Mr. Speaker, I agree with the member for Charlesbourg—Haute-Saint-Charles on the importance of this motion. Indeed, one of my responsibilities is to protect judicial independence and the rule of law.
Accordingly, because of this I will be voting against this motion, which I regard, taken as a whole, as being inappropriate, uninformed, unconstitutional and prejudicial to the independence of the judiciary and the responsibility of Parliament. Indeed, I am very concerned about the trafficking in innuendo in relation to the judiciary over the past few months.
As my colleague has said, an independent judicial system is the cornerstone of our democracy, the cornerstone of our rule of law.
Therefore, public confidence in the independence and reputation of the judiciary is essential for the proper functioning of the legal system and the maintenance of the rule of law.
As parliamentarians, we have a responsibility to preserve and increase Canadians' respect for public institutions, such as the judiciary and the courts. There may be short terms gains in using the judiciary as a political toy, but in the long term, we all suffer if we do not give public institutions the respect they deserve. For this reason, we must be very cautious about making charges in the House and elsewhere.
It is not only highly inappropriate but in my view contrary to the Constitution for this House to be debating a motion of censure against Chief Justice Robert at this time. Regardless of the depth of feeling that some hon. members may have about the chief justice's comments, now is not the time or the place for these kinds of concerns or censures to be aired.
The framers of the Constitution gave careful consideration to all aspects of the relationship between the branches of government and in particular between the judiciary and Parliament. Section 99 of the Constitution reflects the importance of preserving the separation of these two branches by conferring on both Houses of Parliament the singularly important task of considering whether the conduct of a judge warrants removal. This is the exclusive role of Parliament, but it is also a limited role with only one sanction: removal. Parliament has no other power to censure or criticize individual judicial conduct.
An equally important and related point is that Parliament itself has established a specific process that is to be used to assist in informing its serious task in considering whether removal of a judge is warranted. In 1971, Parliament conferred the responsibility and authority on the Canadian Judicial Council to receive and fully consider complaints with respect to these matters and make recommendations as to whether the conduct in question warranted removal.
Parliament clearly recognized that the independence of the judiciary would be more appropriately preserved through this process, which allows for full evidentiary based inquiries upon which the decision whether or not to seek removal can be based.
I believe the hon. member for Charlesbourg—Haute-Saint-Charles filed a complaint with the council, as is his right. We must therefore allow the council to carry out the mandate Parliament has given it. The council has expertise in matters of judicial independence and restraint. It will examine the complaint independently and objectively, as part of its procedures and make a decision.
This motion, however, seeks to vilify a sitting judge, with none of the processes or protections that have been established by this Parliament or by the Constitution. It is therefore not only premature and unfounded, but what is more serious is that this entirely premature and unfounded step could be perceived as an attempt by Parliament to influence the council's considered deliberations, if not circumvent the constitutional process established by Parliament for this purpose.
Indeed, there is as well a bigger problem with this motion. As indicated, the Constitution mandates that removal of a judge can only be accomplished by joint addresses to the House and the Senate. This House could be called upon at some point in the future to consider these issues formally in the context of the joint address procedure, that constitutionally mandated procedure. By prejudging the issue of the judge's conduct in this matter by voting in favour of this censure motion at this time, hon. members could be undermining the fairness of any future process that we may be called upon to implement.
As parliamentarians, we have a duty to act consistently with the Constitution and with respect to the separation of powers as protected under that Constitution. We must let the council process unfold and, if necessary, let the constitutional process unfold as it was intended to. Anything else is prejudicial to the independence of the judiciary and, I might add, to our role and constitutional responsibilities as parliamentarians.
I have said many times and I will say again that the quality of the Canadian judiciary is unassailable. Canadians are proud and have every right to be proud of our judicial system, which is studied around the world as a model of fairness, impartiality and independence. One of the main reasons for this is that our Canadian judges are seen to be of the highest calibre. They are diligent and dedicated and they deservedly enjoy a high degree of respect and admiration both within Canada and beyond our borders.
Accordingly, any reform of the appointments process must ensure that this important legacy continues to be protected and to flourish.
