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37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights


EVIDENCE

CONTENTS

Tuesday, November 4, 2003




Á 1150
V         The Chair (Hon. Andy Scott (Fredericton, Lib.))
V         Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

Á 1155
V         The Chair
V         Mr. Vic Toews (Provencher, Canadian Alliance)

 1200
V         Mr. Richard Marceau
V         Mr. Vic Toews

 1205
V         Mr. Richard Marceau
V         Mr. Vic Toews
V         The Chair
V         Mr. John McKay (Scarborough East, Lib.)

 1210
V         Mr. Richard Marceau
V         Mr. John McKay
V         Mr. Richard Marceau
V         The Chair
V         Mr. Kevin Sorenson (Crowfoot, Canadian Alliance)

 1215
V         Mr. Richard Marceau
V         Mr. Kevin Sorenson

 1220
V         Mr. Richard Marceau
V         The Chair
V         Mr. Pat O'Brien (London—Fanshawe, Lib.)

 1225
V         Mr. Richard Marceau

 1230
V         The Chair
V         Mr. Chuck Cadman (Surrey North, Canadian Alliance)
V         Mr. Richard Marceau
V         Mr. Chuck Cadman
V         The Chair
V         Mr. Christian Jobin (Lévis-et-Chutes-de-la-Chaudière, Lib.)
V         Mr. Richard Marceau
V         Mr. Christian Jobin
V         Mr. Richard Marceau

 1235
V         Mr. Christian Jobin
V         The Chair
V         Mr. Vic Toews
V         Mr. Richard Marceau

 1240
V         The Chair
V         Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)
V         Mr. Richard Marceau
V         Mrs. Marlene Jennings
V         Mr. Richard Marceau
V         Mrs. Marlene Jennings
V         Mr. Richard Marceau
V         Mrs. Marlene Jennings
V         Mr. Richard Marceau
V         Mrs. Marlene Jennings
V         The Chair
V         Mr. John Maloney (Erie—Lincoln, Lib.)

 1245
V         Mr. Richard Marceau
V         Mr. John Maloney
V         Mr. Richard Marceau
V         The Chair
V         Mr. Vic Toews
V         The Chair
V         Mr. Paul Harold Macklin (Northumberland, Lib.)

 1250
V         The Chair
V         Mr. Paul Harold Macklin

 1255
V         The Chair
V         Mr. Richard Marceau
V         The Chair
V         Mr. Philip Rosen (Committee Researcher)
V         The Chair










CANADA

Standing Committee on Justice and Human Rights


NUMBER 078 
l
2nd SESSION 
l
37th PARLIAMENT 

EVIDENCE

Tuesday, November 4, 2003

[Recorded by Electronic Apparatus]

Á  +(1150)  

[English]

+

    The Chair (Hon. Andy Scott (Fredericton, Lib.)): I call the 78th meeting of the Standing Committee on Justice and Human Rights to order. Today, pursuant to the order of reference of Wednesday, October 1, we are beginning our study on the process by which judges are appointed to the courts of appeal and the Supreme Court of Canada, further to a unanimous decision of the House of Commons.

    I don't know how we were so fortunate to be able to secure the presence of our first witness, but in any case, I turn the floor over to M. Marceau, the member for Charlesbourg—Jacques-Cartier.

[Translation]

+-

    Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you, Mr. Chairman.

    With this appearance, I have the pleasure of beginning our study in committee of motion M-288, that it was my honour to sponsor in the House. I'd like to take advantage of the opportunity to express to all members of this committee my sincere thanks for their unanimous support in adopting my motion.

    I think that this is a very strong political signal that the present process of acceding to the judiciary of the courts of appeal and the Supreme Court is out of date and that the time has come to consider different possible reforms.

    Let me remind you of the wording of my motion, which is quite simple:

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.

    As you know, an old principle of common law states that there must not only be justice but the appearance of justice so that the trust placed by the population in the judicial apparatus and the judiciary can be as great as possible. The present process of appointment of judges to courts of appeal and to the Supreme Court comes into clear conflict with this principle and hence the appearance of justice is diminished.

    There are many examples to support this claim but I'd like to raise two relatively recent cases that I consider to be of particular interest.

    During the summer of 2002, the Prime Minister appointed Justice Michel Robert, who had been with the Quebec Court of Appeal since 1995, to the position of Chief Justice of Quebec.

    Likewise, the Minister of Justice, Martin Cauchon, who will be with us later on today, announced on August 8, 2002 the appointment to the Supreme Court of Canada of the justice of the Quebec Court of Appeal, the Honourable Marie Deschamps.

    These two persons certainly do have an enviable reputation in the field of law justifying their appointment to such important functions. However, and this is where we see the weakness relating to the appearance of justice, it is reasonable to raise questions about these appointments, as a number of people have done, in relation to these persons' involvement in the Liberal Party.

    As you know, Justice Robert presided over the destiny of the Liberal Party of Canada from 1986 to 1990 under John Turner and, according to some people, he is alleged to have contributed to his fall. So the present Prime Minister would therefore have a valid reason to reward him.

    Likewise, Justice Marie Deschamps is the spouse of Paul Gobeil, a former minister of Robert Bourassa from 1985 to 1989 who is still associated with the Liberal Party of Quebec.

    These two examples tend to illustrate the distinct impression that the courts are being politicized, something we must fight against. In view of the important role played by the courts today, in particular because of their expanded functions, because of the different actions under the Canadian Charter of Rights and Freedoms or their involvement in certain social debates such as same-sex marriage, aboriginal claims, the decriminalization of marijuana and so forth, we must make every effort to avoid linking the judiciary with politics.

