Justice Committee on July 25th, 2019

[The Chair, Liberal, Anthony Housefather]

Sorry, but we're out of time.

Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

Thank you to the Right Honourable Kim Campbell and to Minister Lametti for coming in today and advising us of the process that took place.

I will start my questions with the Right Honourable Kim Campbell.

Ms. Campbell, in 2017 when you appeared before the committee, you talked about some of the barriers we faced with respect to appointing or having candidates who were women or minorities or indigenous. You outlined today that out of the 12 candidates, one was a woman and there were no indigenous candidates.

Were any minorities part of the candidates?

[Kim Campbell]

I don't think there were any who self-identified in that way, and it is a self-identification.

The committee was concerned, because we are, of course, limited to evaluating those who apply.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Right.

In 2016 there were 22 days to submit an application. Then in 2017 there were 63 days. This time around there were 30 days.

You talked about some of the processes in which you reached out to various organizations in Quebec. Do you think this time frame was sufficient to get the quality of candidates for the Supreme Court we were looking for?

[Kim Campbell]

I would say that the quality of candidates was outstanding in all three processes. I think our committee members come away very encouraged by the quality of people who do apply, but one of the things is that people have to apply. In the past, when we would get a nomination where, for example, somebody would write to us and say, “I nominate so-and-so to be a candidate”, I would immediately contact that person and say, “Your name has been forwarded to us as an outstanding candidate for the Supreme Court of Canada. Would you please review these materials? If you are interested in being considered, I warmly encourage you to apply.” That was the best we could do. In many cases, people feel shy about applying: “Am I being too arrogant?” It's nice for them to be able to say that they were asked to apply.

It's something that maybe even the members of your committee might want to think about. If you think there are people you know in the areas where the seats are vacant, there would be nothing wrong with a member of Parliament writing to say, “I'd like to have so-and-so considered.” Then I or a subsequent chair might write to that person, tell them their name was forwarded—we wouldn't say who forwarded it—as an outstanding candidate, and warmly encourage them to apply.

I think the more ways we can overcome people's reluctance to apply, the better. It might well be something that members of your committee, who are very engaged with this issue, might want to address as a committee or just do as interested members of the committee.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

You also spoke in your remarks about the diversity of opinion on the benches as well. When we're talking specifically about provinces and the allotment from our Constitution with respect to members from certain provinces on the benches, how do the provincial laws and policies—in Quebec, I will refer specifically to Bill 21 and its long-term effects—impact the diversity of Supreme Court nominees who are being appointed to the bench? How does that impact the overall laws and the shaping of laws within Canada?

[Kim Campbell]

That's a question I can't really answer. You have to follow the cases that go through. I would say that on the basis of the candidates who were presented to us, we felt there was a strong commitment to serve not just Quebec but to serve Canada, and consistent with the existing law of the charter. I think these are issues that are certainly beyond my purview to answer.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

We talked about diversity. What was the main or the primary objective? Was there any consideration given to who the current members of the Supreme Court are and to collegiality, to avoid things like groupthink, as you mentioned? What were some of the considerations that were taken in choosing the right candidates to be shortlisted, to ensure the diversity of opinion on the bench?

[Kim Campbell]

In the three processes we had different mixes of candidates, including different types of diversity, but we don't simply leave it at that. One issue we explore when we are interviewing candidates is to draw them out on their experience, knowledge and understanding of the diversity of Canadian life. Somebody might not be the member of a self-identified group that we think of, broadly, as diverse. What we want to know is, in their life, in their experience and in their work, how familiar they are with the challenges faced by the many communities in Canada who may be less represented in the administration of justice. That kind of cultural and diversity literacy is for us a very important part of the outlook we would like to find in candidates who would be playing such an important role on the final court of the land.

Ideally, we will have more candidates who will represent these communities themselves, but that is not sufficient. We don't just ignore it from somebody who is not from a diverse community. We really do want to know how much they understand of the realities of the lives that Canadians lead.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Moore now has the floor.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Thank you very much, Mr. Chair.

I would like to go back briefly to the short list submitted to the Prime Minister.

According to media reports, the person selected for this appointment was the first choice of the Government of Quebec, but no one can confirm or deny this information.

Do you think it would be preferable, while of course keeping the names of the other candidates confidential, that the Government of Quebec or the advisory board have permission to confirm whether the candidate selected by the Prime Minister was their first choice?

From what I understand, we make recommendations. So the Prime Minister could very well, even if this is very rarely the case, choose someone who is not on the list of recommendations, or not choose the first choice of the advisory board, but rather the second or third person on the list.

Would it be better if the Prime Minister could confirm that he opted for the first choice on the list? This would give us the assurance that he respects the non-partisan will of the various people who submitted recommendations.

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

The question is clearly intended for me.

