JUST Committee Meeting

37th PARLIAMENT, 3rd SESSION

Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness

EVIDENCE

CONTENTS

Tuesday, April 27, 2004

¹

1530

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.))

Professor Patrick Monahan (Dean, Osgoode Hall Law School, York University)

¹

1535

¹

1540

¹

1545

The Chair

Mr. Vic Toews (Provencher, CPC)

Prof. Patrick Monahan

Mr. Vic Toews

Prof. Patrick Monahan

¹

1550

Mr. Vic Toews

Prof. Patrick Monahan

Mr. Vic Toews

The Chair

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

¹

1555

Prof. Patrick Monahan

Mr. Richard Marceau

Prof. Patrick Monahan

Mr. Richard Marceau

Prof. Patrick Monahan

Mr. Richard Marceau

Prof. Patrick Monahan

º

1600

Mr. Richard Marceau

Prof. Patrick Monahan

M. Richard Marceau

The Chair

Ms. Paddy Torsney (Burlington, Lib.)

The Chair

Hon. Stéphane Dion (Saint-Laurent—Cartierville, Lib.)

Prof. Patrick Monahan

º

1605

Hon. Stéphane Dion

Prof. Patrick Monahan

Hon. Stéphane Dion

Prof. Patrick Monahan

Hon. Stéphane Dion

Prof. Patrick Monahan

Hon. Stéphane Dion

Prof. Patrick Monahan

º

1610

The Chair

Ms. Marlene Catterall (Ottawa West—Nepean, Lib.)

The Chair

Ms. Marlene Catterall

The Chair

Mr. Vic Toews

The Chair

Mr. Vic Toews

Prof. Patrick Monahan

º

1615

Mr. Vic Toews

Prof. Patrick Monahan

Mr. Vic Toews

Prof. Patrick Monahan

The Chair

Ms. Paddy Torsney

Ms. Marlene Catterall

Prof. Patrick Monahan

º

1620

Ms. Marlene Catterall

Prof. Patrick Monahan

Ms. Marlene Catterall

Prof. Patrick Monahan

Ms. Marlene Catterall

Prof. Patrick Monahan

Ms. Marlene Catterall

Prof. Patrick Monahan

º

1625

The Chair

Mr. Richard Marceau

Prof. Patrick Monahan

Mr. Richard Marceau

Prof. Patrick Monahan

Mr. Richard Marceau

Prof. Patrick Monahan

Mr. Richard Marceau

Prof. Patrick Monahan

Mr. Richard Marceau

The Chair

Ms. Paddy Torsney

º

1630

Prof. Patrick Monahan

Ms. Paddy Torsney

Prof. Patrick Monahan

Ms. Paddy Torsney

Prof. Patrick Monahan

Ms. Paddy Torsney

º

1635

Prof. Patrick Monahan

Ms. Paddy Torsney

Prof. Patrick Monahan

Ms. Paddy Torsney

Prof. Patrick Monahan

Ms. Paddy Torsney

The Chair

Ms. Paddy Torsney

The Chair

Prof. Patrick Monahan

The Chair

Mr. Chuck Cadman (Surrey North, CPC)

º

1640

Prof. Patrick Monahan

Mr. Chuck Cadman

Prof. Patrick Monahan

Mr. Chuck Cadman

The Chair

Hon. Sue Barnes (London West, Lib.)

Prof. Patrick Monahan

Hon. Sue Barnes

Prof. Patrick Monahan

º

1645

Hon. Sue Barnes

Prof. Patrick Monahan

Hon. Sue Barnes

Prof. Patrick Monahan

The Chair

Ms. Marlene Catterall

º

1650

Prof. Patrick Monahan

Ms. Marlene Catterall

Prof. Patrick Monahan

Ms. Marlene Catterall

º

1655

Prof. Patrick Monahan

The Chair

Mr. John Maloney (Erie—Lincoln, Lib.)

Prof. Patrick Monahan

Mr. John Maloney

Prof. Patrick Monahan

Mr. John Maloney

The Chair

Hon. Sue Barnes

Ms. Paddy Torsney

The Chair

Ms. Paddy Torsney

The Chair

Ms. Paddy Torsney

The Chair

»

1700

Prof. Patrick Monahan

The Chair

Prof. Patrick Monahan

The Chair

Prof. Patrick Monahan

The Chair

»

1705

Prof. Patrick Monahan

The Chair

Hon. Sue Barnes

Prof. Patrick Monahan

Hon. Sue Barnes

Prof. Patrick Monahan

Hon. Sue Barnes

The Chair

Ms. Marlene Catterall

»

1710

The Chair

Prof. Patrick Monahan

The Chair

Ms. Marlene Catterall

The Chair

Ms. Paddy Torsney

The Chair

Ms. Paddy Torsney

The Chair

The Chair

Ms. Paddy Torsney

The Chair

»

1715

Ms. Paddy Torsney

The Chair

Ms. Marlene Catterall

The Chair

Ms. Marlene Catterall

The Chair

Ms. Marlene Catterall

The Chair

Ms. Marlene Catterall

The Chair

---

CANADA

Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness

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NUMBER 012

l

3rd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Tuesday, April 27, 2004

[Recorded by Electronic Apparatus]

¹  (1530)  

[English]

    The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): I call the meeting to order, colleagues, continuing our study of the process of appointment of Supreme Court of Canada judges.

    We are delighted to have with us today Dean Patrick Monahan from Osgoode Hall Law School at York University in Toronto. He was one of a number of witnesses we had hoped to hear from on this process and we're very pleased to have him available today.

    It looks like we have the full meeting slot available to us with one witness, and that creates opportunities. In other words, we seem to have more time available for this witness than we have had per witnesses in previous meetings, so that's an unexpected opportunity for us to perhaps probe more deeply.

    So we'll commence, as we usually do, by inviting Dean Monahan to make a presentation here today on the subject, if he wishes. We usually allow about 10 minutes for a presentation, and then we'll go to questions.

    If that's okay, we can begin.

    Professor Patrick Monahan (Dean, Osgoode Hall Law School, York University): Thank you, Mr. Chair.

    Let me first thank you for the opportunity to meet with the committee on the important work you are undertaking. Let me also commend the committee for taking the time to examine this issue very carefully. All of us in the legal community are very closely following the proceedings of this committee. We regularly receive the press reports about plans that are imminent and are going be announced within 24 to 48 hours.

    The Supreme Court of Canada appointments process is obviously extremely important. I can certainly say, at Osgoode Hall Law School we're pleased that you are taking the time to study this very carefully before coming to final conclusions.

    I did forward to the committee an article I co-authored with Professor Peter Hogg, which appeared in the National Post on the weekend and which the members of the committee will have.

    Let me speak briefly to the principles that form the basis for the recommendations we made in the article. I would say there are five underlying principles that gave rise to the recommendations we made in the article.

    The first principle is that we believe any reformed process should provide for parliamentary involvement or parliamentary review of prospective appointments to the Supreme Court of Canada. It is consistent with the commitment the Prime Minister has made and the Minister of Justice made in his testimony to this committee. We take that as a given in this process.

    Let me say that I think it is appropriate for there to be parliamentary review, because the power of the courts today, particularly the Supreme Court of Canada, limits not only the powers of the executive branch of government, but also the powers of Parliament. It's appropriate, therefore, it seems to me, that legislators, such as yourselves, have the opportunity to participate in the process whereby members of the Supreme Court of Canada are chosen.

    The second principle, which is in a sense a corollary of the first, is that any changes to the process for appointments ought to bring greater transparency to the process. I think the main criticism we have heard over the years is that the process does not have any transparency and there's no opportunity for any kind of public input or oversight.

    The quality of the appointments has been commended. I think all of the witnesses who have appeared before you have commended the quality of appointments, but they've commented, I think, on the lack of transparency that exists in the current process. We would say the second principle is there ought to be greater transparency in the process.

    The third is that whatever changes are made, they ought to maintain the high quality of appointments to the Supreme Court of Canada. Again, I'm only echoing what others have said. The previous appointments have been of extremely high quality, so whatever changes you make ought not to impair the quality of appointments.

    Fourth, any revised process should be consistent with the important constitutional principle of the independence of the judiciary and the broader constitutional framework within which appointments are made. The principle of the independence of the judiciary means the court and its independence of both the government and the legislative branch has to be maintained. In particular, that means Parliament should not seek to somehow constrain the manner in which the courts will decide future cases. It is not appropriate in a system of government—and I speak of government in the broadest sense—that attaches importance to the independence of the judiciary and the rule of law.

    Not only is the principle of the independence of the judiciary an important principle, but in the broader constitutional framework in which we operate, the executive branch has the responsibility under our current system for selection of Supreme Court of Canada appointments. I think we are not contemplating a constitutional amendment or constitutional change. In other words, any process should respect the existing constitutional framework, including the prerogative, I think, of the executive branch to ultimately make Supreme Court appointments.