    In my opinion, that is a forceful argument in favour of a review, a democratization and a greater transparency of the process for the appointment of judges. Some may not share this view, but in my opinion there is a consensus to have this issue debated, at the very least.

    The position of the Bloc Quebecois on the matter is quite clear, since I'm here before you, as is that of the Alliance, the Conservatives and the NDP.

    It is also important to note that the future leader of the Liberal Party of Canada, Paul Martin, stated on October 21, 2002 at the University of Toronto, and I quote:

... the procedure for government appointments should be reformed.

The absolute powers of appointment granted through the Prime Minister are too extensive—they apply to ambassadors and to consuls general, to regulatory organizations and to the boards of directors of museums, etc. Such powers should be subject to reasonable and transparent scrutiny on the part of Parliament.

The final decision should remain in the hands of the government in order to avoid dragging out the process. Nonetheless, the qualifications of candidates should be examined by the appropriate standing committee before such appointments are confirmed.

    I'd like also draw to your attention that the Chief Justice of Quebec, the Hon. Michel Robert, maintained, in an interview given to the magazine The Lawyers Weekly, in the September issue:

It would be wise to make more transparent and credible the very secret process of consultation preceding the appointment of a judge to the country's highest court.

    We could speak at length on the present process of appointing judges to the superior courts of each province or territory, the Federal Court of Canada and the Canadian Tax Court since there is a very specific assessment framework to be followed.

    When it comes to the process for the appointment of judges to courts of appeal and the Supreme Court, subjectivity is the rule. You know as well as I do that there is no clear and specific process relating to the appointment of these judges. The entire process is left to the discretion of the Prime Minister, who receives advice in this respect from the Minister of Justice. Strangely enough, appointments to lower levels of the judiciary are subject to more control than those at the higher levels.

    Thus, the motion that we all supported and that does not come out in favour of any specific alternative calls upon us to study this issue and to report to the House on our consultations and proceedings. It is quite possible that once we have concluded our study, we may agree that it is preferable to maintain the present situation, something that I would find quite surprising, or we may decide to propose a reform of the process for the appointment of judges to our highest courts.

    There is no reason for us to be afraid of a debate. Let us consider all the issues and examine the situation without any preconceived ideas. What role do we see members of Parliament playing? What role could be entrusted to the provinces? Should the various bars of the different provinces be involved and should it be in a formal way? This is an important issue, a question of capital importance for the old principle of common law that I mentioned in my introduction relating to justice and the appearance of justice.

    To some extent, it is the responsibility of all of us as parliamentarians and particularly those who are members of the Standing Committee on Justice and Human Rights, to enhance public confidence in our institutions and more specifically public confidence in our judicial system.

    Mr. Chairman, I think that by conducting this debate and by giving an in-depth study to this issue, we will increase public confidence in the courts of appeal and the Supreme Court; they have acquired a great deal of importance in defining public policy and are being subject to increasingly fierce criticism and for that reason, it is particularly important to remove any political association from the minds of Quebeckers and Canadians when it comes to the process for appointing judges.

    Thank you.

Á  +-(1155)  

[English]

+-

    The Chair: Thank you very much.

    Mr. Toews, for seven minutes.

+-

    Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much.

    I appreciate the submission here today from our colleague, and I think it's a very, very important issue. It's certainly something the Reform Party, the predecessor of the Canadian Alliance, was very strong on. Indeed, it remains a part of Canadian Alliance policy that there should be a Senate or parliamentary committee reviewing Supreme Court of Canada appointments.

    I think it's a puzzle to most Canadians, including to most parliamentarians, exactly what the process is of how individuals are appointed to the highest courts in our land. As the courts are increasingly taking over a political or social policy role, I think it becomes more and more important to understand exactly who these individuals are.

    I have heard consistently, usually from apologists for the judiciary or members of the law society or bar association, “Well, we can't have the U.S. style of appointments. We're concerned about the publicity, and we can't expect our judiciary to be subjected to that kind of a process.”

    In Manitoba we in fact brought forward a more transparent, more credible process for the appointment of our provincial judges. I still have a problem with that process. That process involves a committee reviewing a list of candidates who apply to a committee. The committee is composed of a member of the judiciary, a member of the bar association, a member of the law society, and certain lay members, who make recommendations to the Minister of Justice, who then consults with cabinet colleagues about the names that have been put forward.

    I have a strong disagreement with any member of the judiciary sitting on that committee. I think that's destructive of the clear division of powers between the executive branch and the judiciary. A judicial member should not be sitting on that committee, so I think Manitoba needs to relook at its process.

    Having said that, I think it was in fact a step forward. Clearly, the appointments that are made are not seen as narrow, political appointments, or as appointments of the government in power, but rather as a more public process.

    Have you considered any of the processes you would like to see, which you think would be essential to reforming the present process?

  +-(1200)  

[Translation]

+-

    Mr. Richard Marceau: Thank you for your question.

    Let me be clear on one point, I may not have made myself understood, namely that the political engagement of a person at any level should not prevent a person from acceding to the judiciary. That was not my intention and I think it would be very unfortunate if a person who has devoted years of his or her life to the public service as an elected representative or member of a political party should be deprived of this opportunity. However, as you noted, we must make an effort to avoid politicization and rumours implying that the person was appointed because of membership in a political party.

    You referred to the American process. I think that there is a very great difference between the very secret way in which we proceed in Canada and the American process which is almost like an inquisition delving into the private life of candidates. In Canada, for example, it was only after the appointment of Morris Fish to the Supreme Court that we were able to ask questions about him.

