Justice Committee on Dec. 4th, 2017

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Minister and Ms. Campbell, I want to thank you both for appearing before the committee today. It certainly means a lot to us.

Minister, if I may, I'd like to start with you just talking about the process. In your opening remarks, you referred to the recommendations this committee made in February of this year, and we appreciated receiving your response.

I want to talk to you about recommendation number 4 that we made, regarding expanding parliamentary privilege to make the interview with the nominee a duly constructed committee of Parliament. When we made the recommendation that parliamentary privilege be extended for the nominee, you responded, “It is the Government's view that holding this session in a public setting such as a university provided tangible means to connect the Supreme Court and its appointees to Canadians.”

Speaker Milliken, in 2003, made a ruling and said, “We have parliamentary privilege to ensure that the other branches of government, the executive and the judicial, respect the independence of the legislative branch of government, which is this House and the other place. This independence cannot be sustained if either of the other branches is able to define or reduce these privileges.”

I know that a lot of discussion went into making that recommendation. I was just wondering if you would care to elaborate a little further on why tomorrow's meeting is not going to be under parliamentary privilege.

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

Thank you for the question, and for the recommendations from the committee.

We look forward to the open discussion with Justice Martin tomorrow, which is going to be held within the parliamentary precinct. We have heard the committee's recommendation to expand the ability to ask questions and have every individual member ask questions, and we have extended the time frame to two and a half hours. I know that was a recommendation in terms of extending parliamentary privilege. There is an opportunity for members of this committee and those in the other place to ask probing and robust questions without butting up against the extent of defamation. I look forward to hearing the questions. I understand many members have been thinking about their questions for Justice Martin since it was announced.

One of the other reasons for having it away from but close to Parliament Hill is to ensure that we get to engage with law students from across the country to introduce this Supreme Court nominee to Canadians. It's going to be accessible. Again, to the former prime minister's point, the idea is to make the Supreme Court of Canada more tangible to people and enable them to watch for the last questions.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you.

Ms. Campbell, earlier this year there was an editorial in the Toronto Star. Its basic thesis was that it's time for an indigenous person to be raised to the ranks of the Supreme Court. When I was at Canada 150 celebrations in my riding, a lot of what I talked about was reconciliation. We have quite a checkered history in this country, but it's about the next 150 years. I have a very large indigenous population in my riding. It's home to the Cowichan people, the Coast Salish.

I'm just wondering, with all respect to Ms. Martin and her elevation to the Supreme Court, what your feelings are about the search for an indigenous candidate. Will we one day get to that point? Did this process involve potential indigenous candidates this time around?

[Kim Campbell]

I have absolutely no doubt that there will be an indigenous judge on the Supreme Court of Canada—an outstanding indigenous judge who will not require any compromise in the standards that are applied. The pool of indigenous lawyers in Canada is still very small. When I was the first female Minister of Justice, of the members of the bar who were eligible for appointment to Superior Court, only 12.5% were women; 25% of my appointments were women. The minister has a very small pool of eligible indigenous lawyers who have been at the bar long enough to be appointed to superior courts. Five per cent of her appointments have been indigenous appointees.

We have talked about this, and our committee is very concerned about creating this body of people who can go to the Supreme Court. One of the members of our committee—Stephen Kakfwi—is an indigenous person himself, so we are very committed to doing this.

In addition, and not in substitute, we look among other, non-indigenous candidates for a familiarity and an understanding of the realities of our indigenous communities in Canada. That's an incredibly important thing.

I am absolutely confident. It's interesting that things are kept confidential and you can't talk about them, but I have no doubt that this will happen, maybe in the next couple of rounds. It just depends on where we are and where the next appointments are. I see them coming, and I see them speaking French. They'll take their place with great dignity and respect, and Canadians will be very excited at the quality they'll bring to the court.

[The Chair, Liberal, Anthony Housefather]

You have about 10 seconds. You'll have another chance next round.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, both Ms. Campbell and Minister, for appearing. It's good to see you again for the second round of appointments through this new process.

I want to thank you again, first of all, Ms. Campbell, for your work and your leadership on the advisory board, and to thank all the members of the advisory board for the great work they do. It is a model for how appointments should be made.