¹  (1535)  

    Fifth, any changes in a revised process should recognize the particular circumstances of the Supreme Court of Canada, namely that it is a final court of appeal and a second-level appeal court operating in a hierarchy of courts, and that the appointments to the Supreme Court of Canada most often come from individuals who are already members of lower courts. The process for appointment to the Supreme Court may well be different, and indeed should be different, from the process utilized in relation to lower courts.

    With those five principles in mind, Professor Hogg and I look at two questions: when ought there to be parliamentary review or involvement—at what point, in other words, in the process ought there to be parliamentary review—and second, what form should that review take?

    As we discussed and as you've heard from many of the witnesses, there have been some who recommended to you that you ought to propose that there be a prior screening mechanism whereby prospective candidates for appointment to the Supreme Court of Canada would meet with some kind of committee, perhaps a committee of parliamentarians but perhaps a committee of others, and that the committee would interview prospective candidates and then make recommendations to the Minister of Justice or to the Prime Minister.

    We believe that would not be an advisable process, for a number of reasons. First, we believe it would act as a significant disincentive to existing court of appeal judges and other members of the judiciary who would be subjected to such a process.

    I assume, first of all, such a process would have to take place in secret, because I don't think it would be appropriate for court of appeal judges—only one of whom would be selected, while the others would go back to the court of appeal—to be interviewed and subjected to questioning and then go back to their court of appeal having in effect failed a job interview to be appointed to the Supreme Court of Canada.

    I believe candidates on the court of appeal would find that a significant disincentive, because they would have no assurance that they would be—and indeed the likelihood would be that they would not be—selected for appointment to the Supreme Court of Canada, so they would face the embarrassment of having signalled the desire to be appointed to the Supreme Court of Canada and having ultimately been unsuccessful in that process.

    You might ask, why couldn't we maintain secrecy about which candidates were being interviewed? It just seems to be unrealistic, given the amount of media interest there is in these appointments, to imagine that those names would remain a secret.

    I'm also concerned about proposals that would give power to unelected officials to control that process, and whether those unelected officials be members of the judiciary or of other interest groups, I'm concerned about such unaccountable individuals on some committee being able to screen or in effect eliminate individuals who are under consideration for appointment by the executive to the Supreme Court of Canada. I believe it should be primarily the involvement of parliamentarians, who are elected and are accountable to Canadians. Many of the proposals I have seen involve unelected officials who would have some dominant role in this earlier screening process prior to a recommendation to the Minister of Justice or the Prime Minister.

    Finally, that process would not really deal with the concerns over the lack of transparency in the existing process. I think ultimately there would have to be some kind of public hearing in any event, even after this prior screening process; I think it would be inevitable. In effect there would be a two-stage process, where there would be first the review committee meeting with the candidate and then a second meeting of some kind with the preferred candidate.

    So Professor Hogg and I do not recommend a prior screening process. The existing process described by the Minister of Justice in the testimony he gave to the committee at the end of March, which described a consultation process that led to a recommendation to the Prime Minister, in our view works quite well, and that system ought to be maintained.

¹  (1540)  

    Where we do recommend a change is in the review of the recommended appointee, the nominee of the Prime Minister and Minister of Justice. Once they have determined the preferred nominee, we recommend there be a hearing as an opportunity for the nominee to meet with a committee, of which we think a majority should be members of Parliament. But we also think there ought to be consideration given to expanding the membership to include others who have particular expertise in law, and in particular constitutional matters, and who also have respect for a principle such as the independence of the judiciary. We think the involvement of some additional individuals would temper a process here in this committee and ensure that it would not operate in a manner that would be inappropriate.

    We also propose a review of protocol, which would govern the proceedings in this committee, that would limit the scope of questioning, so that, for example, you would not have questioning that was an attempt directly or indirectly to limit how a candidate would decide future cases. We imagine the review protocol would set out criteria that were used by the Minister of Justice and by the Prime Minister in their selection of a nominee. The purpose of the proceedings here in this committee or in the review committee would be to measure and assess the way in which those criteria, publicly announced, had been applied. We suggest in the article a number of criteria we think would be relevant and important, so you would be measuring the nominee against a stated set of criteria set out in the review protocol.

    We also propose that the committee have senior independent legal counsel, whose responsibility amongst other things would be to deal with disputes regarding the meaning or implementation of the review protocol—in particular so that a candidate is not forced to say he or she does not wish to answer a question because it falls outside the proper scope of questioning. That would rather be the responsibility of legal counsel, who would have that mandate.

    Those, Mr. Chairman, are the recommendations we have. I would welcome the opportunity to discuss these matters with members of the committee.

¹  (1545)  

    The Chair: Thank you very much, Dean Monahan.

    Now we'll go to questioning.

    We'll start with the official opposition for seven minutes, with Mr. Toews.

    Mr. Vic Toews (Provencher, CPC): Thank you for being here and summarizing your proposal. I assume, then, that this is your proposal together with Professor Hogg?

    Prof. Patrick Monahan: Yes.

    Mr. Vic Toews: I have a couple of concerns that I note from your presentation. You indicated that the revised changes must be consistent with the independence of the judiciary and that Parliament not constrain the manner in which the courts will determine issues.

    My concern is that appointments with political direction are in fact directing the courts to come up with certain decisions. You seem to have an aversion to constraining them, but the process you're recommending is simply a minister reviewing it by the current process. He will eliminate all those individuals who don't conform to his political idea of what the court should be doing, whether it's on federal-provincial relations, whether it's on the Charter of Rights. So the rules, then, won't constrain, but the ultimate appointee will be in fact a part of a direction of the court in a certain way.

    On the second issue, you dismiss the idea of a prior screening process as it being somehow embarrassing to the candidates who fail. Well, that's a part of life. Elected individuals fail when they run for election and don't get elected. That's part of life. Professors sometimes don't get tenure. That's part of life. I've applied for jobs and I haven't gotten them. It's part of life.

    The proposal you're bringing forward doesn't really address that issue at all, because if this is to be some kind of a meaningful input by the review process and not just a yes-no of one candidate, which strikes me as really not particularly helpful to the process of selecting the best candidate.... It reminds me of the Soviet Union elections. You have one person you can vote for, yes or no.

    Let's say we voted no for that individual; the embarrassment is still the same. That individual goes home. He didn't get the job. So the embarrassment factor will always be there, even if it's five candidates who don't get the job or one candidate who doesn't get the job and we go through the process again.

    I'm wondering if you can address those two issues.

    Prof. Patrick Monahan: Well, thank you, Mr. Toews. Those raise important questions.

    Let me deal with the first question, which is the fact that there's political direction and that therefore somehow it is appropriate to try to constrain how the judges are deciding cases.

    I don't really think this is a correct description of how appointments have been made in this country. In other words, I don't think there has been an attempt by governments, whether the current government or previous governments, to in fact shape the court in a particular ideological direction. Unlike in the United States, we have not seen that tendency here in Canada.

    That doesn't mean that judges don't have their own particular views. They do. Some judges will take different approaches, as we know, when they decide in their often dissenting judgments, although the court is unanimous about three-quarters of the time.

    In fact I don't think there has been an attempt by previous governments. Therefore, I don't really accept the proposition that this committee's function is to try to somehow shape the Supreme Court in a particular ideological manner. In fact, I think it would be a dangerous tendency to move in that direction.

¹  (1550)  

    Mr. Vic Toews: It's a small interjection, but I do want to hear the second part. So you would disagree with some of the previous witnesses who characterized, for example, the court of appeal appointments as simply a “grubby political process”?

    Prof. Patrick Monahan: I don't agree with that characterization, if that characterization was made. I don't think appointments to the section 96 courts, which would include the courts of appeal and the superior courts, in the last ten years have been reflective of patronage, particularly. I think they've been of very high quality. In fact, there has been a review process under way in respect of those courts.

    I'd like to just take a moment on that point, because it's an important point. In the appointments to lower courts, either to the superior courts, the trial courts, or the courts of appeal, you will note that the existing system provides that review committees, judicial appointment advisory committees, review candidates who are not themselves judges. That is to say, everyone who wants to come into that pool of judges has to go through those existing advisory committees and be recommended by them.

    Once they are members of the judiciary, they are not then subjected to additional prior reviews, whether they're going to the Court of Appeal or to the Supreme Court of Canada. That's where I'm suggesting that there's a difference between the appointments at the first level as opposed to appointments at the highest court, where you most often are likely to have candidates who've already been judges.

    Let me take the second point you mentioned, that it's embarrassing, and that's part of life. That's right, sometimes people apply for things and they don't get them, and it's embarrassing. But I'm not so worried about the embarrassment factor as I am worried about creating disincentives for high-quality candidates to come forward.

