Evidence of meeting #61 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was judge.
A recording is available from Parliament.
4:45 p.m.
Conservative
4:45 p.m.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
Thank you, Mr. Chair.
I'm very interested in these discussions.
Mr. Justice Lamer, it is a greater honour to have you here before us.
Given your experience, it is very important to ask you a question about judicial activism.
I have a question about judicial activism. Professor Grant Huscroft of the University of Western Ontario, which I think you all know was founded by a great Moncton jurist, Ivan Cleveland Rand, said recently that perhaps the reason the Conservative government has turned somewhat on the idea of judicial appointments and why there are, in some quarters, musings about elected judges is that there is a reaction to judicial activism with respect to the interpretation of the charter over these many years. What I would like to ask you, Justice Lamer, is whether you think there has been rampant activism with respect particularly to the Canadian judiciary and its interpretation of the charter over the last 25 years. Is it diminishing? And do you think this has anything to do with what we perceive on this side as an attack on the judiciary?
4:50 p.m.
former Chief Justice, Supreme Court of Canada, As an Individual
Do you know how many sections of the law or how many laws have been declared inoperable? Do you have an idea?
4:50 p.m.
Liberal
4:50 p.m.
former Chief Justice, Supreme Court of Canada, As an Individual
You can ask your colleagues.
4:50 p.m.
Some hon. members
Oh, oh!
4:50 p.m.
former Chief Justice, Supreme Court of Canada, As an Individual
How many is it?
4:50 p.m.
An hon. member
Cinq.
4:50 p.m.
former Chief Justice, Supreme Court of Canada, As an Individual
Well, I'll go further. Adding sections, it's 17 or 19.
So who's getting nervous about all this? Those who talk about judicial activism do so because they don't agree with the judgment. When they agree with the judgment, they don't talk about judicial activism; they just don't mention it.
We're not talking about many laws that have been struck down, because the very introduction of the charter triggered, throughout the country in the various departments of justice, the creation of committees that would vet any bill before it went to the House—their respective houses—to see whether it was charter-suspect. It was mainly in the field of administrative law, which is full of reverse onus clauses, with a punishment at the end for having violated the law—some of them indictable offences, one of them punishable up to five years—with reverse onus clauses.
So what they did, after a couple of judgments from the Supreme Court—I think it was Chief Justice Brian Dickson who wrote the unanimous judgment—after that judgment, they scrambled and cleaned up a strew of laws doing away with reverse onus clauses where they weren't warranted.
Reverse onus clauses sometimes are okay. I mean to say, the person, the citizen, is the only one who can come up with the explanation and it can be found out.
So I never did get excited about people talking about judicial activism. There were some glaring things that had to be corrected and were corrected. Certain forms of constructive murder were murder to me and to my colleagues—because, let's not forget, you have to get a majority, at least, for it to be a judgment; otherwise, you don't talk about it. Constructive murder was rearranged, because murder is a crime of intent.
I think that's one of the most criticized judgments of those days. There are some that have been criticized lately, the kirpan thing and the gay rights, but there again, these are issues where you can't win. I mean to say that society is split down the middle, practically, and you're bound to have half of society saying they're activists and the other half saying they didn't go far enough. So I don't get excited about people who talk about judicial activism.
What effect, you asked me, has this had on the government's wanting to get tough on crime? What I know about what's being said is that it gets tough on crime. Well, the Criminal Code is there. It can be very vicious. I don't think the fact that the courts have applied the charter and that a few laws were struck down and re-enacted—and some of them were not re-enacted....
Let's not forget one thing, and this is apolitical as a comment. Successive governments have been shovelling to the Supreme Court and have recently shovelled—I've been gone for seven years—their hot potatoes. They want to get the brownie points, if there are brownie points to get, but they don't want to get the blame. The day after a judgment is handed down by the Supreme Court, there is a Gallup poll taken to see if the judgment is popular or not. And the comments of the members in the House will take into account the result of the poll. They'll be for the judgment, or they'll be against it. I call that parliamentary activism.
