Debates of Sept. 26th, 2003

Canadian Forces Superannuation Act

[The Acting Speaker (Ms. Bakopanos)]

Pursuant to order made earlier today the House will now proceed to the consideration of private members' business as listed on today's Order Paper.

The House resumed from May 6 consideration of the motion.

Appointment of Judges

[Rodger Cuzner, Liberal, Parliamentary Secretary to the Prime Minister]

Madam Speaker, I am pleased to rise today to speak to Motion No. 288 introduced by the hon. member of the Bloc Quebecois for Charlesbourg—Jacques-Cartier. The motion proposes that the Standing Committee on Justice and Human Rights study the process by which judges are appointed to Courts of Appeal and to the Supreme Court of Canada.

I think every hon. member in the House will agree that few institutions are more important to a healthy democracy than our courts. The importance of the judiciary comes from the grave responsibilities discharged by judges. Judges are entrusted with a difficult task. They determine a multitude of issues and are responsible for making decisions that can include something as serious as determining the liberty of Canadian citizens. The extremely important role exercised by judges in upholding the rule of law in our society is the very reason that it is crucial to have an independent judiciary.

The objective of an independent judiciary is to ensure the impartiality of judges. It is fundamental to the rule of law that the rights of persons appearing before the court are determined solely on the basis of the facts and the law. In Canada, the independence of the judiciary is given constitutional protection.

I do not think it would be an exaggeration to suggest to hon. members of the House that the quality of the Canadian legal system has been recognized and studied by many countries throughout the world.The esteem with which the Canadian legal system is held is evidenced by the fact that officials from all over the world have consulted with Canadian officials on Canadian courts, judges and legal processes.

Canadians have every right to be very proud of their legal system and of the judges who maintain the high level of integrity and professionalism while discharging their legal duties.

The motion before the House today refers to appointments both to the Supreme Court of Canada and to the Court of Appeals of the various provinces. I would like to remind hon. members that the processes for appointments to these two levels of courts are very different.

The appointments to the various Courts of Appeal are subject to the federal judicial appointments process. This process establishes committees in every jurisdiction to ensure that all interested and qualified individuals are considered for appointment. The process has ensured that the Minister of Justice receives broadly based and objective advice about the qualifications of individuals applying for appointment to the bench.

As hon. members well know, the Supreme Court plays a fundamental role in our democratic society, particularly as the ultimate guardian of charter values. It is important that the judges of the Supreme Court of Canada be jurists of great distinction and ability. For that reason, great care is taken to ensure that the best persons, by knowledge, experience and personal commitment to excellence, are chosen to fill vacancies on the court.

Among the qualities sought in potential candidates are outstanding intellectual capacity, superior ability in judgment writing, the capacity for innovative thinking on emerging legal issues and, of course, a pronounced sensitivity to the diverse values enshrined in our charter.

The member for Charlesbourg—Jacques-Cartier commented on the Supreme Court's appointment process in that it would be too subjective. In fact, the process by which the Supreme Court justices are appointed has proven successful in producing judges of the highest calibre for the court.

The recommendation of the Prime Minister, which is undertaken in consultation with the Minister of Justice, follows a lengthy consultation process with senior members of the Canadian judiciary, the Attorney General, presidents of law societies, distinguished members of the practising bar and other well-informed persons in the region from which a candidate is to be chosen.

It is also important to note that any member of the public can bring to the minister's attention the name of a candidate that he or she believes worthy of consideration.

In his comments in introducing the motion, the member for Charlesbourg—Jacques-Cartier pointed out that the politicization of the appointments process could “seriously jeopardize the public's confidence in the judiciary”. Further, he said, “we must avoid at all costs any association between the judiciary and the political arm”. I could not agree more. However, I would suggest that the current appointments process is already intended to accomplish just that goal.

I am also alarmed that in support of this motion some members referred to decisions of the court with which they do not agree. Reform of the current appointment process cannot be a veiled attempt to get judges on the bench who will support a particular ideology. Such an approach would be inconsistent with judicial independence and the rule of law. Any influence the courts may have on the shape of Canadian law must be in accordance with well established rules of constitutional and statutory interpretation.

Decisions are not reached on the basis of any personal bias on the part of judges. The nature of the judicial function does not permit a judge to represent the region from which he or she was appointed or to favour the arguments of persons or governments coming from that region. Similarly, even though the federal government appoints the judges, they do not represent a political party or a political philosophy. This is entirely inconsistent with the principle of judicial independence that has governed the relationship between the judiciary and the executive branch of government since Canada's creation.

