Evidence of meeting #30 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.
4:10 p.m.
Liberal
4:10 p.m.
NDP
Murray Rankin NDP Victoria, BC
Minister, I would like to welcome you as well and thank you for coming to the Standing Committee on Justice and Human Rights. I would particularly like to thank you, Ms. Campbell, for your service in this important role.
Minister, in your opening remarks you referenced two purposes. The first was about the candidate, and the second, of course, was about the process. I'd like to talk about the process that led to the selection of Justice Rowe as the nominee for the Supreme Court of Canada.
You said that the process would allow us “as parliamentarians, to hold the government to account”. I understand that under the administrations of both former prime minister Harper and former prime minister Martin, opposition members were involved in an advisory committee that created a short list of possible candidates.
Minister, you are well aware of the difference between consultation and mere notification. Do you believe MPs should have a role in the creation of the list as well as in the selection of the person to serve as a justice of the Supreme Court, particularly given the increasingly important role the Supreme Court plays in the lives of Canadians? Do you think that members of Parliament, as the elected representatives of Canadians, should be involved in the substance of the appointment decision now and for future appointments?
4:10 p.m.
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
Thank you, Mr. Rankin, for the question.
I certainly appreciate and recognize the importance of ensuring that members of Parliament have involvement in the selection process. I do believe, as I said earlier, that the heart of this new nomination process for Supreme Court of Canada justices is the independent and non-partisan advisory board, which is, in this case, and I imagine in future cases, comprised of exceptional individuals who are from the legal community and are non-lawyers who have been able to provide a short list of candidates, having had extensive review. So I think that continuing...and I know that we will continue with that independent advisory board process.
Having said that, I believe that members of Parliament have been engaged and will continue to be engaged in the selection process in terms of having the Minister of Justice come before the committee to speak about the process in advance and being able to come back before the committee, as we are today, to talk about the nominee and the selection process to identify that nominee, and furthermore, in an unprecedented way, to have publicly available the opportunity for not only members of Parliament, including this committee, to meet Justice Rowe tomorrow, but also to have members of the public able to listen to Justice Rowe introduce himself and then ask him some questions.
4:15 p.m.
NDP
Murray Rankin NDP Victoria, BC
You would agree that having what I understand and agree was a non-partisan and independent process is a very different thing from involving members of Parliament as representatives of Canadians early on in the process, rather than their simply being given a name and having the opportunity to meet that person in an informal gathering off the Hill. It's very different from the kind of role MPs have played in the past, under previous administrations, when they were involved in the creation of the short list and in the substance of the decision-making.
4:15 p.m.
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
Again, I believe that having that independent, non-partisan advisory board providing the short list is an important aspect of this new selection process. I would encourage members of this committee, and beyond this committee, to recommend or to encourage individuals to put their names forward for the next appointment. I understand the important role that the institutions of our democracy play in wanting to ensure there is a recognition of the independence of the judiciary, a recognition that bringing in seven esteemed individuals beyond partisan politics to identify a list is an important aspect of this open and transparent process.
4:15 p.m.
NDP
Murray Rankin NDP Victoria, BC
Minister, you spoke about diversity in your search for nominees. I appreciate and respect the commitment that both you and Ms. Campbell have to a greater diversity on the Supreme Court so that judges can better reflect the Canadians they serve.
I understood Ms. Campbell to say that there was a regional diversity quota for the short list. Was this the only one? Were there, for example, requirements about gender balance, ethnic diversity, or indigenous representation?
Can you point to anything in the current process that would demonstrate that the goal of diversity was achieved? Are there lessons for future processes, or are you satisfied that this process has achieved the goal of diversity?
4:15 p.m.
Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments
Perhaps I could say a bit about the process of how we did it.
Our terms of reference made a particular point of recognizing the diversity of Canadians, and that identified a number of characteristics where individuals are often under-represented or not represented in the judicial community. One of our candidates made a very interesting comment and said that diversity isn't so much reflected in decisions, but in what you bring to the conference. I think those of us who have worked for the advancement of women recognize this. It's not so much that a woman would decide this and a man would decide that, but that you bring a different reality and different questions perhaps to the broad discussion of issues.
