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.

On the agenda

MPs speaking

Also speaking

Hon. Kim Campbell  Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments

4:30 p.m.

Liberal

Ahmed Hussen Liberal York South—Weston, ON

Yes, but also in reaching out to groups that are normally under-represented in the judicial system, so they would know more about the process and what they would need to apply.

4:30 p.m.

Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments

Kim Campbell

I'm not sure whether that would have increased the number of candidates, and there were representatives of under-represented groups on the committee as well. This was not a uniform, homogeneous group of people. But I think, yes, down the line the opportunity to... judges from the Supreme Court of Canada meet the public. The Chief Justice talks, and I think they understand that there are certain things they should talk about, such as what it means to sit on the Supreme Court of Canada. It would be great if under-represented groups could see themselves as part of the justice system, not just on the Supreme Court of Canada but sitting on benches at all levels. It's one of the most important things we do in the rule of law.

I think it would be very interesting. We were appointed for six months, but another committee could, I think, be appointed for a longer term under the legislation, in which case they could perhaps have an outreach program where they could meet with different groups in different parts of the country to talk about what it means to go to the Supreme Court of Canada, what kinds of things a committee looks for, and how they might prepare themselves or encourage people they know to do it. I think that would be great. I think we got a very interesting, diverse group this first go-round. Could it be better? Could it be bigger? Sure, and I think what we want for Canadians...not only would you keep the Prime Minister up at night trying to figure out which of the short list to appoint, but you'd keep the committee up at night trying to figure out how to get to a short list.

That's a problem we'd like to have.

4:30 p.m.

Liberal

Ahmed Hussen Liberal York South—Weston, ON

Honourable Jody Wilson-Raybould, would the government be open to putting extra time and effort into outreach to under-represented groups to inform them about this new process or educate them more? I think part of the challenge is education about the process, not necessarily a lack of applicants. Maybe with more education you will have more applicants, and then you will have more of a challenge to pick the right people.

4:35 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

The short answer is, yes. Certainly, it would be in advance of the next appointments process that we would go through. We have an incredible opportunity, all of us, including myself, to do that necessary outreach, to explain the process and encourage people to apply through that process. I think it's important, not only for the Supreme Court of Canada, but also for appointments to superior courts across the country. With the Prime Minister introducing this process in terms of the Supreme Court of Canada, we've had the opportunity to amend and introduce a new process for superior court appointments that will speak to and encourage a diversification of individuals appointed as judges to the superior court. This is an opportunity for all of us. I am open to all the recommendations, not just those from this committee, and I certainly look forward to reading the independent advisory board's report with respect to the process in this regard.

4:35 p.m.

Liberal

Ahmed Hussen Liberal York South—Weston, ON

I don't have any further questions. I just have one comment.

4:35 p.m.

Liberal

The Chair Liberal Anthony Housefather

I understand, but if Ms. Khalid is going to ask her question, you're almost out of time.

Ms. Khalid.

October 24th, 2016 / 4:35 p.m.

Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

Thank you.

Thank you, Ms. Campbell and Honourable Jody Wilson-Raybould for your time today. It is very much appreciated. I will ask a couple of short questions, if that's okay.

In light of the two wonderfully accomplished women sitting before us today, I am curious about something. Out of the 31 applications, how many of them were women? Do we know?

4:35 p.m.

Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments

Kim Campbell

We're trying to discuss how specific we can be to protect the identity of candidates...their confidentiality.

4:35 p.m.

Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

Let me rephrase then.

4:35 p.m.

Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments

Kim Campbell

It's slightly fewer than half. I'm not sure what the proportion of women in the profession now is eligible to go to the courts. When I was justice minister, it was 12.5%, and 25% of my appointments were women. I don't know if women are up to 50% in the eligible group of lawyers with 10-year calls. I think the proportion was probably close to the proportion in the eligible group. That's another category of people who need to be encouraged. There is no question about it at all levels.

4:35 p.m.

Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

Other than the eligibility criteria and working on the grassroots on that end, what more do you think can be done to encourage women? Is there more that can be done to compel women to apply? From my personal experience, I always find that women have a hard time trying to reach for those positions.

4:35 p.m.

Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments

Kim Campbell

Well, the minister will speak to her own role in appointing women to the farm team of other benches, but you know perfectly well that trying to get women to run for Parliament.... This is a very large country, and in the Supreme Court of Canada, people do have to uproot themselves to come to Ottawa. I think that's difficult, and sometimes women are less mobile than men, but not always—it is changing. It can be a challenge, so I think we need to get out to those communities. I think that a lot has happened at the trial and appellate level to make women part of that landscape. However, under-represented groups need to have champions. They need to be encouraged. We did have excellent candidates, so it's not that there weren't any, but it wasn't greater than the proportion in the eligible group. Maybe that's how it should be.

4:35 p.m.

Liberal

The Chair Liberal Anthony Housefather

Mr. Cooper.

4:35 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Thank you, Madam Minister and Ms. Campbell, for being here.

I want to first of all ask you, Madam Minister, a couple of questions about process.

In the Prime Minister's August 2 op-ed piece published in The Globe and Mail, he states that “once the shortlist of candidates has been compiled by the advisory board,” that you, as the minister, would consult with a number of different persons, including members of the justice and human rights committee.

I just want to confirm that you would acknowledge that that didn't take place.

4:40 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

Well, in fact it did take place. I took very seriously the necessity to consult with members of this committee. In fact, I consulted with both critics, Mr. Nicholson and Mr. Rankin, and I had the opportunity to consult with the chair of the committee, Mr. Housefather.

4:40 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

I would note, Madam Minister, that the Prime Minister in The Globe and Mail referred to the members of the House justice and human rights committee, and he went on to add opposition justice critics. According to the criteria set out by the Prime Minister, it wasn't just justice critics that were in this process to be consulted. It was also members of the justice committee.

Again, I would ask if you would acknowledge that this didn't happen.

4:40 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

Thank you for the question. I think we'll have to agree to disagree, Mr. Cooper. I consulted with members of the justice committee, including Mr. Housefather.

4:40 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

I would also note that not only did you not consult, but you in fact disinvited certain members from having the opportunity to engage in that process, including the vice-chair of the committee, who was advised seven minutes before the nominee was to be announced by the Prime Minister. I recognize that the Prime Minister is under no obligation to consult members of Parliament in this process, but when you make a commitment, it's about keeping the commitment.

Now, this is with respect to another thing the Prime Minister said in his Globe and Mail op-ed piece. He talked about the fact that members of Parliament would have a direct opportunity to engage with the nominee. Further in that op-ed piece, he referred to a Q and A session in which members of both the justice committee and the Senate legal and constitutional affairs committee would have an opportunity to take part in a Q and A session with the nominee.

That, of course, is happening tomorrow at the University of Ottawa. When you look at both committees, there are, I believe, 12 members on the Senate committee and 10 members on our House committee, and yet there will only be an opportunity for 14 rounds. It appears there might be an opportunity to ask a one-minute question. Would you not see merit in having an opportunity for members of this committee and the Senate committee to engage with the nominee by having the nominee come to Parliament Hill in addition to this Q and A session that has been set up for tomorrow? Wouldn't that provide a better opportunity for real meaningful engagement?

4:40 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

There are two parts to the question, and I appreciate the two parts.

In terms of the consultations, as I said, I took very seriously my obligation to consult. Certainly the consultations that I undertook informed to a great degree my recommendation to the Prime Minister. One can appreciate, with the sensitivity around a short list and the need for confidentiality in advance of those consultations, that I sought to gain a signed non-disclosure agreement among the individuals I consulted with, particularly with respect to those who were consulted on the entirety of the short list. I'm very pleased I was able to consult with three members of this committee.

In terms of the opportunity to engage with Mr. Justice Rowe tomorrow at the University of Ottawa, I am very pleased that members of this committee, members of the House, and a whole host of law students will be there to be introduced to Mr. Justice Rowe. Members of this committee and the Senate will be able to ask him questions.

I want to underscore that this is unprecedented. This is historic. It provides an opportunity to invite Canadians into a process wherein they will have the opportunity to get to know the next Supreme Court of Canada justice. I very much look forward to seeing how the discussions unfold, and I'm entirely encouraged that there is a substantive number of questions that this committee and others will be able to ask Mr. Justice Rowe.

