by Mr. Ménard, the alleged reason given by the government for abolishing the highly recommended. I find it quite unpersuasive. It may be perfectly true that different committees apply different criteria in determining what is recommended or highly recommended, but if that's true, that must apply equally to the committee's assessment that the person is acceptable.

It seems to me that at that point, the whole process of assessing candidates falls apart. That surely is another reason why we need both legislation and some mechanism to evaluate the performance of the committees themselves. But this can't be done unless you have at least a minimal degree of transparency about the operations of the committees as well as the operations of the government. At the moment we have neither, as I tried to emphasize in my written submission.

Allow me also to make a small correction. I hope I didn't throw any aspersions on members of the committee. That was not my intention, and I don't think I did. I want to make it very clear for the record that the issue is not the good faith of the members of the committee; I accept that wholeheartedly. My complaints were that the terms of reference of the committee were much more circumscribed. In particular, the committee did not in fact make recommendations, they only screened the candidates, and there's a huge difference between the two.

Allow me also to make some comments on the much-discussed issue of whether or not police officers should be included. I think it's a huge red herring. As my colleague Professor Russell pointed out in the course of his evidence, at best only about 2% of Superior Court judges are ever involved in criminal cases. So I don't know what the fuss is about.

Even if the percentage were higher, how could a police officer, or for that matter anyone, possibly go about determining whether or not an applicant for office is going to be tough in dealing with anything? He never sees the candidates—one of the many problems we have. Are we going to add a question to the questionnaire asking whether this guy, if he's appointed, will be sufficiently tough? What if the guy has never had a criminal case in his lifetime? Then the whole thing falls apart.

So I think it's completely a red herring. I very much hope that the committee, in addressing the issue, will bear this in mind. As the Chief Justice rightly points out, it raises anew the whole question of the function, the purpose, and the effectiveness of having a so-called police representative on the committee, given all the factors that have been raised.

Thank you very much.

[The Chair, Conservative, Art Hanger]

As a point of clarification—and this may be welcomed by the committee as a whole, I don't know—do you look at this present situation with the advisory committee as strictly a screening mechanism, and nothing more, when it comes to in-depth examination of any applicant who comes before it?