    Moreover, when it comes to setting public policy, the influence of the judiciary is increasing. Parliamentarians may resort to the notwithstanding clause in the case of the Charter, for example, but many of them have trouble doing so. We have to find a place for the population at large, but since it is impossible for us to call together 31 million people to a meeting, then the elected representatives will have to have their say.

    A parliamentary committee could easily hear from a judge who would testify on his knowledge of the law and points of law without it being necessary to start looking into his personal life, as was the case for Justice Bork in the United States.

[English]

+-

    Mr. Vic Toews: I think that's certainly along the lines of the suggested process the Canadian Alliance has put forward in other places.

    I guess my concern is, if it is a committee like this—and perhaps it's a little premature to put you in that position, but I'm putting this forward so that committee members can think about it—would that process take place in camera? Obviously, there are certain legal people.... And I agree with you, of course, that participation in politics shouldn't disqualify you. It's the process we want to look at. But many senior partners in a law firm, for example, wouldn't necessarily want to announce publicly that they want a judgeship and leave their law firm, because of certain concerns. There are certain privacy issues that we may have to respect and accommodate if we want to attract top-quality people and not limit the field to existing judicial appointments—those either in the provincial court or the Queen's bench.

    Have you given any thought to the issue of whether it would be acceptable for an in camera committee to consider this matter, or would you necessarily think that if a committee looks at it, it should be a full public hearing process?

  +-(1205)  

[Translation]

+-

    Mr. Richard Marceau: To be honest, I must admit that I did not consider this possibility. The purpose of my motion was to avoid any political association. If, after studying this motion, which is very open, the committee considers it would be preferable to debate the issue in-camera, we could certainly consider the possibility.

    That being said, it is important to avoid giving people the impression that this is a deal made by chums, to use a familiar Quebec expression. In such a case, the idea of a political implication would not disappear.

    You referred to the process used in Manitoba. Should the provinces play a role in the appointment process? Could they suggest names to the Department of Justice? Could the provincial participation be made more formal? These are things that should be considered. The motion is very open and, in my opinion, it would be unfortunate if we were not able to see this process through to the end.

    During the same-sex debate, you and I had opposite points of view but people very clearly expressed the wish that elected representatives should play a more important role than people who are not elected. That is the message that I heard, that you heard, that we all heard. In such a context, I think that this motion is quite timely.

[English]

+-

    Mr. Vic Toews: Thank you, kindly.

+-

    The Chair: Thank you very much.

    Mr. McKay—unless Mr. Marceau has some questions for himself.

    Some hon. members: Oh, oh!

    An hon. member: Don't give him an opening!

+-

    Mr. John McKay (Scarborough East, Lib.): I want to thank the honourable member for bringing this forward. I think it's a very timely motion and a very appropriate discussion for the House and this committee.

    I'd make one minor correction. I believe Paul Martin's speech was to Osgoode Hall Law School rather than the University of Toronto Law School, if it's the same one I attended around October 2002. I think that's correct. You said University of Toronto. It's a minor matter.

    I'd like to answer to the politics of it. I don't think any of us are so naive as to ever think politics will be eliminated from judicial considerations, so the notion that association with the government's party would eliminate you from a judicial consideration, I think, is a non-starter. So I liked your answer on that.

    Where I'd like to go is with respect to how you would see the public part of this. I don't think it has been very well thought out or very well refined. Obviously, we see the American situation and recoil from some of the excesses that go on there. It seems to be a bit of a circus to us. They actually have people who are hired to dig up nasty things about potential appointees. I don't think that would be a direction in which I would want to go, although as soon as you do have a public component, I suppose you open yourself up to that aggressiveness.

    One of the things I'd like you to respond to is, do you think we could develop a more refined process or a parallel process to the appointment of officers of Parliament? Thus far, I think, with one notable exception, we've been fairly well served by officers of Parliament, and that is actually a parliamentary appointment. Now, as I understand the process, it's simply the House leaders getting together and agreeing on a name and the rest of us seem to go along with it. That seems to be somewhat less than transparent.

    If you launched yourself from that standpoint and opened up a committee such as this, how would you circumscribe--I guess that's a better way of putting it--the inquiries on the public part of this appointment process?

  +-(1210)  

[Translation]

+-

    Mr. Richard Marceau: It would be possible, by way of an explanation given before the hearing of testimony, to specify what questions may be asked in the House: certain questions would be allowed, others would not. Any question that does not relate to the running of the country would not be allowed. If it is asked, it would be ruled out of order. We saw an example of this yesterday. I personally was not in agreement with the chair's ruling on the question for Mr. Manley.

    So a question could not be put to a minister about his personal life if it has no bearing on his functions as head of the department. The rules adopted by the committee could be applied to this situation, whether it be judges since the motion deals with them or possibly officers of Parliament. There should be very clear rules about what questions are admissible and those that are not.

[English]

+-

    Mr. John McKay: Have you thought about things like media briefings? I think there are times that the reporting of what goes on, both here and in the courts, is pretty pathetic. I guess it goes to Mr. Toews' question: how would you bring the media up to speed so that when a candidate is being considered, there is actually a body of hardcore knowledge about that individual?

    Most judges going forward have a body of work that they have written about. There are trend lines you can follow. If you make it an in camera process, it's difficult to make that body of work known to the public, but if you make it a public process, then people go off on a variety of tangents. Have you given any thought to that?

