Debates of Sept. 22nd, 2016

Opposition Motion--Appointments to the Supreme Court

[Sean Casey, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I would like to continue this discussion on what seems to be the centrepiece of most of the Conservatives' speeches, which is the chest thumping around a 141-year-old constitutional convention. However, in the wording of their motion, the words “constitutional convention” do not appear. The word used in the motion is “custom”.

We are indeed supporting the motion. We are supporting and respecting the custom. Could the parliamentary secretary elaborate a bit more on the difference between a constitutional convention and a custom? Could he also address the contention that this constitutional convention has been around for 141 years?

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

Mr. Speaker, this is a critically important point. A convention has crystallized over time into a legally binding norm. The Supreme Court of Canada has recognized this in a variety of different cases; in particular, the patriation reference way back under another Prime Minister Trudeau.

This is not what we are talking about here. We are talking about a practice, a custom, that has happened for a fairly long period of time, formally since about 1949, but not 141 years. It has been departed from and that is critical. When a judge was appointed from British Columbia instead of an Ontario pick, it highlighted the fact that this was not a convention but merely a custom, and a custom may be departed from.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Mr. Speaker, I must admit that I have been very touched by all the praise that our colleagues in the opposition benches have been heaping upon people from the Maritimes, their abilities and their potential. Not that long ago, however, their outgoing leader said to anyone who would listen that those same people, whom the opposition members are praising so highly here today, have long had a culture of defeat. I am pleasantly surprised by this sudden change in attitude in my opposition colleagues.

Getting back to today's motion, I would like to thank the hon. member for Niagara Falls for his motion on this issue, as well as the House for the opportunity to address it.

It is clear that the people of Atlantic Canada and other regions of the country strongly believe that the tradition of regional representation on the Supreme Court of Canada, the highest court in the land, must be maintained.

As hon. members know, the Supreme Court is an essential aspect of Canada's constitutional structure. The Supreme Court, the final court of appeal for all legal matters, including those that are constitutional in nature, plays a decisive role with regard to upholding human rights and the rule of law.

The Supreme Court has ruled on a wide range of important legal and social issues in our country, from medical assistance in dying, to marriage equality and the Crown's duty to consult and accommodate first nations.

How we select Supreme Court justices is therefore of utmost importance to all Canadians. That is why last August, our government announced a new Supreme Court of Canada appointment process that is open, transparent, and accountable. Under this process, an independent, non-partisan advisory panel was formed and was tasked to put forward the candidacy of qualified, high-calibre jurists who are functionally bilingual and representative of the diversity of our great country.

Former prime minister Kim Campbell presides over this advisory panel made up of seven members who have ties to every corner of the country. Four of them were selected through independent professional agencies, and the panel also includes non-jurists. The advisory panel will review the candidacies and will present a short list of three to five people to the Prime Minister for his consideration.

When the Prime Minister announced the new Supreme Court appointment process in August, many people were surprised to learn that the jurist selected to replace Justice Richard Cromwell would be chosen from a list of candidates who are not exclusively from one of the Atlantic provinces. I can see why people may be surprised, since this contravenes the practice that has been used to date.

However, sometimes traditional practices need to be reconsidered, and we believe it is time to do just that and see where it will lead us.

We are aware of how important the composition of the Supreme Court is and that some parts of the process are established by legislation. For example, under the Supreme Court Act, at least three of the judges must be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province. That is not simply a matter of geography, but a consequence of the nature of Canada's justice system, which is based on two legal traditions.

As many of my colleagues know, Quebec's legal system is based on the civil law tradition, whereas that of most of the other provinces is based on the British model of common law.

The appointment to the Supreme Court of three justices from the list of Quebec's great legal minds seeks to ensure that the highest court in the land is equipped with people who understand the traditions of that legal system, not just representatives of a particular province.

In addition to this critical distinction in the law, there are other important elements that need to be considered and that go far beyond geographical considerations.

The first woman to be appointed to the Supreme Court was the Hon. Bertha Wilson in 1982. Since then, many other women have been appointed. It is now an accepted practice to strike a balance in gender representation among justices of the Supreme Court. However, other groups that have always been under-represented have not managed to make such significant advances.

The government is determined to have the Supreme Court of Canada reflect the diversity of Canadian society.

By allowing people across the country to apply under the new process, we hope, to some extent, to see this vast diversity reflected in the selection of the judges who will sit on Canada's highest court for many years. We believe that the Supreme Court will benefit not only from their vast legal knowledge and experience, but also from their life experience.

For example, Canada is proud to have an increasing number of talented indigenous jurists, including judges, lawyers, and scholars. Furthermore, our country has many jurists who are people of colour, people with disabilities, members of LGBTQ communities, or people who do not fit the traditional mould of a Supreme Court justice.

