JUST Committee Meeting

37th PARLIAMENT, 3rd SESSION

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

EVIDENCE

CONTENTS

Tuesday, March 23, 2004

Á

1105

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

Mr. Robert Lanctôt (Châteauguay, Lib.)

The Chair

Á

1110

Mr. Vic Toews (Provencher, CPC)

The Chair

Mr. Vic Toews

The Chair

Mr. Vic Toews

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

The Chair

The Chair

Professor Jacob Ziegel (Professor of Law Emeritus, Faculty of Law, University of Toronto, As Individual)

Á

1120

The Chair

Professor Christopher Manfredi (Full Professor, Department of Political Science, McGill University, As Individual)

Á

1125

Á

1130

The Chair

Professor Peter Russell (Professor, Political Science, University of Toronto, As Individual)

Á

1135

Á

1140

Á

1145

Á

1150

The Chair

Professor Lorraine Weinrib (Professor, Faculty of Law, University of Toronto, As Individual)

Á

1155

Â

1200

The Chair

Mr. Vic Toews

Â

1205

Prof. Jacob Ziegel

Mr. Vic Toews

Prof. Peter Russell

Â

1210

Mr. Vic Toews

The Chair

Prof. Lorraine Weinrib

The Chair

Prof. Jacob Ziegel

Â

1215

The Chair

Mr. Richard Marceau

Â

1220

Prof. Peter Russell

Mr. Richard Marceau

Prof. Peter Russell

Mr. Richard Marceau

Prof. Peter Russell

Â

1225

Mr. Richard Marceau

Prof. Jacob Ziegel

The Chair

Hon. Lorne Nystrom (Regina—Qu'Appelle, NDP)

Â

1230

Prof. Christopher Manfredi

Prof. Peter Russell

Hon. Lorne Nystrom

Â

1235

Mr. Vic Toews

Hon. Lorne Nystrom

Prof. Christopher Manfredi

Prof. Lorraine Weinrib

Â

1240

The Chair

Prof. Jacob Ziegel

Â

1245

The Chair

Mr. Robert Lanctôt

Prof. Lorraine Weinrib

Â

1250

The Chair

Â

1255

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, CPC)

Prof. Peter Russell

·

1300

Mr. Peter MacKay

Prof. Peter Russell

Prof. Jacob Ziegel

Prof. Lorraine Weinrib

The Chair

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

·

1305

Prof. Lorraine Weinrib

The Chair

Prof. Peter Russell

·

1310

The Acting Chair (Ms. Paddy Torsney (Burlington, Lib.))

Prof. Lorraine Weinrib

The Acting Chair (Ms. Paddy Torsney)

Prof. Jacob Ziegel

·

1315

The Chair

Ms. Paddy Torsney

The Chair

Ms. Paddy Torsney

The Chair

Mr. Richard Marceau

Prof. Lorraine Weinrib

·

1320

Mr. Richard Marceau

The Chair

Mr. Paul DeVillers (Simcoe North, Lib.)

The Chair

Prof. Jacob Ziegel

Prof. Peter Russell

·

1325

The Chair

Prof. Peter Russell

The Chair

Hon. Sue Barnes (London West, Lib.)

Prof. Christopher Manfredi

Prof. Peter Russell

·

1330

Prof. Lorraine Weinrib

The Chair

Hon. Stéphane Dion

Prof. Peter Russell

·

1335

Hon. Stéphane Dion

Prof. Peter Russell

Prof. Lorraine Weinrib

The Chair

Prof. Jacob Ziegel

The Chair

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CANADA

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

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NUMBER 004

l

3rd SESSION

l

37th PARLIAMENT

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EVIDENCE

Tuesday, March 23, 2004

[Recorded by Electronic Apparatus]

Á  (1105)  

[English]

    The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): Colleagues, we'll commence our business.

    Before we get to our witnesses, I'm wondering if there would be a consensus to take up and adopt without debate the first report of the steering committee of the committee. Is there such a consensus to move and adopt without debate the steering committee's report? It is in front of you now. If there is not a consensus, we will move to our witnesses.

    Monsieur Lanctôt.

[Translation]

    Mr. Robert Lanctôt (Châteauguay, Lib.): Mr. Chairman, as I said last time, a meeting from 9 a.m. to 11 a.m. is not convenient for me. Would it be possible for the meeting to be held from 11 a.m. to 1 p.m.? I am vice-chair of the Standing Committee on Government Operations and Estimates, which meets from 9 a.m. to 11 a.m. That is why I had asked you not to hold meetings during that time slot. Would it be possible for this meeting to be held from 11 a.m. to 1 p.m.? I was told that it was possible.

[English]

    The Chair: Colleagues, we're not going to get into a debate on details like this here. If there is not a consensus to adopt the report as it is now, I'll move to our witnesses.

    I understand, Monsieur Lanctôt, you're concerned about the meeting time. We can always adjust our meeting times to suit the general needs of our members.

    So do members want to deal with this now? All right, we'll put it to the end of the meeting. Thank you.

    Now we'll get into our main item of business today. Colleagues, we are opening work on a topic in which we're looking at the process of appointment of Supreme Court judges.

    You will recall that previously the committee had been looking at the appointment process for all judicial appointments, based on a motion referred to the committee from the House and originally moved by our colleague, Mr. Marceau. Subsequent to that, at the invitation of the Prime Minister, who has spoken publicly on the issue, and following discussion among members, we have agreed to look at this issue in relation to Supreme Court appointments.

    I will try to speak for members. All members on both sides of the House have articulated a sense of caution. We are fully aware of the potential significance of this and our goal of making sure that if Parliament does this we make sure we do it absolutely correctly.

    The interests that need to be protected, as members have discussed, in this parliamentary window on the Supreme Court appointment process are: the interests of Parliament in doing things properly, the integrity of Parliament, if I can put it that way; the importance of representing our Canadian electorate, which is our job; the integrity of the courts in the appointment process; and lastly, the interests of nominees and prospective nominees to the court.

    So having said that, we are delighted to have with us today....

    Mr. Toews.

Á  (1110)  

    Mr. Vic Toews (Provencher, CPC): I know I can understand you in English, because I'm not using this particular translation device. Is there translation currently?

    The Chair: Yes. I had earlier accessed translation.

    Mr. Vic Toews: There doesn't seem to be a proper fit here anyway, so maybe it's just broken.

    The Chair: Mr. Toews, can we proceed while they're re-outfitting you?

    Mr. Vic Toews: Yes, as long as it's in English. I don't want to deprive the Bloc member of access to....

    Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Don't worry, I'll just take two minutes out of your question time.

    The Chair: I want to acknowledge the presence here today--and we're grateful for their attendance--of all professors of law and political science. We have, in alphabetical order, Christopher Manfredi, Peter Russell, Lorraine Weinrib, and Jacob Ziegel. They're all recognized in their fields.

    We thank you for being with us today to give us your guidance on this issue.

    I will invite each of the presenters here today to make a statement. Normally we offer about seven minutes for this purpose. If you need slightly more time than that, please indicate. After your presentations we'll go to questions.

    As a result of a technical problem in the sound system here in this lovely old Senate building, I'm going to suspend while we get this repaired.

Á  (1112)  

---

Á  (1116)  

    The Chair: I call the meeting back to order. We've corrected the technical problem. We again welcome our witnesses. We can stick with alphabetical order if witnesses like. Perhaps they have agreed on an order among themselves. Would any of the witnesses care to volunteer to go first?

    Professor Ziegel.

    Professor Jacob Ziegel (Professor of Law Emeritus, Faculty of Law, University of Toronto, As Individual): Thank you, Mr. Chair.

    I am volunteering to be a guinea pig because it seems I'm the only one who has prepared an opening statement in writing. I did send a copy of it yesterday to the clerk of the committee, but she tells me she wasn't able to arrange for translation in time. So with your indulgence, I will read from my statement, having gone to the trouble of writing it.

    Monsieur le président, I'm pleased to have been invited to appear before the justice committee to offer my views on the selection process for members of the Supreme Court of Canada. I previously published my views at length in an article I wrote for the Institute for Research on Public Policy in Montreal in June 1999. I believe the members of the committee have been supplied with a copy of the paper. My position remains basically the same as described in the paper, though I have refined my views in some respects.

    As I see it, there are two basic questions before the committee. The first is whether the committee is of the view that the existing system for the selection of members of the Supreme Court is so deeply flawed that it needs to be revamped. The second question is, what should replace the existing system if the committee concludes that the status quo is not sustainable?

    There is such widespread dissatisfaction with the existing selection process that it would be agreeable to think that the need to replace the existing system with a more democratic process is no longer contentious. However, since the status quo still has support in some influential quarters, let me reiterate my view that the existing system is fatally flawed because it is totally lacking in transparency and accountability in a society governed by the rule of law and, as the Supreme Court itself has reiterated so often, the requirement of due process.

    These objections of themselves are sufficient to justify the need for a revised process even if one believes, which I do not, that the existing secretive and paternalistic system is acceptable because overall it has resulted in very good appointments.

    There's another fundamental objection to the existing process, which has not been sufficiently stressed in the debates, and this is that the prime minister is in a position of conflict when he fills vacancies on the Supreme Court. This is because the federal government is the most frequent litigator before the court and the prime minister is the most senior member of the federal government involved in the litigation.

    In the Prince Edward Island reference case, the Supreme Court held that the federal and provincial governments were obliged to establish judicial compensation commissions or committees to determine judicial compensation for federally and provincially appointed judges. The court's reasoning was that the judges could not directly negotiate compensation matters for the federal and provincial governments without appearing to compromise their independence when deciding criminal and civil cases in which the crown was a party. The same reasoning applies, in my view, to the prime minister making appointments to the Supreme Court when he is also a litigator before the court and to the appearance of lack of impartiality when he exercises his appointive role.

    Similar reasoning of this character led the British government to conclude last year that the Lord Chancellor's office had to be abolished because the Lord Chancellor could not be head of the English judiciary, be a member of the British cabinet, and preside over proceedings in the House of Lords all at the same time. A new selection procedure had to be established for appointing the members of the future Supreme Court of the United Kingdom as well as the lower courts.

    In light of these remarks, I believe the committee's attention should mostly focus on what new system of appointments to the Supreme Court should replace the existing system. As my paper explains, a variety of techniques are used in the western hemisphere for appointing the members of the countries' highest constitutional and civil courts and are used at the international level for appointing the members of international tribunals such as the International Court of Justice.

    In Canada, I believe there's now broad consensus that when there is a vacancy on the Supreme Court, an advisory committee should be asked to compile a short list of the candidates believed by the committee to be best qualified to fill the vacancy. The prime minister would then be obliged to choose one of the names. Obviously, the composition of the committee will require careful consideration. So will such questions as whether the committee will be required to interview candidates in person and to issue a report after the committee has forwarded its short list to the prime minister.

    An equally important question is what role Parliament should itself play in appointments to the Supreme Court. During the 1980s, when I was a member of the CALT committee on judiciary appointments, I agreed with my colleagues that there was no need for a parliamentary role. I have since changed my views and now believe that some form of parliamentary role is desirable.

Á  (1120)  

    I have changed my mind for two reasons. First, the Supreme Court plays a critical role in determining the validity of parliamentary legislation, and second, parliamentary involvement in the choice of confirmation of new appointments to the court will give parliamentarians a better appreciation for the role of the court and the Canadian charter in evaluating the constitutionality of legislation.

    I fully appreciate the concern of critics that parliamentary involvement in Supreme Court appointments could lead to the types of rancorous hearings associated with confirmation hearings before the Senate Judiciary Committee in the United States. In my view, the comparison is not a fair one. Much of the divisive debate over the past 20 years in the U.S. Senate committee is due to deep ideological division among the members of the committee and the partisan choice of candidates by the incumbent U.S. president. In my view, in the proposed Canadian model, the broad composition of the advisory committee and the committee's role in compiling a short list of candidates should avoid acrimonious debates of the U.S. character when the prime minister presents his candidate for parliamentary approval.