    In other words, the point is not that I am trying to protect people from being embarrassed; the point is that as a matter of public policy, we ought not to...because people naturally may well avoid embarrassments that will make them look bad, particularly if they already have positions as judges where they can stay to age 75. And to move to Ottawa when they have already an established position does involve certain sacrifices for them, both personally and in other ways.

    So I am concerned, in other words, about a system that would create barriers or disincentives to highly qualified individuals to come forward. I think that forcing prospective candidates to first of all declare that they want to be considered, that they're applying...which they don't have to do at the present time. So when a candidate is not appointed, the candidate doesn't have to go and hang their head and say, “Oh, I'm embarrassed”, because the candidate was not required, even if they were interested, to publicly declare that. And that's important.

    You meet judges from time to time, and like any of us, they have a certain degree of pride, and would not want to be seen, I think, to be publicly putting themselves forward and then failing. Again, I think whatever proceedings would go on here would likely involve some kind of media attention around that.

    So I recognize your point, but I do think there is a valid concern there.

    Mr. Vic Toews: Thank you.

    The Chair: Thank you, Mr. Toews.

[Translation]

    Mr. Marceau, you have seven minutes.

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

    Dean, thank you for joining us today. You are one of the few constitutional experts whom we will have the opportunity to meet; so I am going to ask you a few constitutional questions.

    First of all, currently, the governor in council—so, in fact, the Prime Minister—has absolute discretion when it comes to appointing judges to the Supreme Court.

    If, for example, that power were limited by having the Prime Minister choose from a list made up by an advisory committee, would it be necessary to amend the Supreme Court Act, in your opinion?

¹  (1555)  

[English]

    Prof. Patrick Monahan: It would depend on whether the advice was merely in the nature of advice--that is to say, here is our advice, but it's not binding--as opposed to if the process involved a list that was actually binding on the governor in council.

    For there to be a change of that kind, it seems to me there would be an amendment required to the Supreme Court Act. Indeed, I think there could well be an argument that this would involve a derogation from the powers of the governor in council. It may be that there would even be the necessity of a constitutional amendment required if you were to say that the governor in council could not appoint an individual that the governor in council would like to appoint, but that individual is not recommended by a committee outside of the government.

    So I think it certainly would require an amendment to the Supreme Court Act, and it may well even involve an amendment to the powers of the governor.

[Translation]

    Mr. Richard Marceau: Is that because of sections 41 and 42 of the Constitution Act, 1982?

[English]

    Prof. Patrick Monahan: Yes.

[Translation]

    Mr. Richard Marceau: Okay.

    One of your colleagues, Professor Sujit Choudhry, argues that because of the 1998 decision on the Prince Edward Island Reference, the Supreme Court may have limited Parliament's ability to play a role in the appointment of Supreme Court judges.

    If there's concern about judicial independence when the executive or Parliament sets judges' salaries, is there also concern about an appointment process involving too much political influence?

[English]

    Prof. Patrick Monahan: First of all, I don't agree with Professor Choudhry's view that if there was a public hearing involving a nominee to the Supreme Court of Canada, somehow it would infringe the principle of judicial independence as set out in the judges' salary case. I think it is an unduly broad view of the principle of judicial independence. I don't think a process involving a candidate who has not yet been appointed to the Supreme Court, who is asked to come to a committee and meet with a committee, on a reading of that case, would involve an infringement of judicial independence.

    In fact, if there is any criticism of the proposal Professor Hogg and I are advancing, it would be that it does too little. I think that was probably underlying Mr. Toews' comment. It doesn't go far enough in the direction perhaps of providing for review.

    I don't want to downplay this. I think it is in fact a fairly modest change, but I think we ought to proceed cautiously. I think modesty and “incrementalism” are important values here. I understand the argument that Professor Choudhry is making. I do not think I agree with the argument he makes.

[Translation]

    Mr. Richard Marceau: You're proposing a process whereby a committee would become involved after the Prime Minister nominated someone. What would happen if the candidate chosen by the Prime Minister were to come before a committee such as this, or a modified committee, and the members of the committee were to make known their unhappiness with the nomination? In that case, wouldn't there be an even greater danger of damaging the prestige of the court and of the judges than if a committee were to do that in secret, but before the fact?

[English]

    Prof. Patrick Monahan: First of all, let me say, as it is in the United States, I think it would very rare that a committee would not endorse a prospective nominee to the Supreme Court of Canada. I mean that is in fact the experience in the United States; well over 90% of the nominations are ratified by the Senate. In fact, it's not only the committee, it goes to the full Senate, as you know.

    In those rare and unusual cases where a committee was to recommend against the appointment of a nominee, I think it would be very difficult in fact for the Prime Minister to proceed with the nomination for precisely the concern you raised. To have put the candidate on the court would potentially cause a problem with the prestige and the focus of attention on that individual.

    I think the Prime Minister should have the prerogative to nevertheless proceed if he or she wishes to do so. But I would expect, in the normal course, that the Prime Minister would likely not proceed with a nominee in those circumstances.

º  (1600)  

[Translation]

    Mr. Richard Marceau: In your presentation, you said that it was important for parliamentarians to have a role, given the importance of the Supreme Court, especially in the Charter era. The Supreme Court remains, however, the final arbiter of jurisdictional issues, and as we all know, in a federation, there will always be jurisdictional issues that have to be ruled on from a constitutional perspective.

    Do you see a role for the provinces, somewhere in the process, so that the court is not simply seen as a creature of federal authorities, and so that the provinces also have an official role to play?

[English]

    Prof. Patrick Monahan: In fact, we are proposing that a nominee, or perhaps the attorney general or attorneys general of provinces, have a role in the review committee. So we are recommending that one of the ways you would expand that committee beyond members of this House would be in fact to have the attorney general, or perhaps one or more attorneys general, with representatives, or the right to nominate representatives, on this committee. In that way there would be a provincial role in the appointment, beyond of course what already happens now, which is that there is consultation with the attorney general of the province. But there's no formal way in which that occurs, so we would suggest that you ought to try to build that into the process of the review, if you were to recommend that there by a review here by Parliament.

[Translation]

    M. Richard Marceau: Thank you.

[English]

    The Chair: Merci.

    Mr. Nystrom, for seven minutes.

    All right, Ms. Torsney, for seven minutes.

    Ms. Paddy Torsney (Burlington, Lib.): No, actually like it is, Mr. Chairman.

    The Chair: All right, we'll go to the second name on my right.

    Monsieur Dion.

    Hon. Stéphane Dion (Saint-Laurent—Cartierville, Lib.): Merci, monsieur le président.

    Professor Monahan, you're the first witness to have so strong a position against an advisory committee that would screen at the beginning and would come with a short list.

    Bar associations are strongly supporting it, the former justice, Madame L'Heureux-Dubé, is strongly supporting it, and many of them have a strong position against the kind of proposal you are making now. Can you comment on that?

    Prof. Patrick Monahan: I understand that the bar association and other groups are proposing a process that involves the bar association and those other groups. I'm not terribly surprised that the bar association says we should have a committee and we should be on that committee. The law professors are of the same mind: there ought to be a review committee in which they are members.

    But I must say I am not terribly enthusiastic about those committees because, first of all, such proposals involve people who are themselves unaccountable and unelected. These people are not required to be elected. I am concerned about a proliferation on a committee of various interest groups that would seek representation on those committees and that the proceedings before the committee would then become a kind of log-rolling or trade-offs between committee members and you would not in fact get the best candidate. Quality or merit would not be necessarily the primary considerations. There would be political considerations that would enter into the discussions of these committees.

    I believe the executive branch has made outstanding appointments in the past and that the consultation process that leads to a selection has worked very well. What we need to guard against, and I think what these proposals suggest we ought to guard against, is the intrusion of partisanship or ideological agendas into appointments to the Supreme Court of Canada. In other words, those who have advanced those types of proposals for pre-screening have said they're necessary in order to prevent partisanship or ideological agendas from dominating the process.

    I think the proposal that Professor Hogg and I are advancing would also have that result because knowing that the candidate had to be put forward to a committee would discourage any future Prime Minister from pursuing a partisan agenda. Not that any previous Prime Ministers have done so--I don't think they have done so--but it would discourage any future Prime Minister who decided they wanted to pursue a partisan agenda. I think forcing the selection of that nominee to be put to a committee would be a guard against those types of partisan considerations.

    I also regard these proposals for pre-screening to be a far more dramatic change in our process than we have had in the past. In other words, those proposals constrain the executive in a far more direct and intrusive way than a process that we are recommending, which comes only after a nominee is selected.