Canadians of all communities are invited to encourage exceptional jurists to apply for the position of Supreme Court of Canada justice. The appointment process that we have established responds in part to the concerns expressed about previous processes. The open nature of the process is unprecedented and addresses some of these concerns.

Some of the country's greatest legal minds have sat on the Supreme Court bench since its inception, and for good reason.

As the Prime Minister said, we will uphold that tradition. We will even strengthen it with an open, transparent, non-partisan process for selecting Supreme Court justices.

The process will ensure that people of the highest distinction and greatest ability to represent Canadian society are appointed to the highest court in the land. Our government has put in place a new standard process that will result in greater diversity among the Canadian judges and lawyers who become part of that tradition regardless of where they come from or what region of Canada they call home.

Legal minds who better represent the diversity we have in this country will have the opportunity to take on some of the most important responsibilities there as they contribute to the legal and social framework that guides our country's evolution.

I am proud of this process and what it represents. I am proud that candidates from Atlantic Canada, high-calibre people who can compete with their colleagues across the country, were evaluated by the independent appointments advisory board. I have every reason to believe that some of them will be on the short list of three to five candidates given to the Prime Minister.

We look forward to finding out what this new selection process for our new Supreme Court of Canada justices means for us and for Canada.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, we spend a great deal of time talking about the importance of Atlantic Canada having representation, but one of the pieces that we have not picked up on perhaps as clearly as we might have is that the Supreme Court, of course, has always been a bilingual institution. The Liberal government talks repeatedly about diversity and the many sorts of realms. As the opposition critic for indigenous affairs, looking forward to having an indigenous member on the Supreme Court of Canada, I see that requirement of functional bilingualism as a big change. In the past, obviously it was a preferred capacity that the person should have, but to require it is a change.

Does the member not believe that he is cutting off many very appropriate candidates from our indigenous communities and others who have not had the benefit of learning French as either a young child or as an adult? In actual fact, I think it is about 22% of Canadians who are functionally bilingual. Are the Liberals not creating a lesser diversity with the change they are making, which perhaps has not attracted as much notice to date?

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Mr. Speaker, I thank my colleague for her excellent question.

As a New Brunswicker with an Acadian background, I am very proud to see a government finally officially stand up and say that the next appointment to the Supreme Court of Canada will go to a judge who is functionally bilingual. I agree with this requirement. I find it reassuring that the highest court in the country, the guardian of the rights of all Canadians, will be able to hear arguments in the defendants' mother tongue.

Now, this requirement does not in any way exclude the diversity of the Canadian population. As a lawyer myself, I can confirm to the House that there are judges of all cultural backgrounds serving in Atlantic Canada. There are more than just Quebeckers. There are Franco-Ontarians, Franco-Manitobans, Fransaskois, and Acadians.

Requiring a judge sitting on our country's highest court to be able to converse in, understand, and be proficient in both official languages does not undermine diversity, quite the opposite.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, one of the things that I find somewhat surprising is the total lack of confidence that the official opposition has in the advisory committee, which is actually headed by a former prime minister, Kim Campbell. It is as if those members have no confidence in the individuals who have been tasked to take on a heavy responsibility.

Would the member not agree that the process that this government has established is more transparent and more accountable? It ensures the best interests of the Supreme Court of Canada in a way that we believe Canadians would respect. It is no reflection on the current members of the supreme court, but it is quite interesting to contrast it to the old system, even when a supreme court judge was appointed while I was here. It is not completely night and day but it is quite different.

I wonder if the member could provide some thoughts on how important accountability and transparency really are to this whole process.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Mr. Speaker, I thank my colleague for his question.

In the past, the outgoing leader of the official opposition party acted in an extremely cavalier and disrespectful manner towards the chief justice of the Supreme Court of Canada. This just goes to show how much culture shock people may be feeling given our government's new philosophy. We simply want to make the appointment process more transparent regarding the most important position in our legal system.

To answer my colleague's question, I think that all Canadians will be better off knowing that, from now on, the guardians of our rights in the highest court will be selected using a transparent process.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Mr. Speaker, I wish to advise that I am going to be sharing my time with the member for Beauport—Limoilou.

It gives me great pleasure to rise today. Like many in the House, I have roots in Atlantic Canada. My grandfather and grandmother came from Atlantic Canada. I still have family there. It really gave me great pleasure to go back to Atlantic Canada last week with all of my colleagues as we fanned out to meet Atlantic Canadians and to reconnect with them. What was interesting was that, as I travelled to areas of Nova Scotia and Cape Breton and in some cases travelled beyond where I was supposed to go—there is a long story of getting lost in Atlantic Canada—it gave me a great opportunity, as it did my colleagues, to meet many Atlantic Canadians.

