Public Accounts Committee on Nov. 17th, 2016

[Erin Weir, NDP, Regina—Lewvan, SK]

Just to understand the mechanics of the process, someone would need to meet a certain baseline in merit, and then after that, appointments might be decided based on the diversity criteria.

[Janine Sherman]

Again, Mr. Chair, I would note that ministers make those choices. We provide them with information. The first level of information we do going through the selection process is the assessment against all those selection criteria, which are education, experience, knowledge, and personal suitability. Attached to all of that is diversity information on those qualified candidates.

[Erin Weir, NDP, Regina—Lewvan, SK]

Essentially are you turning that information over to the ministers and they're making the ultimate assessment of what's most important and whom to appoint?

[Janine Sherman]

That's correct.

[Erin Weir, NDP, Regina—Lewvan, SK]

Okay.

If you wanted to finish up the answer that you didn't quite have a chance to give when you were cut off, feel free to use a minute for that.

[The Chair, Conservative, Kevin Sorenson]

I think that went back to Mr. Lefebvre's question, which dealt with the lists: are there lists being submitted, being readied, and is there access to those lists?

[Janine Sherman]

Right.

That is part of the process, and that is something on which we have provided greater clarity and guidance to departments in terms of how judges are appointed to GIC positions. Whether there are currently lists available, I'm not in a position to say. That is something that is worked out through the Minister of Justice and the judiciary. There may be ongoing negotiations at any point in time to develop rosters of judges—and that is one of the things that will help us be better prepared—who are suitable for some of these Governor in Council appointment positions, but I cannot speak to the specific case.

You asked if there was a recommendation made. If there were a recommendation, it would be a cabinet confidence. I can tell you there were not appointments made in the time period that you were referencing.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Ms. Sherman.

We'll now move to Ms. Mendès.

[Alexandra Mendes, Liberal, Brossard—Saint-Lambert, QC]

Thank you very much, Mr. Chair.

I am going to continue along the same lines as my colleague. My questions go to Ms. Clark.

If I understand correctly, you were responsible for the audit. Which obstacles led to this difficulty in submitting the names of suitable judges to sit on the tribunal?

The Specific Claims Tribunal is extremely important for First Nations. But there seems to be a problem with recruitment and selection, two stages that must be followed by a list to be submitted to the minister. Did you manage to identify the problem and, if so, how?

[Sharon Clark, Principal, Office of the Auditor General of Canada]

Thank you for the question.

As you can see, a lot of parties are involved, including the Minister of Justice, the Department of Justice, the Department of Indian and Northern Affairs and the Privy Council Office. As we explained in the report, there is a different process for judges. So it's not exactly the same process and, in addition, the pool of candidates is much more limited.

[Alexandra Mendes, Liberal, Brossard—Saint-Lambert, QC]

So there are fewer suitable judges for seats on the tribunal.

[Sharon Clark]

Exactly. They have to be superior court judges.

[Alexandra Mendes, Liberal, Brossard—Saint-Lambert, QC]

Are there also language criteria that include aboriginal languages?

[Sharon Clark]

There are other criteria, but—

[Alexandra Mendes, Liberal, Brossard—Saint-Lambert, QC]

Mr. Gagnon, would you like to finish off the answer to that question?

[Stephen Gagnon, Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development]

If I've understood the question, my group is in charge of the assessment of claims and the negotiation of claims. In the event that we don't accept a claim for negotiation, or we have been negotiating for more than three years, the first nation has the option to go to the tribunal. I can only tell you what I think I know about the appointments, because we're not involved in the selection of judges or recommendations, and I think that's by design. When the reforms were brought into place, there was a concern because the department used to be the group that negotiated the claims, and there was no independent place somebody could go.

I can tell you what I think I know about the judges. Generally speaking, it would be judges familiar with certain case law in certain regions. For example, the chair is from British Columbia. We have a large number of claims, both in negotiation and proportionally at the tribunal, that are from British Columbia. I think they try to do that so that there are judges from various superior courts across Canada. They wouldn't all be from Ontario, per se, or Quebec or British Columbia. I think that's how they do it.

[Alexandra Mendes, Liberal, Brossard—Saint-Lambert, QC]

Do you agree that we have a disproportionate number of judges lacking in the tribunal, and that it seems to be a recurring problem?