4:40 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Thank you, Madam Minister.

Ms. Campbell, one of the very positive things I heard today was when you talked about the fact that of the 31 applicants, almost all of them met the qualifications in terms of being functionally bilingual. While I appreciate that you may not be able to get into some of the specifics, would you be able to comment on the regional breakdown of the number of applicants who applied? It certainly is encouraging to hear of that high degree of proficiency.

4:45 p.m.

Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments

Kim Campbell

I'm not sure I said they were all functionally bilingual; I said they all had some French, and very few had no French at all, and that was right across the country. There was a French test given to ensure functional bilingualism, and not all candidates passed it. Most of them did who took it. It was actually a pleasant surprise to me. If you see the application form—Justice Rowe's is on the Internet, so it's easy to see—there were four boxes. The first two boxes represented what we would call functional bilingualism, to be able to read and understand and understand arguments in French, and then the other two were refinements of that. I think it's a reflection of an interest in learning French that has me going back to my own days as minister where one saw this growing.

Again, the Supreme Court of Canada is a unique court, but it's interesting that even in some of the regions.... For example, I am doing a project now for the University of Alberta, and in another totally different context related to that project, I met with a francophone lawyer who is the head of the Association des juristes d'expression française de l'Alberta. Many people may not know it but the University of Alberta has a francophone campus.

The interesting thing that this lawyer said was that translation isn't adequate. He said that he actually thinks he lost a case because a judge missed the nuance of an argument. He's actually had judges say to him, “I'll rely on your translation because the translator isn't very good.” I'm sure that as legal translators go, the Supreme Court of Canada has very good ones. But I think that relying on that when there is a possibility of having judges who have some functional understanding is perhaps not serving our francophone citizens the best, and they don't all come from Quebec or New Brunswick. That's what has been very interesting for me.

Lawyers have been taking on the challenge and it's quite wonderful, and, as I said, Justice Rowe is a very excellent example of that. He comes from Newfoundland. They don't have a French-speaking population, not like in New Brunswick or even in Nova Scotia where there are French-speaking communities. I think it was very encouraging for me to see that.

4:45 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much.

Mr. Bittle.

4:45 p.m.

Liberal

Chris Bittle Liberal St. Catharines, ON

I practised law and litigation for approximately 10 years and occasionally came across judges who we jokingly referred to as having “judgitis”, an arrogance or pomposity. How did you find candidates who were not only—and just to be clear none of them were from Niagara, in case I ever have to go back, that's a possibility—excellent jurists but also good people who had a sense of empathy along with an appreciation and ability to apply the law?

4:45 p.m.

Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments

Kim Campbell

There are two things. One, with the references who we spoke to we really pursued those kinds of issues, but also in the interviews that we did, they were long enough and I think the kinds of questions we asked tried to get at that.

We looked at things like their views on collegiality, which is very important for the court. We looked at what their references said about how they were regarded in their communities by the profession and more broadly.

I suppose, again with more time, one could do more of that, but we certainly cared about that. One of the things about the Supreme Court of Canada is if you can't work with other people, it's very destructive. It's not that you want groupthink—you want people who bring a strong point of view—but if in a decision there are a lot of different judgments, that's chaos for the courts and the people below, as you well know, who have to rely on that. This is the architecture of the law, so that ability....

One of the things I would say about Justice Rowe is when we asked him this question, he gave a very interesting answer. He serves on an appellate court, so of course, his experience is very real. He said, and I hope I am allowed to say this because he'll probably repeat it if you ask him, “I know what the issue is. It's important to me and I am prepared to put a lot of water in my wine, and I have no pride of authorship.” I thought that's a very interesting and constructive philosophy for an appellate court judge who has to sit with others to have.... It bodes well for the ability to help to create the kinds of judgments that will give security and clarity to those of you who are practising and need to know what the law is.

4:50 p.m.

Liberal

Chris Bittle Liberal St. Catharines, ON

Were you able to identify any particular experience, training, education, and/or community involvement that really elevated the best candidates for consideration? If so, perhaps that's a good thing to identify to future candidates not only for the Supreme Court but for the new application process for other courts as well.