[Translation]

+-

    Mr. Richard Marceau: I would see, for example, a process where several candidates would be considered at the same time; let's say five people, with a mini biography of each being made available to people.

    For the main candidates, the committee itself or someone else could conduct an exercise aimed at finding out more information on a candidate or knowing what the judge's opinion is on particular issues. This exercise could take the form of head notes, that is the famous summaries of decisions to be found in collections of jurisprudence. In the first year of law, students read the full decision, but when they get to third year, they simply read the summary.

    That might be a good way of making candidates known to the media and later on to the population. They would be told that there are five people, that such and such a person is a judge in a particular province, that he or she made such a statement or such a comment in a particular decision and a summary would be provided. This would be a very neutral way of making a candidate known but would give people a general idea of who they are and their knowledge of the law.

[English]

+-

    The Chair: Thank you.

    Mr. Sorenson.

+-

    Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thanks, Mr. Marceau, for coming here today. Obviously, we've talked about this in committee before and it's good that we're able to have you come today.

    I was going through our policy book and it says that in the Canadian Alliance we believe all Supreme Court of Canada judges should be chosen by a multi-party committee of the House of Commons. Yours also includes judges for the Court of Appeal.

    This may be part of what Mr. McKay asked and I missed your answer in French, but what kind of criteria should be considered? When you bring this before a committee or before a group of Parliament, or whoever is going to consider a candidate, should prior decisions of lower courts be taken into account? Would we have a record, or would we have close scrutiny of every decision that has been made in a lower court that now is going to be opened up again? Is that something that would disqualify someone? Is that something that would be considered? What would disqualify a candidate from being a Court of Appeal judge or a Supreme Court judge?

  +-(1215)  

[Translation]

+-

    Mr. Richard Marceau: Incompetence.

    If, for example, there were five names of judges before the committee, knowing your party as I do and the positions that you maintain as well as the excellent research service that you have, I am convinced that you will yourselves scrutinize the decisions made by this man or woman in the past.

    The committee should find out if the person has the necessary qualifications, the necessary knowledge of law, as well as the judgment and training necessary to occupy the position. This would be done in a fairly general fashion in order to avoid a person being appointed for political reasons. You mentioned what the position of the Canadian Alliance was on this issue. I have here something that was suggested by the Conservatives. I don't know whether if, after your marriage between persons of the same ideology... I read here:

[English]

The name and qualifications of any person proposed for appointment by the Prime Minister to the Supreme Court of Canada shall be presented to Parliament, which shall, after debate, make a recommendation on the suitability of the nominee's candidacy. This vote shall be conducted and communicated to the Governor in Council prior to any such appointment being made.

[Translation]

    That may also be something that could be looked into.

    As I said, I am very open. I am sure that there are people far more qualified than I am, even around this table. And there certainly are among the potential witnesses. Over the past months we have heard people say on many occasions that the power held by judges is excessive and that we have no control over them. Somewhere there should be input from the population at large. In newspapers like The Gazette, La Presse, The National Post, The Globe and Mail and others, there have been all sorts of articles where people maintain that the process as it now exists is politicized. There is no longer the appearance of justice.

    As a lawyer, it may be that I am conditioned by my job but if people lose confidence in the judicial system, if, because the judges are increasingly involved in setting public policy and are subject to criticism because they are part of the democratic debate, the least we can do is to protect them from any accusation or possibility of calling into doubt their qualifications or the reasons for their appointments. This is increasingly important because of the greater role being played by judges today in defining public policy.

[English]

+-

    Mr. Kevin Sorenson: I'm not a lawyer, and I realize that you are. Can you tell me what we do now if some time after he's been appointed as a judge you find out that perhaps he shouldn't be a judge, or maybe some of his decisions or some of his conduct would be such that...?

    I know someone came before the committee some time and said about the only time a judge is ever removed is if he has trouble with alcohol. That happened, I think, at the justice committee, didn't it, where someone came forward?

    I think there will be some major concerns. One of the other things that has been brought forward here today is that we don't want it to be like it is in the United States, where all of a sudden the media converges on a guy and rip into him--when he was 20 years old he did this, when he was 18 he was doing that--and they tear him up.

    Perhaps we should be looking at steps where, if appointments continue to be politicized, after the fact we do have a better way of removing someone from the judiciary if indeed they prove to be undesirable, as you say, on the bench.

  +-(1220)  

[Translation]

+-

    Mr. Richard Marceau: It is a fairly complex process when a judge is to be dismissed from his duties. There was a recent case in Quebec where a judge made certain uncomplimentary remarks about women, as I remember.

    In this respect, I think we have to be very careful because if we want the judiciary to remain independent, then it should not be possible for a judge to be removed from his position because politicians do not like the kind of decisions he is making. So what I am calling for is intervention that occurs upstream rather than downstream in this process.

[English]

+-

    The Chair: Mr. O'Brien.

+-

    Mr. Pat O'Brien (London—Fanshawe, Lib.): Thank you, Mr. Chairman.

    I, too, thank our colleague, Monsieur Marceau, for advancing this.

    I think it's a very important debate, or a discussion for this committee, to take place at this time. I think there was nothing less than furor and outrage for much of the Canadian public over the recent discussion we had on same-sex marriage and what I consider the incredibly arrogant action by the three judges in Ontario, who instantly redefined marriage. I have no argument with them ruling as they did, although I strongly disagree.

    To instantly attempt to redefine something as fundamental as marriage has outraged, I can tell you, a high percentage of my constituents. I know that because I surveyed them recently and asked them a number of questions. One question was, who should have the final word on decisions like this, MPs or judges? It's running in the area of 96% of respondents who are saying that of course elected, accountable MPs should have the final say.

