Evidence of meeting #23 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was process.
A video is available from Parliament.
2:45 p.m.
Liberal
2:45 p.m.
NDP
Thomas Mulcair NDP Outremont, QC
Mr. Chair, in our parliamentary system of government, openness and transparency start with a discussion with duly elected representatives of the public. The minister contends herself, as she just said, that she is talking to us now, but she is talking to us after they've already announced the result. There's no consultation with Parliament. Let's be clear on that. This was decided in vacuo by members of cabinet, and a letter was simply sent to two chosen newspapers.
With regard to not believing everything that you read in the newspaper, that was in The Globe and Mail, and The Globe and Mail was indeed one of the only two newspapers to have received the Prime Minister's letter. One would have thought that was an indication that the minister thought it was a worthwhile place to put that letter.
I don't know how you explain the difference between Sean Fine's article and what the minister just said to us today, but I will say, Mr. Chair, that right now we're looking at substantive changes. If you go back to the Supreme Court's decision in the Nadon case, you will see that this type of substantive change is not something the executive branch of government can foist on parliamentarians, who represent the legislative branch of government. That's a serious problem, but it's also a consistent tendency of this new government, whether it was with motion No. 6 in trying to take away all powers of the opposition or whether it was on the Latvian deployment without any discussion in Parliament, despite the fact that the Liberals used to bemoan the Conservatives trying to do that—albeit they finally consulted Parliament—or direct talks between the PMO and the Parliamentary Budget Officer. Indeed, it's not the Prime Minister's budget officer; it's Parliament's budget officer. Parliament has always had a word to say.
I'm concerned about the way we're trying to proceed because we're being put before a fait accompli. This has already been decided in a vacuum by a small group of people, and the conclusions, as far as I'm concerned and from what I've heard, are preordained.
Thank you, Mr. Chair.
2:45 p.m.
Liberal
2:45 p.m.
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
I obviously disagree with what has been put forward. This process is not preordained. To say it in a different way, there are not any predeterminations. What we have sought to do is to describe in great detail how this process is going to unfold.
In terms of having members of Parliament involved in the process, I articulated my points in both my speaking points and in answers to other questions. Not only is there an opportunity today for members of Parliament to be involved, but there will also be other opportunities for them to do so in this process.
I will say in closing that there was no process last time. What we have sought to do is to clearly provide members with an understanding of the process and how the Supreme Court of Canada justices will be appointed through it. This is, in my view, a good-news story. It invites Canadians to have discussions, as Minister Cotler did in 2004, about this fundamental institution of our democracy and to have an understanding of the people who fill these seats.
2:45 p.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
Minister, I want to thank you for the opportunity to discuss these issues.
The honourable member for Outremont suggests that this is a fundamental change to the way Supreme Court justices are selected, but at the end of the day it will be the Prime Minister who makes the selection going forward, as has been the case. Wouldn't you agree, though, that this is just a matter of opening up an opaque process that has existed for far too long and continuing with our commitment to openness and transparency?
2:45 p.m.
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
I agree with that proposition and, again, I would be very happy to further explain parts of the process, to hear feedback on the process, and recognize that within the process there's the opportunity for this committee to provide feedback on it, on the nominee, and other matters in terms of their selection.
What we have described in the process is not a formal change by way of legislation or the Constitution. This is a matter of policy and a priority that our government is putting forward, whether it be around functional bilingualism or around the recognition that diversity is important to the Supreme Court of Canada.
I'm really pleased to be here to talk about this process and would invite you, Mr. Bittle, and others to comment on it.
2:50 p.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
Thank you so much, Minister.
It's a structural issue, but the pool of judges that the panel will be able to select from will predominantly be white and male, given that only about 30% to 35% of judges in Canada are women. Does the requirement that judges be bilingual limit the ability to appoint more women, minorities, and indigenous people to the top court?
2:50 p.m.
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
On your initial comment, I'm not sure if you intended it this way, but the eligibility criteria articulated in section 5 of the Supreme Court Act—leaving aside the Province of Quebec—enable current sitting justices or former justices or jurists who have been called to the bar of their jurisdiction for over 10 years. It's not just limited to judges, but to jurists of the highest quality.
I have been asked that question on whether or not the requirement of a functionally bilingual candidate would limit the pool. I have every confidence that there are eminently qualified jurists across the country, whether they are indigenous or a visible minority or persons with disabilities, who have the ability to put their names forward.
2:50 p.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
Would the government be prepared to appoint an exceptional candidate, such as an indigenous judge or a person with a disability or an individual of a visible minority, on the condition that they learn English or French and become functionally bilingual?
2:50 p.m.
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
Our commitment as a government is to ensure that the appointment of the next justice to the Supreme Court is functionally bilingual. There have been discussions in the past with respect to previous appointees and their learning French or English, as the case may be, but in this case our commitment is to ensure that there is a functionally bilingual justice appointed to the Supreme Court. Again, if we're talking about the indigenous population, I recognize that there are eminent scholars and lawyers, as well as judges, who have an equal ability to put their names forward.
