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.
former Chief Justice, Supreme Court of Canada, As an Individual
No. No, I hope to God that's not what they're doing.
Conservative
former Chief Justice, Supreme Court of Canada, As an Individual
I'm used to hearing two different things. I spent 30 years hearing two different versions.
No, they must look at the postulant's record, look at the references he has offered, and find out, if they don't know—some people are more known than others, and lawyers don't know all the other lawyers in the province—who to phone to find out about this person's behaviour and whether this person knows the law. This person wants to go to the Tax Court. Is he or she a tax lawyer? What is her or his experience in tax law? They must not only eliminate those who should not be judges; they should seek out those who will be good judges.
Conservative
The Chair Conservative Art Hanger
Given that note, sir, might I have further clarification, for myself? What is the present process, as you understand it, right now? Is it nothing more than a screening process—Mr. Ziegel, I think you made that comment—or is it more in depth?
former Chief Justice, Supreme Court of Canada, As an Individual
I don't know. I've never been on a committee. It's not public. They don't put out reports. How can we know?
former Chief Justice, Supreme Court of Canada, As an Individual
I don't know what's going on. That's why I had to talk to a few people, who I'm not going to name, who gave me insight into how they went about things a little bit, but not too much.
Professor Emeritus of Law, University of Toronto, As an Individual
I think there's a verbal misunderstanding here, Mr. Chair, about what we mean by screening and what we mean by a true advisory function.
By screening, we mean that the committee's current terms of reference are meant to tell the government whether or not candidate A is recommended, highly recommended, or there are no recommendations. It doesn't go beyond that. It's not a question of the depth of the committee's investigation or even of the committee's competence to make an evaluation.
The question is what happens when the committees have made their evaluation? What I say, and what many of my colleagues say, is that the government is given complete discretion in deciding which of the people who have been assessed as being qualified for appointment should be appointed. I say that's a highly subjective exercise, which is often influenced not by questions of merit but by questions of partisan and political considerations. And there is a great deal of evidence to support these allegations.
Let me remind the committee that every year the advisory committees review several hundred applications, at least 200 a year, and probably more, but there are only 50 appointments. That means that in every case the government, when it wants to fill a vacancy, has a great deal of discretion. How does the government go about exercising that? We don't know, and the governments have never told us. This is not a matter of partisanship. It's a matter of record, but what is also record is that in many instances selections are based on political and partisan considerations and have very little to do with the merits of particular candidates.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you, Mr. Chair, and thank you, Judge Lamer and Professor Ziegel, for being here.
I want to go to the composition of the committee and the point Judge Lamer raised, using the police as one example and LEAF as another.
former Chief Justice, Supreme Court of Canada, As an Individual
And REAL Women. You've got to say both.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Well, exactly. Perhaps LEAF and REAL Women would be the better example. Thank you.
Let me use another one. We have a strong feeling that we don't have enough representation on our benches across the country from visible minorities, first nations, the aboriginal community. Should they be on, and how does the government go about deciding who would be able to play a meaningful function without allowing biases to overwhelm their decision-making as to who they're going to recommend?
I'm asking Professor Ziegel, I think, in particular because of the experience we've had at the provincial levels. Do you have any comments to make in that regard, as to how we choose the membership?
Professor Emeritus of Law, University of Toronto, As an Individual
It depends, of course, on the size of the committee. On the Ontario advisory committee, I think they have 12 or 14 members, the majority of whom are not judges and not lawyers, so that enables them to bring in a broad cross-section of the population, including, I would hope, at least representatives of minority groups. I see it as reasonably easy, if you have a large advisory committee, to include some minority groups.
On the question of whether you should give priority treatment of minority applicants, that's a much more difficult question. I know there was an earlier Attorney General in Ontario who strongly favoured a larger number of women judges—I think an admirable cause—but to say that you're going to prefer a woman over a man, not because she's superior in terms of her qualities but because she's a woman, is, it seems to me, a very controversial issue, much litigated in the United States. It's also had some traction in academia.
My personal view is yes, we should give every possible encouragement to minorities of every description, but appointing someone not on the strength of their intrinsic merits but on the strength that you want to give some equity to minority groups is a much more difficult and sensitive question. We should be cautious not to appoint a person simply on the strength of their minority or other personal characteristics.
