Justice Committee on June 22nd, 2021

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

Thank you, Madam Chair.

I appreciate this opportunity. It's a very unique opportunity, in fact.

Minister Lametti, it's always very appreciated when you appear before the committee, and today is a special occasion. Thank you.

To the Right Honourable Kim Campbell, this is a unique opportunity for me to ask questions of a former prime minister. Let me start by saying that it was music to my ears when you uttered the words, “There has been no compromise on quality.” This process, and the process we're going through this afternoon, is important.

You started by referencing your disagreement with Bob Rae about the “tap on the shoulder” approach. Really what we're talking about is a method of appointment. I've been a member of this profession for over 20 years. I think everybody will agree that every appointment we have made to the Supreme Court of Canada, regardless of the approach, has been of the highest caliber.

Back in your day, when you were minister of justice and and later prime minister, I believe there were three appointments made to the Supreme Court of Canada, using a former process. In 2006, we introduced a new process. The government of the day created the body that we're going to see in action this afternoon. In 2016, our current Prime Minister implemented the new process, which you are heading, and I thank you for that.

Unfortunately what we've seen is a political climate that has become more polarized. These processes sometimes open the door for that polarization to rear its head. We've seen that today, and we've seen it before.

Some people preface their questions by saying, “They're all excellent candidates, including the one we're here today to talk about”, and then they proceed to undermine the process. The purpose of this committee hearing and the meeting this afternoon is to show Canadians that we have a strong court and a strong process, and that we're always striving to make it better.

My question to you is—and we haven't really discussed the process that's going to take place this afternoon—what is your view on the evolution of the approach, from the tap on the shoulder approach, as you characterized it, to the process that we have now?

I would love to hear your views on how it has progressed and improved.

[Kim Campbell]

Well, I would say very briefly that as a member of the group that often didn't have shoulders that were seen as very tappable and was under-represented.... When I was minister of justice, 25% of my judicial appointments were women, but the percentage of people at the bar who were tenure-called who were women was only 12.5%, so I actually appointed women disproportionately to begin to create a body of people who could mature and become candidates for higher appointments.

However, I think what we're seeing with this approach, and again, there are many different ways to do this.... What I see in the approach that the Prime Minister asked me to chair is a reflection of what has already been taking place in the provinces.

When I was justice minister, people could apply to be considered for the court. There were local judicial review committees that consisted of people from the legal profession, from law enforcement, from a variety of different groups appointed by the province and appointed by the federal government to try to make them not parti pris to any one particular group but to vet candidates and determine whether they were fit to serve. Then the minister [Technical difficulty—Editor].

There was a time in this country when they didn't have any of that, when it really was much more a question of, perhaps, patronage. It didn't mean that a lot of good people were not appointed, but a lot of good people were also excluded from consideration. I see this, in many ways, as a reflection of what goes on with the appointments of the superior courts in all of the provinces and an opportunity for people who are knowledgeable about the law.

It's quite a lot of work. If a committee took this on, it would have an awful lot of work to do, because it takes a long time to review all of the applications, etc., but it is the idea of taking it out of the partisan process.

I don't see any reason why there can't be other ways of doing it, but I think that what this process does is say to people in the legal profession that anyone may be asked to be considered. That's pretty new, because there was a time when many people thought that to be asked to be considered would be considered laughable. You know, “Who are you? Who do you think you are?” Well, if you are a person who meets these criteria, you bloody well have a right to be considered, and you know what? We will give you the fairest review possible, and we will work very hard to try to make sure that every person has a chance to get a fair hearing and a fair evaluation, recognizing that we can't send all of the names to the Prime Minister and that there will be a separating out of people.

I see the evolution as one that is really consistent with the appointments to the courts, the superior courts in the provinces, and I think that changing the process to make sure there's more time for people to apply—we've done that, reaching out broadly to beat the bushes for people to think of themselves as possible candidates in this—is appropriate.

I'm not setting the terms of reference for the committee, but I believe that the Prime Minister, the minister and others would be very open to other suggestions to make it [Technical difficulty—Editor]. There's also the question that it is the Prime Minister's prerogative to make these appointments, and I think, to the extent that prime ministers are willing to not necessarily fetter their discretion—I don't think they should do that—but open up the process and ask others' advice.... I mean, they've always asked others' advice, but to have people really seriously focused on candidates, many of whom are self-selected and turn out to be terrific is, I think, a step forward.

