Justice Committee on March 4th, 2008

[The Chair, Conservative, Art Hanger]

I would like to call the Standing Committee on Justice and Human Rights to order.

Today is Tuesday, March 4, 2008. The agenda before the committee, pursuant to the order of reference of Monday, January 28, 2008, is Bill C-31, an act to amend the Judges Act.

Appearing as a witness is the Minister of Justice, the Honourable Rob Nicholson. Thank you, Minister, for appearing. From the Department of Justice we have Ms. Judith Bellis, general counsel, judicial affairs, courts and tribunal policy. We also have Mr. David Near, judicial affairs advisor, Department of Justice.

Welcome.

I believe I have one other individual here, Ms. Catherine McKinnon....

[Catherine McKinnon, Counsel, Judicial Affairs, Courts and Tribunal Policy, Department of Justice]

Yes. I am also counsel with the judicial affairs section at the Department of Justice.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. McKinnon.

Minister, I'll turn the floor over to you.

[Rob Nicholson, Conservative, Minister of Justice]

Thank you very much, Mr. Chair. Thank you for the invitation to make some comments with respect to Bill C-31, An Act to amend the Judges Act.

It's probably one of the shortest bills this committee will see, I suppose. It's straight to the point. It's one amendment to the Judges Act, but I think it is a good news story across this country that we are moving to increase, by 20, the number of judges under this section. It will permit us to add judges, and I think there is a consensus across this country that we can use more.

The bill will allow the government to achieve two very important objectives. It will increase support and access to justice for Canadians from all walks of life. The appointment of these additional judges will facilitate the timely resolution of the specific claims.

Proposed paragraph 24(3)(b) of the Judges Act, which we refer to as the pool, creates the authority to appoint judges to the superior trial courts of any jurisdiction in Canada. The pool was created, as you may know, in the 1970s, because of the recognized difficulty in having to constantly amend the Judges Act every time you need another judge. Rather than do that, they created a pool of judges.

The concept was to allow the government to respond quickly to needs within each province or territory. I can tell you that Ontario, New Brunswick, Nova Scotia, and Newfoundland and Labrador have each previously submitted requests for additional judges, as have other provinces that have come forward.

Submissions have come in over the years. Some jurisdictions have had the benefit of sophisticated data collection to justify why they need more judges, while others have worked painstakingly to collect information that indicates their need and to back up their requests. In all instances, chief justices, judges, court staff, and provincial government officials have made tremendous efforts to make the case as to why we need more judges.

The same degree of commitment to providing clear and comprehensive data has been demonstrated by the judiciary and the Governments of Quebec and Nunavut, each of which also have outstanding requests for additional judges for their superior courts.

In Quebec, mounting civil and family law matters have been straining the court for several years now. This bill will provide some long-needed relief for the Quebec Superior Court.

The pressures on the Nunavut Court of Justice are particularly compelling and urgent. There are three resident judges sitting on the court of justice. The court is also served by deputy judges from other provinces and territories. These are sitting or retired superior court judges who offer to sit in Nunavut, typically for one-week periods. These judges provide much needed assistance to the court, but they cannot completely respond to the existing needs within the territory.

As you can imagine, geography has a huge impact on the work of the court in Nunavut. The territory covers one-fifth of the land mass of this country, two million square kilometres. Its population of approximately 29,500 is scattered across communities ranging in size from 150 to 6,000 people. Judges of the Nunavut court frequently travel on circuit through various forms of transportation--by air, snow machine, or boat. Crime rates are also a concern in the north. The number of complex criminal trials is beginning to mount, with several being adjourned over the course of the past year due to unavailability of judges. Civil and family caseloads are growing, and with the development of a bar of resident lawyers, the number of matters before the courts will continue to increase. In sum, the situation on the Nunavut court is reaching crisis proportions, and we cannot allow this to continue.

It is proposed that 14 of the new appointments be allocated among jurisdictions to address the existing pressures and backlogs. The bill will also provide the judicial resources necessary to ensure that the provincial superior courts are in a position to provide judges to act as members of the newly proposed special claims tribunal.

Assuring timely and impartial resolution of these claims is a key objective of the new tribunal. This tribunal will have the authority to make decisions where specific claims brought forward by first nations are rejected for negotiation or negotiations fail.

As the Prime Minister indicated in June of 2007, it is critical that the members of the tribunal have the necessary experience, capacity, and credibility to examine historical facts and evidence. They must be able to address complex questions surrounding Canada's legal obligations and determine appropriate levels of compensation. For this reason, the proposed Specific Claims Tribunals Act provides that tribunal members will be superior court judges.