    In any event, I do not believe the prospect of a lively debate in the parliamentary committee convened to confirm an appointment is sufficient reason to deny Parliament a role in the process. To paraphrase the words of an English judge in a different context, justice is not a cloistered virtue. Nor, in my view, should future members of the Canadian Supreme Court be apprehensive about being asked to appear in public before a parliamentary committee, assuming, as I do, that the proceedings will be conducted with civility and decorum and a sense of responsibility by the members of the committee.

    There may well be a period of trial and error while Canada settles on the most appropriate procedure to replace the existing monarchial system of appointments to the Supreme Court. My keen regret is that successive federal governments over the past 25 years have failed to respond to the growing public sentiment in favour of replacing the existing system of appointments to the Supreme Court with a system more consistent with Canada's democratic and charter values.

    Let me conclude on this important note. The thrust of the movement for reforming the system of appointments to the Supreme Court is designed to strengthen, not to weaken, the role of the court as a critical institution in Canada's constitutional structure. Adding transparency and accountability to the selection process will increase the stature of members of the court. Hopefully, too, it will give ordinary Canadians a better understanding of the work of the Supreme Court on the many challenging issues the court is called upon to resolve on an almost daily basis.

    Thank you very much.

    The Chair: Thank you very much.

    Is there another opening statement from any other member of the panel?

    Professor Christopher Manfredi.

    Professor Christopher Manfredi (Full Professor, Department of Political Science, McGill University, As Individual): Thank you very much, Mr. Chairman. Thank you very much for inviting me to appear before the committee.

    What I want to do in the time available to me is to really address three points. One of them, I think, comes off very well from Professor Ziegel's presentation, and that is to look at some of the common arguments against changing the process--including the argument that it will Americanize the process--deal with some of the reasons for changing the process, and finally, talk a little bit about what process might replace the current one.

    Perhaps the most common argument against making any changes to the status quo, and we heard it in Professor Ziegel's remarks, is that it will Americanize the process. In particular, any kind of change or greater involvement of Parliament in the process will lead to a highly partisan and confrontational process.

    In my view, that concern is in fact based on a somewhat skewed understanding of the U.S. Supreme Court appointment process. In fact, it's based on two rather spectacular and particular outliers of recent memory, and those, of course, are the hearings involving Robert Bork and Clarence Thomas.

    In fact, if one looks at the American process, at least with respect to the Supreme Court, it hasn't been particularly conflictual during the modern era of Supreme Court appointments. I take, as the beginning of that modern era, 1937. You can ask me why I picked that date. From 1937 until 1994, when the last nominee was made, there were 39 nominations to the U.S. Supreme Court placed before the Senate. Of those 39, only three times has the nominee been rejected. There was one nominee for elevation from associate justice to chief justice, whose name was withdrawn after certain matters were put before the committee.

    Fifteen of the 39 nominations were in fact confirmed by a simple voice vote in the U.S. Senate. Admittedly, there hasn't been that kind of a voice vote since 1965, but nevertheless, it suggests that it was relatively easy to get a consensus in the Senate for those nominees.

    Of the remaining 24 nominees, where there was a recorded vote, the average vote in the Senate was 75 to 16. It was not particularly conflictual. It includes the Robert Bork vote, which was, I believe, 42 for and 58 against; the Clarence Thomas vote, which was 52 to 48; and the vote for Chief Justice Rehnquist, which was 65 to 33, if my memory serves me.

    I think if one looks at the list of nominations that took place for roughly 60 years, there has been a remarkable degree of consensus and a lack of conflict. Even the nominations after Clarence Thomas have been approved by fairly wide margins. I think the largest number of negative votes in the Senate since then was only 11.

    I think we need to have a broader understanding of the American process and not simply focus on the Bork and Thomas hearings, as spectacular and as difficult as perhaps they were.

    A second argument against making any changes is that it will simply politicize the court, in general terms, and in particular politicize the appointments process.

    I think this argument incorrectly assumes that the court and the appointments process aren't already politicized. I would argue that in fact this is already the case. The appointments process already is political, in a sense that factors other than legal ability are taken into account.

    We have always taken into account regional concerns. Some of those regional concerns have been based traditionally on technical legal reasons, the need to have three justices with training in civil law, for example. But for other regional concerns there is no reason why the remaining six justices couldn't all come from Prince Edward Island or Ontario or Alberta, if we were simply taking into account legal ability. We've always taken other factors into concern.

    More recently, we've taken into concern demographic factors, which are not strictly neutral, legal considerations. It would be difficult now to consider a court that was all male, for example. It simply wouldn't work.

Á  (1125)  

    Yes, there have been partisan concerns in the federal judicial appointments process. Generally, Professors Ziegel and Russell, I think, have done the most comprehensive study of this in terms of the partisan affiliation of appointments to the federal courts more generally.

    So the process is already political, and the question isn't whether it's going to be political or not, but whether it's going to be transparent or not. I think that's the key issue.

    The second argument about politicization is that of course it will turn the court into a political institution. I would argue that the character of the 21st century Supreme Court is that it is already a political rather than a legal institution. That's the result of a series of evolutionary changes since 1949. The court probably ceased to be a legal institution in fact in 1975, when it acquired discretionary control over its own docket.

    Among political scientists who study judicial decision-making, the consensus for almost sixty years has been that judges, or justices on courts, are generally goal-oriented actors whose personal attitudes and beliefs shape their interpretation of the law. They behave strategically to maximize the probability that their preferences will become binding rules; that's what the social science evidence tells us.

    So the Supreme Court makes policy not as an accidental by-product of performing its legal function but because a majority of justices believe that certain rules will be socially beneficial. An example in criminal justice policy is that every justice has his or her own understanding of what a properly functioning criminal justice system looks like. When official conduct or criminal justice policy are brought before that justice, they measure that policy or conduct against their vision and make their decision about whether it should be constitutional or not on that basis, I would argue.

    So why change? I think so because the court exercises governmental functions—not exclusively, but in significant ways—and it's no longer possible, I think, to justify leaving the selection of its members in the exclusive hands of the executive. Legislators, I would argue, have a legitimate role to play, and I think democracy requires that the public be involved in some way.

    So what sort of process might one put in place? I actually have no difficulty with continuing to leave it in the hands of the prime minister to select the nominee and to present that nominee to the committee. One might want to establish a standing committee on federal judicial appointments and require that the prime minister's nominee, along with a dossier providing the justification for the nomination, be submitted to the committee for consideration. The committee could examine and report on the nominee's suitability for the position. Public hearings might be possible, but I don't think they would be necessary; it certainly may not be necessary for the nominee to appear publicly. The committee, like any standing committee, would make a recommendation to the House, which would vote either to ratify the nominee or not.

    So I think there's no reason to believe that this process would be any more political than the one we already have. It might be political in different ways, but it would certainly be a transparent process, and I think that's what this committee should aim at.

    Thank you very much.

Á  (1130)  

    The Chair: Thank you.

    Professor Russell.

    Professor Peter Russell (Professor, Political Science, University of Toronto, As Individual): Thank you, Mr. Chairman.

    Thank you for inviting us here today. I can't underscore too strongly how important your work is. This is an extraordinary task you're taking on. You're dealing with one of the fundamental dimensions of our system of constitutional democracy: the way we choose the highest judges who interpret the Constitution that defines the powers of government and the rights of citizens.

    This is no small enterprise you're engaged in; it's very large. I'm so pleased that this parliamentary committee is doing this and is involved in it, but do it well. That's the one point I want to insist on.

    I know there are now two vacancies looming for June, and you're under pressure to do something like that because the Prime Minister has indicated he'd like that to happen. I greatly applaud the Prime Minister for beginning this process and getting it going. It's about time, as my colleagues have said, we addressed this as Canadians, but don't do it at the snap of a finger. Listen to the various submissions and talk among yourselves, because you're dealing with a problem that's not just here in Canada.

    I co-chaired a conference in London at the end of January with 19 countries involved in constitutional interpretation by their highest courts. We had 19 different papers from countries all around the democratic world on how to do this. One reason it was done in London, as Professor Ziegel reminded you, was because, in parallel with you, it has a parliamentary committee--unfortunately, it's all made up of Lords, and it may get out of there into the House--that is dealing with the same problem and the same issue.

    I really beg you to take your work--if I may say this, and maybe it's arrogant--very seriously, and do it well with all deliberate speed, for sure. But if you don't get it done in time to fill the two vacancies, so be it.

    The system we've had is not the worst possible system. It has produced very good judges. There's no sort of urgency. You're going to have two lousy appointments if you don't fix this up by June. If I leave you with no other point, I hope I just register that one.

    I want to say that Canada is the only constitutional democracy in the world in which the leader of government has an unfettered discretion to decide who will sit on the country's highest court and interpret its binding constitution. New Zealand is close, but at least in New Zealand the Attorney General and the Prime Minister have an internal committee of senior judges to advise them.

    Thus far, we haven't done badly with that system, but we could do better. It is just incompatible with constitutional democracy for one person, no matter how terrific and how popular he or she may be in the land, to have this discretion, with no checks and balances built in. It's as simple as that.

    Should Parliament have a role? I think so. I'm so pleased that Prime Minister Martin has started the reforming system with Parliament, and above all is giving Parliament a huge role in deliberation on this and what the new system should be.

    My colleague, Chris Manfredi, has put the American model before you. It is the model the Prime Minister probably had in the back of his mind, like many Canadians. It's not a bad model--I agree with what Chris said--but the U.S. is the only country in the world that does it that way. It's a very exceptional model. It was mandated by the Constitution of the United States, and it has no choice.

Á  (1135)  

And the Senate's role is not just to confirm names that are brought in by the president, but the Senate is involved in appointing; the Senate consents to the appointment or not. It's not just saying, “We like it” or “We don't like it”, but the Senate has a constitutional role. All I want to stress to you is that's one model, but there are many others, and the American model may not be the most appropriate.

    The parliamentary countries, both throughout the Commonwealth and in western Europe, have been working on this and have established judicial services or appointment commissions as a main way of providing some accountability and protection—I used my words carefully—from undue government control in selecting judges of the highest courts. That's always the danger—political manipulation and shaping the court according to a particular political agenda. The commissions, including the one Britain is now talking about, don't provide a direct role for parliamentarians themselves.

    Just to give you the bare bones of the proposal that's before the British Parliament right now—where it just went in at the beginning of this month—they are doing two things, of course. One huge thing is that they are creating a new court; they are creating the supreme court of the United Kingdom. The House of Lords is England's highest court of the law, and Lords is going. The Lord Chancellor, the chief judge of the United Kingdom, is going. They are creating a new supreme court of the United Kingdom.

    Here's how its judges are to be appointed. They will be selected by a five-person commission, which will provide the responsible minister...who in their system now is a new minister, Lord Faulkner, who holds the position of Secretary of State for Constitutional Affairs. He is not a minister of justice or home secretary. So this five-person commission will provide the responsible minister with two to five names, one of which will be put to the prime minister for appointment by the Queen.

    Now, as you all want to know, who are the five persons who make up the commission? That's crucial, isn't it? Well, two of them are senior judges who will be on the supreme court itself. They will be what they now call the president, who is like the chief justice of the new supreme court, and the associate chief justice. They are all going to get elevated from the House of Lords now; so those positions are going to be filled on day one. So the president of England's higher court and the deputy president will be two of the members who will select candidates for the court. The other three members will come from three other judicial appointment commissions that are to exist. One already exists and two are going to be new in the United Kingdom. Scotland already has a judicial appointment commission, and one of its members will join these two judges. So one will come from the Northern Ireland judicial appointment advisory commission and the other will come from a new judicial appointments commission that's going to be created for England and Wales.