4:55 p.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
For the information of those transcribing this debate, you should know that, since you've been talking about Mr. Ménard, you've been talking about Réal Ménard, a regular member of this committee. My name is Serge Ménard, and I'm sitting on this committee on an exceptional basis.
As I am an assistant, my speaking time is only five minutes. I will ask my two questions first, then hear your answers. That doesn't mean that I didn't appreciate the presentations that were made. On the contrary, I've always appreciated Judge Lamer's presentations, and he knows it.
Professor Ziegel, this is the first time I've seen such an ambitious project. I'm sorry I didn't see it at the end of the last millennium. I hope someone will one day decide to carry it out.
Mr. Justice Lamer, I understand you when you say we shouldn't pursue secondary goals. Ultimately, you've put the finger on what this is about, that is to say including police officers who will have objective to pursue, whatever it might be.
I can answer some of your questions because I've had the benefit of sitting on a lot of selection committees. In 1977, there were the first committees, and the people were appointed by Minister Marc-André Bédard. I even attended the first meeting, chaired by Judge Alan B. Gold, where it had to be decided how we would operate in the context of the new procedure. I appreciated the contribution by members of the public to the meetings of those committees.
The question before us here concerns the appointment of police officers to sit on selection committees for superior court judges. However, in my assessment, and perhaps yours will be similar to mine, the superior court judges appointed by the federal government practise very little criminal law; Mr. Ziegel mentioned 2% of criminal cases. The vast majority of sentences handed down—more than 99%, in my opinion—and of criminal trials conducted are conducted before provincially appointed judges.
Although I'm in favour of keeping public representatives, I wonder why police officers would be systematically selected—and I'm not saying that a police officer wouldn't be a good public representative—to select judges who will mostly hear cases in family law, commercial law, liability law and so on. I think that choice is unjustifiable. So I would like you to address that aspect.
Then, Mr. Ziegel, there is something that intrigues me when I read your presentation, which I respect a great deal. I get the impression you think that political activity doesn't prepare a person well for the judiciary. Could you clarify your thinking?
As a result of the intensity of political activity today, one definitely loses the experience acquired by pleading. Although we are legislators, we have less time to consult, read and analyze case law and the new statutes that are not related to the duties we have been assigned, either as minister or critic of a political party. Can you give us more details on this question, Mr. Ziegel?
Judge Lamer, given your experience on the Superior Court, Court of Appeal and Supreme Court of Canada—and I know you cleaned up all those courts, particularly the Superior Court in Montreal, where there was a great deal to do—can you tell me whether my estimate of 2% is correct?
I would also say that I read an estimate by the Chief Justice of British Columbia, who said that 95% of the cases his judges heard were not Criminal Code cases.
5 p.m.
former Chief Justice, Supreme Court of Canada, As an Individual
I called the Chief Justice of Quebec and I spoke to him about a number of topics. He told me that, last year, 45 criminal cases had been heard by Superior Court judges across the province. We're talking about 45 cases, whereas I'm convinced that thousands of those cases are heard in the Court of Quebec, Criminal Division. More than 75% of accuseds plead guilty in Provincial Court. I say Provincial Court to cover Canada, provincial courts.
If the goal is to get harsher sentences and to tighten up the criminal law—I said that in my interview, but that wasn't published—the Prime Minister is indeed entitled to have that objective. I might be in favour of it, but I think he is not going about it the right way. That won't get done by appointing police officers who will put on a list the names of judges who practise virtually no criminal law. At the Tax Court of Canada, they practise none at all. The situation is the same at the Federal Court: they do patents. What can you say, they don't do any at all.
At the Superior Court, this is a very small minority of cases. I gave you the figure that the Chief Justice gave me: 45 cases last year across the province.
