Justice Committee on Aug. 11th, 2016

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair.

Thank you, Madam Minister, for being here and for your presentation.

Before I ask some questions about the process that your government has unveiled with respect to Supreme Court appointments, I have one question that I want to ask in light of the comments that were made by Chief Justice McLachlin, as reported in the Ottawa Citizen, about the fact that we have in Canada 44 judicial vacancies, and the negative impact this is having on the administration of justice across Canada. It's on whether you have appointed, as of today, a judicial affairs adviser.

[The Chair, Liberal, Anthony Housefather]

I think this question may be slightly out of the scope of the nature of the presentation by the minister. I'm just wondering, Mr. Cooper, if that is the only question that you're going to have that's going to go outside the scope.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

That's correct.

[The Chair, Liberal, Anthony Housefather]

Okay. Madam Minister, it's up to you if you want to respond.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I'm happy to respond to the question, and certainly thank Mr. Cooper for the question and his diligence in raising the issue of judicial appointments on an ongoing basis.

As I've indicated previously and will continue to do, we have made, as you point out, appointments. We recognize the vacancies that exist and we are working diligently to fill those vacancies based on a new process much the same as what has been articulated here in terms of the Supreme Court, a process that will embrace diversity and again will ensure that the justices reflect the diversity of the country.

In terms of your specific question on a judicial affairs adviser, we, in my office, are supported by a significant number of individuals who have assisted in the previous appointments. It is my intention to have a judicial affairs adviser in place in due course.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Madam Minister, for that answer.

Turning to the substance of why you are here today, in terms of the process that your government has unveiled, I have to admit I have some concerns with it. One of these is with respect to the fact that the process does not respect the long-standing constitutional convention of ensuring that Atlantic Canada has at least one seat on the Supreme Court, a convention that dates back more than a hundred years.

I was wondering if you might be able to comment on what authority the executive has to overturn a constitutional convention—the effect of which will change the composition of the court—unilaterally, without the consent of Parliament and without the consent of the provinces, as provided for in paragraph 41(d) of the Constitution Act of 1982.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Thank you for the question.

Again, focusing on regional representation, I will underscore that regional representation is an important consideration criterion for this process. We recognize, as I said earlier, that this appointment process does not preclude an appointment from Atlantic Canada. The Prime Minister has, based on the policies and the approach, ensured that other criteria are present, such as diversity, such as ensuring we have a deep pool of qualified jurists for consideration of the advisory board.

That is not to say that regional representation is not important, and we recognize there will be candidates from the Atlantic on the short list that is provided to the Prime Minister.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Minister. I certainly agree that diversity and all of those things are important. I also acknowledge what you said—that Atlantic Canada would not necessarily be precluded—but you've also said that the government may appoint someone other than an Atlantic Canadian, and I want to get back to the question of what authority the executive of the government has to do that unilaterally.

To that end, I would just draw your attention to paragraph 74 of the Nadon decision. I'll read it. It says, and I quote:

Parliament cannot unilaterally change

—so in this case, it's not even Parliament; it's the executive—

the composition of the Supreme Court of Canada. Essential features of the Court are constitutionally protected under Part V of the Constitution Act, 1982. Changes to the composition of the Court can only be made under the procedure provided for in s. 41...

—which, again, requires the consent of Parliament and the consent of all 10 provinces.

Could you perhaps clarify, in light of the clear pronouncement of the Supreme Court in Nadon, what authority the executive has to unilaterally overturn this constitutional convention related to the composition of the court?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I appreciate your reading out that excerpt from the Nadon decision and I recognize that the amending formula to change the composition of the Supreme Court of Canada is unilateral.

In terms of regional representation, again I will underscore that we are not precluding having an Atlantic candidate as the next Supreme Court of Canada justice. It is not without precedent to diverge from the regional appointments. That said, regional representation, functional bilingualism, and diversity—diversity in particular—are very important criteria, and ensuring that we have qualified jurists who put their names forward so that we can make the appointment based on a significant pool of candidates is the approach, the policy, that this government is moving forward with.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Khalid is next.

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

Thank you, Chair.

Thank you, Madam Minister, for coming in today to speak to us about this very important process that the government has unveiled.

I just want to bring to light that we have, I think for the first time in the history of Canada, the most diverse government or group of parliamentarians in general. I am currently the only visible minority in the room, and in general I'm the only woman who sits on this Standing Committee of Justice, so I understand how difficult it is to truly reflect diversity.

With respect to the Supreme Court, I understand that this one seat that is to be filled can't really accommodate all the diversity that we are looking for, but I would like to know how we are going to go about ensuring that people are represented through this election process—not just this time, but also going forward.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Thank you for the comments and the question.

Again, diversity is an important criterion. What we have sought to do in terms of this selection process is make our assessment criteria public with regard to this appointment and future appointments to the Supreme Court of Canada. The next appointment, barring any other circumstances, will be in 2018, when the chief justice is set to retire at age 75. It's the intention to ensure that this process is followed for this appointment and future appointments and to recognize that built into this process is the ability for members of Parliament, the advisory board, and others to contribute and provide comments about how we can improve the process.

We talked earlier about the first woman who was appointed to the Supreme Court of Canada. The social realities of our country and what it means to be Canadian are a dynamic process, and I believe that a public recognition of the need for diversity on the Supreme Court of Canada is a substantive start to the process. It's an acknowledgement of the need to ensure, as we move forward, that the highest court in our land reflects the diversity that exists in the country.