    To some extent, I suppose, your preference for one or the other depends on whether you think the executive branch ought to maintain the primary responsibility for the selection of nominees to the Supreme Court of Canada. I happen to believe that the executive branch ought to maintain that primary role. And I do not think that a hearing in front of a committee such as this would discourage able candidates, because they would know that at least at that point they had received the endorsement of the Prime Minister and the Minister of Justice.

º  (1605)  

    Hon. Stéphane Dion: At that point, what would be the usefulness of the proposal? What kinds of questions would be useful to ask?

    Prof. Patrick Monahan: I think one would be able to test the candidates. You would be able to discuss the candidates' previous decisions, for example. You may want to discuss the decisions that candidate has made in the past. Presumably they would be a Court of Appeal judge. If they have not been a Court of Appeal judge and they are coming directly from private practice, it would be difficult to question them about their professional involvement because they don't have any writing. So it would be difficult to deal with that type of situation, but in the case of a Court of Appeal judge I think you would want to talk to them about their background, about the previous decisions they had made, and their overall approach to constitutional interpretation.

    Hon. Stéphane Dion: Then don't you think it may become very ideological as a discussion?

    Prof. Patrick Monahan: I think the discussion would have to proceed at a fairly general level and at an abstract level. In other words, it involves a general approach to decision-making. I don't think it's inappropriate to question judges, for example, about what general approach they bring to the role of Parliament and the general approach they would bring to the Constitution. It's not an attempt to determine their views on particular cases, how they're going to decide particular cases, which again, I do not think is appropriate. I think the discussion would have to proceed at that fairly general level.

    Hon. Stéphane Dion: Yes, but how would you control it so that it would stay at this very general level? As you know, if it's public it's very likely that you will have a media excitation about that and a lot of rumours may circulate about this candidate. It would be very difficult for a member of Parliament to refrain from asking some questions linked to this excitement.

    Prof. Patrick Monahan: I agree with you that's a concern. That was the objective behind having a review protocol that would set out the parameters of the review process that would be determined in advance of any particular candidate, and the role of legal counsel to this committee, or to the review committee, whose mandate would be to attempt to constrain the scope of those questions.

    I agree with you that some members of the committee may wish to go outside of that, but that would be the mandate of legal counsel to attempt to keep the questioning within the boundaries of the protocol.

    Hon. Stéphane Dion: With your experience, how many candidates or personalities are strongly considered for the job of justice of the Supreme Court? Let's say the two we have in Ontario now. How many names are circulating seriously?

    Prof. Patrick Monahan: You would probably have more knowledge of that than I would having been a member of the executive branch. I really do not know. I have not been involved in that process, so I do not know how many names would be on the short list or the long list. Minister Cotler described this process, but I really don't have any basis for commenting on how many names would be under serious consideration. That's really not something I can enlighten you on.

º  (1610)  

    The Chair: That would be about eight minutes.

    Thank you.

    Mr. Nystrom, do you want your seven minutes?

    All right.

    We'll go to three-minute rounds.

    Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): Mr. Chair, on a point of order.

    The Chair: Yes.

    Ms. Marlene Catterall: Since we have more time, I'm wondering if subsequent questioners might have five minutes. It's quite frustrating trying to make a point or clarify a point in three minutes.

    The Chair: I'm in the hands of the committee. If committee members would like five, we'll go for five.

    Mr. Vic Toews: I think we've been fairly flexible today. We've only got one witness and I think we can be flexible.

    The Chair: Good. Five minutes it is.

    Mr. Toews.

    Mr. Vic Toews: There's an issue I caught today on the news with regard to judicial profiling by the Minister of Justice and his department. I assume it occurred under previous justice ministers. The minister has indicated that he will not disclose the profiles of individuals who may be under consideration for Supreme Court of Canada positions, or perhaps even other judgeships. He refused a request under freedom of information, citing cabinet confidences.

    That leaves people like me suspicious that contrary to the assertion by some, and indeed even by you today, that there's no political agenda and we're just getting the best candidate, there is some political issue involved with the profiling of these individuals. I think they're obviously doing political profiles. They're looking at things such as how that judge is going to deal with the issue of a referendum in Quebec, for example. They'll look at those kinds of issues. I would think that would be normal. I've never been in a federal cabinet, but I would think that would be discussed. So these profiles are not simply a synopsis of the judgments these individuals have made, but are more far-reaching. Certainly, unless I see them, I'm going to take that point of view. If there's nothing to hide and it's just a summary of cases, why not disclose it to everyone?

    How do we ensure more transparency? I'm worried that by just having one individual come forward, we don't see any other judicial profiles. Do you see any problem with releasing these judicial profiles, assuming that there are no cabinet confidences, such as political direction?

    Prof. Patrick Monahan: I don't think it would be appropriate to release the profiles. I have never seen these profiles, but from the description Minister Cotler gave to the committee, it would include summaries of judgments and matters such as how often the judgments of a particular judge are cited by other judges--in other words, how influential that judge is in other courts--and the leading judgments of that particular judge compared to other judges. I think it would be embarrassing to have that type of material circulating publicly. Certainly, you'd have comments by the government, which would then have to continue to appear before these judges whether or not they were appointed to the Supreme Court of Canada. Again, we get to an embarrassment factor.

º  (1615)  

    Mr. Vic Toews: Scholars do that all the time. They compare judges and they criticize judgments.

    Prof. Patrick Monahan: Scholars do, but the government doesn't do that. I think it would be inappropriate for these types of documents to be made public. I think it would be embarrassing. I think it could potentially bring the administration of justice into disrepute by having these types of comments circulated. Then people would refer to these documents and criticize judges or say things about judges. So I myself, Mr. Toews, would support the minister in not releasing those profiles. I don't think there's any political reason for that. It's just that it would be embarrassing and inappropriate.

    Mr. Vic Toews: We're getting back to this embarrassment factor. These nine individuals are the most powerful individuals in Canada today. Let's not worry so much about embarrassment. Let's see whether we're getting quality individuals and make sure the process is transparent.

    You raise some very good arguments. But in the end, I'm still uneasy that nothing has changed by the process you're advancing here and that we are seeing through a glass darkly.

    Prof. Patrick Monahan: I think this would be a significant change. In fact, as Mr. Dion has suggested, there are many who suggest it would be a radical change to have a public hearing. I don't happen to think it would be a radical change—it would become fairly routine after a short period of time—but I do think it would be a significant change. It would be less significant than a change that gave a power prior to the nomination to some unelected group. That would be farther along the road

    But we would want to see how this initial proposal worked in practice. I wouldn't agree that it would really make no difference at all. I think it would be an advance over the current system we have.

    The Chair: Thank you.

    I have on my list on the government side, Torsney, Catterall, and Barnes, in that order.

    Ms. Torsney, you can pick up.

    Ms. Paddy Torsney: I'll trade with Ms. Catterall.

    Ms. Marlene Catterall: First, I'm not sure what added value we're trying to bring here, but let me go back to your article of the weekend and ask you to address what I see as some inconsistencies.

    First of all, you talked about pre-nomination screenings necessarily having to be conducted in private:

But this would undermine the goal of achievinga more transparent and accountable process, since Canadians would have no opportunity toassess for themselves the nature of the review that had occurred.

    Let me skip then to what you are suggesting: a review by a combined group of MPs and others who would interview the nominee. The public still would have no idea and no opportunity to assess for themselves the nature of the review that had occurred, because that wouldn't be what was before the committee.

    Prof. Patrick Monahan: We are proposing that the minister would have to state the criteria that would be used in the selection process; indeed, we also believe the minister himself or herself ought to come to the committee to explain the criteria and how they had been applied and had led to the selection or recommendation that had been made. The committee would have an opportunity then to measure the candidate in the light of those criteria. There would be a statement of criteria, and an explanation of those criteria in a public process, and a measurement of that candidate in light of those criteria. There would be, in that circumstance, additional transparency compared with the process we currently have.

    It's true that the media and the public would not get to see how the executive branch had itself come to the decision it had come to, but that is never appropriate in our parliamentary system. The executive branch has the right to conduct those deliberations privately.

º  (1620)  

    Ms. Marlene Catterall: Nor would the public get to see whom the minister had consulted, what views had been given, from what perspective, and how well he had balanced off the different views he might have received.

    In fact, that brings me to my next question: who is accountable for the quality of the nominee? It is not the nominee, I would suggest, but the minister who has done the review and who has set out the criteria, as he has now done. We may want to look at some of those criteria and the process—the consultation—but it seems to me it is the minister who's accountable, not the nominee who should be accountable.

    Prof. Patrick Monahan: Yes, we are proposing that the minister appear before the review committee to describe the process of review and the process of consultation. That will be an important element here.

    It's true that those consultations will necessarily ultimately be confidential, but in the nature of consultations—to get a frank assessment of candidates—you're always going to have to preserve confidentiality to a significant degree in those consultations for them to be meaningful.