It is estimated that the tribunal will require the equivalent of six full-time judges to handle its anticipated caseload of 40 claims per year. These claims are dispersed across the country, with the greatest number arising in British Columbia and some of the most complex cases originating in Ontario and Quebec.

All provincial superior courts are currently working at full capacity, with a number of them, as I have just described, experiencing significant backlogs and delays. As a result, authority for an additional six judges is being sought to provide the trial courts with the capacity to absorb the new work of the tribunal and to address these claims on a priority basis.

It is intended that with this infusion of new judicial resources the courts will be able to allow a number of their experienced judges to be appointed to a tribunal roster of up to 18 judges. It is proposed that these judges would sit on the tribunal on a part-time basis for a period of time equivalent to the number of additional judges provided to the court. The judges to the roster would continue to sit for the balance of their time on cases assigned, as usual, by the chief justice of their own courts.

Allocation of the 20 new judges to specific jurisdictions will take place following consultation with the chief justices of the courts and the provincial and territorial governments. My officials have already commenced discussions with their provincial and territorial counterparts to obtain up-to-date data upon which to base these final decisions.

As you can see, Mr. Chair and honourable members, this bill is extremely important for Canadians, and in particular aboriginal communities. I trust that members will recognize the urgent need to facilitate the passage of this bill so that these new judges may be appointed as soon as possible and that we may provide meaningful access for those individuals that require it.

I should let you know as well, Mr. Chair, before I conclude, that I want to bring to the committee's attention the possible need for an amendment to Bill C-31. The amendment relates to the establishment of the truth and reconciliation commission.

As members may be aware, the truth and reconciliation commission will provide former students, families, and anyone who has been touched by the Indian residential schools experience with an opportunity to share their individual experiences in a safe and culturally appropriate manner. The TRC will provide a comprehensive historical record of the policies and operations of schools, as well as what happened to the first nations, Métis, and Inuit children who attended them. The commission clearly has important responsibilities to fulfill in the course of its five-year mandate.

Following a rigorous selection process, the selection panel for the TRC commissioners unanimously put forward the name of a sitting judge to act as chair of the TRC. This judge is well respected by aboriginal and non-aboriginal communities alike and is uniquely qualified for this position.

All parties to the Indian Residential Schools Settlement Agreement support his appointment to this key post; however, this appointment would leave one of the busiest courts in the country one judge short for the judge's five-year absence. In order to avoid this unintended detrimental impact on the court, an amendment would be needed to Bill C-31 to provide for an additional clause modifying one of the sections of the Judges Act. We will continue to explore the issues related to this amendment, which, if we proceed with it, would need to be moved at the report stage.

Those are my opening comments, Mr. Chair. If there are any questions from the committee, my colleagues and I would be pleased to respond.

[The Chair, Conservative, Art Hanger]

Thank you, Minister. There are questioners who would like to bring forward some questions to you.

Mr. LeBlanc, you have the floor.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you, Mr. Chairman, and thank you, Minister, for your presentation.

As you know, Minister, we in the Liberal caucus supported this bill at second reading. We agree with you that it's an important measure to improve access to the judicial system. The specific claims process will obviously exert additional pressure. Your statistics and your information on that are certainly compelling.

I know from former partners of mine and people I know in the profession that in my own province of New Brunswick—and you and your officials know this as well—the delay is often related to the family courts. I've heard the chief justice at a number of events talk about the pressure on the unified family court, and I know that some of the planning and some of the requests have gone in around family courts in some provinces, such as my own.

For a whole bunch of reasons, the caseloads have increased. I assume it's your intention, in consultation with the chief justices, to deal with the backlogs in family courts. In some jurisdictions in New Brunswick, people will wait eight months to get an interim motion before the court. That obviously is, in difficult circumstances around family matters, not a very ideal situation.

I'd be interested to hear your comments on that, Minister.

But also, with respect to the linguistic makeup of the courts, in my province of New Brunswick—as you know, the only officially bilingual province—some judicial districts feel greater linguistic pressure than others, even in my own province. I hope you would be sensitive, when you make these appointments and others, and try to recognize that in some cases the linguistic makeup.... And it's not just about having an anglophone who says he or she speaks French, or a francophone who pretends that he or she speaks English. Many litigants will in fact not want to appear before the court because there's a legitimate concern that the judge may or may not understand some of the subtleties of language, and therefore you have dockets that tend to become overloaded as well.