Reform of the current appointment process that is intended to influence the outcome of court decisions in a manner that is inconsistent with their constitutional principles is unacceptable. There have been a number of proposals to change the process for making appointments to the Supreme Court of Canada, including in the context of two previous constitutional accords. While a number of academics and commentators have suggested reform, further careful analysis of the nature and scope of reform is needed.

There will be some fundamental issues which will need to be carefully examined. For example, the criteria against which particular candidates are considered would be a key issue. How will a candidate's professional qualifications or perhaps judicial style be assessed while avoiding inappropriate and irrelevant inquiry into the personal views or opinions of the candidates?

Careful consideration will also have to be given to the nature of the assessment of a candidate, whether it will be in camera, in confidential or a public process. Keep in mind that many of these candidates will be sitting judges. In my view we cannot have a process that undermines their integrity or credibility, especially given that the unsuccessful applicants will have to return to their duties in their own courts.

We must also be careful not to develop a process that scares away potential candidates. Canadians deserve the highest calibre of judges on our top court and this goal could be undermined if we are not careful.

If this motion succeeds, the challenge for the committee will be to consider reforms that are reasonable and fair, that safeguard the reputation and credibility of all candidates, that preserve judicial independent, that promote respect for the institution of the judiciary, that eliminate partisanship and at the same time improve transparency and accountability. Without those safeguards, we risk damaging the credibility of an important institution in this country.

This will not be an easy task, but in anticipation that the committee will strive to meet these challenges, I will be voting in support of this motion. I am thankful for everyone's attention and the opportunity to speak on this motion.

[Marcel Gagnon, Bloc, Champlain, QC]

Madam Speaker, last spring, my colleague, the hon. member for Charlesbourg—Jacques-Cartier, launched this debate on Motion No.288 dealing with the appointment of judges. It is an extremely important debate.

I was listening to the minister's representative who said that, in our democratic system, judges play a leading role. I worked with René Lévesque when he was the Premier of Quebec. I was a member of the National Assembly at the time, and I remember that Mr. Lévesque used to say that there is one thing, pehaps the only thing, worth fighting and dying for, and that is our democratic values. These are the fundamental values of our country.

Given the role judges are increasingly asked to play within our system, I think the hon. member for Charlesbourg—Jacques-Cartier was right to ask the House to review and reconsider how judges are appointed.

This was done in Quebec, under Mr. Lévesque. It is probably one of the first changes we made after 1976. We reviewed the appointment process for judges, to reduce patronage as much as possible.

I am among those who believe our judicial system is a fair one. It must, however, not just be believed fair, it must also appear to be fair. When people see that judges are appointed by the PMO, they have every reason to think there may be a conflict between an individual's values and political leanings and his or her appointment.

If, for example, we look at the polls, we see that Canadians feel judges have too much power, that they usurp the responsibilities of politicians, and that their judgments reflect partisan imperatives. If that is the public's impression, it means there are some questions that need answers.

Once those questions are asked, perhaps the present solution is the best one. I do not know. I think the member for Charlesbourg—Jacques-Cartier is entitled to call for this matter to be put on the table, to ensure that the justice system not only is as perfect as possible, but appears to be totally correct and not influenced by political partisanship, a system tht really works for the good of the community.

In my time here in this House, we have had the opportunity to discuss bills that have caused us to wonder, with reason, whether people's freedoms were being encroached upon. I am thinking, for example, of the young offender and antiterrorism act. When we questioned the Prime Minister, his response was that, if people felt they were being disadvantaged, if they had any fears, there was always the possibility of going before the courts. This proves just how significant a role is assigned to the courts. They even have the possibility of striking down an act or parts of an act.

As a citizen, I think I have a right to ask Parliament to look closely at the appointment of judges. Judges have an increasingly important role to play in the life of every citizen; they will play an even greater role in the legislation we are adopting here as it is enforced.

For example, currently there is a great deal of discussion about same sex couples. What does the minister say? He is waiting for the decision by the Supreme Court; he wants to see how far he can go.

Courts are a part of our democratic and legal system. They help us pass laws that are increasingly relevant to the majority of the population. I believe in this system and I believe it is impartial, up to a point. Still, like everyone else, I also believe that the system does not look as impartial as it ought to.