    We support the minister's coming before the committee. As you point out, the process is to hold the minister to account for the minister's choices. At one point Professor Hogg and I were debating proposing just that the minister come and not the nominee. It didn't seem to us it would be acceptable that you would get to a process where the minister would come but you wouldn't have an opportunity to question the nominee.

    Ms. Marlene Catterall: Perhaps on another round you can answer why it wouldn't be acceptable. If you mean politically acceptable, I think that's not the major factor we're considering here.

    I have one other question. What you suggested was almost a political veto. You said if the committee were to conclude it didn't for one reason or another like this candidate—having spent a few hours, perhaps, compared with months that the minister and officials and other people might have spent on consideration of the candidate—and the committee expressed its dissatisfaction with the candidate, it would be very difficult for the Prime Minister to proceed.

    I would agree with you. That essentially gives a political veto to whoever that committee is, as opposed to the Prime Minister.

    Prof. Patrick Monahan: Yes.

    Ms. Marlene Catterall: You don't see a problem with that?

    Prof. Patrick Monahan: I think the Prime Minister would have the opportunity to weigh the views of the committee, and if the committee was of a view that this candidate ought not to be appointed, there would presumably have to be some pretty significant reasons that would underlie it. Ultimately that would be the choice the Prime Minister would have to make.

    But if a committee of this House, supplemented with others with expertise, is of the view that this candidate ought not to go to the Supreme Court, that ought to be taken very seriously, I would have thought.

    Ms. Marlene Catterall: Let me just conclude, and you can comment, if you wish, further on in the questioning.

    Your view, then, is that a committee that might have spent a few hours, possibly even a day, with this nominee, should have more influence than a minister who has consulted widely with the judicial and legal community, and perhaps with others, over a period of many, many months and has considered virtually every possible candidate who might be at a level to be considered; that this should have less importance than the opinion of a committee that has spent far less time and consulted far fewer people. If I've misrepresented your position, please correct me later.

    Prof. Patrick Monahan: I would anticipate that this committee would do extensive work, other than just in the period of time they met with the candidate. Whether the hearing took place in two hours or extended over a longer period of time, I can't imagine the circumstances that would lead a committee of this House to recommend adversely against the Prime Minister's recommendation, but ultimately I'm prepared to say that would be the outcome of the process. I don't have a difficulty myself with that result.

º  (1625)  

    The Chair: Thank you.

[Translation]

    Mr. Marceau, you have five minutes.

    Mr. Richard Marceau: Thank you, Mr. Chairman.

    On the committee that you suggest, there would be, in your own words, a majority of parliamentarians. Would they be members of Parliament, or members of Parliament and senators?

[English]

    Prof. Patrick Monahan: I would think members of the House of Commons ought to be a majority of the members of that committee.

[Translation]

    Mr. Richard Marceau: Who else would be on the committee? You mentioned the Attorney General and Minister of Justice from the province or region in question. Who else would you see on the committee?

[English]

    Prof. Patrick Monahan: We are primarily recommending groups that would have a particular expertise in relation to law and legal values, such as the Canadian Bar Association, the Canadian Judicial Council, the law societies of the different provinces. We are not attempting to have other groups that would be somehow representative of Canadian society, because that's the function of you folks. That's what you are here for: you are elected by Canadians to represent Canadians.

    The purpose of adding members to the committee is to add a dimension that is of particular significance to appointments to the Supreme Court of Canada, but not to say we should have representatives of this particular interest group or that interest group, because those representation factors are fulfilled by members of the House of Commons.

[Translation]

    Mr. Richard Marceau: Clearly, with changes like the ones that we are discussing, the devil is in the details.

    Would the members of the committee have access to the research work or profiles drawn up by the Prime Minister's Office or the Minister of Justice so that they would have a good idea of the candidate appearing before the committee?

[English]

    Prof. Patrick Monahan: Perhaps that gets us back to the question Mr. Toews asked about the profiling.

    I would think the answer to that would be no; that the committee could generate its own research, could have its own legal counsel, could generate its own background material and information for the benefit of the committee; and that the minister would come to testify at the committee and provide the committee with information about the process that had been followed. But I don't think the documentation or working materials that had been developed by the government, which I would regard as confidential material, would be tabled before the committee.

[Translation]

    Mr. Richard Marceau: With respect to what you called, I believe, the committee's review protocol, who would be the author of that protocol? Would it be the committee itself that would set the parameters within which it would have to operate, or would it be what you called the legal counsel to the committee? Who would set the ground rules for questioning the candidate?

[English]

    Prof. Patrick Monahan: I imagine this committee will recommend a process to the Prime Minister, but the Prime Minister will ultimately make a decision on the preferred process. If it comes back to the House of Commons, it would be voted on by the House of Commons, but I'm not sure what would be contemplated.

    I imagine the Prime Minister, once he has decided on how he wishes to proceed, would also publish the terms of the review protocol. It would be drafted by the Prime Minister or by the government, and it may well be tabled in this House or in the committee for discussion. I imagine it would actually be drafted by the Prime Minister and the Minister of Justice.

[Translation]

    Mr. Richard Marceau: Thank you.

    The Chair: Thank you, Mr. Marceau.

[English]

    Back to the government side, Ms. Barnes and Ms. Torsney.

    Ms. Torsney.

    Ms. Paddy Torsney: Thank you.

    First of all, Professor Monahan, this committee doesn't make recommendations to the Prime Minister. It makes recommendations to the House of Commons. The House of Commons then makes recommendations to the Prime Minister, perhaps, or he takes his recommendations from that process.

    I appreciate that you and Professor Hogg have written an article that is clearly designed to bring greater accountability and transparency to the appointments process. I think it's the goal you set out, right?

º  (1630)  

    Prof. Patrick Monahan: Yes, it's one of the goals.

    Ms. Paddy Torsney: What's your other goal?

    Prof. Patrick Monahan: We had five principles that I talked about at the beginning of the presentation. I won't go over those again.

    Ms. Paddy Torsney: When I read the article, I went through it and asked, what exactly is the goal? Is it to bring better justice to Canadians? Is it so we are actually enhancing their understanding of how the Supreme Court works?

    Even Mr. Toews today talked about how these people have all the power and are the most powerful people in Canada. It's not the members of Parliament who can choose to disagree with the Supreme Court justices and change the laws that the justices have decided on. Apparently, he thinks the Supreme Court makes the laws of the land.

    Is it to enhance people's understanding on some of the things you've identified, such as establishing a protocol where appointments could be reviewed based on those protocols and the process, so we tell the justice minister and have the justice minister come here?

    Is it that we are somehow going to get better people to become justices? What exactly are we doing this for?

    Prof. Patrick Monahan: First of all, I do think the Supreme Court of Canada does have extensive power, not to necessarily write laws, but in fact to limit the power of Parliament to write laws. That is a significant power.

    I think that's one of the reasons it's appropriate for there to be parliamentary review. As one of the three branches of government, Parliament is implicated in the power decisions the courts make. Therefore, it's appropriate for Parliament to have some opportunity to participate in the process.

    I think one of the values that would be enhanced is the value of Parliament entering into a dialogue—the term “dialogue” has perhaps been overused in legal circles—to have Parliament directly involved in the dialogue around the role of the courts and the appointments to the Supreme Court of Canada.

    I do think it would make for greater public transparency. It would provide a forum in fact where these issues would be debated. I think there would be, hopefully, greater public understanding of the role of the court and the relationship between Parliament and the courts.

    I think it would ultimately lead to greater legitimacy for the Supreme Court of Canada because it would be a recognition that there was some transparency to the process whereby judges were appointed. Ultimately, I would hope it would enhance the legitimacy of the Supreme Court of Canada. I think it would lead to a better functioning relationship, hopefully, between the different branches of government.

    Ms. Paddy Torsney: You see, this is my challenge, because I think all of those things are very admirable, and I think those things would happen if there were a front-end process, if there were a group of individuals who were considered by such a committee, if we were to have clear understanding of how we were evaluating these individuals, and the Prime Minister would ultimately choose from that. I think those goals that you and I have would actually be lost if there were a one-person nominee who would come before a committee in some kind of public manner.

    If you think members of Parliament are going to constrain themselves, that the counsel for this committee is going to be able to stop questions and put genies back in bottles, and that the Bork and Thomas hearings were anomalous.... I listened to Clarence Thomas after that process. He got the job. He was confirmed, as you identify. He said the process was not worth it.

    So how is justice served, how are any of those goals served, if it becomes a circus? Ms. Catterall said perhaps it would be a couple of hours, perhaps it would be a Thanksgiving weekend, but we're not any further ahead in terms of having a debate or a dialogue about how these people could do their job.

    It's in the opposition's interest to embarrass the Prime Minister, to stop a nominee, especially depending on when it is. If it's just prior to a suspected election--and they want to set elections on a set date every four years, so you'd definitely know if there were going to be an election--the stakes become very high for the opposition parties to stop whoever the Prime Minister of the day is from getting their nominee.