You're thoughtful, and I think that many of you may have thoughtful approaches for how to make it better, but as with the superior court appointments in the provinces, I think that taking that out of a purely partisan forum gives it credibility and makes it more open to people who are not part of any kind of partisan power group.

[The Chair, Liberal, Iqra Khalid]

Thank you.

That concludes your time, Mr. Maloney.

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

Thank you.

[The Chair, Liberal, Iqra Khalid]

I will now go to Monsieur Fortin for two and a half minutes.

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

Thank you, Madam Chair.

My question is for Ms. Campbell.

It's not every day that the Standing Committee on Justice and Human Rights has the opportunity to welcome the chairperson of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments. It's a great honour for us, Ms. Campbell, to have you with us today.

We deal with many important issues in committee and in the House. However, there is one issue we're very concerned about. I began to address it earlier, and Mr. Cooper did as well. It's the issue of the appointment process.

As chairperson of the advisory board, with your experience, both political and legal, and considering the fact that you have, I am sure, excellent judgment, I'd like to know what you think about the issue of checking the political affiliations of judicial candidates.

I understood that Minister Lametti didn't do any checks in this case because he had already done them when he appointed Justice Jamal to the Ontario Court of Appeal. I understand that it would have helped in some ways. However, generally speaking, what do you think about that?

Do you think it's important to check political affiliations for all kinds of valid or invalid reasons? Is it important to do this before making appointments, or should this step of checking before appointing someone be completely eliminated?

[Kim Campbell]

I don't think it should be part of our process. We don't interest ourselves in it. We interest ourselves in competence and philosophy, and particularly as this is reflected in the way candidates have engaged outside of the legal profession. We're interested in what they've done in their communities and whether they have contributed to their communities. Of course, those who have been judges for a long time are more constrained in doing that.

In terms of their philosophies and their exposure to the diversity of Canadian society, these things interest us. However, we raise no issues that would relate to partisanship at all. It doesn't interest us; we don't pursue it, and we would consider it not appropriate for our deliberations.

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

In your opinion, can this be further verified on the short list, once the advisory board has done its work? Should it never be checked?

[Kim Campbell]

Well, what happens with the short list is a prime ministerial mystery, and it is the Prime Minister's prerogative. However, I can tell you that every person who is on that short list is a person of distinction, high character and great quality, who could make an excellent contribution to the Supreme Court of Canada.

I would be surprised if partisanship played any role. If it did, it would be something quite aside from the already established, outstanding evaluation of somebody in terms of their legal ability, their character and their integrity.

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

Thank you very much, Ms. Campbell.

[The Chair, Liberal, Iqra Khalid]

Thank you, Monsieur Fortin.

We'll now go to Mr. MacGregor for two and a half minutes. Please go ahead.

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

Thank you, Chair.

Ms. Campbell, maybe I'll front-load this with two questions and then allow you to answer both.

I take to heart your previous comment about indigenous candidates and the fact that there is increasing representation throughout our court system in Canada.

I guess what I wanted to know, first of all, is whether, in the last several nominations that have happened over the last number of years, including this one, you have seen an improvement in the available pool of qualified indigenous candidates for the Supreme Court who match all of the requirements. Is there an improvement happening in the number of people who could be qualified for that position?

Secondly, every single time we go through this process there's a time for reflection on what worked and what didn't, and you've done a number of these now. Do you have any comments about any improvements that can still be added to this process based on your most recent experience in this nomination?

Thank you.

[Kim Campbell]

In answer to your second question, I don't really have any, except to simply constantly work to try to cast the net as broadly as possible to ensure that no one who could make a contribution is missed. Some of that is also, perhaps, a function of things like universal design to make sure that questionnaires are designed in such a way that people get a chance to put their own case forward as well as possible, rather than simply being limited.

We sometimes think that the way we frame a question works for everybody. It may not, so there's that case.

In terms, also, of indigenous representation, yes, we are seeing a growing number of people. Also, in a previous process I remember having a discussion with Phil Fontaine of the Assembly of First Nations, thinking that there should be, perhaps, an interesting discussion about whether there should be a seat on the Supreme Court of Canada for an indigenous person. Of course, we have to remember that the indigenous communities are very varied also. We have first nations, Métis and Inuit people. How do we get that reflection? I think we will have members of those communities on the court, but I think it is also important that anyone who's on the court has the capacity to encompass those new ways of thinking about old obligations in our law.