I'm wondering whether you would be open to looking at a balance. As I say, every province has its different circumstances. But in my own, I know the bar is worried about this, and I'd be interested to hear whether you're sensitive to that as well.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much. This bill is designed to create a pool. It's not specifically directed at the unified family court, but nonetheless, as you would know, in each province superior court judges are seized with divorce and family law matters in any case, and adding judges to an individual province or to a territory will ease, in my opinion, some of the pressure that exists as a matter of course.

With respect to New Brunswick, and specifically with respect to the appointments we have made there, we are sensitive to that. I can tell you that we are in continuous discussions with the chief justice to make sure we are meeting the needs of the people of the province.

Again, we're sensitive to this. I think an examination of the appointments that have been made by the government, in New Brunswick in particular, will show that we have tried to respond to it.

We consider it an asset, obviously, if a person is bilingual, and it's not just a case of francophones pretending to speak English. In having a look at their applications, we find people who have a facility in both languages. Obviously, we're sensitive to the subtleties of any language group, and we keep that in mind when we're making appointments in your province—indeed, as we do across the country, based on the needs.

But we don't come up with these on our own. We of course are sensitive to this, but we discuss it and take these matters up with the chief justice to make sure we're responding to those concerns.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you, Minister. If there's any time, Mr. Chairman, maybe my colleague from Moncton would like to ask a follow-up—or Larry.

[The Chair, Conservative, Art Hanger]

You have two minutes.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you, Minister, for being here. I am supportive of this bill and also of the principle of the specific claims bill. There's no problem, so we can put that aside.

I just want to have an academic discussion on a couple of things. Under the Specific Claims Tribunal Act, where there will be one judge.... When you see a “tribunal”, you might think it's three or something, but it's one judge, and there's no appeal. Generally, the only experience I've ever had of committees or quasi-judicial committees or judicial things in which there is no system of appeal is I think in the case of the refugee board. It seems almost undemocratic, un-Canadian.

I'm wondering about your thoughts on that structure of the specific claims process and what your thoughts are on the judicial recommendation...advice in cabinet, from your personal experience of boards and systems.

[Rob Nicholson, Conservative, Niagara Falls, ON]

It seems to me, Mr. Bagnell, that it's in everybody's interest that we move ahead and that we expedite these claims, and that's what we're attempting to do. It goes forward obviously with the approval of the individuals who are prepared to move forward on that and to arrive at some certainty or some closure to some of these outstanding issues. I think most people would welcome that.

Again, having individuals at the superior court level will ensure an expertise that I think will be invaluable to the process. We can argue about whether this is perfect or not. Certainly we know the regime that we have in place is very imperfect. There's a proliferation of claims and they're difficult to settle. So I think this is a reasonable attempt to bring some finality and closure to it.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

Good afternoon, Mr. Minister. I would also like to welcome the officials. You are aware that the Bloc Québécois, which everyone recognizes as reasonable and open-minded, supports this bill. We are prepared to work as expeditiously as the situation requires.

I have a few questions to ask, and my colleague Mr. Lemay will no doubt take over on first nations claims.

Why choose the number 20? Is that really tackling the problem?

I agree that every additional judge will require more funds from taxpayers, but why 20 rather than 30 or 35 more? Are we really going to deal with the backlog, if we take into account the criteria established in the Askov decision?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think we are responding. We operated for the last 35 years or so with a pool of 30 judges. In the pool, we're making a substantial increase to 50. Again, I'm not the lead minister on the specific claims tribunal, but our analysis of this is that you're going to need the resources of six judges, not necessarily, obviously, the same judges, but the time allocation that would be necessary.

So it seems to me that's a reasonable estimate, and I felt this was also an opportunity to increase the number of judges available across this country, whether it should be 14, or 10, or some other number. I think 14 is a reasonable number in terms of our discussions with the provinces, but again, I'll be watching it very carefully.

[Réal Ménard, Bloc, Hochelaga, QC]

Does the department keep statistics by jurisdiction on the average time it takes to try a case? How does the system work? With the Askov decision, in Ontario, it was found that not having a trial within a reasonable time went against our constitutional guarantees. Has the situation improved considerably? Does your department in some way monitor what is happening in Quebec, in Nova Scotia, in Prince Edward Island...