    I would argue that in the process and the protocols you've established, it would be better to recommend two or three possible people. There would be more opportunity for these meetings to take place with some confidentiality. And the minister at the end should be tested before a committee as to whether or not the minister has gone through the proper evaluation.

º  (1635)  

    Prof. Patrick Monahan: Well, first of all, I agree with your last point that the minister ought to answer and be accountable for the process that the minister has gone through. I think we're in agreement there.

    I've set out my concerns over the pre-screening process, and people will have different views. I am concerned about the constitution of the review committee, about how that committee would be set up. There is no consensus of any kind on what the nature of that committee would be.

    You may say the committee should be members of the House of Commons. From the testimony you've heard--and I've read the transcripts--there is no agreement of any kind--

    Ms. Paddy Torsney: Right.

    Prof. Patrick Monahan: --on what that committee would be. No matter what proposal you put forward, there will be people who say, “Well, it shouldn't be done that way. There should be other groups represented.” Everyone has their own view about how that committee should be set up.

    So I'm very concerned about the establishment of that committee, who is going to be on that committee, and how that's going to be determined. We've heard a variety of proposals. In England they are proposing to have two judges of the new Supreme Court and three chairs of the nominating committees that would exist in three different nominating committees in the different English courts. You would have a five-person, very small committee, and not a single member of the House of Commons would be on that committee.

    First of all, I see no consensus on who would be on that committee. So if you are going to recommend such a committee, I would recommend you study that for at least another year. That would be my first view, if that's the direction you're going to go in.

    Ms. Paddy Torsney: Develop that consensus.

    Prof. Patrick Monahan: Develop what that consensus might be, because I don't see that consensus now, and I would be very concerned about a number of the proposals that have been put forward.

    Second, which relates to this, I think there is a far more significant danger in terms of discouraging potential candidates from coming forward. Remember that we don't subject a candidate now to going to the Court of Appeal to a review process if they're already a judge. Why is that? Why do we do that? We do that because we think, at least at present, that it would be inappropriate to have a sitting judge go before a committee--in fact, they don't even meet with these committees personally--to have their application, if you will, reviewed by a committee. I think there is good reason for that. I think the reason we don't do that is we think it would be embarrassing to those judges; it would put them in a very difficult position.

    Again, I would have concerns about a process involving members of the Court of Appeal coming before some committee, having to answer questions, and then being told to go home; they didn't get the job. I have deep concerns about that.

    So I must say I think that is a far more radical change in our current process than what I am proposing.

    Ms. Paddy Torsney: Just let me clarify one point.

    The Chair: That's almost ten minutes, Ms. Torsney.

    Ms. Paddy Torsney: I don't think the person necessarily does have to come. I think their record has to come before the committee, but not the person themselves. They don't have to come and discuss why they did or didn't do certain things. There is a review of their judicial history, which apparently any first-year student can do. That would stand, as well as the screening process you identified here. So there would be no embarrassment.

    The Chair: I'll allow Dean Monahan to reply.

    Prof. Patrick Monahan: I think that would be less of a concern if the candidate did not have to appear personally, if it were merely a paper review of the candidate's record.

    The Chair: Mr. Cadman, for five minutes.

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

    Just along those lines, in terms of the makeup of the committee, I'd be interested in your views on the provincial makeup, or the provincial representation on the committee. You suggested possibly a representative of the attorneys general, and some have said that all the attorneys general should be consulted.

    How do we go about getting some kind of a consensus of who is the representative of the attorneys general? Would it be one from each region? And then, with the other representatives, how big does the committee get? As you've pointed out, the members of Parliament should form the majority. At what point does the committee get to a size where it's unwieldy?

º  (1640)  

    Prof. Patrick Monahan: I think that is a concern. You don't want the committee to get unwieldy. I would think you would want a representative of the attorneys general from the particular province or region from which the appointment is to be made, the attorney general of that province, who would now be the attorney general who would be consulted.

    The Prime Minister and the Minister of Justice do not now consult other attorneys general. I know that would be a matter of some discussion, and it has been discussed in this committee, but I would see that it should be the attorney general of the province or region from which the appointment is to be made.

    So I would not think you would need to have more than one or two representatives of the provincial attorneys general on this committee.

    Mr. Chuck Cadman: About the size, at what point do we get to a size, especially where you're suggesting members of Parliament form the majority, where the committee becomes unwieldy, in your mind?

    Prof. Patrick Monahan: I think it would become unwieldy at around 15 members. I would think the maximum you would be able to have on such a committee would be around 15, or something in that range. Once you get beyond 15 members of the committee, it's going to be difficult to operate the committee.

    Mr. Chuck Cadman: Thank you, Mr. Chair.

    The Chair: Thank you.

    Ms. Barnes.

    Hon. Sue Barnes (London West, Lib.): Thank you very much.

    Thank you for coming, Professor Monahan.

    I haven't heard any dissent from any party about more transparency. I think there's a feeling that we'd like to see more judicial transparency. I think it's detail, and I think there's some urgency and some concern because of two unexpected vacancies at a time. I think if there hadn't been, this would have been a multi-year process, or at least a couple of years. In fact, after these two vacancies are filled, there probably will be a couple of years again. So that type of detail we can talk about in a less tense time period.

    Now, let's presume for a second that yours is the model that goes. There has to be an understanding of exactly how Parliament works. If you had somebody here, at the end of the day there would be some members of this committee who would want to put it to a vote. Do we approve? Do we not approve? Some ideally would want to see a consensus, but realistically, with a number of political parties with different values and different viewpoints, you may not get that consensus on any given candidate. In fact, you probably would end up with not having a consensus.

    Would you then expect the chair of this committee to put a report to Parliament saying, “This is what happened”? Let's say four out of five parties of the House were quite satisfied and one wasn't. Could you see that happening?

    Prof. Patrick Monahan: Yes, I would imagine that would be the result, but I also think the way such a committee would work is that it wouldn't just be members of Parliament. That's part of the reason to have members on this committee who are not members of Parliament, so you don't have, simply in that circumstance, the tendency for parties to say.... I mean, if four of the five parties are in dispute, it seems to me it creates a somewhat different dynamic than would be the case if it were purely members of the House of Commons.

    Hon. Sue Barnes: But you realize the report of this committee will have to go to Parliament, and what happens is--and this might be an unintended consequence--when a report is tabled in Parliament, then it becomes the subject of a full-day House debate.

    Prof. Patrick Monahan: Well, I think you could design a process whereby the committee could be a special committee, one not simply designed as a committee of the House of Commons. It could be a special purpose review committee with a majority being members of the House of Commons. It could report in a different way than a normal House committee would report. I don't think the report would necessarily have to go to the floor of the House of Commons. That committee could develop a report that could go to the Prime Minister or to the justice minister if that were thought to be advisable.

    I recognize the comments that were made earlier about House of Commons committees reporting to the House of Commons. This committee can be designed in whatever way you want it to be designed. I don't think you have to assume--

º  (1645)  

    Hon. Sue Barnes: I don't think there are any Standing Orders to allow for that in the House of Commons; it wouldn't be a House of Commons committee. Under the Standing Orders of the House, all standing committee reports are reported to the House, and once they're reported to the House, they're open for debate.

    One of my concerns personally would be about what would happen in a partisan style of debate in the House on a non-consensus report after an open interview. I just don't think that's been considered. I don't think anybody is wishing for that, but realistically, you have to look at what could potentially happen there.

    Sometimes I would like to believe the best, but I also have to consider the worst. I'd like you to consider what that could do in a scenario where you had a partisan-style debate in the House of Commons going on because somebody wasn't onside with a Supreme Court appointment or because the executive still wanted to put that party in place.

    Prof. Patrick Monahan: I would simply say that the process can be designed, it seems to me, in whatever way the Prime Minister wishes to have it designed. If that process involved the Prime Minister saying, “I'm looking to have a committee constituted that would have these members on it”, including members of the House of Commons, I wouldn't see any reason why members of the House of Commons couldn't sit on such a special purpose committee. It wouldn't be a House committee under the Standing Orders, but if it were thought desirable to avoid those dangers you point to, it would seem to me there would be no reason you couldn't design the process in that way. There would be a report of this committee that would go to the Prime Minister or the justice minister if you wanted to do it that way.

    Hon. Sue Barnes: I want to talk about regional representation. Typically, we have regional representation in the Supreme Court, and I'm just thinking about the consultations the justice minister must make. There have been concerns that it has not been sufficiently wide enough. In fact, the Conservative Party in place wants every AG in on every consultation; that's their position.