    So you can see that lots is going on in England in reorganizing the way they appoint judges.

    So they'll have a five-person body. And those three that come from these other commissions, they could be judges themselves, they could be eminent lawyers in Britain, or they could be lay people. The act itself, which is just a draft bill that may not pass through Parliament....

    I pause to say that I'm getting all kinds of calls and e-mails. One of my calls the other day said, “Peter, it's going to take ten years”. So I hope you don't take ten years.

    Anyway, that's the proposed British system. I don't think that will do here. I think some elements of it.... I think Parliament should have more of a role.

Á  (1140)  

    Among the 19 countries that you might look at that have developed new systems for appointing their highest courts, if you're really keen that Parliament should actually appoint the judges, I don't know whether my colleague at the University of Toronto, David Beatty, is going to make a submission to you, but you should look at the West German model. That is a huge constitutional court, and I would say one of the finest constitutional courts in the world. They've had a great record. Their judges are appointed by the two houses of the federal parliament--there are committees that do the work for the houses--by a two-thirds majority vote.

    But over the years--and many, many years--over 40 years, a settled practice has developed that there are so many left judges and so many right judges. It really underscores the fact--and it is a fact, not just an opinion--that interpreting constitutions is, in a broad sense, a political act. You have philosophies of where the court should be going, where the law should be going.

    In West Germany, they balance Christian Democrats with Social Democrats in a very systematic way. I make that point because, in my own judgment, you need balance on your highest court of the different persuasions about where your law should go.

    I know there are a lot of people I hear from today who think judges should give very weak meaning to the Charter of Rights, should play it down or interpret it literally. They never explain to me how you do that. There are others who would like a more liberal interpretation. Those are important differences, and in appointing the judges of the highest court, the key thing is not to have just one of those philosophies of constitutional interpretation dominate your court, particularly for a long time.

    The other thing is, remember, once you make an appointment to the Supreme Court, it is for a heck of a long time. So you really have to bear that in mind.

    I conclude my paper with really where I began. I really think you're going to have to have a made-in-Canada model. I can't see you importing the American system, at least as it stands, with its power, its constitutional power, in a congressional system of one part of Congress to actually share in the appointing power.

    I think whatever you do at this stage--and here we have to be practical--should not require formal constitutional change. I don't elaborate on that point because I think we're all adults and we all know the reason for not getting into a big constitutional morass.

    So I've set down some points that I've found in looking at other systems around the world, at least for you to consider, and here they are.

    Parliament should have a role in creating a judicial selection committee, and the parliamentarians who take part either in selecting or serving on it should themselves be a balance from the different political persuasions in Parliament, not dominated by one side of Parliament.

    This selection commission should include more than politicians--and it is a selection commission, whereas, of course, the American Senate's judiciary committee, as Christopher Manfredi reminded you, has no role in selection. I think selection is just crucial. Who are the key people who are going to be considered?

    I think the commission should include eminent jurists and persons knowledgeable about judicial affairs who are not in Parliament.

    I also think in a federal country where the Constitution that is being interpreted by the Supreme Court defines the powers of the provinces and of aboriginal peoples and their rights, the Council of the Federation, representing the provincial and territorial governments and aboriginal organizations, should play a role in making appointments to the selection commission. I think this selection commission should play the lead role--and here I'm answering perhaps the terms of reference of Richard Marceau in originating this committee's work in this area--in selecting promising candidates for all--I repeat, all--federal judicial appointments, not just to the Supreme Court of Canada.

Á  (1145)  

    For appointments to the Supreme Court of Canada, I am very interested in your considering the practice South Africa introduced with its new Constitutional Court in 1995. The public hearings are not conducted by a committee of parliamentarians but by their Judicial Services Commission, which in our case could include some parliamentarians. It's not in a parliamentary setting. It's chaired by a jurist. The questions are not asked to embarrass the candidates, and the candidates are interviewed in public with the press on hand. The questions are reported in the press, and there is give and take between the commission, which asks the questions, and the candidate. That system is well written up. There are people who've been through it. We know what it's done. It's been in existence for nearly a decade. Take a look at it. I think it's a very interesting one.

    Finally, the power of appointment should remain with the Governor in Council so we don't have to amend the Constitution. But without constitutional amendment, I could see, and we have precedents for this, the government being required to give reasons for the rejection if it rejects candidates who come from the selection committee. It would then have to take further recommendations.

    This is certainly the way Britain is going. Under the British system the prime minister--and I think this will stay no matter how much they amend their bill--will make the final appointment, if you like, or take the name to the Queen, but if he doesn't like the names that come from this new commission they're creating, he has to go back and get some more names. He can't just say, well, I don't like yours; I have some pal of mine I'm going to put in instead.

    Again, all deliberate speed...I think a lot of us, and I include myself, are really thinking about this carefully for the first time. Take your time. Do it well. Good luck.

Á  (1150)  

    The Chair: Thank you.

    The last word is available to Professor Weinrib if she goes for it.

    Professor Lorraine Weinrib (Professor, Faculty of Law, University of Toronto, As Individual): Thank you very much. It's a great honour to be invited to help you begin your proceedings on this enormously important question of constitutional stature in our country.

    We are blessed, or cursed, with a very complicated constitutional system. We began in an almost quasi-colonial constitutional framework and have had to develop the written and the unwritten part of our Constitution in a complex federal structure, adding the charter, and adding concern for justice to the aboriginal people most recently. The relationships of the legislature, the courts, and the executive in our system have evolved. In particular, the Supreme Court of Canada has evolved as part of the inheritance of the legal structure of the United Kingdom, but also—and this is very important—as a step-by-step response to the needs of our very complex country.

    The method we use to appoint judges to our highest court must of necessity address not only the important work of the court but the important role it plays as a distinctively Canadian institution. This requires us to keep in mind that its independence, its integrity, the calibre of its members in terms of legal talent, expertise, and life experience, and the public and private law on which it deliberates are crucially important. In addition, the court must function as a collegial body for a society that is diverse, pluralistic, and egalitarian.

    Our court is highly regarded in the world, primarily for its recent work. We were not on the world stage until quite recently. The members of the court and the court's work are given not only the highest regard in other countries; the work of the court is emulated where possible, and where not emulated is often the subject of aspirations and great envy.

    What I would hope would emerge from this committee's work—and this I say with the greatest respect—is that no harm be done to this great institution that we have created.

    Examination and proposals for altering the appointing process in the past have been very deliberative engagements involving a full study of this complex constitutional structure that we have inherited and created, which is unfinished and is constantly in need of attention to continue its maturation. We must look, when we think of the appointing power, to both its formal and its informal processes, to the strengths and weaknesses of the current process. To a certain extent the non-transparency may actually have provided higher-calibre judges. We can't look at any of these characteristics of the appointing power in black and white. This is a very nuanced enterprise.

    The comparative study is also enormously important and has been engaged in in the past. Parliamentarians, in my view, must carry out this responsibility in terms of the modern complexity of the liberal democratic function our court carries on.

    It is regrettable, I think, that we have entered into this process of thinking about the appointing authority as an offshoot from the new government's concern with the democratic deficit. The democratic deficit is primarily focused on the interplay between the legislature and the executive and properly concerns a number of appointments that are made that could benefit by further engagement by parliamentarians. However, the Supreme Court—and the other courts as well, but in particular the Supreme Court—is a very particular type of institution. We have to have concern that we not analyze the appointing power only or even primarily in the context of the democratic deficit question.

Á  (1155)  

    I am concerned that we have seen substantive questions about particular controversial decisions of the Supreme Court—abortion, pornography, same-sex marriage—enter into the consideration of the next appointees and the appointment process in general.

    I regret that we see assumptions about our political system that do not reflect its modern theoretical, political, and legal framework: statements about parliamentary supremacy, about the exclusive monopoly of Parliament to make law and to set policy. With respect, this does not describe our evolved constitutional system.

    Third, there have been attempted interactions or criticism by members of the Parliament of Canada of the Supreme Court or of the chief justice. The intervention in the application to bring the same-sex marriage case on appeal to the Supreme Court of Canada against the wishes of the Attorney General of Canada is one example. They have become mixed up in the question of democratic deficit and the question of how the appointing process should be framed in the future. I think this is not the correct, and certainly not an adequate, conceptual framework for evolving and considering the best way to design our admittedly quite deficient approaches to appointing members of the Supreme Court at this time.

    So what do I think “do no harm” means in this context? First, we have to ensure that the members of Parliament who engage in considering what the appointing formula should look like do not do through the back door that which they cannot do through the front door. Let me be quite pointed in what I mean by this.

    There is insufficient political support now to use the legislative override to reject the most forceful or controversial judgments by the Supreme Court of Canada. There is insufficient support to use the amending formula to weaken the charter guarantees or to widen permissible limits on those guarantees. So any pressure to forge the new appointing formula to achieve those ends—to weaken the charter—seems to be inappropriate. It's not appropriate to change substance and procedure at the same time.

    No one wants to politicize the court, but I think we all mean something a bit different when we use the term “politicize”. Therefore, I really welcome the insights Professor Manfredi has shared with us. To my mind, the surest way to politicize the Supreme Court is to politicize the appointing procedure, and the surest way to politicize the appointing procedure is to politicize the manner in which we make changes to that procedure. If we damage the independence or the quality of the court, there will be no accountability for that. No accountability could meet that failing.

    My recommendations to you are these.

    I would urge you to disengage from the democratic deficit framework and go back to the way we thought about dealing with the appointing process in the past when we thought about major constitutional change—which in effect this is. We have to bring to light how the current process works. This is a big, black box to many people who actually function quite closely to the court.

    Second, we have to engage, as Professor Russell has said, in comparative study. But comparative study is treacherous. The West German court, for example, is a court with only constitutional jurisdiction; it's not a general appellate court. The appointments are made for a limited term—12 years. The preparation for being appointed to the court is very different in the civil law system than it is in the common law system. The judges who are appointed to the constitutional court in West Germany are either career judges or professors. So we're dealing with a completely different model. It may be that it's appropriate to adopt features of that appointing procedure, but we have to look at the detail.

  (1200)  

    It's similar in South Africa: a constitutional court with only constitutional jurisdiction, limited-term appointment, a court that was created with the motivation of creating a court that would undo some of the terrible steps that had been taken by the almost fully discredited existing court under apartheid.

    So we need sunlight; we have to know our own process.

    Second, we have to do the comparative work, but we have to do it carefully.

    Third, and this embellishes the point I made earlier about constitutional theory, we have to actually look at what the theory of constitutional process is and the role of the Supreme Court of Canada in that constitutional theory, and that lies beyond our borders.

    Next, we have to engage all the stakeholders--the profession, the academic lawyers, the judiciary, and of course the federal structure of our country, which has not come to the surface of this debate nearly to the extent that it should.

    To that end the University of Toronto faculty of law, where I hold my appointment in both law and political science, is mounting a full-day conference on April 19 to examine and discuss with foreign experts and people who have legal, political, and interdisciplinary expertise on these questions the current procedure, to the extent that we can unravel it; the comparative dimension; and the constitutional theory that is relevant.

    I would urge you, even though there are two appointments now pending, which is an astonishingly large proportion of the court, that you do your work, as Professor Russell has said, with all deliberate speed. This is not an area where one can make a mistake. We don't want to set precedents.

    The American system has to be examined, for example, for all its strengths and all its weaknesses. There has been discussion about the personal level of investigation of nominees, about the partisan and constitutional political issues that are fought very intensely in their appointment process, and all of this does not tell us what there actually is to be achieved by having parliamentary involvement, which I actually support within the context of these more complex nomination commissions.

