Justice Committee on July 25th, 2019

[Colin Fraser, Liberal, West Nova, NS]

Okay. Thank you very much for that.

I know this time around it was a bit of a unique process, given the fact that it was filling one of the Quebec seats, so there was an advisory board set up for Quebec. As you mentioned, the Supreme Court Act recognizes that there are to be at least three seats from Quebec, given the uniqueness of the civil law jurisdiction.

Were there any differences in the criteria in the minds of the members of the committee in putting forward names for the Quebec seat, and were there any different questions in the questionnaire this time, as opposed to the previous two that you did?

[Kim Campbell]

There were no differences in the questionnaire. Actually, as the process unfolded, it was very much like the others in terms of the kinds of things we wanted to know from people. Again, going back to the earlier questions about diversity, etc., we looked for the same kind of breadth in people.

I think the candidates were conscious of the fact that being selected for a Quebec seat brought with it a particular kind of responsibility in terms of the role of civil law and Quebec values, but I think it was actually remarkably similar.

I have to say that the committee members were quite outstanding. They made the point that, yes, there is a particular set of criteria because of Quebec and its language and juridical uniqueness, but that it was a seat that would serve the whole of Canada. That breadth of knowledge and understanding was important.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

Minister Lametti, I want to ask you the following, because you touched on the qualifications of Mr. Kasirer. I agree with you that he's an excellent appointment.

You talked about collegiality and temperament, and obviously in reviewing Mr. Kasirer's application it's clear that he has the legal mind and ability to do this job and has been widely regarded as an excellent choice. His collegiality will also be an asset that he'll bring to the bench. Can you talk a little about why it is so important for a justice of the Supreme Court of Canada to have that collegiality and the temperament that is appropriate, along with the legal skill and mind that he has?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

As Ms. Campbell pointed out, on a court you have a dynamic when cases are heard and there's interaction amongst the judges both in the hearing as well as in the preparation prior to the hearing, and then in the decision-making phase afterwards, where there will be back and forth between and amongst judges to make better decisions. That doesn't mean unanimity. There will be dissenting and concurring judgments in which a judge may feel strongly about a point or the decisions and outcome generally, but you'll get better decisions.

I had the good fortune of hearing Guido Calabresi speak two weeks ago about the American Supreme Court. He clerked under the Warren court and he felt it was an outstanding court because the judges, specifically, spoke to each other. They all brought different kinds of expertise to the court and were quite collegial, and he felt that the kinds of judgments they came up with were better because of their collaboration and collegiality, and we would hope for the same kind of thing here.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now move on to the second round of questions. This round will be a little different; it will be six minutes for the Liberal Party, six minutes for the Conservative Party, six minutes for the Liberal Party, five minutes for the Conservative Party and three minutes for the NDP.

We will start with Mr. Ehsassi.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you, Mr. Chair, and Minister Lametti and Madam Campbell for once again making yourselves available and explaining the intricate process involved in selecting Supreme Court justices.

The first question I have is for Ms. Campbell. I'm returning to something that other members of this committee touched on, the issue of collegiality. You kindly highlighted how significant that is. For me the question remains, how do you quantify or try to measure whether a candidate does actually appear to be collegial? Is it a process of speaking to their peers, people they have previously worked for, or as you, I think, were attempting to highlight, is it reading their previous judgments or jurisprudence in trying to get a sense that they come up with clear decisions?

[Kim Campbell]

That is an important question. All of the candidates do have references that we consult. One of the things we ask about is how collegial they are in working together.

I can give you an example from the very first iteration. When we asked the successful candidate, who is now Justice Malcolm Rowe, how do you do this, what is your approach, he made a very interesting comment—and I hope I'm not breaching confidentiality when I say this because he's already there. He said he could put a lot of water into his wine and had no pride of authorship. I thought that was a very specific and powerful way of explaining his approach when he wants to get to some place. The important thing is what the fundamental idea is that you want to see in the decision, and then you see how much water you need to put in your wine or perhaps allow someone else to have the honour of writing the opinion, if it's the opinion that you agree is good enough. He was basically saying that he was not an egomaniac and that he understood what's important and what isn't.

When we ask candidates about their approach, they are often very revealing, and I hope Justice Rowe isn't cranky at me for saying that. That's the kind of thing we look for: What has been your experience and how have you approached it? For many of them, they have a lot of experience in this area, which is one of the reasons why judges who have already served on an appellate court have a clear understanding of what that question means.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you very much for that.

Another thing you touched on was your concern that only one candidate was a woman and there were no indigenous candidates. You touched on the need for ongoing consultations—and this is in-between what the advisory committee does.

Who, in your opinion, has the obligation to reach out to people to familiarize themselves and various lawyers and jurists with what serving on the Supreme Court is like?

[Kim Campbell]

I'm not actually sure whose responsibility it is. I think it might be something that could be done in partnership with a number of different groups—law societies, bar associations. That might be something your committee could look at as well, what the ideal situation is.