Obviously, we have to make a distinction between civil law, family and criminal law, whether or not there was a preliminary inquiry. Are there any statistics province by province on how the courts work that could assist us?

We agree that there needs to be more judges; that is not the problem. I'm trying to understand why there would be 20 more rather than 25 or 30 more.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, in answer to the first part of your question, Mr. Ménard, we are in constant communication with our provincial counterparts and with the chief justice in each province. You specifically mentioned the province of Ontario. We're keenly aware of some of the challenges there in terms of population increase.

In the end, there's no magic to why we're going forward with 20. It seems to me that would be a reasonable approach to the pressures our courts are under at this particular period of time. As to whether this will be the last time any government will ever need to come forward, I doubt that. As the population expands, as there's more pressure on our courts, we will constantly have a look at that.

Ms. Bellis, do you have any further comments?

[Judith Bellis, General Counsel, Judicial Affairs, Courts and Tribunal Policy, Department of Justice]

I can just say, Mr. Ménard, that the information we receive from the provinces is developed and submitted to us with the joint input of the chief justices and the officials and courts that would have the statistics you're referring to. While the information we used as a base for the assessment for the minister and the government in this case will need to be updated--it's slightly out-of-date--we have a commitment from all of the affected jurisdictions to provide us with refreshed information. In the criminal courts certainly we have not heard in our discussions any serious suggestion that the superior trial courts are facing an Askov situation at this time, but as the minister says, it's part of the stock and trade of the judicial affairs section of his department to stay on top and on track as part of a central core of the work we do in support of the Minister of Justice.

[Réal Ménard, Bloc, Hochelaga, QC]

As I only have one minute left, my colleague will take over.

[The Chair, Conservative, Art Hanger]

One question.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Thank you, Mr. Minister.

It just so happens that I am also the Bloc critic for aboriginal affairs and northern development. We are currently studying Bill C-30 at the committee. You will understand that I have some very specific questions.

Following meetings we had with the first nations who appeared before us, the first question I want to ask you, Mr. Minister, is the following: will the selection criteria for judges be improved or changed to ensure that judges who will be part of the Specific Claims Tribunal will be sensitive to aboriginal issues and the kinds of cases they will be called to work on? They will have to work long hours and, above all, over many months.

Mr. Minister, with all due respect to Superior Court judges, the ones that will sit on the Specific Claims Tribunal will sit for long hours in difficult areas. Will they be prepared? Will there be special criteria for these judges?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think it goes without saying that for the individuals at the superior court, we will not put the new 20 people there. My expectation would be that these would be individuals who have the experience, capacity, and, quite frankly, the credibility to be able to examine the complex issues you have addressed. We will place our trust in the chief justice of each province to make sure they are individuals who will have that credibility with them.

You quite correctly point out that there are long hours on this, and you'll notice in my opening comments that I didn't indicate that it would be our expectation, for instance, that one of these six would be the one individual who would just do this permanently. It would take up the time of one judge, but you could have that spread across a number. We have to place trust in the system, but again, I think this is a huge step forward, and it will add greatly to the credibility of the process to have experienced superior court judges.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Minister, for being here. I share the concern of Mr. Ménard as to whether the number presented here is sufficient.

Can you tell us what consultation went on with not only the judicial counsels but also the bar association? Was the Federation of Law Societies involved in that consultation? The reason I want to highlight this a bit is I want to challenge Ms. Bellis' comment that we're not at some risk of another Askov. That's not what I'm hearing in Ontario, particularly from the defence bar. They're very much on the verge of arguing another Askov in the criminal situation. Of course, in addition to that, we have major problems in Ontario in the family law area at the superior court level.

Let me ask you about the consultation first, and then I have some other questions.

[Rob Nicholson, Conservative, Niagara Falls, ON]

The consultation process is with the governments of the various provinces as well as our discussions with the chief justices across Canada. It's actually a two-part thing. It's not just a question of us appointing a judge in a particular province. The resources, the staff, the support, the salaries all have to go with that, so it has to be done in tandem with the provinces that identified the needs and are prepared to accept new judges. It would be irresponsible for us, obviously, just to impose new judges on a jurisdiction and indicate to them that it's their job now to pick up the tab, because, as you know, with the administration of justice and the organizations of the courts, much of these.... So that's what we'll do.

The basis of our discussions have been with the provinces that are sensitive to this to make sure that suggestion is compatible with the costs they will bear.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

With respect to Askov, did you want to make any further comment on that, Madam Bellis?