Last spring, the hon. member for Charlesbourg—Jacques-Cartier emphasized that justice must be seen to be done. Personally, I am very pleased that the vote in favour of this motion will likely be unanimous, or close to it, because I heard my Liberal colleague say he would be voting in favour of the motion.

I think that is a plus and additional assurance we can give to the people of Canada. I would like to congratulate my colleague, the hon. member for Charlesbourg—Jacques-Cartier, for introducing this discussion. Moreover, I wish to thank in advance all the members in this House who will vote in favour of this motion.

[Deepak Obhrai, Canadian Alliance, Calgary East, AB]

Madam Speaker, it is my pleasure to rise and speak to Motion No. 288. For those individuals who are looking in on this debate today, I wish to explain that the motion is asking the Standing Committee on Justice and Human Rights to study the process by which judges are appointed to the Federal Court of Appeal and to the Supreme Court of Canada.

An independent judiciary is one of the most important pillars for a stable society anywhere in the world. As my colleagues from the Bloc have mentioned, not only should justice be seen to be done, it must also be perceived as being fair. Ordinary Canadians must be able to put their full confidence in a judiciary system and expect judgments to be fair and right.

Canada has a good judiciary system and Canadians do have confidence in it. However, after the charter of rights was introduced Canadians are now perceiving judges as reading into the laws of this land. Our Constitution gives Parliament the power to make laws. The judiciary has the paramount duty of ensuring that those laws that are passed in this Parliament are administered fairly across this nation. That is democracy.

Recently, judgments that have come forward have raised questions as to how far the power in the judiciary or Parliament can go in interpreting laws. On many occasions this has been a cause of serious concern in many parts of this country. Are justices of the Supreme Court going too far?

Since there is so much power overlapping in some cases and since judges influence the laws passed by elected officials, we should look at the process of appointing judges more openly. Hence the motion brought in by my colleague from the Bloc.

As the parliamentary secretary mentioned in his speech, the Prime Minister of Canada appoints judges to the Supreme Court of Canada. The bottom line is quite simple. He can consult with individuals, but nothing in the act says he must follow their advice. At the end of the day he is solely responsible for appointing them. That is quite a lot of power in a society as ours with such regional diversity across this nation. One has to wonder why a Prime Minister would have so much power to shape the direction of society by appointing the kind of judges he liked to the Supreme Court.

Examples in the past have indicated that Conservative Party prime ministers appointed Conservative judges to the Supreme Court while Liberal prime ministers appointed Liberal judges.

Well let us just say this. Canadians do not want Liberal or Conservative judges. They want competent judges. They want judges who are not tied to any political party so that they can make fair and square judgments upon which Canadians can rely.

Such as with the last appointment made to the Supreme Court of Canada, it always comes down that there is somewhere along the line a Liberals Party connection. Formerly there would have been a Conservative Party connection when the Conservatives were in power under Brian Mulroney.

It begs a simple question. Why can we not have a transparent, independent system? The motion calls for that. Let us send it to the committee. Let us look at it.

At the end of the day, the beneficiary of this motion, the beneficiary of an open and transparent system, is the Canadian public, Canadian society. The primary reason we are in the House of Commons is to address the issues that Canadian society wants us to address.

I fail to understand why anybody would not want to look at the system and try to improve upon it to give it more accountability and to make sure that there are good candidates.

Let me say right now it is not my view that there are any bad candidates on the Supreme Court. All we are saying is it is time to look at the process. We must ensure that the process is one with which Canadians are extremely comfortable and which has a fair and equitable system of appointing judges to the bench. That is all the motion is asking for and I will be supporting the motion fully.

[John McKay, Liberal, Scarborough East, ON]

Madam Speaker, I thank the hon. member for his timely motion. I think it is well put.

Judicial activism is not new. What is new however is the Charter of Rights and Freedoms and the authority it gives our judiciary in scrutinizing legislation.

Canadians were seemingly given a gift by the Parliament of Canada in 1982. The gift was the charter and since that time it has forcefully shaped how our society functions.

Judges have been given the tools that map out and profoundly determine the course that Canadian society will take and we know so little about who they are, where they come from, what experiences, beliefs and ideas inform their decision making.

Prior to the charter, judges by and large would operate as what we would call black letter law judges. A judge would restrict himself or herself to the subtleties of constitutional law: What was ultra vires of a government's jurisdiction? Was the material receivable into evidence or not? How was a statute to be interpreted in light of that set of facts?

