Justice Committee on June 22nd, 2021

[The Chair, Liberal, Iqra Khalid]

I call this meeting to order. This is meeting number 41 of the Standing Committee on Justice and Human Rights.

Because there are so many members who are in the room today, I'll just quickly go over our hybrid rules pursuant to the House order of January 25, 2021 for members attending in person in the room and remotely using the Zoom application. Today's proceedings will be made available via the House of Commons website, and the webcast will always show the person who is speaking rather than the entirety of the committee.

Given the ongoing pandemic situation and in light of the recommendations from health authorities as well as the directive of the Board of Internal Economy on January 28, 2021, [Technical difficulty—Editor] safe, all those attending the meeting in person are to remain two metres physically distanced, so please make sure you are doing that, and you must wear a non-medical mask when circulating in the room. It is highly recommended that the mask be worn at all times, including when seated. You must retain proper hand hygiene by using the provided hand sanitizer at the room entrance.

As the chair, I'll be enforcing these measures for the duration of the meeting, and I thank members in advance for their co-operation.

To ensure an orderly meeting, I will outline a few rules. Interpretation services for members are available for this meeting. You have the choice at the bottom of your screen, with the globe icon, to select either English or French as the language you would like to listen to. You can speak in any language, and interpretation will follow suit. Just make sure that when you are speaking, you are speaking slowly and clearly so that interpretation is not an issue.

For members who are participating in person, proceed as you normally would with your microphone at your desk.

Before speaking, please wait until I recognize you by name. If you are on the video conference, please click on the microphone icon and unmute yourself. For those in the room, your microphone will be controlled as normally by the proceedings and verification officer. When you are not speaking, your microphone should be on mute.

This is a reminder that all comments by members and witnesses should be addressed through the chair.

With respect to the speaking list, the clerk and I will do our best to maintain it, and I have time cards for members. I have a one-minute and a 30-second card to help you keep track of your time as our witnesses are making opening remarks and as members proceed with their questions.

Just before we get right into the weeds, I'll welcome Mr. MacGregor back to our committee meeting. He will be replacing Mr. Garrison today.

Welcome, Mr. MacGregor.

At this time I will invite the Right Honourable Kim Campbell and the Honourable David Lametti, who are both here to speak specifically about the nomination process of the Honourable Mahmud Jamal to the Supreme Court of Canada.

I'll just note for members that House of Commons Procedure and Practice, third edition, states on page 1,078, “There are no specific rules governing the nature of questions which may be put to witnesses appearing before committees, beyond the general requirement of relevance to the issue before the committee”, and that is the Supreme Court nomination.

With that, I welcome our first speaker of the day, the Honourable David Lametti.

Please go ahead. You will have seven and a half minutes to make your remarks.

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

Thank you, Madam Chair.

Good morning, honourable colleagues.

To begin, I would like to acknowledge that I'm on the traditional territory of the Algonquin Anishinabe people, in Ottawa.

I would also like to thank the members of the committee, as well as the chair, for convening this special session. As always, your contribution in helping to shape the character of one of Canada's most important and enduring institutions is deeply valued.

I would also like to thank the Right Honourable Kim Campbell for being with us this morning, but also for her work in the process that I'll highlight later.

The Supreme Court of Canada is a place close to my heart. It is the place where, years ago, I began my own legal career as a law clerk to a cherished mentor and friend, the late Honourable Peter deCarteret Cory. His example serves to remind me that our great public institutions depend on the dedication and integrity of those who occupy them.

It is my privilege today to speak in support of the Honourable Mahmud Jamal, a nominee who I am confident will honour the highest ideals of the Supreme Court and help to guide the evolution of Canada’s laws with wisdom, fairness, humility and a deep understanding of the society he serves.

I offer my heartfelt congratulations to Justice Jamal, and I look forward to his appearance before parliamentarians this afternoon.

I would also be remiss not to take this opportunity to acknowledge the lifetime of contribution and service to Canada, and to the rule of law, of Justice Jamal’s predecessor, the Honourable Rosie Silberman Abella. Justice Abella is a trailblazer and a jurist of remarkable intellect and character, and she has left an indelible mark on Canada’s legal landscape. She will be deeply missed on our highest court, but I have no doubt that she will continue to make important contributions to our public life in other roles.

Justice Jamal is the fourth person appointed to the Supreme Court by Prime Minister Trudeau as part of the government's modernized judicial selection process that was implemented in 2016. This process prioritizes individual merit, as well as the values of social representativeness and transparency. It requires every person seeking appointment to our highest court to apply by responding to a rigorous and publicly accessible questionnaire. It requires individuals to demonstrate not only legal and professional excellence, but also how their personal experiences have shaped their views and understanding of Canadian society in all its diversity. This process also requires that all candidates be assessed against consistent, transparent and merit‑based criteria, first and foremost, by an independent advisory board of highly qualified individuals. that reflect the highest standards of communities across Canada.

