Justice Committee on Nov. 2nd, 2023

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

Thank you both for your answers.

Minister, from what I understand, the federal government appoints a certain number of members of the advisory board, and yet it did not think it would be useful to appoint someone from Quebec. I am saying that with all due respect. I am not here to start a debate. On the contrary, I am here to pay tribute to the work that was done by the members of the advisory board. However, I am sure you can understand that this is still a concern for me.

From what I see, there are people from various indigenous groups, people from western Canada and people from the Maritimes on the advisory board. Quebec represents about 20% of Canada's population, not the mention the fact that, as Mr. MacLauchlan so aptly pointed out, Quebec has a unique legal reality, since it uses the civil law system, and it is also concerned about protecting French. I want to reiterate that I am not here to criticize what was done. On the contrary, I think that the work was well done. However, I just want to say that I am surprised that there are no Quebeckers on the advisory board.

Would it be reasonable to assume that your department might make this a criteria or concern the next time appointments are made?

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

First, we will, of course, think about the membership of the board and take into consideration the fact that there is no representative from Quebec, as you mentioned.

Second, I would say that this would be a problem if we were not getting good results. However, as a result of this process, we found an exceptional candidate who express herself easily in French, which qualifies her to serve as a judge on the Supreme Court. She also has the necessary experience with civil law, as I mentioned in my remarks.

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

I recognize that and I thank you.

Mr. MacLauchlan, could you tell me how many names were submitted to the minister to fill this vacancy? I am not asking you to give me the actual names, because I know that is confidential.

[H. Wade MacLauchlan]

If I understand correctly, you are asking me how many names were on the short list that was submitted to the Prime Minister. As I mentioned in my speech, there were two exceptional candidates on the list, one of whom was Madam Moreau.

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

Thank you, Mr. MacLauchlan.

In passing, I want to congratulate both of you on your impeccable French.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

I will now turn the floor over to Ms. Barron.

[Lisa Marie Barron, NDP, Nanaimo—Ladysmith, BC]

Thank you, Chair.

I'm happy to be here today and covering for my colleague, MP Randall Garrison.

Welcome, of course, Minister and Honourable Mr. MacLauchlan.

My question as it relates to the question here that's front of mind for me is that we're seeing a reduction in access to legal aid. We're seeing applications being refused. The result is an increased number of unrepresented accused and litigants before the courts.

Just as an example, we know that women are the majority of family and legal aid recipients. We know that there's a disproportionate impact on those who are already marginalized within our communities, such as racialized people, indigenous people and people living with disabilities, to name just a few. Finally, one other example is from the National Inquiry into Missing and Murdered Indigenous Women and Girls and two-spirited people, and I quote: The “distinct disadvantage in their access to justice and justice-related resources necessary to respond to violence” is a barrier for individuals to access the support they need. We know this is a direct result of the ongoing impacts of colonization.

With these examples in mind, my question is, what are the ramifications for the legal system as a whole and what action is the federal government taking to ensure equitable access to legal aid for all Canadians?

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

Ms. Barron, what I would say to you—first of all, welcome to the committee—is that this is a distinct priority of mine in particular.

I am a product of the legal aid system insofar as I have worked at three legal aid clinics in my career and founded another in Toronto. You will not find a more fervent or ardent advocate for the legal aid system in this country, and I'm very happy to assume the role that I have had since July 26. That's the first point.

The second point is that access to justice requires a very discerning approach. We must take it seriously, both in terms of prioritization as a concept and also as prioritization for federal dollars. That is what we have been doing with criminal legal aid for many years, and that is what we have been doing with immigration and refugee legal aid since 2019, when the provinces around the country resiled from that commitment.

Third, what I would say to you is that access to justice, particularly vis-à-vis the indigenous communities and the Black community, dovetails with what we are doing in launching an indigenous justice strategy and a Black justice strategy, both of which are under way. The latter will be rolled out in 2024 and the former a bit later than early next year.

Fourth, what I would say to you is that I think there's also an important access-to-justice component that's even woven in with this nomination. What I mean is that some have taken issue with the requirement for functional bilingualism. Where access to justice plays a role is that if you are a litigant whose mother tongue is French, and both you and your counsel want to make the written and oral arguments in French, there's an access-to-justice component to ensuring that those arguments are read, heard and understood in that same language without the usage of an interpreter, because language means a lot, particularly in legal pleadings. Even by virtue of a nomination as exceptional as Madame Moreau's, what we have is an improvement on access to justice on that front as well.