    I think it's a very important debate.

    I only want to put forward a few themes that I think we should look at in the course of this. Then I'd be happy to hear any response or comments from M. Marceau.

    I certainly agree there's too much power in one office. The Prime Minister simply appoints judges to the top court, to the Supreme Court. I think we need to look at other input besides that from the current Prime Minister.

    On the whole question Mr. Toews raised about private and public consideration of this, I think there's probably room for both. I wonder if you would agree. After all, somebody who is putting his or her name forward for a potential top legal appointment is going to perform in public. I understand the reservations about seeking the position in public, but I think at some point there has to be some public participation in this or at least information available to the public.

    On the whole concern about the American-style activism--as you say, are you digging into somebody's past, what they smoked when they were 18 years old, who they dated at age 20--all that kind of thing is such a turn-off for people. I agree that we don't want to go down that road. However, my feeling, and I think the feeling of many Canadian citizens, is that like it or not—and I don't particularly like it—it seems that our legal system is becoming more Americanized.

    It seems that the judges are becoming more like activists, vis-à-vis Mr. McMurtry and the other judges in Ontario I mentioned.

    As you said, M. Marceau, we have to try to find something between the secretive system that we currently have and the American system, which we certainly don't want to move to. How do we find that happy medium, or the opportunity to have judges examined in some way, without getting into the ridiculous extremes we see in the United States?

    In that regard, I think we should certainly be looking at educational background, the mandatory training of judges. We talked about comments on women that were made by a judge. There are pathetic examples that we can think of, racist comments that have been made about aboriginal defendants in various courts over the years.

    I think that kind of information has to be available to people. What sensitivity training has this particular applicant had, if any? Should we even be saying that if you want to apply, you have to have had some training in the following fields, other than an LLB, etc?

    I guess I'll finish with this, and then I would be happy with any comments from our colleagues.

    On public ownership--I don't know if that's the right word--I think public ownership or public confidence in our legal system, as I said the other day, is declining significantly. I think people feel they're losing respect for the courts. They feel they really have no involvement, unless you're unhappily dragged before the courts for some reason. I think there's a great concern that judges are wielding too much power in an unaccountable way. The average citizen is starting to feel less confidence in them—I guess “confidence” is the word I would use.

  +-(1225)  

    Those are some of the themes I hear as a Canadian, as a member of Parliament. I share much of what I've said about those concerns.

    Richard, maybe I'll finish with this question. How do you see us proceeding here? I think we have to come up with some kind of a work plan. We're identifying themes, questions, and so on, today. At some point, it would seem to me, we have to develop a specific work plan for how we proceed on this. How would you see us doing that?

[Translation]

+-

    Mr. Richard Marceau: Thank you for your question, Mr. O'Brien.

    First of all, the fact that all the parties unanimously decided to consider this issue means that some of the concerns you expressed were heard by members of all parties. The general perception is that judges do have a great deal of power and that the people do not have any power over those that do. In my view, this perception is due to the fact that judges have very extensive power in interpreting the Charter and the constitutional rules and are not only concerned with criminal cases or contracts between two persons but also with the very definition of public policy. The feeling is that if they have such an important role to play, they should be subject to criticism. Previously people gave little thought to such matters because judges did not play such an important role in the process of defining public policy.

    How should the committee go about this? First of all, the motion is general enough to allow for all the elements raised by yourself, Mr. Day, Mr. Sorenson and Mr. McKay to be studied. That was the purpose of my motion.

    Secondly, I'd like all members of the committee, no matter whether there is prorogation or suspension, to say that the Committee on Justice and Human Rights intends to come back to this issue and make it one of its priorities.

    Before the next election, that will probably take place next spring, I would really like to see us produce a report indicating possible approaches and during the election campaign, as part of this great public debate, I would like to see a particular debate on the process of the appointment of judges and, more generally speaking, the interaction between the judiciary, the executive and the legislative. That is what I would like to see.

    I submitted the names of several witnesses to the clerk; if you have some suggestions, please make them known. It would be a great service to the people if we were able to conclude this study before the election. The very least we can do is set out a number of possible approaches and the public debate could then take place at the best time for such a public debate and the involvement of people, namely during an election.

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[English]

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    The Chair: Thank you very much.

    Mr. Cadman, everyone has been getting seven minutes. That will work as long as....

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    Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Chair.

    Along that line, Richard, you've touched on this before. Your motion goes specifically to the appointment process and as far as developing a work plan, what we should be looking at. Do you envision us looking at the complaints process, how complaints against judges are handled, and, more importantly, the removal process? You did touch on that before. If we're going to look at the process of appointments, maybe we should also be looking at the process of removal. I only throw that out to you.

[Translation]

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    Mr. Richard Marceau: In French, we have a saying that goes: “He who grasps too much loses everything”. My fear is that if we wish to take on too much, we will not be able to meet the objective we have set for ourselves. It may be I am a pessimist by nature, although I would consider myself realistic, but if we want to be able to finish something that is less problematic and that can yield results within the fairly near future, I think we should focus on the appointment process. I'm not saying that the complaint process or the process for the removal of a magistrate is not important but I think that we would be unable to bring this study to a conclusion because these issues would complicate matters even further.

    So let's begin with the process for the appointment of judges and I would be happy to study the rest later on. If we take on too much, the danger is that we will not get anywhere. Having traveled throughout Canada on many occasions, particularly in the recent past with several of you, I know that people want us to examine this specific subject of the appointment of judges.