That's not the way to go about achieving one's ends. At the federal level, the way to have an impact on criminal law is legislation. I understand that he's frustrated because he's the head of a minority government. He can't implement his policy. I'm not giving an opinion on his policy. I won't interfere in that, because I'm neither for nor against it. I have ideas, but I don't know his policy well enough. I understand his approach of wanting to look elsewhere because there are legislative obstacles, but he's looking in the wrong place, in a pointless place. Ultimately, he won't be able to do it by appointing judges to the Superior Court who he thinks will be harsher.
I'd like to say something on that, Mr. Chairman. I've been in the profession for more than 50 years. I knew one Crown attorney who did his job, who was very effective as an attorney and sought sentences that were tougher rather than not tough enough. When he was appointed to the bench, he went to the extreme: he completely changed. Another example is that of Judge Lagarde, who wrote the Criminal Code in French, the annotated code. Police officers didn't want to testify before him because he was merciless with them as witnesses. He never believed them. Perhaps he was right, since he had been a Crown attorney, but I don't think so. He went too far. Judge Lagarde really went too far. You can't predict a judge's conduct.
I knew one judge—I won't name him—who was pickled at 10:00 a.m. He arrived in court completely drunk. He was appointed to the Provincial Court bench. He stopped drinking the day of his appointment, and he became, in my opinion, one of the best judges we had ever had at the criminal court of the time, the Court of the Sessions of the Peace. I won't name him because of my first remarks.
The committee wouldn't have put him on the list of candidates, but nevertheless... So it's impossible to try to predict the conduct of a person who takes a judicial oath. There could be three police officers on the committees, in my view, but that's a matter of perception. I'm not in favour of doing it that way for reasons of perception. I believe that police officers are able, as the saying goes,
to rise up to the occasion, and rise up and do their duty as it should be done. I have confidence in that.
So I'm saying that it's a useless change and it's an unfortunate change, because its purpose has been explained in the House, it will achieve nothing in terms of getting stricter sentences, and it sends out a bad perception to the population. The population might be behind that kind of thing, because I think—and I'm not in the polling business—that if a poll were taken, a majority would say that the judges are not sentencing severely enough. I think the general population.... But when you look at a sentence, you must be very careful before coming to the conclusion that it's too lenient, because unless you've been involved in the case, you get it second-hand through the press and you don't necessarily get all of the facts that the judge got.
But there are sentences, in my opinion, that you don't need to know more of, that were, in my opinion and in my experience, really too lenient. That reveals that some judges should not be sitting in criminal law and should be assigned to other kinds of cases. But in some provinces that's not easy to do as the chief justice, or the chief judge does not have enough judges. He has to use his judges in all kinds of fields. In a large province like Ontario, the chief justice can pick and choose and have people who know their criminal law to sit. In certain other provinces, not only P.E.I., everybody has to do a little bit of everything and has no choice.
But I say that it's the perception in the public that the government is trying to get more severe sentences. As Mr. Ménard has raised, I'm saying he's not trying to influence the list of judges who deal with the criminal law and he will not achieve his goal. I'm not saying I disagree with his goal; I'm not saying that, but I'm just saying that he will not achieve his goal by having done that.
5:10 p.m.
Conservative
Myron Thompson Conservative Wild Rose, AB
Thank you, gentlemen. It's an interesting discussion today.
5:10 p.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
Mr. Chairman, with all due respect, would it be possible to have something other than a nod from Mr. Ziegel? I want to be sure he clearly understood the question I asked. I believe he could provide a few additional explanations that you would appreciate as well.
5:10 p.m.
Conservative
The Chair Conservative Art Hanger
I certainly want to respect your question and the time that you have allotted, but we've run into 15 minutes on your time alone, Monsieur Ménard, so I think I'm going to move to Mr. Thompson.
Monsieur Ziegel, there will be an opportunity for you to respond, but probably through other questions. Thank you.
Mr. Thompson.
5:10 p.m.
Conservative
Myron Thompson Conservative Wild Rose, AB
Thank you.