The independent advisory board for Supreme Court appointments, or IAB, is the heart of the selection process. I am pleased to be joined today by its chair, the Right Honourable Kim Campbell, who has contributed so much to the success of the Supreme Court appointment process through her stewardship of four nominations, including today's. Ms. Campbell never fails to inform and support this committee with characteristic intelligence and candour, and we owe her a deep debt of gratitude. I am looking forward to hearing her remarks today.

I am also deeply grateful to the individuals who served with Ms. Campbell as members of the IAB. These members are nominated not just by the government, but by organizations committed to the rule of law and to serving Canadians. They include the Canadian Bar Association, the Federation of Law Societies of Canada, the Canadian Judicial Council and the Council of Canadian Law Deans. The thoughtful nominees of these organizations and the dedicated service of these individuals on the IAB ensure that the judicial selection process mirrors a critical aspiration for the Supreme Court itself: that it truly reflect our society and be a place in which Canadians can see themselves and their life experiences represented.

The current selection process was initiated by Prime Minister Trudeau on February 19, 2021, to fill the position that will soon become vacant when Justice Abella retires.

As publicly stated in its terms of reference, the Independent Advisory Board for Supreme Court of Canada Judicial Appointments, or IAB, has been tasked with recommending candidates of the highest calibre who are functionally bilingual and representative of Canada's diversity.

In keeping with the long‑standing regional representation agreement, this selection process was open to all qualified individuals in Ontario. Interested candidates were given six weeks to submit their applications, after which the IAB reviewed them. This review included consultation with the Chief Justice of Canada, references and stakeholders, and personal meetings with some of the candidates. The IAB conducted its work in a confidential manner, as required by its terms of reference, and each member of the IAB signed a confidentiality agreement in advance.

At the end of the process, the IAB provided the Prime Minister with a report containing a shortlist of individuals, all of whom met the publicly announced merit criteria and who were the most distinguished. I then consulted on the shortlisted candidates to provide advice to the Prime Minister.

I consulted with chief justices, including the Chief Justice of Canada, the Attorney General of Ontario, cabinet colleagues, opposition justice critics, members of this committee and the Standing Senate Committee on Legal and Constitutional Affairs, and senior members of the bar. The Prime Minister then made his final selection.

I wish to stress, again, the confidentiality of this process, which is essential in ensuring that exceptional candidates come forward and speak to their life experiences and skills with honesty and candour. Members of Parliament, senators, and members of the bar were each required to complete a non-disclosure agreement.

All persons involved in conducting the process, including me, the Prime Minister, and members of the IAB, understand the importance of confidentiality in providing candidates with the fair treatment they deserve and the rigorous scrutiny that an appointment to the Supreme Court demands.

I would like to now invite the Right Hon. Kim Campbell to speak to the process from her perspective.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Minister Lametti.

The Right Honourable Kim Campbell, please go ahead with your opening remarks.

[Kim Campbell, Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments]

I've only been doing this Zoom for over a year, and I still forget to unmute myself.

I want to say first of all, Madam Chair and members of the committee, how nice it is to be with you.

Madam Chair, you and I have met before. Congratulations on chairing the committee. It's a great honour. I'm sure you find it most challenging. It's one of the best committees to be sitting on, as I'm sure you all agree.

I don't want to get into huge details, but I'm happy to answer your questions. If I could, I'll give you a broad brush stroke approach.

A couple of years ago, during the Canada 150 celebrations, I was doing a panel at the Supreme Court of Canada, on the occasion of Canada 150, on the relationship between government and the courts. My co-panellist was the Honourable Bob Rae. Bob Rae and I have disagreed upon a number of subjects over the course of our years. He was premier of Ontario when I was prime minister, and I think I referred to him as behaving like he had a lemon in his mouth when he was meeting with me, but we've gotten on much better over the years.

One of the things he said at the panel on the Supreme Court was that he preferred the old “tap them on the shoulder” approach to appointing Supreme Court of Canada justices. It was this sort of mystique that you became a distinguished jurist in your province, you became distinguished at the bar, and then one day the Minister of Justice or a justice would come along and the Prime Minister would tap you on the shoulder and ask you to go to the Supreme Court of Canada.

However, as many of you will well understand, not all shoulders are equally tappable, and a lot of people who could make extraordinary contributions to the development of the law in our country are not necessarily on the radar screen of those who have traditionally done the tapping.

