Justice Committee on Nov. 27th, 2014

[Sean Casey, Liberal, Charlottetown, PE]

I presume there would be hard costs and soft costs. In terms of soft costs I would think it would be staff, clerks, and these sorts of things. The hard costs would be the ones like Mr. Pentney referenced, which would be, I suppose, the cost of the lawyers appearing.

[Roger Bilodeau, Registrar , Office of the Registrar, Supreme Court of Canada]

Well, as registrar of the court overseeing the administrative support for the justices of the court, the reference in the Nadon matter was dealt with as any other reference or case in the course of its usual business. So, I cannot give you to date the exact cost of supporting that case, as for any other case, but it would have been the regular costs. Nothing special or extraordinary in terms of effort was made to support the handling of that case at the court.

[Sean Casey, Liberal, Charlottetown, PE]

Separate and apart from the cost within the court, there was a bit of a public relations exchange of press releases and controversy that came out of that. Did the court incur costs in terms of defending Madam Justice McLachlin or the court as a result of the media storm that ensued?

[Roger Bilodeau]

To my knowledge...nothing out of the ordinary, in the sense that media matters are handled by the executive legal officer, as is always the case. To my knowledge, he handled that matter as he handles other matters with the media. I think it would be part of the regular workload of the executive legal officer to the chief justice.

[Sean Casey, Liberal, Charlottetown, PE]

Okay, thank you.

Mr. Pentney, I'm looking at table 86. That sets out the listing of transfer payments in dollars broken down by grants and contributions. The first column references estimates to date, and for five of the seven items listed there the number is zero. Does that mean there was no anticipation that funds would be paid out under these programs, or were they being paid out under some other department? Why do we have zeros under estimates to date?

[William F. Pentney]

I'll ask Ms. Hendy to start.

[Elizabeth Hendy, Director General, Programs Branch, Policy Sector, Department of Justice]

If you're referring to the main estimates, then the programs that were receiving supplementary estimates today would have had a zero or a dash, because they would not have been appropriated yet. For the aboriginal justice strategy, supporting families, and immigration and refugee legal aid, they would have shown a dash in main estimates, because there would have been no funding appropriated. And they're being appropriated today, if you agree.

That would explain how you would have seen zeros for some programs.

[Sean Casey, Liberal, Charlottetown, PE]

So, we're halfway through the fiscal year and there have been no funds appropriated. Surely there have been funds spent.

[Elizabeth Hendy]

Following authority from cabinet and Treasury Board approval, if, in advance, we know a supplementary estimate is coming, we would risk manage from a cash perspective and we would spend those funds. But there is a risk that we would not receive the appropriation if Parliament did not pass the supplementary estimates.

[William F. Pentney]

We're back into a matter the chair will want to dive into with both feet, which is the process by which main estimates and supplementary estimates are appropriated and the extent to which information is provided. But, as a department for ongoing programming where we have the approval.... Sometimes governments decide to sunset a program. As you know, many of our programs are renewed every five years. Sometimes governments wind them down, in which case we manage the wind down. But if the approval is to carry it on and the intention of a government is to seek approval through main estimates or supplementary estimates, then we will manage through that.

[The Chair, Conservative, Mike Wallace]

You have about 30 seconds left, Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Given the motion before you, I so move.

[The Chair, Conservative, Mike Wallace]

Okay, so you're moving your motion.

Maybe the officials could just hold on for a few minutes, because I don't know how long this will last. If it's going to last for a while, I'll excuse you, and you'll be done for the day. But if this isn't so.... It's the same motion that was before us before. Does anybody need it reread? It has been distributed and it is in order, as it's been given 48 hours' notice, so it's all good.

The floor is yours, Mr. Casey, on the motion.

[Sean Casey, Liberal, Charlottetown, PE]

Out of respect for the witnesses, I'll be very brief.

Everyone here heard the exchange with the minister. What the minister said in 2004 in that report is before you. What he said today is that he is certainly open to changes to the process. These are changes that were recommended by him and several of your colleagues 10 years ago.

I think it would be entirely appropriate for us to offer that input into the process that he is clearly seized with at this time.

[The Chair, Conservative, Mike Wallace]

The floor now goes to Ms. Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Those are the same reasons why the Liberal Party rejected it back then. I read it carefully. I am fully in favour of amending and improving the process. I think that is what we are all looking for.