I also want to echo the comments about departing Chief Justice McLachlin, who served an incredible tenure as a justice of the Supreme Court of Canada and did an excellent job as chief justice, one that all Canadians should be very proud of. She has big shoes to fill, of course.

As a member of this committee, we did work hard on taking the methods that were used in the last appointment and made thoughtful recommendations, and it's very much appreciated that some of those recommendations were taken very seriously, obviously, and changed the method of how the nomination process works, including the fact that regional representation is now considered a fundamental aspect. I appreciate that very much, being an Atlantic Canadian. It was extremely important to me the last time, and the committee made that recommendation.

Ms. Campbell, if I can start with you, the way the applications were reviewed, we see the applications from the successful candidate. That was put forward and made public so that the public can understand the quality of Justice Sheilah Martin. I'm wondering if you can talk a little about how the committee received the application and whether additional information was provided to the advisory board members beyond the application itself, and whether independent research was done by the advisory board members for example on case law or the writings of Justice Sheilah Martin or any of the other candidates who were considered.

[Kim Campbell]

Thanks. That's a great question.

First of all, each of us looked at all the applications individually without communicating with one another, so there was no groupthink in our discussions. We each looked at the candidates because different people might respond to a different aspect of a candidate. We tried to give them the fairest possible consideration, and sometimes we would get into arguments where one person would ask, “What about this?” We really did try to give the fullest possible review.

Also each of the candidates had references, and we talked to a great many of them to try to supplement what we understood about them.

Second, we did read their case law, their judgments. We read them from the point of view of clarity of expression, knowledge of the law, etc. We felt that the philosophy of their views was really more something for the government to consider and that is why, after we had done our role, the minister and her staff and the Prime Minister's staff looked very closely at the judicial profiles of the candidates, but, yes, we did look at this.

Of course, one of the reasons why filling out the application is so onerous is that they have to give us a list of all the cases they have been involved in and have written about. Yes, we go beyond the application.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much.

With regard to the process itself, now that we've been through two of these nominations with you as the chair of the advisory board, I'm wondering if after the second one you now have any further suggestions about how the process could be improved upon even more.

[Kim Campbell]

I'd like to make sure we had a little more time. It's been great that there's been more time for the candidates. I don't think we rushed the work in a negative way, but it was sometimes hard for us to be able to find the time when we could all be together and do justice to the process.

As I mentioned before, we would like to be helpful in helping to generate the pipelines of interested lawyers and jurists to make the process more understood, and if there is a role for us to do that, we would be happy to do it but it may be better conducted by others.

It's interesting. I did a panel at the Supreme Court of Canada Symposium where Bob Ray spoke favourably about the old “tap them on the shoulder” system of finding Supreme Court of Canada justices. I think the fact that it is open, that people apply who would not necessarily be tapped on the shoulder or seen by senior people in the legal community.... While some of those candidates were not necessarily ready to go to the Supreme Court of Canada, they were certainly interesting to see and perhaps refer to the minister as people who might be elevated in courts or given more opportunity to show what they're doing. It's been a wonderful way of seeing the richness out there, even of those who are not quite ready for the top court but who have great skills. Finding ways of making sure that gets communicated to the minister is another part we can pursue.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

Do I have more time?

[The Chair, Liberal, Anthony Housefather]

You have 20 seconds.

[Colin Fraser, Liberal, West Nova, NS]

That's fine. Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you.

We will now begin our second round with Mr. Ehsassi.

[Ali Ehsassi, Liberal, Willowdale, ON]

I, in turn, would like to join my colleagues in thanking you for coming before this committee. It has certainly been very helpful listening to all your explanations, and I have no doubt that you have put in place an incredibly robust approach to this issue.

The one question I had, which I find quite fascinating, is, obviously, that some of the qualities we're looking for in Supreme Court justices are collegiality and collaboration.

Given that you were going through this difficult process, how would you measure those particular attributes in the people who applied?

[Kim Campbell]

That's a good question.

Sometimes it comes out in the things that other people write about them, or things their references say, but also we ask them. We ask about their experience working collaboratively. Those who sit on appellate courts have that experience. Those who have sat on trial courts.... A trial court judge is God in the courtroom, so it's a whole different culture.