2:50 p.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
I think we can all agree that Supreme Court judges should be persons of exemplary character. Even though there are lawyers who have been appointed in our history—I believe there have been three, though I could be wrong on that point—it's typically been judges, and it can be difficult to determine a judge's character, because as judges they have to separate themselves from their community.
Is the committee going to look beyond a judge's decisions? Will they look to what these individuals did as lawyers as part of their community and the work they did within their community?
2:50 p.m.
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
I think that's a great question. I recognize that judges are human beings, and as human beings they bring a wealth of experience and background to the positions they hold, or potentially could hold. The main reason the qualifications and the assessment criteria we've set out are made publicly available is so that individual Canadians, members of Parliament or otherwise, have the ability to understand the basis upon which candidates will be assessed by the advisory board.
Certainly there is a recognition of having a firm understanding of the law and significant analytical abilities, as I said in my remarks, but there is also a recognition that personal qualities are paramount to the assessment criteria, and that diversity and what the individuals did in their previous capacities will be looked at.
I think central to the assessment criteria or the work of the advisory board will be the questionnaire that we have compiled, which is also available online. It asks a significant number of questions of potential jurists who want to put their names forward. That will provide insight into the individuals and their thought process, potentially, not only for the advisory board, but also will make available specifically questions with respect to the nominee that will be announced.
2:55 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
We'll now go into the second round of questions. I'll just remind everyone that this round goes Liberal, Conservative, Liberal, Conservative, NDP.
This round will be started by Ms. Vandenbeld.
2:55 p.m.
Liberal
Anita Vandenbeld Liberal Ottawa West—Nepean, ON
Thank you very much, Mr. Chair. I will be sharing my time with Mr. McKinnon.
Thank you, Minister, for being here today and for listening to the views of parliamentarians. It's a tremendous pleasure for me to be able to be part of this conversation.
I'd like to talk a little bit about the appointment of women to the court. We know, and there has been ample evidence, that when a deliberative body has both women and men on it, you see better decision-making. If you look at the jurisprudence of the Supreme Court and at the opinions that have been given by the female justices, you see some of that change in discourse, particularly around section 15 of the charter.
My question to you is this. You've spoken quite a bit about the diversity of backgrounds and life experiences. I agree that the definition of merit also ensures that the person can understand the societal implications and the diverse experiences that will bring people before the court.
Minister, more and more Canadian women are becoming lawyers, and more and more of them are becoming judges. But the situation is a bit different as far as the Supreme Court goes. The number of female justices rose initially and then dropped before going up again. Four women now sit on the Supreme Court.
How can we make sure that the new process guarantees gender equality on the Supreme Court?
2:55 p.m.
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
Thank you for the question and for being part of this committee. I without question recognize the importance of gender parity. If we go back to the early 1980s, to 1982 and the appointment of Justice Bertha Wilson as the first woman to the Supreme Court of Canada, a lot has changed since then. As you quite rightly point out, with the retirement of the Honourable Justice Cromwell, there will be four women and four men on the court, the chief justice obviously being Madam Justice McLachlin.
As with the recognition of the need for diversity in terms of unrepresented communities, there is a need to look and ensure representation of men and women. Given that the composition of the Supreme Court is nine justices, we won't have parity ever at the Supreme Court of Canada, at least under this current time, but I think your point about ensuring recognition of the need for gender parity is well taken.
2:55 p.m.
Liberal
Anita Vandenbeld Liberal Ottawa West—Nepean, ON
So it is your expectation that the short list will include multiple women.
2:55 p.m.
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
Well, as with having candidates from Atlantic Canada, I suspect and know that the number of eminent jurists that are of the female persuasion are equal to the number who are men.
2:55 p.m.
Liberal
2:55 p.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
Okay.
Minister, the process you've outlined attempts to strike a balance between parliamentary involvement and the involvement of external, non-partisan inputs in the process. I'd like to delve a little further into the role that this committee will play in that process. I would like to thank you as well for being here as part of that involvement.
My understanding is that the external committee will basically filter through the list of applicants and come up with a short list of candidates based on the application of the criteria. What, then, will this committee do when you consult with this committee? Do we further shortlist that list? Perhaps you could just expound on that a bit.
3 p.m.
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
Sorry, just for clarification, when I consult with this committee...?
3 p.m.
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
Okay. In terms of the independent advisory board, you quite rightly point out that they will intake, through an open application process, qualified candidates and they have the ability to seek out other qualified candidates to put their names forward.
What the Prime Minister has done in the mandate letter and the terms of reference is task the board with looking at the assessment criteria that have been articulated and coming up with a short list of three to five names. Once the committee has come up with a short list of three to five names, that is the point at which I will take the list and engage in a series of consultations.
Certainly, as I stated, I will consult with Chief Justice McLachlin of the Supreme Court. I will consult and have discussions with the relevant Attorneys General on the short list. I will have conversations with justice critics. I will have discussions with members of this committee and the senate committee on constitutional and legal affairs. I will ensure, based on discussions, that I am able to recognize the balance that needs to be drawn between transparency and the necessary realities of privacy and the protection of privacy in terms of individuals who will be on that short list. I look forward to having those extensive discussions and ensuring that the recommendations that I make to the Prime Minister are based on those discussions in terms of the short list.