I took careful note of the minister's remarks. He seems open to trying to find a formula that would, once and for all, let everyone say that, with good nominations, they are satisfied with the process and that it should be followed. That is not always the case.

I have several problems with this motion. Among them is the fact that it mentions Vic Toews and company. With all respect, I do not necessarily share a number of their opinions. Since I have problems with that, we were not off to a good start.

Then, things got worse when I read this:

...[t]here must be a public review of a short list of the nominees before a parliamentary committee”, and “[t]here must be Parliamentary ratification of the chosen nominee.”

Why do I have a problem with those two points? Because we then read:

The “public review of a short list of the nominees”...

I have been part of a confidential process twice. I have enormous respect for the confidential aspect of the process for the simple reason that the names of the people on the list are protected. I agree with the minister in that regard. I feel that even our Liberal colleagues should be in favour of that, not to make us happy, but to support the principle of confidentiality. I am always going to pay a lot of heed to that principle.

Just imagine. We considered the judges' nominations. We saw what happened with the list that was published in The Globe and Mail. Until the day I die, I will never confirm whether that was the list we had before us. Just for argument's sake, let us say that it was. Put yourself in the place of the judges who were not accepted. Like it or not, at that high level, being considered has an impact. People know each other. They know who among the judges on the Quebec Court of Appeal, for example, has a good reputation. The names go around every time a position opens up.

I know because I am a member of the Quebec Bar. My colleagues talk to each other. People talked to me. They told me that they were hoping that this name or that name was on our list. For me, the obligation to keep things confidential is extremely important. It protects the careers, present and future, of the candidates.

In addition, the process of public examination by a parliamentary committee has to be ratified by Parliament. That being the case, I want to avoid the American method as much as possible. I found that the minister, who was not in that position at the time, was mistaken. I am happy that, over the years, he has changed his view a little and that he has proposed this.

So I think that we have to work to find a better process. I was going to make a proposal. However, we may not have the time to deal with it immediately. I think, however, that I also have the right to make a motion while we are talking about a given subject, as long as it deals with the same topic. I do not think that my amendment to the motion will be passed, unless Mr. Casey is in favour of it.

So instead, I would propose that the text read as follows:

“That the Committee agree”—scratch everything else, and just write—“to review the process of nomination of judges in all courts under federal jurisdiction, including the Supreme Court of Canada, and to make a recommendation to Parliament on the best transparent process for said nominations.”

I think that this is the stage we have reached. We are two or three years away from the next appointment. There is no need for us to rush into something like this, but we should still come to grips with it.

With that said, I cannot vote for this motion because of the two basic reasons I mentioned. They are not solutions, in my view. I would never want to be seen to be in favour and for it to be said that I support that way of doing things.

[The Chair, Conservative, Mike Wallace]

Are you actually moving that as an amendment?

[Françoise Boivin, NDP, Gatineau, QC]

I don't know if it's a possible amendment to the...? Okay, so it's a subamendment.

[The Chair, Conservative, Mike Wallace]

It's possible, yes. My suggestion would be, as chair, that it's not a subamendment because it's not an amendment to an amendment, so it's a motion and you're making an amendment. It is a significant amendment, but it's a legal amendment. You could, Madame Boivin, defeat this motion and then give notice of a new motion, your motion, and we can deal with it at a different meeting.

[Françoise Boivin, NDP, Gatineau, QC]

I would prefer it that way so we could move maybe to the witnesses on the supplementary estimates, and we would still have the conversation that I think we need to have on the process of nominations.

[The Chair, Conservative, Mike Wallace]

I just want to make sure of something.

Is her amendment significantly different enough so that she can move a motion at a different time even though it deals with the same subject?

[Françoise Boivin, NDP, Gatineau, QC]

Let's talk among ourselves while they're doing this, unless he accepts it, in which case we might—

[The Chair, Conservative, Mike Wallace]

There's really no such thing as accepting....

I'm moving on to Mr. Dechert, and I'll let you speak to both items, if you wish.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

I understand that Madame Boivin is not putting this amendment forward.

[Françoise Boivin, NDP, Gatineau, QC]

It depends on what they decide.