We come out and ask them, get their points of view, and ask them for their experience, because it's a very important issue.

[Ali Ehsassi, Liberal, Willowdale, ON]

Absolutely.

My second question was, obviously, Judge Martin was very much concerned with the residential schools case, which is very significant. It goes to the issue of the breadth and depth of incredible experience that she brings to the task at hand.

In your opinion, how can judicial decision-making assist after the TRC? What are the things we're looking for to make sure we follow up on those recommendations?

[Kim Campbell]

In terms of the courts, issues have to come before the courts as cases. What the understanding of judges brings is a sense of the lived experience of those who are the litigants, and that, I think, is crucial. I think much of the follow-up of the TRC will not involve the courts. It will involve governments, and governments are going to have to address those issues. The courts will occasionally find themselves as referees.

[Ali Ehsassi, Liberal, Willowdale, ON]

Excellent.

Those are the only two questions I have.

[The Chair, Liberal, Anthony Housefather]

We will then move to Mr. Cooper.

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

Thank you, Mr. Chair.

Thank you, Madam Minister. Thank you, Ms. Campbell, for your presentations, for your work, and the work of the advisory board in finding a very qualified individual for appointment to the Supreme Court.

Ms. Campbell, you talked a little bit about the timeline and the need for more time. The first go-around was about a 22-day period. It involved, at the end of the day, about 31 applicants. This time was about twice that in terms of the length of the process, but only 14 applicants.

What do you attribute to the fact that, in the second round, we saw roughly about half of the number of applicants who had applied in the first round? Was it the fact that it was simply limited to western Canada as opposed to a Canada-wide search, or were there broader factors?

[Kim Campbell]

It was almost three times as long because it was 63 days, so it was a much longer process. I think a lot of it had to do with the fact that it was limited geographically and in a region that's very far from Ottawa. It's something we have to take into account.

The Supreme Court Act requires the justices on the Supreme Court of Canada to live in the national capital region. There are a lot of really distinguished members of the legal community in Canada for whom that is just not possible, either because they have family challenges or they just really do not want to leave their family and friends. I think it is important for us to understand the commitment. I don't think the judges think they are making a sacrifice, but they are certainly making a significant change in uprooting themselves.

I'm from Vancouver. Who wants to leave Vancouver? I say that, but we have friends from Edmonton, so Edmonton is pretty nice, too. The point is that it's a big deal. If you're that far away and the locus of your life is there, it's a more significant thing. I think that is discouraging, which is why I think having people learn more about life on the court.... They may still be discouraged, but they might find that perhaps it's not as worrisome as they think.

I think the western appointment one would assume you would have the maximum number of people who, for life reasons, would not want to apply, because it's the farthest region from the capital.

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

Thank you for that.

You mentioned Bob Rae. Of course, he has made some well-publicized criticisms of the process. In particular, he has called into question the suitability or the appropriateness of having to apply. He suggests that it might discourage people—who would otherwise be qualified—from putting their names forward because they might not be comfortable or they might feel embarrassed in the event that they are not selected.

Do you see any benefit, in addition to accepting applications for the advisory board, to go beyond those who have applied and to search out other individuals who are jurists, distinguished academics, or others of the region? Would that be of some benefit?

[Kim Campbell]

Already people in the legal community are taking it upon themselves to encourage people to apply. Last year, I remember a number of candidates saying, “I wasn't going to apply, but my colleagues said I ought to.” That makes it a lot easier.

I understand that modesty, and it's not false modesty. It is the appreciation of how significant it is. That's one of the reasons why the confidentiality of the process is so important. It is in some ways an incredibly transparent process. You know how we deal with the applications, and you see the nominees' applications and details.

One of the reasons confidentiality is so important is that some people are shy about having their colleagues know that they have applied. I can tell you one thing; there is certainly no shame in having applied for this process and not been appointed, because all of the candidates were in remarkably good company in terms of being outstanding Canadian figures in the law. That issue is important. That is why we would like to make sure....

I don't think—because there are chief justices and attorneys general out there rustling in the underbrush and trying to convince people to apply—that there's some great star that's been left behind. There may be some people for whom it is just a difficult and uncomfortable process, and they need encouragement.