Post-charter, judges experience far less judicial restraint. They can now look at the Constitution as a living tree, evergreening in ways and directions that the framers of the Constitution never thought possible.

Clearly, sexual orientation as an analogous ground has opened up judicial law making in areas that few black letter judges would ever have dreamed possible. Parliament through its elected representatives and its then justice minister specifically rejected sexual orientation as a ground of discrimination arguing that it was imprecise and unknowable. Not overly bothered by imprecision, the Canadian courts have relentlessly opened this analogous ground, regardless of the wishes of the people or their representatives.

Equally, judges have not been shy with respect to aboriginal rights. We have seen courts time and again hand down decisions that reflect “liberal” interpretations of the charter and the laws of evidence. The results have been mixed.

Members will recall that we saw the extraordinary example last year of the Supreme Court of Canada offering a clarifying letter on its Burnt Church decision where the decision was taken one way by the aboriginal leaders to mean one thing and by government officials to mean something else.

Canadians by and large are not unhappy with the initiatives of the judiciary. Michael Ignatieff wrote an excellent little book called The Rights Revolution , in which he argues that judicial activism by means of the charter is a distinctive feature of Canada's judicial system, an area in which Canada is seen as a world leader.

However, the argument and the motion are not whether judicial activism is good or bad; rather we are concerned here with the appointment process. Who are these people? How and why did they become these very important political actors? What should we know about them?

Let me ask a question, Madam Speaker. Who is Mr. Justice Fish? I take it from your deafening silence and the silence in this chamber, you did not know that Justice Fish is the latest appointment to the Supreme Court of Canada. I actually think you knew that, Madam Speaker, but what do we know about him? What are his qualifications? Where does he come from? And most important, what are his values and beliefs?

I am told that Justice Fish is an accomplished lawyer and a talented jurist. That said, I really do not know a thing about him beyond those descriptors yet, over the course of his judicial career, he will decide and rule upon all of the most significant of issues that affect Canadian society. The issue du jour of course is same sex marriage. He and his colleagues will decide the issue. You and I, Madam Speaker, in our roles as representatives of the people are mere irrelevancies when it comes to this issue.

We have the worst of all possible worlds. We have given the judges this wonderful tool, the Charter of Rights and Freedoms, to shape society but we use the black letter law approach to appointments. We have retained the secrecy and mystery of the historic way of making appointments and have tried to marry it to a post-1982 judicial revolution in law making. The appointment of a Pope is more open and transparent. Canadians are rightly saying that something is quite wrong.

No less of an authority than Chief Justice Michel Robert of Quebec has said, “The public's keen awareness of the powers of the courts has understandably fuelled demands for more openness and accountability in the discipline and appointment of judges”. In light of these growing demands, he favours “a more transparent and a more credible system of appointments” to the Supreme Court of Canada.

The hon. member for Charlesbourg—Jacques-Cartier correctly quotes the future prime minister:

When it comes to senior government appointments, we must establish a process that ensures broad and open consideration of proposed candidates. To avoid paralysis, the ultimate decision over appointments should remain with the government. But a healthy opportunity should be afforded for the qualifications of candidates to be reviewed, by the appropriate standing committee, before final confirmation.

To this end, it will be necessary to determine which of the many thousands of appointments made annually would merit public review. For example, I agree with the position championed by Professor Monahan that a process of mandatory review must apply to prospective justices of the Supreme Court of Canada. To determine which other senior appointments should also be subject to mandatory review in advance, we should turn to a parliamentary committee for direction. In this way, an improved but functional approach could be put into place in a transparent manner.

Senior people, thoughtful people, are starting to ask, why this medieval appointment process?

We have turned our judges into the new high priests. They have a mystical set of texts; they make pronouncements from on high, literally a raised dais; there is an initiation period; they speak a language not easily understood by those without legal backgrounds; they even wear priestly robes. All they need now is a little incense. And based upon yesterday's experience in front of our buildings, possibly with the change in marijuana laws we will even accomplish that.

Everyone has a set of values and beliefs. Beliefs and values are not restricted to religious people. The most diehard secularist has a set of beliefs and values that informs his or her decision making, and that guides what he or she believes to be of ultimate importance. Religion, broadly defined, is that which is of ultimate importance to that individual. If this is true, we all then have a religion to which we subscribe, both the so-called religious from recognized faith groups and the secularists.