[English]

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    Mr. Chuck Cadman: Thank you.

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    The Chair: Thank you very much.

    Mr. Jobin.

[Translation]

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    Mr. Christian Jobin (Lévis-et-Chutes-de-la-Chaudière, Lib.): Thank you, Mr. Chairman.

    Mr. Marceau, congratulations on the position you took in this matter, which is very important for Canada.

    I was the managing director of a big law firm in the province of Quebec and I saw some of my lawyer colleagues apply for positions as judges. Now, to become a judge it's essential to submit an application because the Department of Justice does not come and tap you on the shoulder to tell you you have just been appointed. I have seen people that we thought had tighter ties with the Conservative Party be appointed as judges under the Liberal government. That possibility also exists. So, today, we are discussing the potential for politicization.

    By handing that responsibility to a committee, aren't you afraid that this supposed politicization might increase? We know very well that all men are not angels. I mean, anybody could be influenced by an influential group suggesting so and so be appointed; the members of the Committee would then lose their impartiality. For the time being, the responsibility is in the hands of one or two people but I am afraid that were we to hand that responsibility over to several people then politicization would increase.

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    Mr. Richard Marceau: That's an interesting point. However, maybe I did not express myself clearly enough. If that is the case, I apologize.

    I was not implying that we should take the responsibility for appointing judges away from the prime minister. I meant to say that the committee could determine, for example, that these five candidates applying actually do have the necessary qualifications to be appointed as judges. At the end of the day, as long as the political and constitutional situation has not changed—and you and I won't be getting into that debate today—it will always be up to the Prime Minister of Canada to choose the judges. I am not questioning that at all and I want that to be crystal clear.

    So the point is not to take away that responsibility from one person and hand it over to a committee. As I was saying, it could be emphasized that the five applicants—no matter they be Liberal, Conservative, Bloc members or marijuana party members—have the qualifications required and that it is now up to the prime minister to choose.

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    Mr. Christian Jobin: We agree that the people must apply?

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    Mr. Richard Marceau: I would point out that there is a rather strict process used for the Superior Court, for example. I will give you a summary of the process for the Superior Courts. The candidate submits an application to the federal judiciary. There is then an evaluation by the relevant territorial or provincial advisory committee—there are two in Quebec—made up of one member from the provincial bar, one member from the territorial or provincial division of the Canadian Bar Association, one judge representing the chief justice of the province or the territory, one member representing the provincial attorney general and three members representing the Department of Justice of Canada. Finally, the Minister of Justice makes the appointment. Here, we are talking about the process for candidates for Superior Courts, the Federal Court of Canada and the Tax Court of Canada. The process is not as well defined for the courts of appeal and the Supreme Court. That's one of the deficiencies I am trying to correct.

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    Mr. Christian Jobin: Very well.

[English]

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    The Chair: Merci.

    Mr. Toews.

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    Mr. Vic Toews: Thank you.

    Just in respect of suggested witnesses, I've reviewed your suggested witness list, and I think there are some good ideas in it, but I think we need to include in it, very specifically, the present Canadian process and have somebody talk about that. Second, on the American process, we need to get an expert from the Americans to say, “How does our process work? What are the drawbacks of that?” And I would suggest somebody from the Manitoba process, because it's fairly unique in terms of the provincial appointments.

    The issue of what some of these candidates are put through is of concern to me, and I point specifically to the experience of a person like Robert Bork in the United States, who, frankly, was a very eminent and qualified jurist, and yet because of his position on certain things, in terms of being seen as a conservative, he ran into all kinds of problems. Certainly, just an individual like Robert Bork—if we could even get him—would be tremendous.

    The issue of the removal of judges, brought up by my colleague Mr. O'Brien, is an important thing, because I think it's one aspect of the appointment process. It's the other side of the appointment process. I'm very concerned about the independence of the judiciary, that we not compromise in any way on the independence of the issue. But when we talk about the appointment process, we're now talking more and more of people appointed at the age of 35 or 40 to the superior court, who will then sit there for about 35 to 40 years, an incredibly long period of time.

    I've spoken to many judges over the years, and by their own admission it's an ivory tower position. They're isolated, they're lonely, and they don't get to associate that much with the general public, which brings a whole series of problems that we need to hear about in terms of how these individuals are keeping in touch.

    If you contrast that, for example, with administrative tribunals, where you appoint some qualified people—and I'm more experienced with the labour law side of things—but for a fixed period of time, I'm wondering whether that wouldn't be a situation that we might consider, so that whoever you are, you only get to sit for 10 or 15 years, or for a fixed period of time. I don't think that offends in any way the concept of the independence of the judiciary or some of the constitutional concerns that arise. In that way, you don't have the scenario of a 40-year-old sitting for another 35 years, gradually losing touch. In the same way it is with administrative tribunals, you want people to remain current and be concerned about issues that are happening around them. Beyond 10 years or so, a lot of these people get out of touch with their own profession.

[Translation]

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    Mr. Richard Marceau: To begin with, it is not because the candidate is only 33 that he does not have the skills needed to be an MP or a judge.

    Second, I often hear it said that politicians are, as you put it, out of touch, in the sense that they are disconnected from ordinary life. To be honest, I find that point of view a bit dogmatic, at least where politicians are concerned. Although we are often in the ivory tour of Parliament, we still have to buy our groceries and rub shoulders with other people.