[H. Wade MacLauchlan]

If I may link the question, then, to the nomination and the background and expertise of Madam Justice Moreau, in her practice, as I mentioned, before being named to the bench in 1994, a very significant component of her work was in criminal defence work, and within that, a significant part of that work was with legal aid clients.

Then, with 29 years on the trial courts dealing with all of the matters that come before the Court of Queen's Bench, now the Court of King's Bench, including appeals from provincial courts, Justice Moreau in addition sat as a deputy judge on the Yukon court for 25 years and on the Northwest Territories court for 15 years, so she brings a lot of the experience that you're speaking to in your question.

[Lisa Marie Barron, NDP, Nanaimo—Ladysmith, BC]

Thank you very much.

My next question is around how we were talking about the applicants and the application process that has been undertaken. Since applicants have to have been members of a relevant provincial bar for 10 years, as discussed, what actions are being taken to ensure the future pool of qualified candidates is more diverse?

In particular, are measures being put in place to ensure the law school admissions are better at reflecting the diversity of Canada? We know, of course, that if you need to have 10 years, the law school admission process is going to play a big part in our capacity to see diversity.

This question is for the minister, please.

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

Thank you very much, Ms. Barron.

It's a really critical question. What I'd say to you is that we're taking every action we can that's under our control. I don't have direct levers with respect to the faculties of law around the country, but I know anecdotally that in many of the law schools around the country, if not all, more than 50% of the classes are made up of women. That's a step in the right direction.

I can also tell you that substantively what we've done as a government, since 2015, is that of our 640-plus appointments, 54% have been women, 4% indigenous, 15% racialized and 6% LGBTQ. That's incredible in terms of diversifying that pool of applicants, and that's salient, insofar as many of the judges, such as Madame Moreau herself, have come through the ranks of superior courts or courts of appeal in this country. As we diversify that pool, we're creating the potential for having even greater diversification on the Supreme Court.

I'll also lean into the fact that this is a historic appointment that you're considering, in that for the first time since 1867, we will have a Supreme Court that has a majority of women. That's a great statement. It's just unfortunate that it took until 2023 to get there.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

We will start with our second round.

I will ask Mr. Caputo to start. You have five minutes, please.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Madam Chair, and thank you to the Minister of Justice and Mr. MacLauchlan for being here.

Minister, I'm going to pick up where my colleague the honourable Mr. Moore left off about the nature of the meeting today.

I took issue with the framing of it when you answered my colleague's question and said we were worried about this descending into a partisan debate and things like that. That's how I took it. In other words, this could become too partisan, and that's why you were bringing in an outside chair.

The chair's job is to be independent. We presume that Ms. Diab is independent. She's not from the same party as I am, but if I ever take the chair, for me, one of my requirements is the requirement of independence. If she's presumed to be independent, why would we be bringing in somebody who is not duly elected, who does not make up part of our parliamentary committee, as opposed to someone who has knowledge of Parliament and has been here?

Is that not essentially saying that our chair here at the committee, as a duly elected parliamentarian, can't handle it? I can't wrap my head around that.

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

I would characterize it much differently, Mr. Caputo. Thank you for the question.

I would say to you that it's not meant to cast aspersions on any member of the Senate or the House of Commons in terms of their ability to chair a committee. When we're considering an appointment as significant as one of the nine members of the Supreme Court of Canada, that is of direct interest to all Canadians, but specifically to members of the legal profession, and having an esteemed member of the legal profession, including a member of legal academia, chair such a meeting is distinctly appropriate, given the tenor and the principal nature of that inquiry.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

With all due respect, Minister, there are thousands of practising lawyers, you and I among them, and we're saying that just one person should be chairing it, given the high stakes here.

The reality is that Canadians elect us. They put their trust in us. Very few of us are elected with perhaps 50% plus one, but we are all duly elected. I'm not following the logic in saying that this is such an important process that....