That was another subject on which I disagreed with the Honourable Bob Rae, but I think that for this process to work well, it has to work well at all of its stages. The first mandate that we have as the independent advisory board is to try to increase the number of candidates, and that is a bit harder than it sounds because, very often, people of distinction at the bar, jurists, are very Canadian, and they don't like to be seen to be putting themselves forward.

Right from the very first process—four processes ago—we worked very hard to try to encourage people who recognized colleagues as outstanding candidates to encourage those colleagues to apply. The system I developed was that when we got a recommendation.... We often would get a recommendation from a judge or from a member of the bar. One recommendation came from a student at the McGill law school. Anyone who is interested in the court can certainly communicate. What we do then is that I write a letter to the person who has been nominated and I say, “Your name has been forwarded to us as an outstanding candidate for the vacancy on the Supreme Court of Canada. Please review these materials and, if it interests you, we warmly encourage you to apply.” What this means is that many people who are otherwise a bit shy about seeming to put themselves forward can then say, “Well, I was asked to apply,” and certainly they were.

That is one of the challenges, but also, we have a very long list of organizations of lawyers and jurists across the country that we contact every time there's a vacancy. We ask them to circulate to their own members and to identify members in their own organizations who would make good candidates for the Supreme Court of Canada, because, again, there are very often groups of people who don't necessarily see themselves reflected in the current cast of characters and don't [Technical difficulty—Editor]. From the Prime Minister's perspective, the greater the diversity on the court, the greater it is for Canada. People who are from under-represented groups are certainly encouraged to consider themselves and to apply.

That is our purpose: to try to maximize the number of candidates. Even so, for many people—perhaps it's less the case in Ontario—going to the Supreme Court of Canada is a huge decision because, as you know, you have to relocate to the national capital region. It creates a much narrower life in the sense that you have to maintain your independence, so it's very important for the judges that they be able to create a community to provide support. Not all judges find it equally congenial when they go. It's a big personal sacrifice for many to uproot themselves, and many have reservations about it.

I think I mentioned the last time I spoke to you that there is now a considerable number—including a former chief justice—of retired Supreme Court of Canada justices. It would be very valuable if they were to have round table discussions across the country with members of the bar and the judiciary, to talk about what life is like on the court, both to encourage people to apply and to create realistic expectations, because it is a unique judicial appointment.

For those who come from Ontario and live not far from Ottawa or the national capital region, or for that matter, Montreal, it is perhaps less daunting. Certainly, when we were doing the western position, there were some candidates from British Columbia, for example, who were outstanding and bilingual and the works. We had the sense that they hoped we wouldn't nominate them, because it would be such a challenge for them.

Of course nowadays, professionals tend to have spouses who are also professionals, whether it's wives with husbands or husbands with wives. I think it is important to acknowledge what a commitment it is for someone to agree to sit on the Supreme Court of Canada.

One of the first things we do as a committee is meet with the Chief Justice to discuss all these things. We get his—and previously, her—reflections on what the court needs. but also on some of the aspects of the work of a Supreme Court of Canada Justice that could help us identify candidates who would make the best contributions.

The other thing I would say—and some of you will have heard me say this before—is that I am very gratified to be recognized as the chair of this committee, but it really is a committee of seven people. My role, as the chair, was to make sure that each member of the committee could make a contribution. As you know, we have four representatives of legal organizations, as the minister has mentioned, but there are always two members of the community who are not lawyers.

I cannot say enough about how excellent their contribution is. In all four of the procedures that I have been involved in, the non-lawyers were incredibly astute, very thoughtful and often raised very interesting points of view that enriched our discussions. I think there would be unanimous agreement on the formula of ensuring that it isn't just lawyers talking to lawyers, but that there are people who have not been involved in the legal profession, but who are very engaged as citizens, who are often quite astute at understanding what is at stake and how important it is.

In the operation of the committee, we start our work when all of the applications are in and the materials have been circulated. This year we had to work virtually, so the materials were circulated on our secure tablets. We didn't have the written versions that we used to have.

I will say that I missed the personal contact that we had when we worked in Ottawa: the opportunity to have meals together, to fatten ourselves up with cupcakes and to chat. We missed that, but the members were all incredibly supportive and responsive to trying to create a sense of community.

One of the things that's always been important to me is to avoid any suggestion of groupthink or pressure, or one person having more influence on another. Happily, they're all pretty independent people, so that's not so hard to do. I try to make sure they review the materials independently. Then we come together and do our first go-round of “yes”, “no” or “maybe”, to see where there is consensus and where there isn't.