I think this commitment to diversity played out, and as the minister has said, our terms of reference also included finding qualified candidates—that's plural—from Atlantic Canada. We assumed that meant at least two candidates from Atlantic Canada. There were a lot of Atlantic Canadian applicants, obviously, so that was not difficult, but there was a broad diversity in the candidates. I think the terms of reference sent a message to people who were thinking of applying that they should not be discouraged from applying if they are members of an unrepresented social category. The fact of of the matter is that, particularly in the legal profession, there is a lot of lack of diversity in many aspects of it.
The terms of reference were a clear message to the Canadian legal community, and that was reflected in the applications. Our goal was to find candidates of great competence. Many of them represented what you might call checking off the box, but it's a broader thing. The names that we provided to the Prime Minister provided some very interesting choices. Even in the case, for example, of Justice Rowe—who doesn't check off any of those boxes, except that no one from Newfoundland has ever been there—what was also important for us was the breadth of his understanding of the country. We asked candidates to tell us about their understanding of the diversity of Canadian society. It wasn't just are they from a category that they would check on the application, but what is their lived experience of the reality of Canadian society? That was a very interesting question to hear people answer, whether this had touched them in a way, and whether they had dealt with it. Justice Rowe's experience, particularly in the work he's done through Action Canada, has taken him to indigenous governments, Haida Gwaii, and the governments in the north, etc.
He spoke in great...well, you can ask him about it tomorrow, but that was important to us. When we were talking about what you bring to the conference, or when the members of the Supreme Court are sitting and talking about an issue, are there things that are not being said because nobody knows about them? I think of when Bertha Wilson came to the court, and about the decisions on property, for example, in common-law couples. These were really important things that came from a particular person's recognition that there was an issue. I think that is really important. I don't for a nanosecond say that it is the only thing, but I think what was communicated was the welcome to candidates of many different backgrounds to apply.
We're committed to confidentiality of the candidates, so we can't give you all of the list, but there was a really wonderful richness. I think that is the most important thing. Only one person can be appointed, but that person has to reflect that respect, appreciation, and knowledge of the diversity of Canadian society. The candidates were a very interesting group, and as I say, remarkably proficient in French, much to my delight.
4:20 p.m.
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
To add to that, it's a really important question, in acknowledging the comments of Ms. Campbell. It is for that reason, the need or the desire to achieve that diversity, that we were very thoughtful in developing the process, the qualifications, and the assessment criteria. We've made that publicly available, and it's reflected in the publicly available application that Justice Rowe put forward when asking specifically about your reflections on diversity and your experiences with respect to diversity.
4:20 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you very much, Mr. Chair.
Thank you very much, Minister, for being here today. Ms. Campbell, thank you so much for being here and for all of your good work leading the advisory panel. I think it has led to an excellent choice for the Supreme Court of Canada. I commend you and all of the members of the advisory board for the great work that you did in the service to Canada.
I think it reflects very well on the process to have somebody of Justice Rowe's calibre to be selected and will serve Canada well in the future to learn lessons of what perhaps could be improved.
I'm from Atlantic Canada. I'm a lawyer from Nova Scotia, and I know that my colleagues and I were watching with interest to see what would happen with regard to the custom of regional representation. We believed that that was an important aspect, and it was part of the process.
Ms. Campbell, how did the advisory panel view the regional representation with respect to getting at least, as you said, two names on the short list? How did that happen? Was it viewed in isolation from the rest of the candidates, for example, or was there some other way that the conversation happened regarding the importance of regional representation?
4:25 p.m.
Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments
Again, the terms of reference were clear. At no time was that a difficult thing to fulfill. Atlantic Canada sent us outstanding candidates. It wasn't something where we sat around saying, “Oh my gosh, we'd better rustle up a couple of Atlantic Canadians to put on our list.” Au contraire. It was, “Good grief, not another wonderful Atlantic Canadian.” They were well represented, and as one of the committee members said one day, “Atlantic Canada has sent us its best.”
At some point some day, one might have to answer such a question. It was not an issue. There was no difficulty in going for the most excellent candidates. I can say when Justice Rowe came in, we immediately thought, “This guy's a superstar,” and he wasn't alone.
4:25 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Very good.