In terms of what has happened in Canada, we've had some superb minority appointments. I see absolutely no reason why people, whether of colour or who are aboriginal, shouldn't be every bit as good as other members of the community. We're not doing them justice in saying we're going to prefer them simply on the strength of their minority standing rather than on the strength of their intrinsic merits.
I hope that answers your question.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Yes.
With regards to the legislation, I think I've heard from both the current government and the last government a real reluctance to pursue that on the basis that this type of legislation would be unconstitutional; that the authority they have under the powers given them to appoint justices in the Constitution—that any legislation that would limit their abilities, whether it's, as Justice Minister Rock did, committing publicly to accepting the lists or establishing legislation that set criteria to establish the committees and how the committees would be composed and what their mandate would be--all of that limits their constitutional authority and therefore would be unconstitutional.
So I'd like a comment from both of you as to the constitutionality of the type of legislation that Professor Ziegel has recommended.
Professor Emeritus of Law, University of Toronto, As an Individual
Well, I've tried to express my views on this. I obviously disagree strongly. Government ministers are appointed, but remember, they're very partisan. They're hardly approaching it from an objective view. Why should they? No government, no minister, is ever going to surrender powers freely or gracefully. The whole history of the political system proves time and again that if changes are going to be made, they have to be done because of popular demand or the sheer persuasiveness of the argument. Usually it's a combination of both. I don't think it should be left up to the government to make the decision.
If I'm right, if my colleagues are right in saying that legislation is a mandatory route in terms of whether we want to achieve results—If this committee is content just to issue yet another report making recommendations, knowing the government is going to ignore them, then nothing will have been accomplished. If we're serious about wanting to move to a truly merit-based system, I think legislation is unavoidable. If the government disagrees about the constitutionality, that's why we have a Supreme Court of Canada, that's why we have litigation all the time.
It's always easy for this party to say this is unconstitutional, contrary to law, but they shouldn't be judges in their own cause. The government, in this case, is very much a judge in its own cause. If the government feels so convinced it is right, all the more reason it should be agreeable to putting the matter before the Supreme Court of Canada.
former Chief Justice, Supreme Court of Canada, As an Individual
I agree with what he just said. I would also recommend, as he did, that there be a reference to the Supreme Court to ask the question.
That said, as a former Chief Justice, out of deference to my former colleagues, I will be silent about how I would vote if I were still on the bench.
But I think there should be a reference.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you, Chair, and thank you to both of the witnesses for being here.
Justice Lamer, you mentioned early on in your comments, and I didn't catch all of it, about feeling that you were misquoted or something in an article. I wanted to get some clarification on that.
former Chief Justice, Supreme Court of Canada, As an Individual
It was the title the Ottawa Citizen put over Janice Tibbetts' interview. She had no control over the title. I gave her an interview. They said that I was objecting to the Prime Minister wanting to “muzzle” the judges. I never said that, and Janice Tibbetts never wrote that.
I don't think he has been trying to muzzle judges. He has told us very candidly that he wants to have judges who are going to implement the government's policy. I should like to elaborate on that point, if I may, Chair.
In our country, we—laypersons, not people like you—often confuse government and Parliament. The reason is that when you have a majority government that has a policy, the majority government sees to it that the proper legislation is enacted to implement that policy. People then confuse that.
Now, a judge takes an oath of office. The judge's oath of office is to apply the law, not the policy. When the judge applies the law that has been enacted by the majority government—by Parliament—he or she is indirectly implementing the policy behind the law. But the role of the judge is not to implement a policy, unless it has been spelled out in the law.
So when Mr. Harper says that he want judges “who will implement our policy of getting tough on crime”—I don't have the exact words; I did read Hansard.—I say, whoa, judges are not there to implement a government's policies; those policies have to go through Parliament. I understand his problem is that part of his policies are not getting through legislation, and so he's turning to the judges to implement them. He was very candid about it. He said “to implement the government's policies”. But that's not the role of a judge.
Conservative
Rob Moore Conservative Fundy Royal, NB
We've had a lot of discussion about the question of the police being on the advisory committees and we've seen a lot of witnesses. The examples of LEAF and REAL Women were raised, those being what some would categorize as special interest groups. We, certainly, and I think most people, would see the police as different from that, and not necessarily a special interest group, but as was mentioned, the police are capable of rising above special interest. Even as recently as today, we have examples of the police agreeing or disagreeing with any number of government policies, just as any other citizen can.