We're having interesting discussions on a lot of things going on here today.
I'm still not clear in regards to the question brought up by Mr. Comartin, and maybe he can help me with this. It's the makeup of the JAC committee. Who is that going to be? Wasn't that the gist of your question? That's what's going on in my mind.
I was the principal of a high school, and I had to hire teachers quite often. On the selection committee we had the superintendent of schools and me, two members from the school board, both of whom happened to be farmers—this was over a 15-year period—and three people from the parent advisory committee at large. Sometimes there would be a nurse or a housewife or a policeman—just people at large.
We'd sit on a committee, and we'd have to select somebody to fill the job. When I went to these committees, I knew the superintendent was going to look for the education. How educated are you? What degrees do you have? I knew there were a couple on there who thought that women should be teachers and men should be farmers, and that they would be looking more towards the women. So I knew that given its makeup, that committee had preferences well in advance of beginning any discussions on the selection.
I don't see how anybody could get on any kind of committee and not have some kind of idea in the back of their mind of what they'd like to see for a teacher. Why wouldn't they feel the same way about what kind of a person they'd like to see for a judge? I don't care if it's a police officer or a high school principal. I have a pretty good idea of what I'd like see for a judge, and I think Mr. Comartin would know what that would be. It wouldn't be a softy; it would be a hard man, who would say the punishment's got to fit the crime. And I want to move from there.
Now, I don't know who the best judge would be. A lot of times I didn't even know who I thought would be the best teacher, but a lot of times I had to go by that gut feeling, just knowing that if that person was in front of a group of children I could rely on them to do the best job possible to relate to them. I want the same thing to come out of judges, and I think these JAC committees could do it. The makeup of them, to me, isn't nearly as important as the objective of the judges across this land. What are we trying to achieve here?
The public, the ones who pay the bills, are saying they're not happy. You're right, a poll would show that they're not very happy with some of the decisions.
Last week, a nine-year sentence was handed out in Calgary. Is that correct, Art? They had an appeal, and it was reduced to seven. There was a big flare-up because of the appeal. The judge decided it was too stiff and lowered it. Well, the war was on. Calgary is not even in my riding, but it's close enough that I had people coming into my office demanding that we straighten up this judicial system. What is going on that this is happening?
All I'm saying is that I think we're putting way too much emphasis on the makeup of the committee. These are people of all walks of life. I almost felt as though you were implying that the police were a special interest group, and I really object to that. I hope that's not true, but I felt that way, and I wanted you to know that. They are not a special interest group, nor is anybody on these committees, should that be the case. I don't want anybody there for the purpose of pushing their own agenda, but I'm still looking for an answer as to who's going to decide who goes on these committees and what they should be made up of?
You said something about writing a book of regulations, that there should be a book of regulations to follow. Well, who's going to write the book? That's where I'm getting all confused. We're wandering off into different questions about activism and about this and that. I want to stick with the JAC committees. Who are they made up of? Why are they on there? Why should some be eliminated and some not?
I certainly don't believe they should all be lawyers. We've got all lawyers in this committee, and that drives me nuts. We've got a bunch of special interest groups over there.
5:15 p.m.
Conservative
The Chair Conservative Art Hanger
Okay, Mr. Thompson.
Mr. Ziegel, would you like to begin, in response?
5:15 p.m.
Professor Emeritus of Law, University of Toronto, As an Individual
Thank you very much.
I think this ties directly into the burden of my written submission, namely, that Parliament should be deciding these questions, not the government of the day. As I strongly emphasized, judges are appointed—until they reach the age of retirement—not to serve the purposes of a single administration, but to serve the country and the people of this country.
In most other areas of the law, Parliament has to be consulted; Parliament has to approve. If Parliament in its wisdom were to decide it wanted the advice of committee members, including police officers and people who are very tough on crime, so be it. I might not agree with that judgment, but at least I would know it's in the legislation and at least a majority of the members of Parliament had approved this direction.