With regard to the terms of reference, I know that the advisory board members must, under paragraph 8, review applications received from candidates and actively seek out qualified candidates. I take it from what you said that there wasn't a specific emphasis necessarily placed on a certain region because there were so many good candidates from across the country, and in particular from Atlantic Canada. Is that fair to say?
4:25 p.m.
Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments
The groups that we asked to solicit their members and to make sure they got the information were groups from across Canada, the Canadian Bar, and all the law societies. I think there's a list of about 19. There are many groups, many ethnic groups of lawyers or lawyers with particular interests, all of whom, I think, have members in Atlantic Canada. Because of the terms of reference in which the application was open to all Canadians, we blanketed the whole country in asking organizations to assist us.
Down the line, if there is more time, one could even do more perhaps to seek people out. When individuals were recommended to us, we immediately sent them the information and said, “Your name has been forwarded to us. Please review this, and we warmly encourage you, if you're interested, to apply.” We thought that was the appropriate way of doing it as opposed to singling individuals out.
This committee might have some interesting advice about the optimal way to maximize the number of good people who will apply. Often members of Parliament may know of people in their own constituencies who have promise. I'm sure we already try to encourage them to get vetted for the section 96 courts and the trial and appellate levels, but again, it's feeding the pipeline.
4:25 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Now that we know how the process works, and it's being better understood, I suppose that will help in formulating people to encourage others to make the application.
4:25 p.m.
Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments
Yes.
4:25 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
With regard to paragraph 8 of the terms of reference that I mentioned, it was mentioned that you should consult with the Chief Justice of Canada and key stakeholders who the members consider appropriate. You mentioned that you had a meeting with the Chief Justice of Canada. I wonder if you could speak about key stakeholders, who those might have been, and at what point in the process those meetings took place.
4:25 p.m.
Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments
We spoke to chief justices; we spoke to at least two former justices of the Supreme Court of Canada, and most of those consultations came as a result of their being references for other candidates, but we also knew there would be a process of consultation by the Minister of Justice afterwards. The consultations took place and whether they could have been broader is another interesting question. We certainly consulted as broadly as we thought we needed to, but I think that a committee with a longer time horizon might want to rethink, and perhaps the timing of it could even be changed.
We thought the consultation with the Chief Justice was the most important because it related to what the successful candidate would have to do, and it is a demanding job. Work on nights and weekends is the norm. There's the fact that a justice on the Supreme Court of Canada has to live in the national capital region. That's not always easy for people from far afield. The nature of the job, the isolation sometimes, and then the collegiality, all these kinds of things, I think, are very important, and the Chief Justice could tell us about them, and even talk realistically about how French works in the court. You can talk about it, but we needed to know how it really works for an anglophone working in French or a francophone working in English. That gave us a better sense of what that meant.
She was extremely helpful in terms of the individual candidates we considered as we were trying to narrow our list.
4:30 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
With regard to the open process, I note as well that the application of Justice Rowe is online and it's very helpful to be able to read that and understand the quality of this person and why he should serve on the Supreme Court of Canada.
4:30 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much, Mr. Fraser.
We'll now move to the second round of questions, which starts with Mr. Hussen.
4:30 p.m.
Liberal
Ahmed Hussen Liberal York South—Weston, ON
Mr. Chair, I'd like to begin by asking if I can share my time with Ms. Khalid.
I'd also like to thank Minister Wilson-Raybould for coming back to the committee, and Ms. Campbell especially for not only heading the advisory board, but also for coming before us today.
4:30 p.m.
Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments
It's a pleasure.
4:30 p.m.
Liberal
Ahmed Hussen Liberal York South—Weston, ON
Thank you.
I'm encouraged by what Minister Wilson-Raybould said, that the process is open to further refinements down the road. That's encouraging because we can always improve the processes we have. I'm also very thankful to hear, Ms. Campbell, that you used numbers instead of names in the initial process. That removes any subliminal bias there may be about people's names.
Going back to the refinements, do you think if you had a longer timeline, you would have had more of an opportunity to meet with some of the under-represented groups across the country, and that would have allowed you to fulfill your terms of reference better?
4:30 p.m.
Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments
Do you mean in increasing the number of people who would have applied from some of those groups?
