Thank you very much, Mr. Chairman.
Thank you for this invitation to appear before the House of Commons Standing Committee on Justice and Human Rights concerning the federal judicial appointment process.
Our Canadian democracy is strong, in part because of its constitutional underpinnings, its respect for the rule of law, and the mutual respect extended by each of the three parts of government--the legislature, the executive, and the judiciary--one to the others. With respect to several matters, the three branches have interrelated but distinct roles to play. This is particularly the case with respect to judicial affairs. Once the Governor General signs an order in council naming a person to the federal judiciary, he or she enters the judicial branch of government and enjoys the rights and responsibilities accorded to the judiciary--independence and security of tenure, to name but two--outlined under Canadian constitutional law.
However, under the Constitution Act of 1867, part VII, the legislative and executive branches of government also have fundamental roles associated with judicial matters. Under section 101 of the Constitution Act of 1867, Parliament is charged with the constitution and maintenance of our federal courts as well as the determination of the salaries of federally appointed judges. The subject matter debated by Parliament and the passage of in December 2006 was an exercise of Parliament's competence in this area.
The executive branch has been charged, under section 96 of the Constitution Act of 1867, with an important responsibility with respect to judicial affairs: the appointment of federal judges. This prerogative has remained unchanged since 1867, with the Minister of Justice tasked with the responsibility of making recommendations to the federal cabinet for approval for the appointment of individuals to the federal judiciary. Constitutionally speaking, this legal power represents the heart of the federal judicial appointment process.
As of February 1, 2007, the Canadian federally appointed judiciary consists of 1,054 judges: 825 of them acting as full-time judges and the remaining 229 acting as supernumerary judges. The latter of course are those judges who by virtue of the Judges Act and recent amendments thereto have been able to elect to move from their full-time function to a reduced load given their prior service to the Canadian judicial system.
All of these judges must retire at the age of 75. Thus there is a constant turnover of judges, with ebbs and flows requiring executive action in the appointment of new judges to replace retiring ones, ones who unfortunately have died in office, and those electing supernumerary status. It's the responsibility of the Minister of Justice to make recommendations to the Governor General through cabinet to name individuals to these vacancies.
With respect to the timely filling of federal judicial vacancies, when this government took over after the last general election of January 2006, there were 23 vacancies for federally appointed judges. This government has proceeded, and will continue to proceed, with all due dispatch to fill existing vacancies. Since January 23, 2006, 58 judges have been appointed--20 in Ontario alone. This is a respectable achievement given that in the entirety of 2004, for example, only 41 federal judges were appointed in the whole country. Still, I acknowledge that as of February 1, 2007, we have 45 vacancies for federally appointed judges.
It's important to note, however, that a full two-thirds of these have arisen since the coming into force of on December 14, 2006. That bill, as you know, provided federally appointed judges with new options for electing supernumerary status. Thus the vacancy list, which was reduced to just 15 prior to the coming into force of Bill C-17, almost instantly tripled in size as the direct result of 30 judges from across Canada having elected supernumerary status under the new eligibility rules.
I am committed to filling these vacancies in a timely manner, as was my predecessor. I will continue to instruct my staff to assist me in preparing recommendations for cabinet approval for the appointment of new judges.
Since 1988, the Minister of Justice has been assisted in preparing recommendations for cabinet approval for the appointment of new judges by the judicial advisory committees.
Despite the fact that the administration of candidate applications and the operation of the JACs have been carried out by the Office of the Commissioner for Federal Judicial Affairs continuously since 1988, structural changes to the JACs themselves have been a fairly constant feature of the JAC process. Over the past 20 years, changes to the JACs have occurred--in 1991, 1994, and 1999--always with a view to creating a process that provides the Minister of Justice with advice on the merit and legal excellence of candidates aspiring to judicial appointments.
In November 2006, my predecessor announced changes to the process, which would better assist the committee in providing the minister assessments of potential candidates. Changes were made to the composition of the JACs and to their operations, but the same fundamental purpose of accessing candidates and advising the minister as to their suitability for the federal judiciary was maintained.
With respect to the composition of the JACs, the JAC process has always included input from a broad range of stakeholders. These stakeholders have, since 1988, been represented by men and women whom the selects. Stakeholders from the law society in each province and territory, the provincial branch of the Canadian Bar Association, the judiciary of a province or territory, the provincial Attorneys General, and the public have in the past provided the Minister of Justice with advice in the form of assessments of potential candidates for appointment to federal and provincial superior courts.