    Finally, I am not really comfortable with the idea of restricting the role of someone appointed to an institution as important as the Court of Appeal or especially the Supreme Court. And to answer your question, I have no objection, philosophical or otherwise, to people being appointed till age 75. In any case, knowing you, I know that when we hear from the witnesses that have been proposed, you will ask that question. I am always open to discussion.

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[English]

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    The Chair: Mrs. Jennings, for three minutes.

[Translation]

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    Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you very much for your presentation and for having brought this topic to the attention of the committee.

    Like my colleague, Christian Jobin, I would like to come back to your statement, in particular what you said about the politicization of some people appointed to the federal judiciary within the Court of Appeal. You even mentioned two names. At the same time, in your comments about making the appointment process more democratic, you explained very clearly how the appointment process works for the Superior Court, etc. You said that there was a whole system in place and that the process was democratic, in your opinion.

    Let us come back to this issue of politicization. There is nothing in legislation or in our society that prevents someone from being active and engaged in politics, unless that person is already a judge. In some provinces and even at the federal level, the code of ethics governing members of courts and administrative agencies prohibit them from engaging in any political activities.

    I think that we need to make a distinction. If someone is already a judge and then applies for a position or if that person is expected to be promoted to another court, obviously he or she must not be involved in political activities, belong to a political party, make donations to a party, etc. But if the person's professional activities take place in the private time, taking a role in political life, at the provincial or any other level, should not make the person ineligible. I want that to be very clear.

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    Mr. Richard Marceau: Ms. Jennings, I agree with you completely on that point. In fact, to a certain extent, I believe that participating in the political process should be considered as a sort of asset.

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    Mrs. Marlene Jennings: Yes, but the person has to have recognized professional skills, etc.

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    Mr. Richard Marceau: Of course. I think that we are saying the same thing.

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    Mrs. Marlene Jennings: Fine. I wanted to clarify that, since the beginning of your remarks seem to suggest that someone with a political past...

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    Mr. Richard Marceau: No, that is not the point. The purpose of my motion is to ensure that no doubts persist that the person's appointment could be due to his or her association with a political party. That is exactly what I want to eliminate.

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    Mrs. Marlene Jennings: Fine. As for the appointment or selection process for federal judicial appointments, which already exist for other federal courts, except for the Court of Appeal and the Supreme Court of Canada, can I conclude that you feel that this process is more than adequate?

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    Mr. Richard Marceau: No, that is not what I said. The nuance is important. I said that this process was in place and was better than the one for the Court of Appeal and the Supreme Court. Is this something that we should study? Would the solution be to apply this process to the other levels? Should we look into that? Of course. Is this the only thing that we should look at? No.

[English]

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    Mrs. Marlene Jennings: Okay.

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    The Chair: Mr. Maloney.

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    Mr. John Maloney (Erie—Lincoln, Lib.): Actually, that was certainly where I was going to come from. Should we just apply the procedure for a superior court, Tax Court, and so on, the Federal Court, to the appeal courts and Court of Appeal? That certainly wouldn't be a good start.

    One of the areas of my concern is that you would like to have the candidates examined by a standing committee, which of itself is a political animal. We've seen the concerns expressed about the American system, and I'm not sure, if we go that way, how we're going to get away from the American system.

    I'm also concerned about the members of that standing committee. Would they have the knowledge, experience, and competence, the ability, to review the applicants? If we look around the table, there are people from all walks of life, various professions. As I would not be in a position perhaps to comment on a physician, his ability, competence, and so on, with members of standing committees who have very varied backgrounds but not necessarily backgrounds in the area, legal backgrounds, how would that work?

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[Translation]

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    Mr. Richard Marceau: As you know, we make decisions in Parliament, in theory at least, on very complex things, even to the point of declaring war. That doesn't mean that we are soldiers or experts in geopolitical strategy, but if we have the necessary qualities as elected members to decide whether we are going to go to war or what type of system we should have for young offenders or how we need to change the Income Tax Act, even though we are not experts in these areas, I think that we have the necessary qualities as parliamentarians to decide, not whether a judge was correct in the rulings he or she made in 1983, but whether he or she has the necessary qualities to sit on the Court of Appeal or the Supreme Court. I am convinced that we have those qualities. So we need to trust ourselves.

    We have the ability to do that. If we doubt ourselves, we are saying that elected politicians in this country lack confidence in themselves and their abilities. That is not the case for me.

[English]

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    Mr. John Maloney: In areas of general policy I wouldn't disagree with you, but you used the example of war. We as parliamentarians may make the decision or may certainly have input into the decision to go to war, but we don't pick which general is the appropriate general to conduct a certain battle. Is that not similar to the case with the judiciary?

[Translation]

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    Mr. Richard Marceau: No, not at all. By saying that a given person has the necessary qualities to be a Supreme Court Justice, we are not telling him or her how to judge the cases that will be brought before the court.

[English]

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    The Chair: Mr. Toews.

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    Mr. Vic Toews: Just on that point, I have probably more of a comment than a question. In the area of law and the legal system, we already know we are picking from a limited pool; that is, all qualified lawyers. I believe it's a requirement in every province. I know we used to appoint magistrates who were lay magistrates, and many of them did a fine job, but I think the nature of the legal world has changed. They are qualified by the law society; the law society licenses these individuals on a yearly basis.

    So we know we are picking from a certain group. It's then not so much an issue of whether they are legally qualified, because the law societies have already made those determinations for us. The real issue is what specific skills and contributions these individuals can make on the bench. I don't think it's so much a legal decision or one that requires the particular knowledge of the people reviewing that area, but indeed one for a committee like ours, where there are some lawyers, some physicians, some teachers, and others who have some life experience of making these judgments.