On the issue of the police being on the advisory committee, Professor Ziegel, as you know, the advisory committees were introduced to assist the ministers in their constitutional requirements when it comes to appointments, and the advisory committees have been changed in the past. There are those who want to make it sound as though this is some earth-shattering change, when in reality we know that the police can rise above that and that most of the work of the advisory committee is done on the basis of consensus. The minister has said that this will increase his ability to get a broader spectrum of input and advice.
Can you comment a bit on some of the other changes that have been made in the past when it comes to judicial advisory committees, and the relative significance of any changes we're making now?
Professor Emeritus of Law, University of Toronto, As an Individual
Thank you.
My response would be that the fact that past governments have made changes reflects again what is wrong with the current system. These were unilateral changes: Parliament was not consulted; the public was not consulted. The minister presumably consulted some members of his party, perhaps some members of his office, but it was a process completely lacking in transparency.
I would not be upset if the government were merely implementing a short-term government policy—after all, that's one of the prerogatives of government—but they're not. When we're talking about judicial appointments, we're talking about an appointment until the age of 75. Judges are not appointed in order to implement the policies of a particular government; they are appointed as chief justices. It's emphasized repeatedly that they're there to apply and implement the law of the land—not just the law of the last three years, but the law going back to the earliest days of Confederation.
The judges have much broader terms of reference. They represent, if you will, the totality of the Canadian legal system, which is why, among many other reasons, I think it's completely incompatible for a government to make unilateral changes merely to implement its own policies. It's incompatible with our concept of an independent judiciary, one whose appointments should be based on objective criteria as far as that is possible.
I hope that answers your question.
Conservative
Rob Moore Conservative Fundy Royal, NB
I understand, Professor, that you'd like to see some wholesale change to the whole process, and there's time for debate on that in the future. My point is that this is a relatively minor change, and the chief justice had mentioned that it goes to the perception, perhaps. As for the actual result, when we look, for example, at the appointments made to date under the previous system, there's no reason, we feel, to suggest anyone other than competent judges will continue to be appointed in the future.
While we're interested in hearing what people have to say on future and more wholesale changes, we see this as a progression. Changes have been made in the past and they'll continue to be made in the future, but it is a broadening of the input that the Minister of Justice can receive when it comes time to make these judicial appointments. There are those who see this as some kind of earth-shattering thing. Do you see it that way?
I understand that you'd like to see some major wholesale change. I read your brief, and you've set out some of the reasons you'd like to see that. As for those who would say this is some major change, we don't see it that way. We see it as continuing to appoint competent judges.
I'd like your comments on that.
Professor Emeritus of Law, University of Toronto, As an Individual
We obviously part, as you rightly say, on some very basic issues of policy. I see it as an urgent task. I don't see it as an issue of whether I disagree with the appointment of police officers as part of the advisory committees. My issue is this: Who's going to decide? Is it going to be individual governments, whether this government or another government, or is it going to be part of the legislative process?
The Harper government made a unilateral decision to make changes to the composition of the committees and changes as to the type of devices the committees would say.... My whole rationale has been that it should not be a prerogative of individual governments; it should be a matter of proper legislation, and the legislation should be transparent, and members of Parliament of all parties should be involved in making the ultimate decisions. The judges themselves are supposed to be part of the law of the land and are not supposed to be just handmaidens of individual governments. I don't see the recommendations as long-term at all; I see them as very much overdue.
As I pointed out right at the end of my submission, we inherited our system of appointments from the United Kingdom, because that was the practice at the time of Confederation. The British have moved way beyond that. In fact, they were never as partisan in their appointments as we have been, at least not over the last century. As a result of profoundly important legislation adopted two years ago in England, all questions of judicial appointments are now decided by a judicial appointments commission, whose powers go considerably further than the recommendations that appear in my submission.
The point I'm making is that if the British, from whom we've inherited our set of judicial appointments, have gone way beyond this precisely because they're concerned about the public perception, because of complaints, even under the enlightened British system, that fairness did not result from the previous system of appointment, then I think, at a minimum, we in Canada should follow the British and the provinces, at least to the extent of having legislation that spells out both the role and the powers of the advisory committees and their relationship with the actual appointments made by the government.