[Stephen Gagnon]

Again, it's a tough thing for me to express. I know that the chair of the tribunal himself has said that a number of times in his annual reports. Those are public documents. I know from time to time he's expressed that view, but my role at the tribunal is quite separate.

[Alexandra Mendes, Liberal, Brossard—Saint-Lambert, QC]

Mr. Chair, through you to the Auditor General, how can we make a recommendation to improve this? Where does it come from?

[Michael Ferguson]

When you look at the components of this, it starts with the appointments having to be superior court judges. You're starting with a very small pool of possible appointments, and you have a number of these different tribunals that need to draw from that pool. That's why there's the conversation between the Department of Justice and the judiciary to sort that out.

Really, to get to the bottom of this...and we very much did identify that, with the specific claims tribunal, there was a shortage of members for the tribunal to make its decision. Unfortunately, it seems that everything is focused on the end of the process. What I mean by that is, and maybe I have this wrong, but it's certainly the way I perceive it, when there's a vacancy, there's this process to try to identify who we might be able to pull out of the sitting judges to sit on a tribunal. I think it sounds much more like a classic case of succession planning, so that when judges are appointed in the first place having a bit of an idea of when there might be vacancies on tribunals and which judges might be in the pool they can draw from. I think it's the area where there really has to be a lot more forward thinking in terms of how it's not just about who's getting appointed to the court, that it's also who's going to be able to fill these tribunal positions. Otherwise we can't make decisions on things like first nations specific claims.

[Alexandra Mendes, Liberal, Brossard—Saint-Lambert, QC]

If I were 10 years ahead of time, I would ask who will need to be....

Thank you very much.

[The Chair, Conservative, Kevin Sorenson]

All right. We'll move back to Mr. Godin.

Mr. Godin, we're in the second round now, which is a five-minute round.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Thank you, Mr. Chair.

My thanks to the witnesses for being part of this exercise.

Mr. Ferguson, my remarks will probably be a little familiar to you, because unfortunately, they apply to a number of departments. I am pleased to hear that you have noticed an improvement in processes that were in place before 2009, as a result of the 2009 report and the one in 2015. It covers 15 years or so. There were improvements, but unfortunately—and here, I am going to say what you are used to hearing me say, although it is not directed at you—the organizations are still waiting for the audits before they react.

My question goes to the other witnesses.

In his opening statement, the Auditor General mentioned that the various organizations accept the recommendations. But I feel we see that in all the reports. So why do you wait for the Auditor General to do an audit before you put improvements to the systems in place? Do your organizations have self-evaluation mechanisms—once a year, once every two years, or however often you like—that mean that you do not have to wait for an audit from the Auditor General before you take action? The problem for taxpayers is that, if you are lucky in the lottery that gets you a report from the Auditor General, you may have 20 years before you have to evaluate yourselves and improve the systems you have in place.

My question is simple: why is there no self-evaluation system? If there is one, can you tell us about it?

[The Chair, Conservative, Kevin Sorenson]

Perhaps Ms. Sherman, please.

[Janine Sherman]

I take your point. The reports of an auditor general are always very focused in terms of giving us recommendations of a specific nature with regard to that particular audit. I do think there are ongoing improvements beyond the timing of those reports. Certainly in 2009 there were significant deficiencies found, and those were addressed, and they have continued to be addressed and improved over the time period, certainly in terms of the role the Privy Council Office plays in providing guidance and information and supporting ministers and departments with information about vacancies and the timeliness of making appointments. I hear you. I do think there are several opportunities throughout our work in departments, where we look for ways to improve. We do have internal audit processes in departments. We have our annual performance reports. I think those are opportunities where we also take stock of what taxpayer dollars we have spent on particular activities and what the results are, and we do seek to improve and find efficiencies in the way we do our work and the results we see.

There are sometimes delays, and there are sometimes things that don't get done as quickly as we would like, but in terms of the appointment process, I think that the Auditor General's findings certainly confirmed for us certain things that we were trying already to do better with regard to the full-time and leadership positions under the previous approach that were our responsibility. That's why, for example, I think, when they conducted the audit, they found very fulsome files and documentation about how we were supporting the process. That's something that was happening in between audit times. I think it is something that we as public servants are always concerned about, how taxpayer dollars are spent, and we're always looking to find efficiencies and improvements.