The whole process is designed to try to make sure that seven people work hard to achieve the consensus necessary to create a short list, but also that each person does so feeling free to express fully their views and attitudes.

I'll just conclude, because I've had my warning sign—and I am happy to answer all of your questions—by saying that the candidates are really outstanding. Not only is it a hard job to be on the Supreme Court of Canada, but it's a bit of an effort to apply to be considered for the Supreme Court of Canada. There is a long and difficult questionnaire, and it requires all sorts of issues to be discussed and references to be assembled.

In the four times I have been involved in the process, it has always been very encouraging to see the quality of the people who apply. Some of them are maybe a bit junior but full of promise. There hasn't been a single application that we felt was delusional or whatever. On the contrary, and what we do is try to compare them to a peer group and to the outstanding members of the current court.

We really do have an enormous amount of talent, diverse talent, and interestingly enough, bilingual talent among the members of the legal profession in the country.

I'll stop here, because I think you may want to ask questions.

I just want to say that, from my perspective—and this is the fourth time I've spoken to you about it—I thought the process went well. I felt that it was inspiring but also challenging for the members, who worked very hard to try to achieve our goal of giving the Prime Minister a short list of three to five candidates that will keep him up at night trying to figure out which of these outstanding people to name to the court. I think this year we succeeded in doing that as well.

I'll end here, and I'd be happy to answer your questions.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that.

We'll go into our first round of questions.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Madam Chair, I thought it was coming back to me so that I could introduce the candidate.

[The Chair, Liberal, Iqra Khalid]

Do I have the consent of the committee to give Mr. Lametti a couple of minutes to introduce the candidate?

[Some hon. members]

Agreed.

[The Chair, Liberal, Iqra Khalid]

Go ahead, Mr. Lametti.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Thank you very much, Madam Chair.

Thank you very much, Madam Campbell.

From this exceptional field described by Madam Campbell, Justice Jamal emerged as the individual best qualified to serve on the highest court in our justice system. I am supremely confident that Justice Jamal, based on his lived experiences and demonstrated commitment to the rule of law, will serve Canada and its peoples with the same verve and commitment as that of his predecessor on the court.

Justice Jamal makes history as the first person of colour to be appointed to our highest court and the first person of the Baha'i faith. His story is not only one of excellence in the legal profession, in scholarship and in voluntary service to his community, but also one of navigating the role of difference in our society, often leveraging the role of counsellor and advocate to bridge the inequalities that too often attach to our differences.

Justice Jamal has been involved as a lawyer in some of the most important constitutional cases of the last few decades, so the Supreme Court is obviously no stranger to him. He has regularly volunteered his skills and dedication to people and organizations of modest means. He has studied the laws of our country extensively, taught and written numerous publications on the subject, demonstrating great intellectual stature and a commitment to supporting the evolution of Canada's legal institutions and traditions. Throughout his career, he has enthusiastically embraced opportunities to work in both French and English, including as an appellate judge. In that capacity, he has served the Ontario Court of Appeal admirably as a fair and thoughtful judge with a keen sense of analysis.

I'm proud of his appointment, and I'm confident that all Canadians will be, too.

Before I conclude, Madam Chair, I would like, on a somewhat lighter note, to refer to a hockey analogy that was once used to highlight Justice Jamal's strong reputation. I feel that such an analogy is very timely, given that my hometown team, the Montreal Canadiens, is battling for a berth in the Stanley Cup final. It was a description of a lawyer's reaction when she discovered that Justice Jamal, who was then a member of the bar, would be the lawyer on the other side. It was said that opposing counsel must know what it feels like “to show up for a game of shinny and find Wayne Gretzky facing off against her”. Madam Chair, I believe this analogy aptly reflects, in classic Canadian fashion, Justice Jamal's exceptional legal skills.

I thank the Right Honourable Kim Campbell and her colleagues on the IAB.

I look forward to your questions.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Minister Lametti.

That was a great reference. If you know our committee, we are very much into hockey and are all rooting for the Habs, except for me. I was very much into the Leafs and was quite devastated when they lost.

We'll go into our first round of questions, starting with Mr. Cooper.

Mr. Cooper, you will have six minutes. Please go ahead.

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

Thank you, Madam Chair.

Thank you, Minister Lametti and Ms. Campbell.

I want to first of all take this opportunity, Ms. Campbell, to acknowledge your work as chair, as well as that of your committee, which has resulted in the appointment of someone highly distinguished and eminently qualified to serve on the Supreme Court, Justice Jamal. I look forward to the opportunity to ask him questions later this afternoon.