One of the things I heard consistently as I met those great people of Atlantic Canada was that they voted Liberal but they did not vote for this. When I asked them, it was debt and deficit situations and there was significant concern around the Supreme Court and the representation on the Supreme Court for Atlantic Canadians because, quite frankly, they are feeling betrayed. I am going to point out a bit later some of those prominent Atlantic Canadians who are feeling betrayed by the Liberal Party and the 32 MPs who were elected to represent them. That is why it gives me great pride to stand up here today, not only on behalf of family and friends, but as a caucus of members who truly care about Atlantic Canada.

I want to address something that the member for Winnipeg North talked about just prior to my rising in this House. He talked about the transparency of the system as it relates to the advisory board. He talked about the advisory board itself, the composition and the hon. members. No one on this side is doubting the composition of the hon. members of the advisory board. However, we have heard throughout the discussions today with respect to the mandate letter, and it is important to understand that there is one part of the mandate letter that is really lacking on the issue of transparency and on the issue of accountability. There is a sentence in the mandate letter that says that the advisory board will provide the Prime Minister with non-binding, merit-based recommendations of three to five qualified and functionally bilingual candidates for consideration.

Dare I say, out of respect for the members of the advisory board, that the farcical nature of what this advisory board may come up with is that the power to appoint a Supreme Court justice lies in the hands of the Prime Minister? Members of the opposite side can say all day that it is an open and transparent system. However, in fact that non-binding aspect of that mandate letter certainly opens it up for political discretion and, as a result, may lead to a member not being appointed from Atlantic Canada as has been the 141-year custom of this country.

That also leads to the question of what else they would be willing to break. What other long-standing constitutions and customs of this country would the Liberals be willing to break? That will certainly be seen as this decision for the appointment of the Supreme Court justice comes up.

As I said earlier, as our party is doing today, I want to be the voice of Atlantic Canadians and tell this House what they are saying about this process and speak for those Atlantic Canadians, who are not being spoken for by the 32 members of this House.

The Canadian Bar Association president, Janet Fuhrer, said:

The Canadian Bar Association firmly believes that appointments to the Supreme Court of Canada should be based on merit, ensuring that our judiciary reflects the full diversity of our regions, legal systems and population.

Where are the voices of the 32 members of Atlantic Canada on this? They are silent.

In Charlottetown's The Guardian on August 22, Alex Whalen, who is a columnist, wrote:

There is no need for improvements in the process to come at the cost of a voice for Atlantic Canada. While admittedly different than the regional interests that parliamentarians represent, top judges should come from across the country so as to bring a proper understanding of regional context to their position and judgments. A key facet of the court is to rule on matters of national implication. The view from the high court cannot be truly national while excluding an entire region of the country.

Where are the voices of the 32 members of the Liberal caucus?

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Silent, muzzled.

[John Brassard, Conservative, Barrie—Innisfil, ON]

They are silent, Mr. Speaker.

The Atlantic Provinces Trial Lawyers Association's Mr. Ray Wagner, in Halifax's The Chronicle Herald, on September 20, just the other day, said that the convention, in place for 141 years, should not be changed without invoking the Constitution’s amending formula because the Supreme Court of Canada has already made a similar ruling regarding proposed changes to the Senate.

Where are the voices of those 32 Liberal MPs from Atlantic Canada on this issue?

[An hon. member]

Nowhere.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Muzzled.

[John Brassard, Conservative, Barrie—Innisfil, ON]

They are silent, Mr. Speaker.

Probably the most damning response to the government's plan on this issue comes from an editorial in The Telegram in St. John's. The headline is, “Resistance isn't futile on Supreme Court snub”, and goes on to state:

Decisions by the Supreme Court are no less important. Members of the court must include the best minds and abilities from each region. The PM’s idea of diversity differs from time-honoured convention. Diversity means recognizing regions.

Where are the voices of the 32 Liberal MPs from Atlantic Canada on this issue?

[Some hon. members]

Muzzled.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Mr. Speaker, the reason I am bringing this up is that I want to bring the voices of Atlantic Canadians to the House, as we are doing on this side today.

A headline in The Globe and Mail on September 20 reads, “Lawyers call on PM to pick Atlantic judge”, and further states:

The Atlantic Provinces Trial Lawyers Association applied to Nova Scotia Supreme Court on Monday for a declaration that the “Prime Minister’s proposed departure from the constitutional convention of regional representation on the Supreme Court of Canada” requires a constitutional amendment and the unanimous consent of all provinces....

But does the tradition of regional representation amount to a constitutional convention? “Oh yes, definitely,” Peter Russell, a political science professor emeritus at the University of Toronto, told The Globe. “An important part of our Constitution is to have the highest court in the land which interprets the Constitution have legitimacy in the various regions of Canada.”