    I urge you to do your work in a way that can bring together all of the complexity of the Canadian constitutional system, to not do damage to the court, to not set precedents in terms of the appointing process that we will regret, and to exploit the opportunity that has fallen to you to continue one of the most important processes in Canadian public life, the continuing maturation of our constitutional system.

    Thank you.

    The Chair: Thank you very much.

    Those were excellent presentations, I must say, and they get us off on a good start as we embark on this process.

    I'll recognize Mr. Toews, for seven minutes.

    Mr. Vic Toews: Thank you very much, Mr. Chairman.

    I want to again thank all of the witnesses. They have certainly given us a lot to think about.

    On one clarification, Professor Russell's submission gave high praise to the Prime Minister for providing this initiative. I might point out that it was the initiative of my colleague from the Bloc, Mr. Richard Marceau, and an initiative of this committee that was well in place before the Prime Minister took office. If the Prime Minister has some ideas about this, we'd love to hear from him as well. So far, we haven't heard anything of substance from him on this issue.

    The introductory comments by Dr. Ziegel, Professor Manfredi, and Professor Russell were a real breath of fresh air.

    Is it Professor Ziegel or Dr. Ziegel?

  (1205)  

    Prof. Jacob Ziegel: Take one.

    Mr. Vic Toews: I don't want to get too familiar with the witness, but he talked about the lack of transparency; the paternalistic way in which appointments are carried out; and, very importantly, that the prime minister is in conflict in making these appointments, in a legal sense.

    I think my colleague from the Bloc would concur that when we're talking about a division of powers situation, these judges then determine.... You just appoint federalist judges, and the political nature of these individuals' Weltanschauung takes care of that, and to as great an extent in the charter litigation. It was refreshing to hear that what we are dealing with here is the political nature of the court.

    I have a concern about the proposals that are being made to set up committees that include judges, when we have the prime minister making these appointments, and there's the conflict he is in because of his own political party and the nature of our federal system. Also, when we have judges on these committees and they are making recommendations to the executive, they are in fact interfering in an executive function and destroying the separation that exists between the judiciary and the executive. I think that was made very clear in the case I commonly refer to as the “judges paying judges case”. It's just judges making up law in order to ensure that they can independently determine their salaries. It's clearly a political issue.

    In Manitoba, where I come from, we have a system where judges, members of the bar association, members of the law society, and three lay people are involved in the selection process. They conduct their hearings in private, because many of the individuals who are applying are members of the bar, and they don't necessarily want their partners to know that they want to bail out on them. But when we're dealing with the Supreme Court of Canada, it's a different kind of situation.

    I'd like your comments on that, if any of you are familiar with the Manitoba situation, and also on my concerns about the conflict of interest judges find themselves in because they are now making recommendations to the executive on the appointment process.

    Do you have any comments on those two issues?

    Prof. Peter Russell: I'll comment on the judicial appointment advisory committees that exist in the provinces. As you say, I was very involved in introducing the Ontario one, and in designing it and chairing it for three years. It has a majority of lay people, with 13 people on it; seven are lay people and the other six are lawyers and judges.

    You're quite right, we always interviewed in private, for the reason you stated. You couldn't get people coming forward, at least not for the Supreme Court, but for the provincial court. I'd say that if you introduce that system--as I dearly hope you will recommend it for the selection of federal appointments to the highest courts of the provinces, the provincial courts of appeal, and the provincial superior courts--again, the process would be interviewing in private.

    I agree with you entirely that when you come to the Supreme Court of Canada, you're at a different level. These appointments are among the most important positions in Canada. I would say that for a justice of the Supreme Court, who might be there for 15 years, the position is only exceeded in importance by a prime minister, an external affairs minister, a minister of finance. It's up at that level.

    This is a huge function. We should be mature about that. We should see the people, who have come to light and have been selected as being up to that kind of a huge responsibility, and have a look at them before they go on the bench, in my view.

    As soon as they get there, we examine them minutely. Then we find that they have different points of view and different styles, and so on. I see nothing wrong with doing that in public.

    As for judges being involved in that process, Mr. Toews, I don't have any difficulty with that. I have difficulty with an advisory commission made up solely of judges. Under the current system, the people who are consulted, automatically, I know, by the justice department and the prime minister, are the current incumbents on the Supreme Court.

    If you read the recent biography of our late Chief Justice Brian Dickson, you'll see very carefully the systematic consultation of the judges.

    What I don't like is when the judges are the only people involved. I don't have, as you seem to have, a very fundamentalist notion of the separation of powers. I don't think that's part of our constitutional system.

    Our prime minister sits in Parliament, thank goodness, and so do all of the cabinet. They must maintain the confidence of the legislature. The legislature and the executive are bound together. We have used our judiciary in different ways outside of the courts, through royal commissions, and so on.

    I don't have any problem if very experienced jurists play a role in selecting and giving advice.

  (1210)  

    Mr. Vic Toews: Because my time is very limited--

    The Chair: Don't even think about it, Mr. Toews. Mr. Toews, please, we're over seven minutes.

    Do any of the other panel want to add or reply to Mr. Toews' series of questions?

    Yes, Ms. Weinrib.

    Prof. Lorraine Weinrib: Yes. Thank you.

    In terms of the public dimension, I think there is no question that it would change the pool of people who would come forward. I think that's inevitable. It may be a price that we would be willing to pay, but we have to look at the kinds of questions that would be asked and the deterrence factor that would be created by that kind of step.

    In terms of the expertise of judges, sitting judges are in many ways the best people to analyze the judicial talent of particular nominees. If you want a brain surgeon, it's a good idea to consult other doctors and not your plumber.

    A voice: Unless he has had brain surgery.

    Prof. Lorraine Weinrib: A recipient of brain surgery might have a view, but I think for the complex set of talents, the legal expertise, the ability to write clearly, to think clearly, and to interact with others in the deliberative process that takes place on a collegial court of nine, these are characteristics, talents, and abilities that other judges can help us understand and assess.

    I think a system controlled by judges, as there is in Israel, has been subject to criticism, but one can look at that model and see its strengths and its weaknesses. I think the idea of excluding this, on an understanding of separation of powers, would be denying some of the best insight that we could access, in terms of deliberating on the most appropriate nominees.

    The Chair: Thank you.

    Professor Ziegel.

    Prof. Jacob Ziegel: I don't fully endorse Professor Weinrib's approach to this issue. While I certainly have no objections to some judicial representation on a selection committee, I would be much opposed, as I believe Peter Russell is, to the committee being dominated by judges. In fact, when the committee that I was a member of in the 1980s discussed the issue, there was concern whether, if the committee included a member of the Supreme Court of Canada, this might either intimidate the committee to such an extent that it wouldn't be willing to exercise independent judgment or, conversely, the representative of the Supreme Court might feel insulted if his or her views were being ignored.

    But I want to raise a broader issue. My colleague seems to suggest that judges are the best judges of prospective appointees. I beg to differ. This would be true if you were only concerned with technical issues of law, or if you were solely concerned with questions of collegiality, although even that is debatable. No doubt there is still an important residue of purely technical questions of law that have to be decided by the Supreme Court. It hasn't been sufficiently stressed that our Supreme Court, unlike many other final courts of appeal, still continue to deal with a substantial number of private law issues, including appeals on questions of civil law from Quebec, so we do have to bear this in mind.

    But leaving aside its private law functions, I think in the constitutional sphere, and I agree with my colleague, Manfredi, the political functions of the Supreme Court--and I use “political” not in a pejorative sense but in the finest sense--are of overriding importance. The longstanding U.S. experience tells us that often the best judges in dealing with constitutional issues are not the ones who have had prior judicial experience but the ones who have thought most deeply about the nature of constitutional requirements of a constitutional system. We take celebrated names like Louis Brandeis, Frankfurter, Chief Justice Hughes--these are all people who came to the court without having, if I remember correctly, any prior judicial experience, but nevertheless made their abiding mark on the court.

    I would anticipate a mix of members of the Supreme Court. Prior judicial experience may be extremely valuable, particularly when it comes to issues of private law, and also helpful because we do have an established track record. On the other hand, it may not be sufficient, and we should aim at having a good mix. Indeed, I have heard it suggested by British authors that given the prospective constitutional functions of the new British supreme court, they might even consider appointing lay persons. I think that's a very stimulating idea.

    I'm not one of those people who believe that legally trained people have a monopoly of wisdom when it comes to constitutional matters. I think a well-trained, intelligent person--for example, political scientists--can evaluate and deal as effectively with constitutional questions as many lawyers. In fact, in listening, I often learn much more from, dare I say it, my political science colleagues than I sometimes do from my legal colleagues.

    So I think there is a particular distinctive function in dealing with constitutional questions, particularly the ones that are the most delicate and most controversial, where I think a broad background and broad appreciation of the multiple facets of life are more important than even prior judicial experience.

  (1215)  

    The Chair: Thank you. We'll go to Mr. Marceau for seven minutes.

    I hope colleagues don't mind the extended answers. It's very valuable input we're receiving here, so I'll be strict with the members on the seven minutes and the witnesses can give us their best.

    Mr. Marceau.

[Translation]

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

    I would like to thank the witnesses. It is very nice to get back to considering the motion that was unanimously passed by the House of Commons and to see that from the outset, the discussion is at such a high and serious level. I wanted to thank you for that.

    By way of introduction, I would like to go back over the reason why this motion was presented. That was already mentioned, as a matter of fact, by Professor Manfredi. People are under the impression that the courts are political, particularly the Supreme Court, because its decisions have such a significant impact on society. It plays a role that could be described as political if you consider that the word “political” comes from the word “polis”, which means “organization of the city” in ancient Greek. The Supreme Court thus has an important role to play. People who met with us often said that they would like to know at least what is going on because as citizens of the city, they are entitled to that. In addition, they would like to have a say at some point in the process for selecting these people with so much power. That is where the motion comes from. The analogy of the neurosurgeon who chooses himself is not relevant. A neurosurgeon influences only the life of one person, whereas a judge influences an entire society. It is totally different.

    That said, Professor Russell, in your very interesting presentation, you spoke highly of the German model. The German model of course provides a role for the Bundestag, which houses the elected representatives, but it also provides a role for the Bundesrat, the lower chamber where the States, or Länder, are represented. Could you tell me what role you see for the provinces? Around 15 years ago, there was a lot of debate about constitutional accords. The Meech Lake Accord gave the provinces a direct role. The Beaudoin-Dobbie committee, if I recall correctly, suggested the same thing.

    The Supreme Court is often called upon to rule on division of powers issues, not between the executive and legislative branches, but between levels of government. Currently, the federal government alone chooses the members of the organization that arbitrates in disputes between the provinces and the federal government. That appears to me to constitute a form of conflict of interest. We have seen the role that parliamentarians could play. I would now like to know what role the provinces, which represent a very important level of government, could play, in your opinion.

  (1220)  

[English]

    Prof. Peter Russell: May I reply in English?

    Mr. Richard Marceau: No.

    Voices: Oh, oh!

    Prof. Peter Russell: That's good, but you'd hate my French.

    I wouldn't recommend the German system. I agree entirely with my colleague Professor Weinrib that I can't see transplanting that, although I think it served Germany well for their constitutional court. What I suggested in my own paper, and it's just a thought for you to consider, is to have a judicial selection committee or commission, whatever you want to call it, with parliamentarians and some jurists and experts, and have also the Council of the Federation, which is a new part of our constitutional landscape. I know it's not in the Constitution, but it's a creation that's come out of the federal system in the last 18 months or so. Give it a role in this commission that's going to select the judges, either having representatives on it or choosing people to go on it, or something like that. It might not be directly representative. So I think that's where to look now.

