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.