But I strongly resist the notion, under which we've laboured for the last 140 years, that the appointment of judges is the prerogative of the particular administration. I've tried to argue repeatedly—and I'm not the only one—that it has been abused. It's a power that has been abused for 140 years, and that should be the focus of this committee. I think we're becoming too fixated on the issues of the treatment of crime, despite what the Chief Justice said.
Others have said that in fact superior court judges try only a very tiny percentage of the cases. I think we're doing a grave injustice in the whole concept of judicial appointments when we focus on a very tiny percentage of cases that are decided by a tiny minority. Remember also that we have appeal courts, and if the Crown feels that a trial judge has been too lenient, the Crown should appeal—and often does.
I seem to recall some years ago Chief Justice Lamer sat on a series of appeals from Manitoba in which the court said the Manitoba courts were inconsistent in their sentencing policy and many of their sentences were too lenient. I think it's completely misleading to suggest that appeal courts are indifferent to public opinion or the appropriate sentence.
It's not an easy question, and I disagree with you, Judge Lamer, when you say we have to be tough on crime. I don't know what that means. If that means a long jail sentence effects the purpose, I think you'll find a lot of criminologists disagree.
But leaving that issue aside, the point I want to make is that there are ways and means for the public to make known their views. There are appeal courts. Public opinion does influence judges, you may be sure. But the point I come back to—and it's absolutely fundamental to my position—is that we shouldn't get fixated. Our first priority should be to have legislation to get rid of this 140-year obsession with letting the government of the day decide who's going to be appointed a judge and how that appointment is going to be made. Unless we can overcome that, which I perceive to be an enormous hurdle, we will continue to debate this issue time and time again.
As I said in my written submission, I have appeared three times before this committee over the last three years. It's not that I have any misconceptions about my own role, but I don't see that the committee has much of an impact, precisely because they're not willing to move to the legislative stage.
My keen concern is that regardless of what the committee says, the government will ignore it if it disagrees. Obviously if the committee underscores the government's partiality it will feel vindicated, but if the committee disagrees, the government will simply ignore it and proceed on its way.
As I've argued, we need legislation to both reaffirm Parliament's role in this situation and, once and for all, bring to an end this highly subjective, non-merit-based system of appointments that now exists.
5:20 p.m.
Conservative
The Chair Conservative Art Hanger
Thank you, Professor Ziegel.
Mr. Lamer, I know you would like to respond to Mr. Thompson. Please do so quickly.
5:20 p.m.
former Chief Justice, Supreme Court of Canada, As an Individual
Yes, I owe it to myself to respond.
I mentioned pressure groups and agendas, and that's one group. I then mentioned the police, but I didn't mention the police as being part of the agenda groups.
5:20 p.m.
former Chief Justice, Supreme Court of Canada, As an Individual
Secondly, I said there are other kinds of committees that are best staffed by people of various walks of life and of different generations. I agree with you that the kind of committee you mentioned in support of your position is precisely the kind of committee I was thinking of.
I'm thinking of committees that have to do with municipal stuff. For a while in Montreal, there was a committee composed of various citizens for the development of the Vieux-Montréal. They weren't urbanites only. They were urbanites, but there were all kinds of people. I agree with you. It's precisely the kind of committee I was thinking of.
The police are not a pressure group. I mentioned them because Mr. Harper wants to appoint them, and that's it.
5:20 p.m.
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Thompson.
Thank you, Mr. Lamer.
Mr. Bagnell, you're next.
5:20 p.m.
Liberal
Larry Bagnell Liberal Yukon, YT
Thank you.
Thank you for coming.
I want to try to get really quick yes and no answers. I know it's going to be hard.
I want to talk about the changes, the choice between the changes and the existing committee, if that's all we had to do. My understanding is that you probably think these are not the best changes.
Mr. Ziegel, if you could answer yes or no, the fact that we took the vote away from the judge on the committee was a bad change. Is that right?