    I think it's important, though, that the provinces be involved. I believe this is a federal country, and this is a court that interprets a federal constitution that has very great meaning for the provinces, as does the Charter of Rights. It's often provincial laws that are challenged in court and overridden or knocked down by the Supreme Court.

[Translation]

    Mr. Richard Marceau: So, if I understand what you are saying, the provinces absolutely have to play a role, and for that, you are suggesting, among other things, the creation of the Council of the Federation.

    Clearly, we are in a situation in which there are two legal systems: common law and civil law. There are often debates in Quebec over whether it is actually pure civil law or whether we are overly influenced by common law. I do not want to get into that debate, but how can we ensure that the process takes civil law fully into account, or the dimension that concerns Quebec only, because only Quebec has civil law?

[English]

    Prof. Peter Russell: I don't think we have to do anything new there. There is a section of the Supreme Court Act that is not in the formal Constitution, although I think most of us as constitutionalists think it's very close to being constitutionally entrenched, that requires that three justices of the court--at least three, or it could be more--come from Quebec. If as a jurist or lawyer you had your professional career in Quebec, you'd know the civil law system.

    So that's there now. That's a safeguard now. If a justice from Quebec retires and leaves the court, then you can be sure you're going to be choosing someone with a background in civil law. So that's already there.

  (1225)  

[Translation]

    Mr. Richard Marceau: Okay.

    I would like to hear what Professors Ziegel and Manfredi have to say on a potential role for the provinces. Do you agree with Professor Russell, that given the fact that the provinces have an important role to play and that provincial statutes are often those that are challenged, provinces should have a part to play within the process?

    Prof. Jacob Ziegel: I will answer in English.

[English]

    Yes, I entirely agree. In fact, in the paper I wrote for the Institute for Research on Public Policy, I made it very clear that I thought there should be provincial representation on any selection committee.

    I want to raise another point that I think is important and that hasn't been discussed here at all in any of the recent constitutional discussions, and that is whether the time has come to split the role of the Supreme Court to establish a separate Supreme Court to deal with private law issues and another court to deal exclusively with constitutional issues.

    My background is primarily private law, not public law, but I often do get the impression, when reading the decisions of the Supreme Court in the private law area, that the Supreme Court hasn't had enough time to consider the full ramifications of the private law issues. It's too busy dealing with criminal law matters and constitutional law matters to leave anything but a very limited amount of time for private law issues.

    I hope that at some appropriate time this committee or another committee of Parliament would take a closer look at this issue. I know it was debated back in the seventies, because a former colleague of mine at McGill law school was involved in the discussions at that time. In fact, in Canada there is a common law tradition of fusing the private law appellate functions with the constitutional functions. That may have been perfectly valid in an era when constitutional issues did not predominate, but that era has gone. In Canada today, the most controversial issues, and by far the most complex issues, are in the constitutional area.

    So I think there is much to be said for a perception that we should have a separate Supreme Court to deal with the constitutional issues and another one for private laws. If we did have a separate Supreme Court for private law issues, I think that would enable the court to play a much more generous role in dealing with issues such as those raised by Monsieur Marceau; namely, the protection and promotion of the civil code and those areas that are highly relevant inside and outside Quebec.

    I have to admit, in all honesty, I do not perceive that the Supreme Court, in its present complexion, with all the challenges and all the demands on its time, can do adequate justice to all of the many roles we expect it to play.

    The Chair: Thank you for that.

    I'm going to go to Mr. Nystrom for seven minutes.

    Hon. Lorne Nystrom (Regina—Qu'Appelle, NDP): I want to welcome the witnesses, and I appreciate your comments.

    I welcome back Professor Russell, who was here many times on our constitutional debates back in the 1990s.

    I think one of you said we are the only constitutional democracy where the prime minister has the authority to appoint justices to the Supreme Court, and I want to go back to a comment made by Professor Manfredi when he said--I made note here--the process is already political.

    Are you agreeing with the suggestion, for example, that was made by Stephen Harper, who is the leader of the opposition, a few months back when he said there is a Liberal conspiracy to put Liberal judges on the court who'll advance such agendas as the gay rights movement.

    Do you think there is political evidence at all that there has been a conspiracy by any of the former prime ministers to politicize the court in that way? This is what the leader of the opposition had said, that there is a conspiracy to advance certain agendas such as the gay rights agenda. If that process is there, what evidence is there of it?

  (1230)  

    Prof. Christopher Manfredi: When I said the process was political, what I meant is that factors other than simple legal ability are taken into account in the appointments process. Traditionally those have been regional concerns, they're demographic concerns, and they may indeed be partisan concerns.

    “Conspiracy” may not be the correct word, but I think it's probably the case, and Professors Ziegel and Russell have done the best research on this, and I think every social scientist who has studied this has shown that whether it's a U.S. president or a Canadian prime minister, they appoint people whose views are as close to theirs as they can predict, whether it's on issues of federalism....

    If one looks at a case like the patriation reference, for example, all of the Trudeau appointees who are from central Canada gave the federal government both the legal and the conventional right to patriate unilaterally. Those who were the leftover Diefenbaker appointees from peripheral provinces gave a no to both questions, and those who were in the middle gave sort of a mixed response to that.

    So I think it would be unusual to think the prime minister doesn't take into consideration, to the degree that he or she can, the degree to which the views of the potential appointee and him or her are parallel, whether it's on federal-provincial relations or whether it's on rights issues.

    In fact, when social scientists study judicial behaviour, they use the party of the appointing president or prime minister--depending on what they're studying--as a proxy for the individuals' political views, and it works.

    Prof. Peter Russell: In Canada it doesn't work--that is to say, we know now that with the Supreme Court appointments you can't predict which way the Supreme Court justice will decide by knowing he was appointed by the Liberals, so he'll be on the left, or by the Conservatives, so he'll be on the right. That kind of ideologically driven selection, which is characteristic of the American process, has not been characteristic of the Canadian process at the Supreme Court level.

    The bad political influence we've had is a step down from the Supreme Court, in our senior appointments in the provinces, both at the trial level and at the Court of Appeal. There it's just a matter of the old thing that I call “grubby patronage”, and it only happens in certain provinces where political ministers weigh in.

    For Jacob Ziegel and I, this is not gossip. We've pinned it down and we wrote an article on it. Ministers weigh in, and despite hard work by the justice minister in finding people of great merit, they insist on someone who is not of great merit but is a friend of that particular minister from that province. That happens far too often in those appointments, and I really think Canada has to do better. The provinces have cleaned up their act--almost all of them--but we haven't at the federal level.

    Jacob Ziegel and I have been at justice ministers, Liberal and Conservative, about this for a good part of the last 20 years, and we'll still keep pressing. But it's not at the Supreme Court level that this patronage gets into the act.

    Hon. Lorne Nystrom: My legal adviser, Vic Toews, said that Mr. Harper was wrong: it wasn't conspiracy; it was grubby patronage. But that's not at the Supreme Court level.

  (1235)  

    Mr. Vic Toews: I said “grubby patronage conspiracy”.

    Hon. Lorne Nystrom: I wanted to ask you another question along that line, because this is one of the big debates in the United States. You can use the abortion issue as one of them. Is there an ideological drive to who is on the Supreme Court? I think this is what the leader of the opposition was getting at, because he has a certain very conservative view of a number of these issues.

    But I wanted to ask you, do you think it would be a violation of judicial independence to ask a potential judge, if we had a parliamentary hearing or if we had a commission that might be public, how he would decide in a future case, or to select a judge on the basis of his personal ideological beliefs and writings he's made in the past, e.g., on the gay rights issue or the abortion issue?

    This follows up my first question. Whether or not there was a conspiracy, as alleged by the leader of the opposition, on gay rights, let's put it aside; I think that allegation reflects what his point of view is. Would it be appropriate to ask prospective candidates before a committee, if we had one in public or in private, or indeed a commission in public or in private, something about their previous ideological beliefs and how they might interpret a future case? This is something I've had asked of me by a lot of people.

    I guess my time will almost be up. I wanted to ask one other little question as well that nobody has raised yet. Is it wise or not to consider a term limitation on Supreme Court justices? That's a question we might need some advice on. There's a limitation now, you might say, at age 75. But conceivably you could be on the bench for 40 years—or for someone as wise as Mr. Russell, maybe 50 years.

    I would like that responded to as well. But I would like you to respond to my first question first, because it follows my....

    Prof. Christopher Manfredi: I think you could ask that question, but I think it would be perfectly acceptable for a nominee to refuse to answer questions about a case that might come before the court for which he or she is being considered. If it's a purely hypothetical question—“There's an issue out there; how would you decide it?”—I think it would be perfectly reasonable for the nominee to refuse to answer a direct question like that.

    I think it's reasonable to ask nominees what they think about reasoning in past cases, or, if they have a written track record, to ask them to justify the positions they've taken in the past so as to get an idea of what the basis will be for the kinds of decisions they'll make and what their judicial philosophy is. I think there's nothing particularly wrong with that. Politics is sometimes divisive and conflictual. There are big issues out there, and they're going to come through whether it's in a judicial appointments process or any other kind of committee hearing over legislation. I don't think we can avoid that.

    Prof. Lorraine Weinrib:

    If I may, let me add that I think this is a very important issue. There is either expressed or inferred in some of the statements that have been made the idea that constitutional judicial work is less “legal” than other kinds—perhaps on private law questions or federalism questions.

    My background is that I was a constitutional litigator for 15 years in the Ontario government before I became a professor. I litigated cases in the Supreme Court of Canada on the structure of government—I was on the patriation case, for example—federalism cases, and charter cases in the early period.

    To a political scientist looking from the outside, it may well look as though judges are just reaching conclusions by going through some sort of legal mumbo-jumbo, but what is really happening is that their personal or their political or their partisan preferences are driving the analysis.

    There are so many counter-examples of this. Professor Russell commented that there are so many judges who have been appointed with the design or the intention or the expectation that they would have a certain approach, and that fails. But we know of many very important cases in the Supreme Court of Canada where personal views on what would be the political issues—whether abortion is a good thing or a bad thing, whether we should provide abortion on these terms or those terms—or their personal preferences or their political views of what the law should be turned out to be absent from the actual legal analysis and the conclusion they met, because there is a legal framework of analysis here.

    There is a legal methodology. The charter sets contours. Within the contours one has discretion, but the charter isn't a free-for-all. I think it's very important for you to know that for some people who have been in the system and watch it closely—I teach constitutional litigation—it is possible to have the view that this is not just political.

    Concerning prime ministers appointing judges who have similar views, well, we all talk about accountability. This is the accountability. An elected prime minister, who is accountable, has a certain view of what is strong judicial talent and of who has demonstrated that talent and expertise. Of course, this prime minister would be mad to employ somebody he thought was not a good judge, in his sense of it.

    This is why I think there should be experts in the law on whatever type of committee and evaluation you set up. I'm not suggesting that judges or law professors should dominate these committees, but this is very important input. We don't want to have Supreme Court judges who cannot write a strong, cogent legal argument.

    Let me just respond to this question, which is related, about what kinds of questions can be asked. It's a political question to ask “What do you think of gay marriage?” or “What do you think of abortion?” or “What do you think of child pornography?” I read Hansard. I see how members of Parliament discuss these issues. I read the newspapers and their public statements. Judges simply don't receive the issues in that way.

    The same-sex marriage reference will come to the Supreme Court of Canada with 50 or perhaps 100 boxes of expert material and legal argument. It's simply ridiculous to think that none of that matters. The issues will be argued on the basis of the equality clause of the charter: that there be no discrimination on the basis of personal characteristics that are unchosen or are unchangeable unless at unacceptable personal cost. History of discrimination, history of prejudice, history of stereotype, history of religious vilification: those are the issues that will go before the court.