Who the appointment will be is yet to be determined, as I've said. I don't think that you're the only visible minority around this table. I too come from a visible minority and I am very proud of that. I know that among the visible minorities in this country there are substantive jurists who can put their names forward this time and in the future. Moving toward a more diverse bench not only at the Supreme Court but at other courts in the country as well will not only provide differing perspectives and backgrounds and considerations in terms of legal concepts and cases and factual circumstances but will also provide an increased sense of confidence in the judiciary, in that people who appear before the justices will have the confidence that comes from seeing their reflections in those justices.

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

Thank you for that.

We've talked a lot about functional bilingualism today, and I just want to point out that 13 out of the 15 of our past appointments have been functionally bilingual, even though it has not been a requirement, so we've had a very good process.

I want to talk a little bit about Quebec. The process that has been announced says that it will be varied somewhat for one of the three seats that are reserved for Quebec.

Can you provide some more precise information on how the process will be varied for that one Quebec appointment?

[The Chair, Liberal, Anthony Housefather]

I think you mean the three seats reserved for Quebec on the civil law appointments.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Constitutionally, there is a requirement for three jurists on the Supreme Court of Canada to be from Quebec, given its unique legal traditions in civil law.

I'll say this: of the three Quebec justices on the Supreme Court of Canada, the next one, according to the timeline, will be up for retirement in 2032, so there is some time to consider appointments, although we recognize that circumstances might make that sooner.

However, in terms of the appointment process and what considerations would be made regarding the composition of the advisory board, again, there's the recognition that there is a unique legal tradition in Quebec, and while there is no specific determination of the composition for the appointment of a Quebec justice to the Supreme Court of Canada, it would be in recognition of that unique tradition and potentially additional members who would be on the advisory board from the province of Quebec. This is something that is to be determined in a substantive way, but I think that in terms of this process, the recognition that there needs to be a distinction regarding appointments from Quebec in terms of Quebec's unique constitutional realities and its legal system is important.

[The Chair, Liberal, Anthony Housefather]

You have time for one more short question.

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

Thank you.

It's great to see that the proposed nomination process has received widespread approval from editorial boards such as that of the Montreal Gazette and from columnists and professors across the political spectrum, who have judged it to be an improvement and more transparent than the previous process.

How did the government select its three nominees on the advisory panel, and will this panel remain in place for future appointments as well?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Thank you for the question.

In terms of the three government appointees to the advisory board, it's in the mandate letter from the Prime Minister to the chair and the members that their terms will be for six months. The order in council says that terms will be for up to five years.

In terms of how the government identified its candidates, I think without reservation that former prime minister Kim Campbell's contributions as the prime minister and in holding down various portfolios as a minister of the crown and her contributions to our country in her post-public life are well known. We very much appreciate seeing the positive responses to her appointment and we hold her in the highest regard.

In terms of the other two government members, both of whom are non-lawyers, and specifically so, these are eminent Canadians who in their own right have contributed to the fabric of our country in substantive ways. One is a former premier of the Northwest Territories. He has contributed to his nation and to the reconciliation with indigenous peoples, and he brings that perspective. The other has done a substantive amount of work in her community. That work, and the work of Stephen, is reflective of the commitment we have to diversity, and the recognition that non-legal members are important to provide perspective in terms of their various backgrounds and can contribute to discussions around assessment criteria.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Now Mr. Nicholson and Mr. Schmale will share this time.

Go ahead, Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

Thank you for your comments, Minister, with respect to Atlantic Canada and the importance of this being part of the consideration.

I have one question about that. If it is important and it's important to the Prime Minister and it's important to you, why wouldn't it have been listed as one of the criteria? You have a list of criteria that are important: functionally bilingual, of course, and representing the diversity of the country. Why wouldn't the importance of the person coming from Atlantic Canada have been mentioned in the criteria at this point in time?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

In the mandate letter from the Prime Minister to the advisory board is the recognition and the need to have candidates from Atlantic Canada on the short list of three to five.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Let me ask you this. You said you're going to replicate the system that you're putting in place for the Supreme Court nominees across Canada for superior court judges. Did I get that right?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

What I meant—and I may have misspoken—is that we are intending, in terms of the question that was asked about appointments to superior courts, to reconstitute the process by which superior court justices are appointed. When I said replicating, I meant ensuring there is diversity in terms of the appointments and that there's an ability to reach out into the legal community to identify jurists who potentially would not normally be identified, to ensure that, for example, under-represented persons would have the ability to sit as superior court justices to transform the look of the bench.

[Rob Nicholson, Conservative, Niagara Falls, ON]

How soon do you think this process is going to be put in place? You must be concerned by the delays in getting appointments done. You must be considerably concerned by the comments of the Chief Justice of the Supreme Court that with respect to over 40 judicial appointments.... You've been in office about 10 months, and it seems to me that some process has to be put in place. What is the problem with going forward on this? Are you as concerned, as I'm sure I guess you would be, to hear from the Chief Justice about the challenges they're facing with all these vacancies?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I appreciate the question.

I know this is beyond the scope of the Supreme Court of Canada appointments, but I'm happy to respond. I always take seriously comments made by the Supreme Court of Canada Chief Justice. I take seriously as well comments that are made around this table and in Parliament.

We are moving forward. We have appointed a number of justices, and we are moving forward with renovating the process by which justices will be identified. In doing so, we'll recognize that we need to fill vacancies. We are endeavouring to do that in a thoughtful, comprehensive way that achieves the objective that we have publicly stated in terms of appointments of justices that reflect the diversity of the country.