It is important to remember that the Constitution determines the context for the federal process of appointing judges. More specifically, section 96 of the Constitution Act, 1867, gives the executive—or cabinet—power to appoint judges to provincial superior courts by order in council. The executive remains responsible and accountable for the exercise of the power to appoint.
There are two important consequences of this. First, the power conferred on the federal cabinet cannot be delegated to another body, be it another level of government, a committee or any other entity. Second, the exercise of the executive's discretionary power in the appointment of judges cannot be hindered to the point where the executive has only limited latitude in exercising this discretionary power.
On a practical level, this prevents the government from adopting reforms which effectively delegate its authority to outside committees or which limit its discretion by requiring the government to select from a short list, as the member suggested.
We therefore need to examine carefully those proposals which are inspired by provincial processes that do not face the same constraints and constitutional frameworks as are dictated by section 96.
The federal judicial appointments process exists for one reason and one reason only: to ensure that only meritorious candidates are appointed to the bench. I strongly believe that my own appointments and those of my predecessors as well have been guided by this foundational principle.
There are also practical considerations that will limit the options that are available. This is not like the Supreme Court of Canada where there are nine judges, and vacancies normally arise every couple of years. In the Superior Courts, there are approximately 1,100 judges and there are always vacancies to be filled.
In April 2004, for example, the Commissioner for Federal Judicial Affairs testified before the justice committee that 490 applications for the bench were received in 2003. There were 59 advisory committee meetings to assess these applications in every province and territory. In that year, 55 applicants were appointed to the Superior Court bench. In 2002, 499 applications were received. There were 47 meetings and 53 appointments.
These numbers do not include judges who were elevated from a Superior Court to a Court of Appeal or the Supreme Court of Canada.
A great many applications need to be assessed and a considerable number of vacancies need to be filled. When we talk about committees meeting and interviewing candidates for each vacancy or establishing short lists of candidates for each vacancy, the implication is that there is much work to be done, particularly if we consider the fact that, on one hand, the committee members are all volunteers and, on the other, their terms are relatively short.
In my opinion, we risk ending up with a process that cannot handle the applications submitted or fill the vacancies created when a judge dies, retires or is promoted to another court.
The present appointments process also permits the minister to promote diversity on the bench, as has been mentioned by my colleague, within the context of a merit based system. Indeed, since I was appointed Minister of Justice, we have taken great strides in improving gender equity. Close to half of my new judicial appointments and of my elevations and transfers have been women.
Our accomplishments do not end with gender equity, however. I have also had the honour, and this is important with respect to diversity, to appoint the first aboriginal judge to a Court of Appeal in Canada, the first person of colour to the Ontario Court of Appeal and the first Métis person to the Superior Court of Ontario. All this was done under the current system of merit based appointments, which some of my opposition colleagues now seek to challenge.
In my view, any system of appointments must be structured so as to ensure that diversity can be promoted within the ranks of the merit based Superior Court judiciary. When we have courts that reflect the society they serve, this helps to promote confidence in the judicial system by all segments of our population.
There are seven basic points which are essential in examining the current appointments process referred to by the member for Charlesbourg--Haute-Saint-Charles this morning. I believe these address a number of concerns that have been expressed about the system. The process is designed to ensure the Minister of Justice receives broadly based and objective advise about the qualifications of those who seek a judicial appointment.
First, the committee process for the federal judiciary is independent and at arm's length from the minister. The process is organized around independent judicial advisory committees which assess the qualifications of potential candidates.
Second—and this is extremely important—the Commissioner of Federal Judicial Affairs has supervisory power over the process. The commissioner has overall responsibility for administering the appointments process. He receives the applications and ensures assessments are diligent and thorough. He provides administrative support to the committees.
Third, as the member for Charlesbourg—Haute-Saint-Charles mentioned, representatives of the judiciary, the Canadian Bar Association, the provincial law societies and the provincial attorneys general sit on the judicial advisory committees. These are all highly respected organizations.