Minister Lametti, I'll direct my questions to you. In a June 10 CBC report, federal sources said that the Liberal Party's private database, Liberalist, which tracks Liberal Party members, supporters, volunteers and donors, was no longer being used to vet judicial appointments. On what date did the use of Liberalist to vet candidates cease?

[Arif Virani, Liberal, Parkdale—High Park, ON]

Madam Chair, on a point of order, I wonder if you could establish the relevance of Mr. Cooper's line of questioning.

We're not talking about the general appointments process. We're talking about a very specific appointments process that relates to the independent advisory board, the role of Madam Campbell on that board, and how that produced an appointment of the calibre of Justice Jamal.

Could you make a determination as to whether this line of questioning is relevant to that process?

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Virani.

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

Madam Chair, on the same point of order, as you noted in your opening remarks, there is a fair bit of leeway afforded to committee members to ask witnesses questions. I would submit that having regard for that, the question is pertinent to the judicial appointment process more broadly.

I would say that in light of these substantiated allegations of political interference by the PMO, including the use of Liberalist, the perception that the integrity of the appointment process has been undermined is real. It is important—

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

I have a point of order, Madam Chair. I want to echo Mr. Virani's comments.

Mr. Cooper, using the language that these have been substantiated, with all due respect, is not accurate. They're allegations—baseless allegations, in my opinion. They have no place in the discussion today.

Mr. Cooper started his questioning by acknowledging the high calibre of the appointment of Justice Jamal, and I think this discussion takes away from that. We should move on and focus on the issues at hand.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Maloney.

Is it on the same point of order, Mr. Moore?

[Rob Moore, Conservative, Fundy Royal, NB]

It is, Madam Chair. I'd like us to get going.

On that point of order, Mr. Cooper barely got his question out. Minister Lametti is a seasoned pro. He knows how to answer questions. He's used to difficult questions. Let's allow Mr. Cooper the ability to ask his questions. He has only five minutes, and then the other members get to ask their questions. They can ask whatever lob ball they would wish of the minister.

I'm hoping that we can get on with the meeting.

[The Chair, Liberal, Iqra Khalid]

I do, too. Thank you, Mr. Moore.

Mr. Clerk, I see your hand raised. Is that a point of order from Monsieur Fortin?

Please go ahead, Monsieur Fortin, briefly, on the same point of order.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Madam Chair.

I rise on exactly the same point of order, Madam chair.

First, I'd like to point out to my colleagues that I have no doubt about Justice Jamal's competence. I do not dispute his competence at all. We'll meet with him later, and we will be able to ask many questions on a number of topics. That's great. I thank the committee and the minister for that opportunity.

However, we are currently meeting with the Minister of Justice and the chairperson of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments, the IAB. The subject of the meeting is the appointment process. That's what Mr. Lametti and Ms. Campbell have told us about. We need to ask questions about the appointment process.

We may or may not like Mr. Cooper's question. I remind you that I'm not a member of the Conservative Party, but we're talking about the appointment process. If any of us don't want to hear about it, we can move to another committee. Right now we're talking about the IAB appointment process. I think it's relevant, and I, too, have questions about this process. If our questions aren't about that, I don't know what we're doing here.

[The Chair, Liberal, Iqra Khalid]

Wonderful. Thank you very much, Mr. Fortin.

Members, please keep your questions around the Supreme Court nomination process. We're not talking about the general appointment process for all of our judiciary. We're here specifically to deal with the Supreme Court nomination.

Mr. Cooper, please go ahead, and if you could, reframe your question to that scope that we're discussing today.

You have two minutes left. No, you are two minutes into the clock.

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

I'm two minutes into the clock.

Well, I will just invite the minister to answer the question that I posed to him. I think Canadians deserve an answer to it.

[The Chair, Liberal, Iqra Khalid]

Go ahead, Minister Lametti.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Thank you very much, Madam Chair.

Thank you, Mr. Cooper, for your question. It's always good to see you again.

I have answered that question many times publicly, Madam Chair. In my evaluation of ordinary judicial appointments or elevations, I do not use Liberalist in the evaluation of candidates and in putting those names forward. I can't speak to the source or the nature of the article to which he referred.

I can say with respect to this Supreme Court nomination process, the IAB, and in terms of my deliberations with the people I've mentioned to find out what people thought of the shortlisted candidates, Liberalist was nowhere near that process. [Technical difficulty—Editor] that both the ordinary judicial appointment process and this process are of the highest quality. They are transparent and serve the needs of Canadians.

If you look at both the recommended appointment today and the appointments I have made since becoming minister, they are of the very highest quality—people of all political stripes and people from all walks of life, with the highest amount of diversity in Canadian history.

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

Minister, are you denying that Liberalist has been used?