One of the November 2006 changes to the JAC process provides the opportunity for representation from another important community. A voice from the law enforcement community, a community no less implicated in the administration of justice than are judges and lawyers, will broaden the basis for examination of potential candidates and contribute a fresh perspective on the competent and qualified individuals recommended to me for appointment to the bench.
This change, implemented by my predecessor in November of last year, broadens the base of stakeholders who will contribute to the discussion and assessment of the competence and excellence required for the appointment.
From an operational perspective, the 2006 JACs will continue to assess candidates and report to me on their quality and merit for appointment to the bench. Almost invariably, the assessment of candidates by the JACs results in a finding of consensus and a recommendation to me. Thus, voting on the merit of a candidate rarely occurs. If it does, the results of that vote are recorded on the candidate's file comment sheet, which is directly relayed to me with each candidate's file. The outcome of this vote and the comments relayed to me from the committee are taken into consideration when I decide whether to recommend such a candidate for judicial appointment.
Another change announced for the 2006 JACs is that the judicial nominee will be made chair of the JAC. As a consequence, the judicial nominee will have significant control over the oversight of the flow of discussions, and will manage the operation and expectation of assessments of candidates. In rare cases, when a vote is required, the chair will abstain unless his or her vote is required to break a tie. Taking into account the important directive function of the chair, I do not believe the judicial nominee has any less influence in the 2006 JACs than he or she would have had under earlier JACs.
A final operational change announced in November was the elimination of the “highly recommended” designation given to some candidates. As is the case for other aspects of the process, the designations “recommended” and “highly recommended” have not always existed. I remember a time when the JACs were required to assess candidates only as “qualified”or “unqualified”. The designations “unable to recommend”, “recommended”, and “highly recommended” were implemented as a post-1988 change to the process. Unfortunately, there were no criteria based upon which the JACs could objectively determine who should be awarded the “highly recommended” designation. One wonders if such criteria could ever be defined, given the different practice contexts of Canadian lawyers.
Experience also showed that the use of “highly recommended” was in some cases losing its significance, as percentage rates for candidates receiving this designation varied significantly across the country. It's hard to imagine why, on a per capita basis, there could be a significant number of more highly recommended lawyers in one jurisdiction in Canada than in another. There also seemed to be a higher prevalence for the “highly recommended” designations for lawyers coming from larger firms than those from smaller firms or smaller cities.
Finally, the comment sheet provided by the JACs for each candidate is more explicit with respects to strengths and weaknesses of a candidate than any one- or two-word label like “recommended” or “highly recommended”.
All but one of the 2006 JACs have now been constituted, you'll be pleased to know, and several are already meeting to assess over 150 candidates from across Canada who are awaiting consideration of their application for a federal judgeship. I am confident that the 2006 JACs will continue to conduct their examination and assessment of candidates with the same expertise, diligence, and conscience as prior JACs, and will forward recommendations that will permit me to make judicial appointments in a timely fashion, from among candidates of merit and legal excellence.
Finally, I would like to add a brief word about a subject related to the federal judicial appointment process: the outstanding requests for additional judicial resources. I expect committee members are also aware that a number of jurisdictions have expressed the need to have additional judges added to their courts, over and above filling all current vacancies. I want to say I'm prepared to give these requests serious consideration; however, I'm sure all committee members would appreciate that the creation of additional judicial positions involves significant additional ongoing expenditure of public resources. It is therefore not only reasonable, but responsible to ensure that there is a clear, objective indicator of the need for that expenditure. Therefore, my first priority is to get all the vacancies filled in a timely way.
As I've indicated, I think we are making significant headway now that the new judicial advisory committees are in place. Once those vacancies are filled, I will be in a position to better assess the overall needs of the requesting courts, in light of their entire existing judicial complement.
In addition, the government cannot simply act alone in providing additional positions even where their establishment is justified. Rather, amendments to the Judges Act would be required to provide necessary authority for the government to make those appointments. I would hope that all-party support would be secured for the quick passage of such an amendment in the event that the case for additional expenditure of public funds is justified.
Thank you for your attention and I look forward to any questions you may have.
Thank you, Mr. Chairman.
Thank you, Mr. Minister, for your comments. I'll get right to the quick, to the chase here.