Three members of these committees—two of whom must be laypersons—are selected by the minister. There are 16 committees: three in Ontario, two in Quebec and one in each remaining province and territory.
Fourth, judicial advisory committees vet applications from candidates in accordance with prescribed merit based criteria that are publicly available on the commissioner's website. In order to be considered for an appointment, a candidate must first meet the minimum of conditions in the Judges Act, the Federal Courts Act and the Tax Court of Canada Act, as the case may be. Candidates must have been called to the bar of a province or territory for at least 10 years or have 10 years' service as a combination of time at the bar and time in a full time judicial office.
The merit based criteria, which are set forth in the formula for the application form for candidates, include general proficiency in the law, intellectual ability, analytical skills, ability to listen, ability to maintain an open mind, ability to make decisions, capacity to exercise sound judgment, reputation among professional peers and the general community, capacity to handle heavy workloads, capacity to handle stress and pressures of the isolation of the judicial role, awareness of racial and gender issues, bilingual ability and such personal characteristics as sense of ethics, patience, courtesy, honesty, common sense, tact, integrity, humility, fairness, reliability, tolerance, sense of responsibility and consideration for others.
These merit based criteria, which are publicly available for evaluation and the like, do not include or make any reference to political affiliation or political belief. It is simply not considered relevant, nor can it be considered relevant.
The judicial advisory committees also consider potential impediments to appointment, such as whether candidates suffer from any debilitating medical conditions that would be likely to impair their ability to perform the duties of a judge or whether there are any past or current disciplinary actions against them, and so forth.
Fifth, the judicial advisory must evaluate a process then recommend candidates for evaluation by the Minister of Justice. The committee assesses candidates in one of three categories: recommended, highly recommended or unable to recommend. The files of all candidates are maintained in a separate and confidential data bank at the commissioner's office.
Sixth, and this is crucial, the minister can only choose from candidates who are recommended or highly recommended. I stress that no candidate has ever been chosen who was not recommended by the committee in its merit based evaluation.
Seventh, I, myself, subsequently engage in a consultative process with respect to the recommended candidate by the advisory committee. This consultation is intended to ensure it has the broadest possible set of information to determine who is the best candidate for a particular vacancy.
Turning to the question of political affiliation, it is important to stress once again that a candidate's political stripe, if any, is not a relevant criterion, nor can it be. It is not a prerequisite in the choice of a candidate. Nor can it be used to exclude candidates. The advisory committees do not take this into consideration, and I have repeatedly said that I do not either. Indeed, I have said on several occasions that for the most part, I do not know what a candidate's affiliation is and frankly, I could not care less.
Obviously, an individual should not be appointed to the bench because they gave money to a political party. But nor should that individual be discriminated against for having done so. A number of judges were once active in politics, and we should not exclude such individuals because, consequently, we would be failing to take advantage of such excellent candidates and discouraging participation in the democratic process.
I truly believe the current appointment process is sound in principle. This does not mean, however, that improvements cannot be made. That is why I have undertaken a consultation process concerning appointments to the judiciary and how it is working. These consultations will start with the chairs of the various advisory committees who will have the experience on the ground in terms of how the process works in reality.
In addition, I also publicly have committed to consulting with experts to seek their views with respect to possible improvement. This process would not prevent in any way the parliamentary committee undertaking a parallel process, which it is free to do without the necessity of this motion. Indeed, this demonstrates that the motion has been brought in for purely partisan purposes unworthy of support in the House. This speaks to the issue of politicization that the hon. member himself warned against.
Before I conclude, I feel compelled to point out that the government's commitment to transparency in judicial appointments is further reinforced by our recent proposal to reform the Supreme Court of Canada appointments process. To the degree that the Bloc motion today would touch on that process, I would emphasize that the government's proposal achieves increased transparency and credibility of the appointments process for Supreme Court judges, provides for greater parliamentary and provincial participation and protects the independence and respect for the judiciary. At the same time, it preserves the constitutional authority for these appointments in the governor in council and protects, as I stated, from the constitutional framework, the independence of the judiciary, the integrity of the court and the responsibilities of the House.