    I could do this in terms of all of these other hot-button issues. The legal parameters of the analysis, as argued and as deliberated upon by the courts, are simply very different from the political question.

  (1240)  

    To ask a judge what he or she will decide is actually incoherent because a judge does not know what particular issue, what argument, and what evidence is going to come in the future. I think it's inappropriate to think you should be able to assess that. You have to assess the judge's ability to decide the case against personal preferences and against partisan claims and to perform the legal function with expertise, with sensitivity, and with empathy for the claim that's coming before the court.

    This is what makes judicial appointment so important, because you want your issue, when it comes up, to be understood, and you want legal analysis to be applied to your claim. First of all, you want to win, but second, you want a quality of adjudication that applies the same rules and the appropriate rules to every case.

    The Chair: Professor Ziegel, did you have something you wanted to add there?

    Prof. Jacob Ziegel: Yes, I'll just add my ha'penny's worth about the questioning of candidates because it seems to recur. I too would have strong reservations about asking candidates to indicate how they would ask potential questions that might arise before the Supreme Court. I think American experience shows that most candidates will refuse to answer the question, very understandably, on the grounds that they should not prejudge an issue unless and until they're actually appointed to the Supreme Court and the question comes before them.

    While fully allowing for my colleague's concern about and commitment to learning about a candidate's background, I think ideology is important. If it isn't important, then a lot of people in the United States are wasting a great deal of time debating the issue of appointments to the Supreme Court. In fact, the question of whether past record and ideology are important in the appointment of the U.S. Supreme Court has been a debating issue for decades. I think it was Mr. Justice Frankfurter who said that you couldn't possibly predict how a candidate would perform once appointed to the Supreme Court, but there are a great many constitutional scholars who take a very different view. The predominant view is that background, past record, can often be a strong indication of what may happen in the future, but it's not, to be sure, a scientific approach.

    I think the notion that our past prime ministers have sensitively calibrated the prospective performance of each candidate...I wish it was so. I am myself deeply skeptical. There have been some appointments in which I've had some interest--not just me; lots of others. There has been great puzzlement by observers of the Supreme Court scene as to why this particular person was chosen. What was it that was so distinctive and promising about this particular candidate that made him or her particularly suitable for appointment to the Supreme Court? I think we ought to be quite realistic about what's gone on in the past.

    It has been, as I said in my opening statement, a highly secretive system. It's all very well for prime ministers and their supporters to say, oh yes, we are most careful; we screen, we ask, and we inquire. But we don't really know because nobody keeps a written record. Not that I want to suggest for a minute that even if they did, this would be an adequate justification. What I do want to emphasize is my personal skepticism that a process with all those fine values that are often ascribed to the prime ministerial search for appointees is in fact what has happened in the past.

  (1245)  

    The Chair: I'll look to the government side for a seven-minute round.

    Mr. Lanctôt.

[Translation]

    Mr. Robert Lanctôt: I think we're touching on something important when we're dealing with an institution such as the Supreme Court and we have to ask ourselves where we stand in comparison with other countries that are attempting to make this aspect of the appointment process much more democratic. There is a sentence in Ms. Weinrib's statement that attracted my attention: it is the one where she asks what the advantage is in having parliamentarians involved in the process.

    We know full well that all of these appointments and the Supreme Court itself are politicized. You can't say that the Supreme Court isn't. How could you say that? I would like to ask the other panellists what advantages they see in having parliamentarians participate in this type of commission. I would also like to ask Ms. Weinrib to tell me, on the other hand, what disadvantages she sees in having parliamentarians involved in this type of commission.

[English]

    Prof. Lorraine Weinrib: I think these are exactly the questions that have to be asked, because this is a very delicate process.

    It seems to me it's very important to have parliamentary engagement, participation, in the process so parliamentarians know more about it and so the work of the court isn't so exotic and foreign. After all, the Supreme Court of Canada strikes down statutes on federalism grounds and on charter grounds. It also interprets, and now of course, as you see in the judges reference and the secession reference, the court is filling in gaps.

    This is why I stressed at the beginning of the end of my opening comments that our Constitution is in a sense a work in progress and that the Supreme Court of Canada is the guardian of the Constitution and is developing it. Our Constitution is not, as some people think of theirs in the United States, a petrified piece of paper that holds all its meaning in itself, something we ask the judges to approach like archaeologists. This is a living system.

    So it's very important to help members of Parliament, many of whom now think the court has usurped their historical role because the court is striking down statutes, to see what it is judges do. I think that by participating in the evaluation of different candidates for this high office, members of Parliament would get closer to the legal dimension of what it is judges do, particularly at the highest level.

    I'm not denying there is enormous political importance to what the Supreme Court of Canada judges deny. It would be ludicrous to say it's not political in that dimension, but in fact the Canadian charter, which was produced with exceptional public participation and involvement and approval--the only really domestic national Canadian constituent engagement we've ever had--expressly gives the judges this mandate. We should not continue in Canada in a situation where members of Parliament think there's a conspiracy the court is carrying on or that there's a displacement of parliamentary authority.

    I think there is a tremendous advantage to having a multi-faceted, complex, very high-level committee in which members of Parliament actually look at the dossier, look at the c.v., look at what people have written, and look at the kind of life people have built. When you have, as we have under the charter, so many minority issues coming to the court, can we have confidence that a particular candidate actually knows about minorities in Canada, has some sort of sense of our demographic complexity and our regional complexity?

    The quality of life for women in Canada was transformed dramatically when we began to have women on the courts, people who understood women's lives. Professor Manfredi has suggested that this is political because it's demographic. It's not just political. There is all sorts of literature on the fact that this has improved the quality of legal analysis because there's somebody up there in the court who can imaginatively enter into and have empathy for the actual claims real people are bringing to the court.

    I would just welcome the idea that parliamentarians would have the opportunity to enter into this process of selecting judges. We have many, many people who are qualified, but who are the best? What's the best mix? What talent is the court now perhaps missing in legal expertise or life experience and with respect to private law, public law, and civil law? What do we need to fill out the talent that's left when there is a particular resignation? I think that's what we're looking for in actually creating a process to add to the use of this naked power the prime minister now holds.

    What are the disadvantages? The disadvantages are, I think, in giving parliamentarians an opportunity to target particular nominees. This is going to affect the quality of the nominees who will put their names forward.

  (1250)  

    In the society in which we live, where there's so much access to private information, I fear that with a process where there are only parliamentarians and the press, etc., there might be a tendency for the process to become as personally invasive as we've seen the American system become that it will again deter quality people.

    Another disadvantage is that if there's a stage where it's purely parliamentarian, the fact that parliamentarians agree on a candidate will be enough.

    This, I think, is the real problem in the United States: the fact that a political affirmation has actually taken the appointing process away from merit and has taken the process away from exceptional accomplishment and exceptional talent. The idea that on a partisan basis you can actually get somebody through the committee, who many legal experts think is simply not qualified, is a real danger sign.

    I think we can learn a lot from the best of the American process, but we need American experts to come and tell us what it is. Then we have to figure out what the made-in-Canada mechanisms are to maximize the benefit of having the parliamentary engagement.

    I think you really have a lot of work to do in terms of figuring out what the best process is. I think, yes, include parliamentarians, but, no, don't politicize in a way that will alter the pool of talented candidates or that will politicize the process so much that what we really think of as the merit and the strength of the court will be diminished.

    The Chair: Okay. I'll look to Mr. MacKay for three minutes, and then go to Mr. Dion for three minutes. That's three minutes, so at a minute and a half I'll be looking for the question to wrap up.

    Mr. MacKay.

  (1255)  

    Mr. Peter MacKay (Pictou—Antigonish—Guysborough, CPC): I thank all of the witnesses.

    You can imagine the position of trying to ask a question in three minutes that will encapsulate all of the things that are racing through your mind after such brilliant commentary. We really greatly appreciate your input and presence here today.

    I want to hone in on the point where Professor Weinrib was going, and that is the practical task of the committee, a parliamentary committee, to fit into this continuum. I believe you described it as a maturing process or a task that very much is coming from the historical evolution of where we want to be in conjunction with the constitutional requirements, the input from provinces, the very important qualification issue, if you will.

    To that end, is it something the parliamentary committee should be tasked with when it comes to such considerations as the philosophical bent, the assessment of previous decisions, or judgments given by a judge who may be up for appointment, getting to the very root of excluding or vetting, if you will, and I like the colourful expression, the “grubby patronage”? There are certainly instances that we can think of where judges may have had quite an active political life prior to their appointments at a provincial or even a provincial Supreme Court level that might automatically disqualify them, for example, for a Supreme Court of Canada appointment because they'd managed somebody's campaign 20 years previously.

    I guess I'm saying there's a balance that always has to be struck. Judges, in many cases, in their previous lives were quite politically active. It should not exclude them from elevation to the highest court in the land.

    In calibrating the judicial appointment process, are we moving too quickly if we insert a parliamentary committee to be overly empowered with this process, as opposed to simply saying we have a system now that allows provincial attorneys general to put forward a list--in consultation with bar societies and judges in that province and with political input at that level? Simply insert the parliamentary committee on that continuum and not empower them to veto, but to shortlist and to make recommendations.

    To finally encapsulate the question, Mr. Chair, how far do we go in terms of examining the existing bench, as is the case now, and having that factored in? That is to say, if there are judges who are missing from the bench, whether it be the regional or gender definition that is factored in, should we be factoring in the philosophical benchmark? Is there a benchmark here that says we're missing a real libertarian on the bench these days, or we're missing somebody who has specific knowledge of aboriginal issues? Is that a factor that should be considered by a parliamentary committee as well?

    Thank you.

    Prof. Peter Russell: I guess I'm one who thinks the parliamentary committee or the parliamentarian should be part of another process. I am not a fan of just parliamentarians alone doing questioning of candidates or of nominees. I prefer the interaction of parliamentarians with jurists, lawyers, judges, and lay people. I have thought about this. I think the very educational things that would go on in the interaction between and among these people, as Professor Weinrib indicated, is very, very positive.

    I don't like to see the idea of a parliament doing it here and then some provincial list coming in from provincial attorneys general. That, to my knowledge, hasn't been done, and I wouldn't encourage that to be done. I would encourage provincial input and participation in a committee itself.

    This shouldn't all be subterranean. Are the provinces consulted or not? Right now, it's all guesswork. I think we should be open and adult about this. What is the process? Who are the people who consider the candidates? We shouldn't do it in such a subtle way, sir. It should be more open and clearer.

·  (1300)  

    Mr. Peter MacKay: More open and more set, written down in a formula?

    Prof. Peter Russell: Well, yes. With the judicial appointment committees that were brought in by Mr. Hnatyshyn in the 1980s, they've evolved a bit. You're adding on to that process. Those aren't good committees in the sense that they don't have any real nominating or approval function; they're strictly screening bodies. But you could develop something now that involves the various players that I think should be there and that I think you think should be there, and try it on and see how it goes.

    Prof. Jacob Ziegel: Mr. Chairman, with respect, I think Mr. MacKay is confusing the issue of the most appropriate method of selection of Supreme Court judges with the appointment of lower court judges.

    The remarks that Peter Russell made earlier about the role of patronage were addressed solely, as I understand him, to the current system for appointing some of the provincial court judges. Neither of us were remotely addressing the issue of appointments to the Supreme Court. So I think those are two entirely different questions. I do want to fully endorse Peter Russell's earlier plea for reviewing the system of federal judicial appointments at lower courts, but this is not the question that is before us today.