We have a lot of interesting things to think about in terms of the role of our court. I'm not somebody who's interested in change for change's sake, but I also live in a Canada that is very different from what it was when I was a young woman. Many things....

Incidentally, I was thinking just the other day about how Parliament led in the changes in things like LGBTQ rights. These were not changes that were led by the court, so I think Parliament still has a very important role, as you showed yesterday in the bill that was signed. I think that leadership comes from there, as well. That also has an impact on the court.

I'm giving you a long answer to a short question, which is simply to say I am optimistic, but I also think that it's a time when so much is happening with respect to indigenous developments in Canada, for instance, the creation of an indigenous law program in western Canada, that we are so much more open now in the same way that we're much more open to LGBTQ rights than we were when I was young. All of a sudden, sometimes, a lid gets taken off and we say, boy, have we been stupid about this. We'd better catch up to create justice in this area, as well.

The reflection of indigenization, indigenous values, in our legal system is something that we need to think about. Is it enough just to have judges with indigenous life experience, or should there be a more formal approach to it? I don't know the answer, but I'm really pleased that people are asking this question. At least, I'm asking it.

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

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you to both of you.

Now, with the time remaining, we'll complete our second round. We'll go to Madame Findlay next, for five minutes.

Please go ahead.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Thank you very much for being with us today. It's good to see you again, Right Honourable Kim Campbell.

I believe the last time we saw each other in person I was moderating a panel in front of several hundred women lawyers in Vancouver, and the panel consisted of you and Justice Abella, so it was a great venue and a good time to celebrate being a woman in law.

With that, I would also thank you for outlining an appreciation with some insights into the challenges of life as a Supreme Court of Canada judge and the sacrifices, especially for those who would have to leave B.C. I have to say that as well, as a B.C. member.

Minister Lametti, as a parliamentarian, I have participated in past Supreme Court recommendation processes and been part of interviews with the then Supreme Court of Canada chief justice and other senior jurists to vet applicants. The composition of the new independent advisory board effectively takes elected parliamentarians out of the equation until the stage we find ourselves in today. It replaces parliamentarians with seven non-partisan members, three of whom are chosen by the Minister of Justice at the time. That is you right now.

Could you please explain to us why you believe this is the best way to pick a Supreme Court justice?

[The Chair, Liberal, Iqra Khalid]

Who was that question for, Madam Findlay?

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

I said Minister Lametti.

[The Chair, Liberal, Iqra Khalid]

Minister Lametti, please go ahead.

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

There is one other element of the process where parliamentarians are consulted, and that's on the short list. I undertake to speak with my critics both in the House of Commons and in the Senate, and also with members of the committee from a particular region or province. I did that in the two processes I participated in. One focused on Quebec; this last one focused on Ontario.

There is a non-disclosure agreement that is signed by people in these particular circumstances, but parliamentarians are consulted there.

I think the merits of this process are...I don't want to say obvious, but I do want to say evident. First of all is a set of criteria that are published in advance, which frame the work of the advisory board and allow our colleague, Mr. MacGregor, to ask the precise question he did at the beginning as to how the interaction of a certain criterion was applied by the independent advisory board. It also frames the decision that the Prime Minister ultimately has to make. It allows for diversity of thought and representativity at the level of the board. It allows for parliamentarians to be consulted and then allows for the process we're going through now and the process you will go through this afternoon.

There's a very good balance here of identifying and evaluating good candidates, maintaining confidentiality, always searching for integrity, capacity, intellect and merit, and fostering diversity.

I think we have managed in a very transparent way to put together a very good process.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Thank you for that.

I'm curious about your selection process, Minister Lametti, for the three members you appoint to the independent advisory board.

How were they selected?

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

Again, we're looking to represent various voices in the community, knowing full well that other legal bodies will also present people. It's also very important for us to get non-legal representation on that board [Technical difficulty—Editor].

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

My question was how you chose them, sir. How did you choose those people?

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

They were selected on the criteria of representativity, diversity and merit.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Are either of you concerned that the appointment of Justice Jamal—and obviously he's an excellent jurist—will reduce the number of women serving on the Supreme Court as we lose Justice Abella?