    I'd like to hear your viewpoint on having the regions...say, the Atlantic region or a western or northern region where there's a vacancy. Would you think it appropriate for the justice minister to broaden the consultation beyond just the one specific province, as you would in Ontario, to each of those provincial or territorial jurisdictions in the region?

    Prof. Patrick Monahan: I don't regard it as a difficulty in the current process, as I understand it, which is that the justice minister consults with the attorney general of the province or of the region where the appointment is to be made. That is the person who will have the greatest knowledge of the pool of potential candidates. If the candidate comes from the province of Ontario, the attorney general of Ontario will have the greatest knowledge and expertise with regard to those potential candidates. It will be similar in the province of Quebec, in the Atlantic, or in the west. I myself don't see any necessity to have all the attorneys general or all the provinces involved in consultations when the appointment is going to come from a particular province or region.

    The Chair: Thank you.

    Ms. Catterall.

    Ms. Marlene Catterall: Going back a bit to my earlier point, I'm looking for the value-added in a review at the end of the process. A committee such as the one you're proposing would review one candidate. Presumably, our objective is to get the best candidate, and we might or might not like this particular candidate. We would have no way of knowing whether in fact this was the best candidate, however we each might define that individually. Don't you see that as a deficiency, that we would not know the pool from which this person was chosen?

º  (1650)  

    Prof. Patrick Monahan: That's correct, and I agree with you. Members of the committee might well think there is some better candidate who ought to have been put forward, but I believe the process before this committee would not be to say, is this the absolutely best candidate? That will ultimately be the choice that's made by the government, by the justice minister and the Prime Minister, in their nomination.

    There may be other candidates out there people would think might be better. All I'm suggesting is that the criteria that are announced by the justice minister come before a committee and that the committee, including members of the House, have an opportunity to review that candidate in light of those criteria.

    What value-added is there? I don't think it's going to get us better candidates, because I think we already do have good candidates. I don't think the problem is that we need better candidates, but it will guard against partisanship or the potential for partisanship in future appointments. It will provide greater transparency than we currently have; I think that is the value-added. Whether you think that's sufficient or not, obviously, is a judgment you and this committee will have to make.

    But I do caution you that if you are going to propose some pre-nomination screening process, it will be incredibly difficult, incredibly problematic. I would be very concerned about rushing ahead, if that were the view, to make that kind of fundamental change when we have these two appointments that are coming up within a matter of months.

    Ms. Marlene Catterall: I couldn't agree with you more, and I'm very much on record as being opposed to doing that for this process at least. We should simply hold the justice minister accountable for what he has done and who he has appointed.

    I wanted to raise one other issue because I think this is going to be an ongoing discussion for us. Whether it's through a parliamentary committee, a minister, or any other process, by the time we get to considering who's a potential Supreme Court justice, this person has already undergone other judgments by other people, because, as you pointed out, they're almost always people who have been in the courts and probably in more than one court. It's my view that one of the things this committee has to do, if it wants to recommend a longer-term change to the process, is we have to go back and look at how people get filtered out--or filtered in--at much earlier stages in their judicial career. I wondered if you had any comments on that.

    Prof. Patrick Monahan: Well, the current advisory committees, as you know, function to filter out candidates who are not seen as being qualified. The committees that exist in the provinces for superior court appointments work well and do screen out those who are not qualified. That process, as you know, is not designed to select the “best candidate”; that is left to the government.

    So again, this gets to the lack of consensus on these issues, because some of the submissions you've heard, in fact most of them, seem to want the committee to rank the candidates, to give a ranking. A number of the submissions I've heard have suggested this or have suggested that there be a list of three, four, or five names and that the Prime Minister should have to choose from that list. The system that operates now in respect of lower courts is quite different. There is a large pool consisting of hundreds of potential candidates who've gone through the screening process, and the minister selects any of the candidates who are deemed to be qualified. Beyond that, I don't know what other screening process there is.

    Ms. Marlene Catterall: Yes, and if we're talking about opening up and making more transparent the process by which that final appointment is made, but the selection available for that choice is in fact the product of a very unknown, unpublic, untransparent process, I think we have a bit of a dilemma here.

    Anyway, I just want to raise that because I think it's something the committee will have to consider as we proceed further with this. If you have any thoughts, I'd welcome them.

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    Prof. Patrick Monahan: I'm not sure I have anything more to add than what I've already said on that point.

    The Chair: Mr. Maloney has a question.

    Mr. John Maloney (Erie—Lincoln, Lib.): Just as a follow-up on Mrs. Barnes' line of questioning, on the question of consideration by all the provincial attorneys general, I understand--and I stand to be correct by Mr. Cadman--that the argument is that, admittedly, an attorney general from B.C. may not know much about a candidate from the Maritimes, but their decisions will impact all regions, all provinces, all Canadians. For this reason, they would like some input on who would be the candidate. What are your comments on that?

    Prof. Patrick Monahan: Well, yes, but the Parliament of Canada has representation from all provinces, and it seems to me that answers the representation issue. This is really the role of the provincial attorney general or attorneys general, those who have particular knowledge about the pool of candidates from that particular province. That's why I think it's appropriate for that attorney general or representatives of that province to be involved.

    I think it would be unwieldy to try to have representatives of all the provinces involved, and that in fact is a far greater involvement than there is now involving the provinces, because the consultation now is limited to a particular province or a particular region.

    So I think the problem would be that it would be unwieldy, and again, there is already representation from all provinces in the members of this House.

    Mr. John Maloney: We often go, in our consideration here, under the premise that most candidates come from the appeal courts or the superior courts of the various provinces. On occasion, there is an eminent member of the bar who is directly appointed to the Supreme Court without having previously served.

    Are you content with the same level of scrutiny of an individual who comes straight from being a practising lawyer or an academic, or should there be perhaps two lines of scrutiny?

    Prof. Patrick Monahan: Again, under my proposal, in either event, the scrutiny is the same, because the scrutiny comes after the selection by the Prime Minister.

    Am I content with that? I see no difficulty with it in that there are relatively rare occasions when there have been appointments directly from the practising bar--eminent appointments and highly respected appointments, I think. So I see no difficulty continuing with that process.

    Mr. John Maloney: Thank you.

    The Chair: Thank you.

    I have a couple of questions.

    Mrs. Barnes, you still have questions. Go ahead.

    Hon. Sue Barnes: If you want to go first, it doesn't matter.

    Ms. Paddy Torsney: Can I just clarify something now? In terms of our timing, we're scheduled until 5:30.

    The Chair: Yes.

    Ms. Paddy Torsney: We have a motion, and I also want to have a discussion amongst the committee members before that. So are we questioning Mr. Monahan until 5:15?

    The Chair: We're on schedule. I don't anticipate that the motion you have will involve a whole lot of debate.

    Ms. Paddy Torsney: The discussion might, though.

    The Chair: I don't think it will. Anyway, we're on schedule. Thank you.

    We had a witness, Judith Resnik, a professor from Yale University, appear here last week. She described for the committee a scenario in the United States at the time of the Reagan administration. Here we're talking about the U.S. Supreme Court appointment process.

    The gist of it was that the Reagan administration decided it could and would attempt to influence the future evolution of U.S. law by picking the right kinds of judges to make decisions on their Supreme Court, and I guess the federal Court of Appeals down there too. As I understand it, the history evolved where they did try to do this. They did try to pick the right kinds of judges who would make decisions and shape federal laws in ways that Congress couldn't or wouldn't. So that was a bit of an eye-opener.

    I just wondered, what if we in Canada ended up with a Prime Minister who had a similar idea and decided that he or she could begin to shape the court, or if we had a government that decided they could do that? Would that not create a risk that the appointment process, whatever it might involve here, whether it's a front-end or a back-end review...?

    I'm particularly thinking of the front-end review, where the Prime Minister would make sure the people appointed to the committee, or a mixed committee, would be his or her kind of people, who would make sure the right kind of judge got picked or got put forward on the list. In other words, there's not much to prevent the politicization of the front end--or the back end, really--on this. Do you have any comment on that risk?

    Our witness did not suggest that might happen here, but it certainly did happen for a period of time in the United States, apparently.

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    Prof. Patrick Monahan: Yes, I'm familiar with Professor Resnik's writings on this.

    Let me simply say that the danger in doing nothing in the current system is that in fact it would be open to that kind of ideological shaping in a way that I think would be undesirable in Canada. In other words, I don't think our current system has been used in that way, but it would be open to being used in that way were the Prime Minister to retain a kind of unreviewable discretion, because the evaluation would be done in secret and there would be no opportunity to review the candidate before he or she got appointed to the Supreme Court of Canada.

    Under either scenario, either front-end or back-end review, I think that is lessened. The risk of that is reduced because there is some additional check on the discretion of the Prime Minister and the Minister of Justice.