    Mr. MacKay was asking whether we are opposed to appointing someone who has a strong political background. The answer is, of course not. Some of the finest members of the U.S. Supreme Court, the finest in the sense that they fulfilled a very distinctive role, are people with a strong political background, such as, for example, Chief Justice Warren. It was during his watch that the Supreme Court adopted the famous Brown v. Board of Education case.

    So no, of course not. The fact that somebody has a distinguished political background should not be held against them. What Peter Russell and I have said in writing many times, though, is the fact that somebody has been a member of the appointing party should not be the primary reason he is appointed, nor the fact that he was a friend of a cabinet minister.

    But I do want to emphasize that I do not perceive that these are remotely the issues that we are discussing today, and certainly my opening remarks focused exclusively on the question of the most appropriate means of selecting members of the Supreme Court of Canada.

    Prof. Lorraine Weinrib: I'd like to make one very short point.

    We don't have to recreate the wheel on this. Other countries have thought about this deeply and have models we can look at.

    We can bring in experts. In fact, this is what we're doing at the University of Toronto on April 19. We're bring in experts from other systems to tell us how their systems of appointment were developed and how they operate. Most importantly, these foreign experts can tell us about more than just the formal structure. They can tell us about the informal structure, the informal activity that takes effect around the structure.

    The only concern here is that this takes time. I know we're intensely aware, since yesterday, that there are two appointments coming up. So the complexity of developing a process is coming up against a timeframe that may not be adequate.

    But all the things you're listing are things that other countries have set up very complex systems for. In a way, we can take advantage of the fact that we are coming to the point at which we're going to create a procedure after all these other countries with very similar liberal democratic aspirations have already done the work, done a lot of the thinking, and now are able to give us advice.

    So all your questions are ones that have arisen in other systems, and there are good responses in terms of why you choose to do one thing or another and how it works.

    The Chair: Thank you.

    Monsieur Dion, for three minutes, and we'll make a decision on time following that.

[Translation]

    Hon. Stéphane Dion (Saint-Laurent—Cartierville, Lib.): Thank you, Mr. Speaker.

[English]

    Professor Weinrib, I will quote you. You said that our Supreme Court has come to the “world stage...quite recently” and that “the court is emulated” and is looked on with “great envy”.

    Professor Ziegel has some reservations about that. So I would like to know if it's something intuitive that you are saying, or is it substantiated by solid studies? What are the criteria for deciding if a supreme court is of good quality or of bad quality?

    Assume now that you are right. Isn't it possible then that the quality of our Supreme Court is linked to our current process? If that's the case, in order to improve the current process, don't all of you think it would be wiser to start with the current process, to look at that? You said nothing about the current process, except to say that the prime minister decides. The prime minister decides after long consultations. Don't you think we should then maybe formalize the current process more, look at whether there is something that needs to be fixed, and if there is nothing to be fixed, change nothing?

·  (1305)  

    Prof. Lorraine Weinrib: That is a wonderful set of questions. Good.

    Absolutely, the first thing we have to address is what is the current process, and how is it that it has produced such a good court in the modern period? I think that's very, very important. But technically, in fact, all we have now is the prime minister's power; we don't technically have a formal process. So we have to formalize it. We have to bring in as much sunlight and participation as we can.

    The question of what is working well is a question we have to evaluate in terms of how we understand the strength of the court in the country and outside the country. I think very often Canadians are too bound up in the particularities to know how respected our Supreme Court is.

    Much of my career derives from the quality of the Supreme Court of Canada's work, because I'm invited to participate in other legal systems that have adopted what is understood as the Canadian model of rights protection, particularly in Israel and South Africa. These are systems in very troubled countries, much more complex and challenged than our own, and incredibly comparative. They are two of the most comparative countries in the world who looked everywhere and chose the model of the Canadian charter, and who cite the Canadian Supreme Court constantly. You can't present a case in South Africa and Israel without presenting the Canadian approach, either generally or specifically, if there's a specific judgment in the area.

    So in fact I can tell you that the respect for the Supreme Court is the highest kind of respect, because to copy, to emulate, to borrow, or to aspire to borrow from the Canadian system is the highest praise. It is not just words.

    I think you're right that there are features of the informal procedures, before the prime minister appoints, that we have to save. We'll have to consider at some point that too much sunlight may spoil the system; too much transparency may spoil the system; too much parliamentary involvement at a particular stage with too much partisan input might spoil the system.

    So I think your comments are very well taken, and I hope the committee will go forward, with this almost frightening complexity, to its task.

    The Chair: Professor Russell.

    Prof. Peter Russell: My main reason for modifying the system is to mature as a constitutional democracy. It's not that bad appointments have been made, and I've put this in my paper. It's immature, in my view, as a constitutional democracy to leave such an important appointing power without any checks or balances. I say in my paper that the power has not been abused, but I have one modification about the appointments. In my view, some are mediocre. Here's the problem, you see, and you're going to find it. If you were a professional lawyer you could never make the kind of comment I'm making now. My colleague, Jacob Ziegel, is a hero in my mind because he's candid. Most lawyers will always say the judges are terrific, because they're going to appear before them, and if they say a judge stinks, they're going to lose their case.

    We've had some appointments where the people in the province concerned said, “I can't figure out why that person...I mean, there are so many better people.” I think we should aim for the best. Often we get what is, in my view, the best, but sometimes we don't. We should always keep going for the best, but the system isn't designed that way right now. They can put aside people who I think have more merit. They do that, as far as I can see, for reasons that shouldn't count. That's why it should be changed.

    But I agree with you, sir, that we shouldn't rush. We should modify, not completely throw out, the existing system.

·  (1310)  

    The Acting Chair (Ms. Paddy Torsney (Burlington, Lib.)): Professor Weinrib, did you want to comment in response?

    Prof. Lorraine Weinrib: My job now is to teach students how to think about constitutional law and how the litigation process works. I have made a very long and detailed study of the Supreme Court of Canada, partly because I appeared so many times before the court in the early part of my career.

    I wouldn't say that every appointment is a stellar appointment. I agree with Professor Russell that our system, at its best, has produced wonderful appointments, but it isn't consistent. We have to capture the parts of the process that are now informal and that have managed to put together a court that functions collegially at such a high level. There have been weak links. This is clear, and no one will deny that.

    The complexity of creating the highest court of Canada is daunting because of the complexity of the country, because this is a general court of appeal, because there is civil law and common law, because of the federalism issues, the language issues, the aboriginal issues, and now the charter issues. There is such expertise that we require of these nine people, and of course they know that sometimes the country is on a knife edge. The responsibility that the courts had to carry in the secession reference is literally astounding. The state of the country lay in their hands. Who would have imagined when many of those judges were appointed that such a case could even arise?

    The design of our appointing process is a tremendous challenge. We are not, like the South Africans, dealing with a situation of disaster and failure. We're dealing with the need to actually make concrete the good things we have done in the past, to discipline the process so that these extraneous factors don't become dominant in any particular appointment and so that there's enough expertise and serious deliberation in these committees that we can produce a bench of nine who can meet the challenges our country gives them.

    The Acting Chair (Ms. Paddy Torsney): Professor Ziegel.

    Prof. Jacob Ziegel: I'm afraid I can't accept Mr. Dion's initial premise, which I construe as an argument in favour of paternalism. We've had lots of experience in Canada about the effects of paternalism. When I started my teaching career, professors were still appointed at the discretion of the dean or the president of the university and the rest of the faculty had no input.

    I would remind Mr. Dion about Canada's own political history. It's not that long ago when Canada had no elected government. The government members, or the representatives, were appointed at the behest of the Governor General or Lieutenant Governor, and it took a struggle of half a century to provide Canada with a democracy. So I'm afraid I cannot accept that initial premise at all, because, as I said in my opening statement, I believe it to be deeply flawed.

    We can't expect the Supreme Court of Canada to discharge its enormously important constitutional functions, with all the safeguards of due process and rule of law, as well as deference to the charter values, and in the same breath argue in favour of a process of selection that is inconsistent and incompatible with the very values the court is expected to vindicate. So my perception is that transparency and accountability in the selection process is of critical importance in its own right as a procedural mechanism, and I hope eventually it will produce better candidates than may be produced under the existing secretive system.

    Even if I were wrong, even if you could prove to me that there's some possible scientific method by which you could establish that a covert method of appointment invariably or efficaciously produces better candidates than a very transparent system, even then I would have to argue strongly in favour of the adoption of a democratic system for the same reason we have a parliamentary system. I recall Churchill's famous observation that democracy was the worst possible system of government except for every other. I think I'm inclined to say almost the same is true in terms of the system that I have argued for the selection of members of the Supreme Court.

·  (1315)  

    The Chair: Thank you.

    It's been a long three minutes, and those were great questions, Monsieur Dion, and we had great answers.

    I suppose we all wish we had more time, but we don't. I have an indication of a question from Mr. Marceau and one from Mr. DeVillers.

    I would ask you, if you will pardon the pun, to use your three minutes judiciously.

    Ms. Paddy Torsney: On a point of verification, what time are we finishing?

    The Chair: We're fifteen minutes late.

    Ms. Paddy Torsney: Can we go to 1:30 if we keep quorum?

    The Chair: We don't have a quorum problem at all.

    I'm going to insist on brevity for the two.

    Ms. Barnes, as well, you're on the list. We'll see how far we get with the first two questioners.

    Mr. Marceau, Mr. DeVillers, and then Ms. Barnes.

[Translation]

    Mr. Richard Marceau: My question is for Professor Weinrib.

    You said that the Canadian model was good, praised all over the world, etc. If it's as good as you say, how can you explain, in the words of Professor Russell, that Canada is the only constitutional democracy where the leader of the government has absolute discretionary power to decide who will sit on the highest court in the land? It's completely contradictory. If it's as good as you say, why are we the only ones to have this system?

[English]

    Prof. Lorraine Weinrib: Mr. Dion made a very wonderful contribution to this discussion by pointing out that it is not the case that the prime minister wakes up one morning and decides who to appoint to the Supreme Court of Canada. We do have established processes. Most of the appointments to the Supreme Court of Canada are made from the appellate benches in the various provinces. And we do have an informal system--it's not in the Constitution or in a statute--for appointing the appellate court judges that is much more rigorous than what we have for the Supreme Court.

    So we are not without a system. The problem is that we don't actually know what the system is, and we don't know whether it is consistently applied. I agree that some of the appointments have been surprising in the past, and some of them have not been of the quality one would want. That's absolutely true.

    When I speak about the stature of the court in the rest of the world, there are two things I'm referring to. First of all, the Canadian charter process was an amazing deliberative and comparative process, with public engagement, and it became the state of the art in terms of how to deal with rights claims in very complex liberal democracies that are pluralistic, diverse, secularizing, and egalitarian. So the charter became the blueprint for other rights-protecting systems.

    How does the Supreme Court come into that picture? The Supreme Court created the legal rules for litigating charter cases. The Supreme Court judges looked comparatively at how other systems protected rights. They looked at the international human rights-protecting system, they looked at the domestic rights-protecting systems under statute, and they looked at foreign jurisdictions. They looked at systems that obviously are companion systems to Canada within the Westminster model but also at systems in the civil law system in Europe. Our court developed a legal methodology for dealing with what looked like naked political preferences. It is that methodology that has been copied everywhere.

    You may be aware of the American case of Marbury and Madison. Our Supreme Court cases have now replaced Marbury and Madison.

·  (1320)  

[Translation]

    Mr. Richard Marceau: Okay, but if I'm understanding what you're saying, the rulings of the court concerning the Charter have been copied, but the process used for the appointment of judges hasn't. What you were saying wasn't clear in the beginning. I hadn't understood and I'm sorry.

[English]

    The Chair: Thank you.

    Mr. DeVillers, then Ms. Barnes.

    Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Mr. Chair.