    So I don't have that concern, but I think it's something we need to discuss. The issue is a good one, and we need to hear some evidence on that particular issue.

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    The Chair: You're right, there was no question there.

    Mr. Macklin.

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    Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you, Chair.

    I'm just recovering from a few moments ago. Mr. Toews actually went down the list of all my questions and asked them all. That's obviously a problem.

    It comes back to an issue of independence. When we look at issues of appointment of judges, first, I agree, let's get the process in view here; let's see how it's done, in its full details. I think that's very important. Second, we can go all through the process of determining qualifications, as has been mentioned, and we can look at the history of the individual; yet it is strange but true that many have not demonstrated in their previous life what they will demonstrate after they've been appointed. It's amazing how independence and freedom broadens some people's perspective on where they're going.

    So I don't know that you can say you're going to be able to establish clearly and simply that a person, because he has made certain decisions, will necessarily follow a particular perspective as he goes forward. I notice that is certainly not something that has been borne out in the past.

    The independence to me is important. If we're going to talk about removal of judges, I think it has to be extremely limited. We're operating now in a constitutional democracy. The Constitution is the document that's being interpreted, and whether we like decisions or not, the reality of it all is that if we have qualified people we go through various stages, as we've set up our entire judicial system with checks and balances: courts of first instance, courts of appeal, and so forth. I think at the end of the day we're simply hoping these individuals, as a group—because they usually sit as a group at the upper levels—in effect are going to be capable of correcting errors that may have occurred on the way through the system. I think they're the ultimate check within our system.

    I'm not sure we're ever going to be able to establish a better system than the one we have, but I think we certainly have to go through and be absolutely certain of the system we have now. What are the checks and balances and processes we go through?

    At this point one might argue that in fact it shouldn't be the Prime Minister per se, if you want to make an argument, but rather Parliament. But then again, in many respects Parliament reflects the will of the Prime Minister, so it may be a different way of looking at the same result.

    If we simply look at the process today, let's see if we can improve it in any meaningful way so that it has every appearance it ought to have of being a very open process.

    One of the concerns I had earlier, when you were expressing a concern that we ought to have four or five candidates up on the roster for consideration, was that I suspect that would eliminate a lot of candidates. I don't think a lot of people would want to be put through any process of this nature and then not get the top job. I think it would be very limiting in many respects. We can hear evidence on that point, but I would find it of some concern.

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    The Chair: I hesitate to cut you off, Mr. Macklin, because the member who's waiting for the next question is me. So if you have a question....

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    Mr. Paul Harold Macklin: I would simply concur, and I apologize for not being here for your initial comments. I personally don't see there's that much wrong with the system we have, or the judges who have evolved from this process.

    Yes, we are acknowledging that the decisions that are being made today based on our Constitution are extraordinarily important. I don't know that we would want to get away from that. If it's helpful to broaden the approach to the ultimate confirmation, so be it. But from my point of view at the moment, I would like to say let's get the witnesses in who can support the existing process and then see whether there are things we ought to do.

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    The Chair: I have a couple of questions, if I may.

[Translation]

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    Mr. Richard Marceau: It will just take a moment. I said earlier in my presentation that once this study was completed, we might decide that it is best to keep the status quo. So I am leaving it very open.

[English]

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    The Chair: Okay.

    Generally, when the discussion comes up there's a certain reaction based on our experience with the American model that defines where people come down on this quite quickly, and generally, I think people think of it in the context of the very public exercise the American model presents to us. But I think there's another reason people are a little afraid of that model, and that is it has a tendency to latch on to some symbolic issues and ultimately the skills around the potential jurist get lost in how they feel about abortion or....

    I would ask the question rhetorically--I'm not expecting an answer necessarily, but I would ask it of ourselves: Could we support the nomination of a judge who supports same-sex marriage? Could we support the nomination of a judge who supports capital punishment? Could we support the nomination of a judge who is opposed to the right to choose in the context of the abortion debate?

    If we could not, if we look at where we stand on those issues and make the decision that we could not in conscience support the right to appoint a judge whose view on those fundamental issues is contrary to our own, then are we qualified to do this? I ask that question quite seriously, because at the end of the day it may be too limiting to each of us to judge someone's competence in such an important position only in that way.

    The second thing is, have you done any research into the context of the combination of existing in a very public constitutional democracy--and more so now, since the charter, than has been the case in the past--and at the same time having a very secretive and non-public process of coming up with the jurists who are the other part of that equation? The Americans have a constitutional democracy and a very public process. Other places have less reliance on a constitution and a very private process. Are there any other examples where you have the situation you have now?

    I think it's a question to put. I'm not expecting an answer, but I think it should inform our discussions as we press forward.

    On that note, I hope I didn't cut anybody off, except Mr. Macklin--and Mr. Toews says that's okay.

    Ed Ratushny is here on Thursday, from the University of Ottawa. He did an extensive review in the seventies on this subject, specifically looking at the American system.

    Mr. Rosen, who remembers Mr. Ratushny's earlier visits, would like to speak.

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    Mr. Philip Rosen (Committee Researcher): Professor Ratushny was actually an adviser to ministers of justice in the 1970s on appointments to the Supreme Court of Canada. He has continued to do research in this area in his academic guise now, and in fact he has recently written an article about the U.S. experience. He has comments about that and about our experience.

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    The Chair: The rest of our future business discussion we can take up on Thursday, because ultimately we'll fill out the list. We have enough people that we can begin the process of seeking witnesses post-convention.

    On that note, the meeting is adjourned.