I do not agree with this proposal. According to the Supreme Court Act, this decision belongs to the Prime Minister , i.e. the governor in council. We do not want to weaken the Prime Minister's ability to make the best choice, in his opinion. He accepts the recommendations, of course, but it is up to him to decide.

I made recommendations based on the consultations I had conducted here in Ottawa. If I had disclosed my recommendations and my Quebec counterpart had done the same, it would have given an idea of the short list submitted to the Prime Minister and thus reduced the confidentiality of the process. We want to protect the privacy of the candidates who applied, especially those on the short list.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

I understand that we must be careful about what information we are allowed to disclose or not. However, should we not at least know whether the Prime Minister followed the recommendations of the advisory board or whether he decided to move in his own direction? Would that not be transparency?

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

The problem is that if I make a recommendation that is not included in the final decision, journalists and you, my parliamentary colleagues around the table, will ask me who I recommended. It would become too difficult to protect the confidentiality of the process. It is also necessary to protect, with all due respect, the ability of the Prime Minister to make his own choice.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

The same thing is happening right now. Everyone is trying to find out if Mr. Kasirer was the first choice and is asking questions along these lines. We are still trying to guess whether Mr. Kasirer was the first choice and whether it was respected.

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

It is easier to close the door from the beginning. Otherwise, we could go down a slippery slope.

[The Chair, Liberal, Anthony Housefather]

I think Ms. Campbell would like to comment on this.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Very well.

[Kim Campbell]

I wonder if I could just add the following, Mr. Chairman, to clarify this for the honourable member. The short list is not given with any order. In fact, the names are given alphabetically. In the short list, we do not distinguish among them. I have often said that our goal is to present the Prime Minister with a short list of candidates that will keep him up at night trying to figure out which one of these excellent candidates to select. On the committee we may have our personal favourites, but we do not make any indication of an order among the candidates who are presented on the short list.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Fine.

I would now like to know how language abilities are assessed. Do candidates take written language tests or do they do a self-assessment of their language skills?

[Kim Campbell]

The judicial commissioner has developed a series of tests. For example, with the anglophone candidates, they do a test, and I think the criteria are that you have to be able to understand and respond to oral argument and to be able to read without translation, etc. In the first two iterations, we actually lost some outstanding candidates who did not meet the standard of functional bilingualism.

I must say that with the Quebec process, we didn't lose anybody because bilingualism is perhaps better established in the Quebec French-language legal profession.

However, there is a test and I'm sure they'd be pleased to share it with you. It is performed, so that after candidates are reviewed, they must undergo this test as the final barrier to being considered a shortlisted candidate.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. Your time is up, Ms. Moore.

Mr. Fraser, you have the floor.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair.

Thank you very much, Ms. Campbell and Mr. Lametti, for being with us today.

I want to thank you, Ms. Campbell, as you've already done this twice before. This is the third time and I want to sincerely thank you on behalf of all Canadians for the work you and your committee members have done in all three different iterations of these committee processes. Once again it has led to an excellent nomination, of Mr. Kasirer, so thank you for that work.

I'd like to talk a bit more about the timing of the application phase for people who want to be considered for the position. I know that after the first one, which produced Justice Rowe, there was some discussion about the process being too short—I think it was only 22 days—and then for Justice Martin's appointment in 2017, I think it was 63 days.

You've talked a little about some recommendations that you think could be made to encourage more people to be ready to apply when the time comes. This time around there were 30 days. Do you think that was sufficient?

Are there any other recommendations you would like to give the committee so that we could perhaps recommend to the government, going forward, a process in which there is enough time for the people who may wish to be considered to get their applications together?

[Kim Campbell]

I think you've put your finger on what is the most challenging issue we face. We would welcome recommendations of other approaches.

I was neither aware of nor had a sense of anyone not applying as a result of the tightness of the application time.

The first time, as you may recall, the applications were until the end of the summer, which was very difficult because people were coming in from their summer cottages and trying to get hold of their assistants to help them put together dossiers of their cases, etc.

I think this time around it was much more mainstream, being in the middle of the work year, and people were around. I think it was a little easier to do.

At the end of the day, we're not going to be able to rule out early retirements from the court. To assist the court in its business, you want to make sure that it would start a new season fully equipped and that the person who is chosen to make this important commitment has the opportunity to organize his or her private life. I think that's where there is the possibility of creating a greater preparedness among people who would be good candidates—and that would go even to members of the committee. If there are people who you think would be excellent candidates, make them aware and get them thinking about the process.

Of course, it depends on whether there are going to be retirements, but as we've seen, we can't predict the actuarial retirements and that people sometimes retire early.

The answer to your question is that we can do it better. I am not aware that it was a major barrier, but I don't know that for sure and I would hate to think it was.