I think there's a case to be made that this gerrymandering of the judicial advisory committees—the JACs, let's call them—is done to give the new government an opportunity to stack the committees, the JACs, and to therefore influence the recommendation process unduly, in a way not seen during the time of the Liberal government, and certainly not even during the time of a previous Conservative government in which you served, namely the Mulroney government.
Just taking the case of New Brunswick, which I know a little more about than the rest of the provinces, I put it to you that there were seven committee members. In short, three of them were from the federal side. Let's put it that way. They were federal appointees, lay people, generally speaking. They all came from different walks of life. The other four were from various stakeholders, including the Attorney General, although I think we're all familiar with the makeup.
What you have done here, what the previous minister has imposed upon you, is an eight-member committee in New Brunswick, with the addition of the police representative. I'm not going to ask about the merits of having the police alone visited on the committees, but I am going to ask about what is really the central issue for me. The concern I have is that with the chair being non-voting except in the case of ties—correct me if I'm wrong in the case of New Brunswick—that would mean four direct federal new Conservative government appointees effectively can overrule or outvote, if you like, three members from the rest of the legal community. Let's put it that way. That's my first question.
My premise on the question, really, is this. It's on the comments of the recent appointee who represented the police interests, so to speak—and it's a whole other question whether the chiefs or the rank and file should be represented. The comments made by the representative were that there's nothing wrong with the judiciary. She's had no problem with the judiciary in her life as a police officer. That would imply to me that there's no reason to change the system that has served us so well.
I am wondering if you, by implication as the new Minister of Justice who has served in this chamber as a parliamentary secretary and now as the minister, over a long political career, Mr. Minister, think there was something wrong with the quality of the judiciary, thus leading to its meriting this stack-the-committee, political gerrymandering proposition that's before us.
That's just a light question to start with, Mr. Minister.
Thank you, Mr. Chairman.
First of all, I would like to thank my colleague Réal for allowing me to use some of his time. I feel it is important to say something. Furthermore, I discussed it with him because I am one of the members of Parliament who does not have a legal background. I had already heard talk of the significance of appointing a policeman to the advisory committee, but I did not expect to find myself at the justice committee later on. It would seem important for me to give you my perspective on the subject.
First of all, the problem is not one of political partisanship, unless the minister is saying that he wants only Conservative policemen to sit on these advisory committees. I do not believe, however, that he wishes to go that far.
My colleague Réal Ménard is right: the issue is one of balance. In society, there is the executive, which is the cabinet and the Prime Minister, the legislative, which includes all of the members of Parliament and which votes on bills, as well as the judiciary. When we ensure that each of these three components can act in its respective context, we create an important balance in society. When we start to tinker with this balance, this challenges fundamental ideas about society. We must be very careful before acting.
I understand that it is the minister who, in the end, appoints the selection committees on behalf of the executive. He does not require a legislative instrument in order to make the change. However, he submits the issue to the justice committee and its members try and make a contribution in order to maintain a fair balance in society.
In my opinion, there is a problem on the judiciary front. In this case, there are two components that form the judiciary: the judges and the police. The latter carry out investigations and, depending on the province, it is either the police or the Attorney General who would lay charges. I have often read in court decisions that it is important that there be no conflict of interest in a judge's decision, but it is equally important that there not be any appearance of conflict of interest in the decision.
If we allow the police, even if they are in the minority on the advisory committee, to have a say in the appointment of judges, we are beginning to toy with an appearance of conflict of interest. Not that a judge will tell himself that a policeman supported his nomination and that he therefore owes him something, but there is nevertheless a certain appearance of conflict which, in my opinion, could jeopardize the perfect balance that we currently have.
That, Mr. Minister, is where the problem lies. I am asking you for further explanations because I would prefer the police continue to carry out their investigations, and in some provinces, to lay charges. The poor guy who has been charged but who knows he is innocent would want to be absolutely sure that the judge hearing his case does not owe his appointment to anyone, other than those members of society who have the power to appoint him, that is to say you, yourself and the executive, the cabinet.
I therefore need to be reassured because I have the impression that we're opening the door to the appearance of a conflict of interest. If we want Canadians, in Quebec as well as in Canada, to have confidence in their justice system, we must separate the police from the judges. Their work is complementary. We cannot proceed with appointments or decision-making that could lead citizens to think that society is not functioning as it should.