Where are the 32 voices of the Liberal MPs' Atlantic caucus?

[Some hon. members]

Silent.

[John Brassard, Conservative, Barrie—Innisfil, ON]

They are silent, Mr. Speaker.

Finally, editorialist Kelly McParland of the National Post said what I think is the most condemning. Again speaking on behalf of Atlantic Canadians, she stated:

No government has so fervently professed its devotion to “inclusion”—gender, ethnicity, identity, what have you—yet it dismissed more than a century of practice, shrugged off regional expectations and reduced the Maritimes to second-class status with a casual shrug and nary a peep of reproof.

Where are the 32 members of the Atlantic Liberal caucus?

[Some hon. members]

Silent.

[John Brassard, Conservative, Barrie—Innisfil, ON]

They are silent, Mr. Speaker.

On behalf of my family and on behalf of the many families who still live in the Atlantic provinces, the people we want to have a voice, Conservatives are standing up today for them, to make sure that the nomination to the Supreme Court maintains that 141-year constitutional convention and the representation on the Supreme Court for all Atlantic Canadians. That is why we are here today.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Mr. Speaker, I wonder whether the member was present earlier today in the House when the Minister of Justice and Attorney General of Canada shed some light on the transparent, open process that she and the government have introduced, which would ensure that there is consideration of very well-established and well-qualified candidates from the Atlantic region. I wonder if he would answer that.

Would he also take a moment to acknowledge the very strong representation that we have from the members of the Atlantic caucus, with whom I am very proud to stand?

[John Brassard, Conservative, Barrie—Innisfil, ON]

Mr. Speaker, one of the things we were hearing about when we were in Atlantic Canada, and we spent a lot of time there last week and visited a lot of communities, is in fact the dissatisfaction with the representation of the members from Atlantic Canada among the Liberal caucus.

I will bring it back to the advisory board mandate. There is no question that there are qualified candidates from Atlantic Canada. We acknowledge that. That is why we are saying that the representation on the Supreme Court has to come from Atlantic Canada.

Going back to the mandate letter of the advisory board, it says that it will provide the Prime Minister with non-binding recommendations. The board can have as many choices as it wants, it can bring those three to five representatives, but it means nothing because the Prime Minister will end up making the final decision.

What we are saying today is that, if the Liberals truly believe in this motion, they will not just agree to it, but they will actually apply it and select somebody from Atlantic Canada to be on the Supreme Court.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Mr. Speaker, I really appreciate my colleague's comments here.

I am neither a lawyer, a jurist, nor a law clerk. That is not my background. However, I do understand that, as parliamentarians, when we take a vote in this House, it has to mean something.

I have been hearing from members on the opposite side, kind of equivocating on this, saying it is custom, merely a custom. What we are saying is that, when members vote in this House on the motion that calls for them to actually implement the custom and abide by the custom, then they cannot go around saying that it will be a consideration later on. Their vote has to mean something. It has consequences in this House. They cannot say one thing and do another.

What does my colleague think his vote means when he votes on this motion in support of Atlantic Canadians?

[John Brassard, Conservative, Barrie—Innisfil, ON]

Mr. Speaker, in every situation that I vote, I vote as a matter of principle, as a matter of honour, and as a matter of integrity. I do not just flip-flop whichever way the wind is blowing.

I come to this House, and I take very seriously my responsibility to represent the people of Barrie—Innisfil and their will in this House.

I think that brings a bigger question. It speaks to the customs and constitutions of this convention over the last 141 years. I say again, if they are willing to break this, if the Liberals are willing to break this convention, what other conventions are they willing to break that are of a historical nature in this country?

I am not sure, if the Liberals break this one, that they would not be willing to break another.

[William Amos, Liberal, Pontiac, QC]

Mr. Speaker, the notion that the loyal opposition is the only party that cares about Atlantic Canada is laughable. More than that, it is sad.

The reason it is sad is that it is engaging in the politics of demagoguery. It really is. It is politicizing the judicial selection process, a transparent process that has been articulated wonderfully by our Minister of Justice, and it is inserting this regionalist division that is totally unnecessary.

Speaking specifically to the process, speaking specifically to the advisory board, does the member opposite recognize that if the decision of the advisory board were binding, then it would be unconstitutional?

[John Brassard, Conservative, Barrie—Innisfil, ON]

Mr. Speaker, I make no apology, standing up here and speaking on behalf of Atlantic Canadians as the rest of the caucus does.

While I understand that the decision rests with the Prime Minister and that the advisory board is going to give recommendations, those recommendations are not necessarily required to be a selection from Atlantic Canada. The Prime Minister is prepared, I believe, to select somebody not from Atlantic Canada.

What we are saying is that the nominee needs to be from Atlantic Canada.