    When the committee undertakes its study of the process by which our judges are appointed to the Supreme Court of Canada, my first query is something I learned from my two-year-old grandson: why?

    I assume, from this, that it's because we have a problem. Our system isn't functioning. I think Professor Russell partly answered my “why”, and that's to have a more mature democratization of our system. But in order to put it into context, I'd like to poll the panel, if I may.

    Professors one and all, you're familiar with the process of grading, and I wonder if it would be possible to ask you to grade, on a scale of one to ten, the performance of the Supreme Court under our present system of appointing justices.

    The Chair: This will be a recorded vote.

    Voices: Oh, oh!

    The Chair: Go ahead.

    Prof. Jacob Ziegel: It's an impossible question because the Supreme Court covers an enormous range of issues, all the way from perhaps reviewing the validity of a municipal bylaw, to questions of whether somebody was properly convicted, to very recondite questions of evidentiary law, to issues of civil law, tort law, contract law, and admiralty law. How can one make an overall assessment of the performance?

    I think it depends very much on the branch of law you're looking at and the particular issue before the Supreme Court. Does one evaluate it comparatively or solely in the Canadian context? Do you look at the Supreme Court of the 21st century or the Supreme Court of 50 years ago? I find it very difficult to give a meaningful answer.

    As I said earlier--and I want to re-emphasize it--whatever method of evaluating performance one adopts, even if we came to the conclusion, unanimously or otherwise, that the Supreme Court couldn't possibly perform any better, it seems to me the question is irrelevant in terms of process. To me, at any rate--and I hope to most others--the question of process in the selection of Supreme Court judges is at least as important as the issue of how the judge who has been appointed will actually perform.

    Prof. Peter Russell: Professor Ziegel is right. Anyone who follows the Supreme Court would have to give that kind of answer. It's a very dynamic process too. There are judges who are coming and going. There is quite a bit of mobility.

    I don't know the McLachlin court the way I came to know the Dickson court and the Lamer court, because I read most of their cases in the areas of interest, but that was all in public law.

    I'll just give you one reason I gave it quite a high mark. At the same time, I was also writing a book about Australia and the work of its court. What I've admired about our Supreme Court, particularly in the Dickson period and a little less so in Lamer's period, was the give and take in the judgments on the issues. I want to see a court reflect, in its reasoning, the main arguments that go on in the country about these issues. They have to come to a conclusion, and on the big decisions there will often be majority dissenting decisions. I thought it was a fairly well-balanced court, particularly on the charter.

    I'm a sort of middle-of-the-road fellow. I don't want the charter to be minimalized and I don't want every law to be knocked down. So I like the balance, and balance for the highest court in the land is very important. I saw that balance again in the secession reference on what kind of country we are--the weight to give to provinces in the federation, and so on. I thought it was well balanced on the big issues in our country. So I'd give it an A grade for balance.

    I haven't gotten to know the newest judges on the McLachlin court. I haven't read enough of their jurisprudence in my area, but it's only in the public law stuff that it interests me.

·  (1325)  

    The Chair: We have an A grade here, which is pretty good. I'll just leave the grading exercise, if that's okay.

    Did the A grade go to the Dickson court?

    Prof. Peter Russell: I gave an A to the Dickson court.

    The Chair: That's great. That's on the record.

    Ms. Barnes has a question. Mr. Dion has one too, but we're really belly up against the time and have to adjourn.

    Ms. Barnes

    Hon. Sue Barnes (London West, Lib.): Thank you, all of you, for your excellent ideas and things for us to consider.

    My question is a very practical one. You've talked about different types of processes that parliamentarians can have engagement in, some more direct than others. If you go to a selection committee that potentially someone is a part of, I would imagine, in that type of selection process, there would be more than one candidate marching through a process like that. If it was a parliamentary committee that looks at a candidate, then that's one.

    I'd like some comments about the impact. I'm very aware of the independence of the judiciary, their continuing careers, those who put themselves forward for the position and who might not obtain the position, the careers they have to go back to, whether it's at the court of appeal or in academic life, and the impact on them and the impact that such a process could have on them.

    I know there are two sides to this. Do you think that in aiming for the best we would be discouraging some people at the expense of the transparency and sunlight? On balance, is this worth the risk, literally?

    I know that's a lot, and I have to keep my questions short. I will keep quiet now and hope you can touch on it.

    Prof. Christopher Manfredi: There are two things that we haven't touched on that come up with respect to transparency. There's an argument that you would tend to get either what are called “stealth candidates”, that is, people who don't have very much of a record, or you tend to discourage those people who have very strong views on issues, who might also be the most intelligent and effectual individuals. You may end up excluding some people who you'd actually like to have in the mix.

    I think that is a real concern about transparency. I think the advantages to the transparency far outweigh those concerns.

    It's a real question as to what happens to someone who, for example, is coming from a provincial court of appeal, goes through the process, and then is rejected either anonymously, because they're not selected, or publicly. If they're publicly rejected, it might be very difficult for them to go back to their former judicial appointments.

    Certainly, Judge Bork didn't go back to his seat on the Ninth Circuit, on the DC Circuit Court of Appeals.

    A voice: He did.

    Prof. Christopher Manfredi: He did, for a while, yes.

    Prof. Peter Russell: I think the American experience is the one we have to think of here. It is a matter of being mature, in the sense that it is a huge honour to even be considered for one of the biggest jobs in the land; to be one of the two or three people, particularly from the largest provinces, say Ontario or Quebec, who is considered so outstanding as to be in the running. I think your question is important, but I think that's the point. If you have a look at two or three candidates and they're known....

    By the way, right now, we pretty well know the candidates. Do you read the papers? I mean, hell, you must read the papers. We know who is being considered.

    I watched the last Quebec round. I know the people who weren't considered, and some of them were disappointed. It's known all around the province who didn't get the nod. Life goes on.

    My feeling is that if a person is so shy about that kind of disappointment at the national level, I'll tell you, they're not ready for this work for the country. This is a huge job that they're doing for Canada, and they're going to be in the public limelight. If it bothers them so much that they might not get the nod, then they should stay where they are. Don't let them.

    There's lots of talent out there. There are lots of people who will throw their hats in the ring. I really don't think it's a critical problem.

·  (1330)  

    Prof. Lorraine Weinrib: I think it would alter the pool tremendously if there were public hearings where multiple people were asked questions and some were successful in getting an appointment and some were not. I think there is no question about that. I think it could affect the quality of appointments significantly.

    I don't think it's down. I think many of these people are not public figures. They would have absolutely nothing to gain by exposing themselves. They may be concerned about certain parts of their life that are completely irrelevant that they might be pressed on. I think we have to look carefully at it.

    I must also say, in the South African system, they interview a lot of people and people don't get appointed, and people who will eventually be appointed don't get appointed, but it's a different system. There are 14, it's a limited term, and it isn't done geographically. There's more a sense of “the next time”.

    The Chair: Mr. Dion has either a rhetorical question, an informed comment, or a very short question, as I'm looking for a very short answer. A very short answer, please.

    Hon. Stéphane Dion: It's not that I would dispute Professor Ziegel saying the current system is paternalistic, because everybody here agrees that at the end of the day we'll not change the Constitution and that the prime minister or the executive will make the decision. If we call that paternalistic, your own system is paternalistic anyway.

    What I'm saying is that the current system doesn't give the prime minister whatever he wants to do. Maybe there are some merits in making it more formal and in finding a way to improve it using some of your ideas. The question is, what are acceptable questions? Is private life acceptable? To justify the political philosophy behind a ruling in the past, is it justifiable? To take sides about a current issue, is it acceptable? To write your rulings in the coming years, is it acceptable?

    It's a question for all of you.

    Prof. Peter Russell: I don't know whether they taped the hearing for Ginsburg and Breyer in the U.S. I watched both of those on late night TV, as I'm not a good sleeper. They were terrific hearings. Just to give you an example, the kinds of questions that were asked were never, “How are you going to decide this case when it comes to the court, if you're on it?“ Rather, they were about the methodology and philosophy of interpreting constitutions and statutes: “What kinds of material do you think judges should take into account? What kinds of weight should be given to legislative intent in statute interpretation and in constitutional interpretation? How do you handle precedents?”

    I know that eyes are going to start to glaze over, but I found them fascinating public seminars on the challenges a judge faces in a high appellate court. But they weren't asked, “If this case comes up, how are you going to decide that case?” If someone had asked that, they'd just say, “No, I won't answer that question”. They weren't born yesterday; these are highly polished professionals you're going to have, and they know not to answer questions like that. People can ask them if they want, but then the people asking them look very foolish. And most politicians, if they're on television, don't like looking foolish.

·  (1335)  

    Hon. Stéphane Dion: Many of us would look foolish because we think those are the questions we have to ask.

    So I guess somewhere you need to clarify very clearly what is an acceptable question and what is not.

    Prof. Peter Russell: You could write down some ground rules, if it was a committee. I think they should forbid a question about, “How are you going to decide a case that's going to come up?” I don't think you need to, but if you want to do that, go ahead and do that.

    Prof. Lorraine Weinrib: I think there have to be very strict rules about the kinds of questions. The people who are proposing having public interviews are not going to like the discipline that a properly designed system will put on the kinds of questions that can be asked.

    What I'm seeing in the public statements being made by parliamentarians who are talking about the questions are hard questions about controversial issues in upcoming cases. That's completely unacceptable.

    The details are very important here. Of course, in the American system, it's only one person, and that person is much more likely to be affirmed than not. So that's a very, very different structure than having four people come up to a questioning experience and only one person getting the position. If you want the job, it puts pressure on you to give the answer that you know the questioner wants, which distorts the process.

    The Chair: Professor Ziegel.

    Prof. Jacob Ziegel: Thank you very much.

    If I can address myself to the last point made by Professor Weinrib, in both my opening statement as well as the paper I published in the IRPP publication, I did not favour a parliamentary committee being required to interview multiple candidates. I favoured a process of an advisory committee making the initial selection, and then the parliamentary committee being involved in the confirmation process. I still believe that would be the best system.

    But I totally agree with Monsieur Dion that whatever role the parliamentary committee plays, it should be done in a responsible, courteous, and restrained way. It shouldn't be a free-for-all.

    Having said that, let me add this. We shouldn't expect too much in this initial round. We're all going through a learning experience. It will take time for the new process to adjust and to mature, just as Canada itself has enormously changed and matured over the past century. We shouldn't expect miracles overnight.

    But at the same time I want to emphasize one of the concerns I have. We have a deep divide in Canada at the moment. The Supreme Court makes critical decisions that profoundly affect the things Parliament can do. I find that, in many respects, very unhealthy. Parliamentarians should have a much better sense of what the charter is about, how parliamentary legislation may impact on the charter, and whether parliamentary legislation is likely to be challenged in the Supreme Court.

    The Supreme Court itself, in recent years, has spoken about the need for a dialogue between Parliament and the Supreme Court. It seems to me an excellent vehicle for promoting that dialogue would be by conferring on Parliament an identifiable and an important role in the selection of judges of the Supreme Court.

    But I would, for my own part, emphasize my belief that Parliament needs to acquire much greater sensitivity and understanding of the impact of the charter on the parliamentary role than it has hitherto. Certainly I don't perceive Parliament's role as being a subordinate role; I think it is a coeval role, and it is that aspect of the parliamentary role that I'd like to see enhanced and promoted in the future.

    The Chair: On behalf of all of the colleagues on the committee and also in the House, I want to thank the panel. You've been an absolutely first-rate panel of experience and insight. Your remarks have been very helpful. Should we want to be in touch later, I hope you'll be able to assist us.

    Thank you all very much.

    We're adjourned till tomorrow for an in camera meeting on the same subject--tomorrow afternoon at 3:30, I believe.

    The meeting is adjourned.