    No system is perfect, and a determined Prime Minister will be difficult to reign in under any scenario if that becomes the view of that determined Prime Minister. But I think some kind of external review--external to the government--either prior to the nomination or subsequent to it, would operate as a check on that kind of ideological agenda. That's one of the value-added elements that I think would be present. I know members are saying we want to go farther than this, to having a hearing before this committee of any prospective nominee, as well as of the Minister of Justice.

    The Chair: You actually took me to my third question, which was, wouldn't the fact that the Prime Minister wishes to submit his nominee to Parliament be, in itself, a check on the Prime Minister, and therefore, by itself, standing alone, a value-added piece? I think you've just said that it would be, as would a front-end list-creation process.

    Prof. Patrick Monahan: Yes, I think under either scenario it operates as a constraint, so that the Prime Minister who might say “I would like to put forward this particular individual who's furthering this particular narrow agenda” will attract criticism under either approach.

    In fact, under the front-end approach, the Prime Minister is constrained in being forced to choose from some list--I understand that to be one of the proposals. On the back-end review, the Prime Minister's nominee would be put before a committee, and the minister would have to answer to the committee. So I think that would in fact operate as a constraint in either scenario.

    The Chair: We've had a number of witnesses here. We've had persons from the Barreau du Québec. We've had a couple of members of the Law Society of Upper Canada, of which you're probably a member.

    Prof. Patrick Monahan: Yes.

    The Chair: I know I am. But on what was missing, although there were individuals from the Barreau du Québec, the Law Society of Upper Canada hasn't taken a position it could make public on this issue. I guess we're proceeding without it. We had about six weeks available to us. It's a larger group, and I guess it was not able to get to us soon enough.

    I just wanted to put that on the record and solicit from you whether or not, beyond your own remarks here today, you've heard anything that might help us be in touch with them, or any other group that had some cogent thoughts on this subject.

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    Prof. Patrick Monahan: I think there is no more consensus on this amongst the members of the Law Society of Upper Canada or the benchers than in the broader legal community. There are as many opinions as there are chairs around the table.

    The Chair: It was ever thus.

    Ms. Barnes.

    Hon. Sue Barnes: Thank you very much.

    There are many occasions, if we are involving parliamentarians in either a front-end or back-end process--I use those words loosely because we've become used to them, but I think you know what I mean--when the House is not sitting, either because an election has been called or it's in prorogation. I assume if we were not sitting and they were not members of this particular committee...because everybody has always referred to the justice committee.... But every time we prorogue, every time there's an election called, and every summer.... If the House is sitting there isn't a problem because your committee can meet over the time period. But twice this year, in the not-too-distant past, we didn't know what committees had been established. I guess you can always just go with your justice critics from all the parties to get your representation.

    I am concerned that there could be an urgent need to have people appointed, with a prior process for review necessary, if that's the way we go, where the House.... What do you see then? Are you then into your formula of, well, it's not really a House committee, it's just a committee that has parliamentary membership, just like a judicial commission's selection committee that could have some parliamentary membership, or even some public membership?

    What are your ideas on that? You must have had discussions about these possibilities.

    Prof. Patrick Monahan: Yes. If the Prime Minister and the government wished to have the advice of a committee prior to making an appointment, either pre-nomination or post, it could do so simply by seeking to constitute an ad hoc committee and seeking the advice of that committee, which would include members of Parliament.

    I suppose if Parliament had been prorogued you would still have members of Parliament; you would still have members of the House of Commons; you would still have your seats until the date of the election. Mind you, I don't suppose you'd want to be interviewing prospective Supreme Court candidates at that time. You might have other things occupying you during that period of time.

    Hon. Sue Barnes: I'm not limiting it to the current situation. I'm giving you the potential problems I see.

    Prof. Patrick Monahan: First of all, I do not support any prior nomination review at this time. I think it would be very dangerous, if that's ultimately what this committee wishes to do, to try to construct a pre-nomination screening process that would be applied to appointments that were going to be made in the next four to five months. I don't see that as being workable.

    So the only issue for me is whether there should be some post-nomination, back-end review. It seems to me that is a much less radical proposal. That could probably be accommodated even in the present context, depending on the timing of the appointments and other events involving the election. But I do not think it would be feasible to contemplate a pre-nomination screening process that would be constructed in four months' time.

    Hon. Sue Barnes: I agree.

    Thank you very much.

    The Chair: Ms. Catterall.

    Ms. Marlene Catterall: There's a question for our researchers to follow up. Dean Monahan just said that a committee could continue since the members of Parliament continue in office. This issue came up at another meeting, Mr. Chair, and it was pointed out that members of Parliament aren't members of Parliament once the writ is dropped. We have always acted as if we were. Our offices remain open. We certainly are if the House is prorogued. I think it might be wise, as we proceed with our work, for us to know the answer to that question.

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    The Chair: Our staff could check that out for you. Thank you.

    Prof. Patrick Monahan: I think you're right, Ms. Catterall, that the House is dissolved at the time the writ is dropped. Therefore, you would cease to be members of Parliament. I was incorrect in what I suggested to you earlier. Once the writ is dropped, the current Parliament ends, and there's no new Parliament until the returns are reported to the clerk.

    The Chair: That is subject to an emergency recall provision in the Parliament of Canada Act.

    Ms. Marlene Catterall: But not for a committee.

    The Chair: I think we were talking about whether or not we would be members of Parliament.

    If there are no further questions, I want to thank Dean Monahan for coming to Ottawa to appear before us today. I should also thank his colleague, Peter Hogg, for collaborating on the written piece that appeared publicly a few days ago.

    We're about to have a small business meeting. We won't suspend. We'll go right to a motion from Ms. Torsney, if that's okay.

    Ms. Torsney, do you want to put it on the record?

    Ms. Paddy Torsney: I move that pursuant to Standing Order 108, there be established a subcommittee on solicitation laws as defined in the Criminal Code, composed of five or six members, including a chair, to be named by the committee, and one member from each of the four recognized parties in the House; and that the subcommittee have all the powers of a committee under Standing Order 108(1)(a), except the power to report directly to the House.

    The Chair: You left the number of members at five or six. I think we had better be precise so that we know.

    Ms. Paddy Torsney: The last committee had six, but then there were extra parties. I'd suggest that five is probably enough.

    The Chair: It's agreed that there will be five members.

    (Motion agreed to)

    The Chair: Now we'll deal with your second issue.

    Ms. Paddy Torsney: The second issue is the timing of this committee. I know we have a meeting scheduled for tomorrow. I think Mr. Charbonneau is getting antsy about the length of meetings and the number of meetings. I think he wants to get on with writing a report, as I'm sure some other members do. We've received something from the researchers, which we'll be considering tomorrow afternoon after we hear from the judicial adviser. I think I'm seeing a consensus or a finalization of initiatives. We've run out of witnesses, etc. Perhaps we could get meetings organized for Thursday and Monday to consider a report, with the objective of reporting back to the House by next Thursday.

    The Chair: Thank you.

    We're going to dispense with consideration of Bill C-19, which was originally tentative for Thursday. I discussed this with Mr. Charbonneau, and that's satisfactory to him.

    During the first hour of our meeting tomorrow, Wednesday, we'll hear from our scheduled witness. During the second hour, we'll go in camera and try to give some beginning drafting suggestions to our staff. Then we'll meet on Thursday for the same purpose. We'll use the time available to us on Thursday morning to complete that exercise, on the assumption we won't finish it tomorrow, Wednesday.

»  (1715)  

    Ms. Paddy Torsney: I guess I wonder about that assumption, and I wonder if the researchers don't in fact have a fair bit of information and would have enough information, based on tomorrow afternoon's hour, to in fact draft a report that we could consider on Thursday.

    Even if the meeting were held at 11 o'clock, for instance, or if it were Thursday afternoon, I don't know that the report needs to be very lengthy. Secondly, if we had something we could look at on Thursday, they could go back with the comments and we could, hopefully, bang it out on Monday, and then give the opposition parties some opportunity to dissent, or concur, or to do whatever they want to do.

    The Chair: The first thing I'm going to do is adjourn the public meeting now. We can go off the record and complete our discussion on this.

    Is that satisfactory?

    Ms. Marlene Catterall: Why? I'm sorry, Mr. Chair, but I have always argued in favour of open meetings, unless there's a good reason why we should go in camera.

    The Chair: We're not going in camera, but we just have to suspend the record.

    Ms. Marlene Catterall: We do?

    The Chair: We're discussing purely administrative details on the public record here.

    Ms. Marlene Catterall: Is there anything wrong with that?

    The Chair: There's no need for it. We're discussing how we're going to go about drafting and giving instructions to staff on this report, and I don't see a need to further burden the public transcript with that.

    Ms. Marlene Catterall: Okay.

    The Chair: Okay. So we're off the record now. We don't have to be in camera, but we're just off the record.

    The meeting is adjourned.