Evidence of meeting #36 for Justice and Human Rights in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was candidates.
A video is available from Parliament.
Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments
I feel that the system actually is very transparent. Anyone who qualifies within the application process can apply. It is available online to any person who is practising law and is a member of the bar for 10 years in any of the provinces and territories that in fact are open, say, in this case, western Canada.
However, also, we have an independent group. Our group is independent. We don't carry a brief for anyone. In fact, one of the first things we did was to inquire whether anyone had a personal relation with any of the applicants or was carrying a brief, if you will, for any of the applicants, and of course the answer was no, so we proceeded. That's, I think, pretty strong evidence that the process itself is very transparent.
Liberal
Patricia Lattanzio Liberal Saint-Léonard—Saint-Michel, QC
Confidentiality is also a key part of the selection process, and one that both protects candidates and encourages applicants to come forward. How does the board balance that confidentiality while still giving Canadians enough visibility to have trust in the process?
Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments
The confidentiality element, I think, is absolutely essential to the process. I took an oath, as did my colleagues on the board, of confidentiality, and I must say here how concerned I was when that confidentiality and respect for the applicants, which to me is absolutely essential, was breached by unknown, apparently anonymous people who had access to some of the information and who decided to share it with the media.
The questionnaires you will see are very intense, and they contain personal information that someone will include on the assumption that it is confidential. The transparency issue, I think, handles the concern between the public's interest in knowing information and the actual need, if you will, for confidential information to be kept confidential.
Liberal
Patricia Lattanzio Liberal Saint-Léonard—Saint-Michel, QC
The appointment, the process and assessment criteria are public, as you mentioned. The candidates' moral courage and open-mindedness are among the criteria. How would you go about assessing these more abstract qualities of the candidates? How is that done?
Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments
We tried very much through not just the written material and the phone calls to various references.... Those who were going to be on the so-called short list had the opportunity to come before us. Together, as a team, we had 10 questions, which we asked each of the candidates. From there, you get a pretty good idea of combinations.
We were working under time pressures, which were very intensive. We were working very intensively. I believe that is achievable, and it was achieved. Obviously, if someone has a problem, if you will, with anything, we would have been able to ferret it out during our various discussions and research that we were doing.
Liberal
Patricia Lattanzio Liberal Saint-Léonard—Saint-Michel, QC
If a candidate's prior expression of an opinion on an issue likely to be heard by the Supreme Court of Canada is not a disqualifying factor, how do you assess their ability to remain open-minded and render fair, impartial decisions?
Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments
That's usually based on their past actions and their past experience.
Mr. Justice MacDonald, in particular, having served as a chief justice, always had a focus on collegiality. How do they, in fact, work with other people? Can their opinions be moulded, or are they so set in stone that no matter what happens and no matter what the case or facts are, they will refuse to change?
I believe that sometimes it is the luck of the draw, if you will. On the other hand, I think we had a pretty thorough investigation of all of these things, and I'm quite pleased that we were able to accomplish what we did.
Liberal
The Chair Liberal Iqra Khalid
Thank you.
That brings you to the one minute you asked me to give you.
Liberal
Doly Begum Liberal Scarborough Southwest, ON
Thank you, Madam Chair.
Good morning, everyone. Thank you so much for being here this morning.
Ms. McTeer, you spoke very thoroughly in your explanation of the process. One of the things you mentioned, along with it being an important role of the highest calibre, is that it must reflect Canada. We know Justice Martin is from the west, and obviously the preference was there.
Can you speak to the importance of that reflection and why we must have a justice from western Canada? Why was that necessary?
Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments
It's required under the Supreme Court Act. That's why it was open only to people who were members of the bar or judges in western Canada. That's an extensive piece of geography, as I've noted, in terms of the number of provinces.
If you're asking a question specifically, I'm not sure. Is your question about diversity?
Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments
It's about diversity.
It was interesting. Among the nine applicants, there was great diversity. I think that whole language of diversity is under discussion again about its broader meaning. There are some who interpret it narrowly, and there are others who, as I am sure Mr. Joyal will show this afternoon, have a sensitivity to and an understanding of the diversity of the country.
Of course, we will be having a public report, but I'll just add that if you look at the law schools.... It's one thing to stop at the Supreme Court level and say we have to have diversity, but if you look at the law schools now across Canada, you'll see that the student population represents the modern face of Canada. When Madam Justice McLachlin was asked the same question with respect to women on the court, her answer was clear. She said the same thing. She said to look to the schools. At that point, almost half of the students in law schools were women. We will trickle up. That was her point. We will trickle up to the point where we will be not just on the Supreme Court of Canada, but perhaps even the majority, which was a wish at the time.
I'm not as concerned, and I have no doubt that in terms of the notion of diversity and an understanding of the country, Mr. Joyal is going to be an excellent jurist.
Liberal
The Chair Liberal Iqra Khalid
Thank you very much. That was way over time, but I didn't want to interrupt there.
Mr. Fortin, you have the floor for six minutes.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Madam Chair.
Madam Chairperson of the advisory committee, Minister and Mr. Giroux, thank you for being with us this morning.
I'll tell you right now that, after everything I've read about Justice Joyal, I probably would have made the same choice in your place. I am therefore not opposed to his appointment, at least not as we speak.
That said, some questions come to mind in terms of the process. On that note, Ms. McTeer, if I may, I'll turn to you.
We hear that a total of nine applications were submitted. I understand that's the exact number. Can you tell me whether any of these applications came from members of the bar or judges from Saskatchewan?
Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments
Yes.
Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments
I don't know.
Do you know, Mr. Giroux?
Commissioner, Office of the Commissioner for Federal Judicial Affairs
The advisory board will publish a report within a month of the appointment. It will contain a bit of personal information about the candidates.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you.
Ms. McTeer, as part of the selection process, I understand that you did what was asked, which was to do proactive outreach in the legal community. Did you approach the governments of the provinces concerned to get their opinion on the applications or to elicit applications?
Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments
The names of the people we called for references had been provided to us by the candidates themselves. In one case, a person who was not included for references was added.
Previously, Mr. Giroux had reached out to all the western provinces that were involved and asked them to try to spread the information to increase the number of applications from qualified individuals.
In terms of the people my team, my colleagues and I contacted for referrals, there were definitely all kinds of people. There were, for example, members of the same tribunal—
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
I appreciate your answer, because it helps me understand, but what I would especially like to know is whether you consulted the provinces to ask them what they think the essential criteria are for a province to be well represented on the Supreme Court. Was that kind of approach taken? Were the provinces asked to submit candidates that they thought would be appropriate for the Supreme Court? Was anything like that done?