It is important for Canadians to know about the beliefs and values of the men and women who are making these decisions that are foundational to our society.

You see, Madam Speaker, you and I can be held to account, as can everyone in this chamber. Every four years or so, I am held to account by means of an election. My beliefs and values are scrutinized, and sometimes frankly it is not too pleasant. But I am in the little league of important decisions.

A justice of the Supreme Court is a virtual unknown yet he or she can trump government and Parliament and send society off in directions in which legislators do not necessarily want society to go, i.e., same sex marriage, legalized marijuana, election laws, aboriginal rights, et cetera. Once he or she is appointed, he or she is completely immune from scrutiny and accountability.

I do not anticipate that there will be a curtailing of judicial activism in the near future. There is, however, a growing uneasiness with the unrestrained powers of the courts.

According to an Ipsos-Reid poll in May 2003, 66% of Canadians said they think the Supreme Court of Canada is driven by politics. The pollster concluded that people are unhappy about the ideology of judges and the way they are chosen. In its most recent poll in August, 71% of Canadians believe that only elected people should make laws. Obviously the general public has serious concerns about this apparent imbalance in our current system.

Some Canadians are concerned that courts have encroached upon the supremacy of Parliament by reading into our laws interpretations that appear to be inconsistent with or outside their intent when passed. This appears to be a violation of the basic constitutional principle that Parliament makes laws, the executive implements them, and courts interpret them.

In closing, I want to thank the hon. member for bringing forward this timely motion. It is an appointment process that is deeply flawed and inconsistent with openness and transparency expected in a modern democracy. I therefore urge all hon. members to support this motion.

[The Acting Speaker (Ms. Bakopanos)]

There being no more members wishing to speak, the sponsor of the bill, the hon. member for Charlesbourg—Jacques-Cartier, has five minutes to conclude this debate.

[Richard Marceau, Bloc, Charlesbourg—Jacques-Cartier, QC]

I shall be brief, Madam Speaker, because I would not want to repeat the arguments my hon. colleagues or myself made previously as part of this debate.

First, I wish to thank all the hon. members who took the time to prepare and give speeches on such a fundamental issue. I must say that those I heard today were outstanding. I thank those who took the time to work on this issue, as well as those who took the time to discuss with me. I am thinking in particular of my colleague and friend—we set aside our differences of opinion on certain points—the hon. member for Scarborough East, with whom I had the opportunity to exchange ideas about this on many occasions. I thank him for taking part in this debate and for supporting the motion.

This is an important debate because it has to do with the institutional architecture of our legal system and our democracy. I would just like to echo what Quebec's Chief Justice Michel Robert recently told the magazine Lawyers Weekly in an interview, saying that we would be wise to improve the transparency and credibility of the very secretive consultation process leading to the appointment of a Supreme Court judge.

In passing on what Chief Justice Robert said, I ask my colleagues to support this motion proposing that the Standing Committee on Justice and Human Rights study the process by which judges are appointed to Courts of Appeal and to the Supreme Court of Canada.

If a personality as eminent as Justice Robert feels this should be looked into, I believe it is our duty as parliamentarians to make the time to do so.

I am sure that the justice and human rights committee will address this serious issue enthusiastically, of course, but also methodically, diligently, and, most importantly, with the interests of society as a whole in mind.

My message to my colleagues is this: as parliamentarians, elected representatives of the people, let trust us each other enough to allow us to take the time to properly address this issue. I want the motion to be carried on Wednesday. I would like the vote to be unanimous. Let us keep that a secret just between us, Madam Speaker. I think that the exercise is worthwhile.

This motion was introduced in a wholly non-partisan spirit. I believe that not only would all parties represented in this House be very well served by the work done by the Standing Committee on Justice and Human Rights, but so would the people of Quebec and of Canada.

In closing, I wish a happy new year, Shana Tova, to all our Jewish friends and neighbours.

[The Acting Speaker (Ms. Bakopanos)]

Pursuant to the order made earlier today, the motion is deemed to have been put and the recorded division is deemed to have been demanded and deferred until Wednesday, October 1, 2003, at the end of government orders.

It being 1:33 p.m., the House stands adjourned until Monday next at 11 a.m. pursuant to Standing Order 24(1).

(The House adjourned at 1:33 p.m.)