You and I are on the same page there, but if you say that we need an outside chair, one person who will be representing academics across the country, then you don't have them as a chair. You have them as a witness, because then they give evidence. The chair's job is to be independent and to have this committee function. If the whole point of this is to have an academic voice, then they shouldn't be in that seat; they should be in the other seat over there.

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

Well, Mr. Caputo, I think that sort of betrays the principle of what we're trying to do here, which is to not have a sort of expansive investigative committee hearing. You're here to hear from me and from Mr. MacLauchlan about the process of the selection. You're here to hear from the candidate with respect to the nature of her candidacy and her own personal and professional lived experiences. Expanding it beyond that, I think, should be put to the side.

What I'd say is that the process, even as it's structured with respect to the independent advisory board, also contemplates a specific role for legal academics. You heard me mention, and Mr. MacLauchlan mentioned it, that Dr. Reem Bahdi is the dean at the University of Windsor, as nominated by the federation of Canadian law deans. We're already involving legal academics in different parts of this process.

I think the fact that a legal academic will be chairing the committee hearing that you will take part in this afternoon is part and parcel of that same phenomenon that we are doing, so it's entirely appropriate and consistent.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Minister, I don't want to spend all of my time on this, but my point is that if you want to hear from somebody, they're supposed to be a witness.

You're right. We shouldn't be hearing from a witness and we should be hearing from the candidates themselves, but to say that we're supposed to be hearing from a witness and we're going to be hearing from an academic and we're going to put them in a chair, in my view, is inconsistent with the principles of our parliamentary democracy.

Can I ask which jurisdiction that other candidate was from who was deemed exceptional?

[H. Wade MacLauchlan]

I appreciate the question. Thank you.

Our report and deliberations are, of course, conducted under commitments to confidentiality. For me to make any comment about who else applied or didn't apply, or who was or was not on the list, would not be appropriate.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Minister, I only have a few seconds left.

We have 82 judicial vacancies, this being one of them. There are people not getting bail hearings. There are people not going to trial. I just had a victim's family call me. They have been waiting for five years, yet we have 82 vacancies. There are probably about 15 for superior courts in my province.

What do you say to victims, in that case, when the government is dragging its feet on judicial appointments?

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

I'd say to them that I understand their concerns about the criminal justice system, but categorizing us as “dragging our feet” is completely inaccurate. I've appointed 37 individuals personally in three months. That's a pretty torrid pace for the start of my ministerial career. I will continue to proceed with that pace.

I would also say to them that we had 89 vacancies on January 1. I and David Lametti have appointed 83 people this year. The reason that number is not six but is in the 80s is that there has been a combination of retirements and elevations and judges electing to go supernumerary.

Does that make my task harder? Yes, it does. Am I ready for the task? Absolutely, in terms of speeding up processes in my office and with PCO security clearances, working with the JACs diligently to ensure they are constituted and producing recommendations, and, finally, encouraging applications from around the country from excellent lawyers with terrific legal intellect to represent the diversity of the country.

[The Chair, Liberal, Lena Metlege Diab]

Thanks very much, both of you.

Mr. Housefather, go ahead for five minutes.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you very much, Premier and Minister, for coming here today. I very much appreciate it.

It is striking how different this is from the U.S. format. I think there are pros and cons in both formats. For example, in the United States, the people who make the selection would not be here before the judiciary committee defending their selection. It's an interesting part of the process. Also, we would have all read every judgment in every document this judge had ever written and would be ready to essentially cross-examine her. I don't think any of us have had the research to do every one of those, but gentlemen, have you read all the judgments and papers cited in her application? Are you familiar with everything she's written, and have you ever seen any red flags?

[H. Wade MacLauchlan]

I haven't read everything Justice Moreau has written.

Our committee had an application from Justice Moreau that included five of her judgments, covering a range of her work. This allowed us to assess her approach and her ability to write, think and contribute at the level a Supreme Court of Canada justice does.

There's a further—

[Anthony Housefather, Liberal, Mount Royal, QC]

I appreciate that very much. I also read her application and the judgments she cited.

I was asking whether you had read all the other judgments she's put in that you hadn't studied in her application, or whether somebody on your team had.

[H. Wade MacLauchlan]

No, we didn't read all of her judgments. However, what we also did was speak with seven people as references.

To come to the core of your question, we are satisfied there are no red flags.