One thing we have, as a result of nine new appointments since 2011, including Justice Kasirer, is that there are quite a few retired Supreme Court of Canada justices lurking about who might be available to give some honest views about what it really means to serve on that court. Some of them have [Technical difficulty—Editor] 75. Others took early retirement.

I think [Technical difficulty—Editor] and I think it was in Saskatoon, that talked about this, where in fact some of the people who attended were surprised at what some of the benefits and attractions of working at that level were but hadn't really thought about them. It's not just to warn people about how hard the work is, but to talk honestly and openly about what it means to serve on Canada's highest court and perhaps to sow the seed of desire in some person to be considered for such a seat if the times align correctly.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you very much for that.

If I could turn to Minister Lametti for my last question, as you know, Minister, the Senate Standing Committee on Official Languages recommended that changes be made to formalize within the Official Languages Act the requirement that Supreme Court justices who are appointed are functionally bilingual. Is that something you would favour, going forward?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

First of all, we have done this in practice. We have enshrined a practice that puts such a high premium on functional bilingualism that it practically is a bar in being selected. We haven't done that formally.

I'm not sure it's a good idea, formally, because there may be other needs of the court at some point—for example, to appoint an indigenous person—where we may have to soften that requirement down the road. I think we're at a nice compromise right now, where, in effect, there is a requirement of functional bilingualism through the process without having to worry about either the constitutionality of such a provision or amending an act formally.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Deltell now has the floor.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Thank you very much, Mr. Chair.

Dear colleagues, I am very happy to see you again today.

Former Prime Minister Campbell, may I extend my best regards. I would like to congratulate you on the quality of your French. The next time you leave Africa, I invite you to stop in Ottawa, which is on the way, rather than going to the other end of the country.

First of all, I would like to say that I am very honoured to participate in this meeting of the committee today. As stipulated in article 10 of the MOU, the minister must consult with the opposition parties. My colleague Lisa Raitt invited me to represent her during these consultations, an honour that I accepted with great humility. That is where my comments end on this subject, since we cannot say where, with whom or how things went. Indeed, all this must remain confidential.

Mr. Minister, in your opening statement earlier, you mentioned the importance of respecting confidentiality and ensuring that there are no leaks of any kind.

As you know, there was a leak involving an aspiring Supreme Court judge in the previous year. On April 11, this committee met on this subject. However, the parliamentary group of which you are a member refused to allow the committee to examine the matter and to hold an inquiry.

How do you think Canadians can be reassured if your parliamentary committee refuses to allow an investigation to be conducted on such a sensitive subject as a leak concerning the appointment of a judge to the Supreme Court?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

First of all, thank you for conducting this consultation during the process. It was very valuable. Your comments were very important.

Yes, it was important. We have acted accordingly, especially for this process. We made sure there would be no leaks. We have taken steps in this direction.

There is also an officer of Parliament, the Privacy Commissioner, who addresses these issues. We will collaborate with him during his investigations.

As a government, we took the leaks very seriously. We made sure it wouldn't happen again.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

So why did you refuse to allow an inquiry by the Standing Committee on Justice and Human Rights? It is our job as parliamentarians to investigate such incidents.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

The Privacy Commissioner has the authority to conduct an investigation. We believe it is a good non-partisan process. There will be an investigation and I hope there will be suggestions.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Mr. Lametti, a little over six months ago, you were appointed to the very important and prestigious position of Minister of Justice and Attorney General of Canada. The least we can say is that for the past six months, your term of office has been anything but a long, quiet river. I had the opportunity to tell you in private.

One of the events that occurred over the past six months has been the SNC-Lavalin scandal, which has literally undermined the confidence of Canadians in their justice system. For two months, this situation monopolized the attention of Canadians, for negative reasons. However, last week we learned that one of the architects of this scandal was back in the Canadian Prime Minister's entourage.

How do you think Mr. Butts' return will create a sense of trust among Canadians in their justice system?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

As I said earlier to your colleague and to my colleague, I am not commenting on anything that concerns the SNC-Lavalin case, because trials are ongoing in the courts and everything I say could be interpreted or misinterpreted. So I won't comment on that.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

In fact, Mr. Lametti, there must be justice, but, as the saying goes, there must also be the appearance of justice. Now the architect of the SNC-Lavalin scandal, the one who undermined Canadians' confidence in the judicial system, is returning to the office of the Prime Minister to play a key role in the next election campaign. In the face of this return, how can you remain neutral, as Minister of Justice?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Unfortunately, the answer is the same. I'm not going to comment on that, for the reasons I just gave.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

It is unfortunate for Canadians, Minister.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

As Minister of Justice and Attorney General of Canada, I must respect the justice system. I must be careful not to have any influence on the ongoing trials.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

This is precisely what caused the SNC-Lavalin scandal, sir; the infiltration of partisan politics into the judicial process.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

In my case, it's not a matter of politics. I do so out of respect for the courts as Minister of Justice. Not wanting to have an influence on trials is a form of privilege. It is very important for me, in my role, to protect the judicial system.