Thank you, Mr. Chair and honourable members of Parliament and of this committee. I was very pleased to receive an invitation to come here. I never turn them down anyway. I feel it a duty for somebody who has occupied my various positions to make myself available to the elected whenever they want to hear from me or maybe take me to task.
I suspect I was invited to meet with you because of the remarks I made in two interviews with the press, one with Janice Tibbetts of CanWest News, and the next day or the day after with Hélène Buzzetti of the daily Le Devoir.
The interview with CanWest News lasted approximately an hour and a quarter. It was Janice who contacted me. I've known her for a long time because I gave her a number of interviews during the time when I sat on the Supreme Court of Canada as Chief Justice. It goes without saying that Ms. Tibbetts, as a result of the inevitable space constraints, was unable to reflect all the nuances in my remarks. One of the reasons why I'm very pleased to have been invited is that this will enable me to make them. It is also common knowledge that journalists have no control over titles.
I wish to say immediately that I've never said to Janice Tibbetts, and she never wrote, that I felt that my was trying to muzzle the judges. He was trying to do something else, but not “muzzle”. So that title is an inappropriate title. I would never say that of my Prime Minister unless he did it or tried to do it.
That is why I was happy to accept your invitation. With your permission, I would like to state what I consider are the criteria that apply to the composition of a committee of the kind that is the subject of this committee's hearings.
Having been out of the country for a while, I was unable to follow the debates in the House and the evolution of the status of the proposed legislation. But that's not today's subject anyway. Upon my return, I was given to understand that the opposition had agreed to some of the government's proposed legislation but is firmly opposed to other portions, such as, I am told, what is coined the “three strikes you're out” legislation.
Now back to the criteria. In staffing a committee, it is a truism to say that you must not lose sight of the committee's purpose and you must seek to have a committee that will best fulfill that purpose, and not staff it in a manner that will serve an ancillary purpose, a fortiori, an improper one.
What is the purpose of these committees? It is to select and put on a list, for the Governor General in Council, names from among lawyers who have expressed in writing a desire to become a judge of one of our superior courts, except the Supreme Court, or the Tax Court—not “except” the Tax Court, but “or” the Tax Court, which is not a superior court—and who meet the qualifications to fulfill such duties.
To fulfill that responsibility, it seems obvious to me that the members of the committee must know what the job requirements are, depending on the court's jurisdiction, and know, or at least know how to find out, if the postulating lawyer has these required qualifications to properly fulfill those duties. Now, it's that simple.
Other kinds of committees are best staffed by people from various walks of life and from different generations whose life experiences are, given the purpose of these committees, precisely what is needed to make meaningful contributions and best decisions if the committee is of a decisional nature, or the best advice if it is an advisory committee. But the committees we are talking about are not of that kind. That is why you need at least an experienced judge and senior lawyers. This is not to say that only judges and lawyers should be on these committees. As I said to the press, clerks of the relevant courts who day after day, over 20 to 25 years, have seen lawyers appearing in court, or journalists who have been covering the courts over the years, can make useful contributions without necessarily being lawyers or judges.
I did a bit of homework. I had to make a few calls because I'm not familiar with the workings of these committees and I've never been on one. They didn't exist when I was appointed to the various courts of this land.
A chief justice told me, because I phoned him, that the judge he or she had appointed to one of the committees reported back that two eminent members of a profession totally unrelated to the dynamics of our court system, at their very first meeting—and apparently they meet twice a year—candidly told the judge and the lawyers that they would have to rely on them to know if the postulant had the qualifications to become a judge of the kind of courts the list was being prepared for—that is, the superior courts; the Federal Court; the Tax Court; and the courts of appeal, including the Federal Court of Appeal. Given their different jurisdictions, which these two professionals were not too familiar with—I mean, they had an idea from reading the press and reading cases, but they did not have a thorough knowledge of the jurisdictional aspects of these courts—in effect they said, “We're going to have to rely on your judgment, because you're the ones who know. You know some of the lawyers, you know the people who have been given as references, you know if they are prominent or if you can rely on their judgment, and finally, you know who to phone to find out”.
In all honesty, I must tell you that two nights ago I attended a dinner at University of Ottawa to celebrate the 25th anniversary of the charter. While speaking with a lawyer who had been on one of those committees, I was told that the laypersons did make a contribution. I was told that. Before I had time to inquire as to what manner that contribution was made and what kind of contribution it was—given that I'm stuck in a chair, people come over to speak with me; I can't move around like a butterfly—two persons interrupted me and I never got the answer. So I don't know. I was very curious. I tried to get hold of this person, but there were lots of people at the University of Ottawa and I couldn't see where he was, and I couldn't walk around to find him.
I must tell you that one person I spoke to told me these laypersons can make a contribution without necessarily being my journalist or my court clerk. I was told that. I should add that I don't have any vicious feeling about their presence on these committees, but I don't see them making a meaningful contribution.
In preparing to meet with you, as I said, I had to speak to various people, including chief justices and a professor who testified before you, Professor Ed Ratushny, who is a friend of mine. He is a retired appeal court judge, who was on one of those committees to find out how these committees functioned.
They have no statutory or regulatory framework, as a result of which, I suspect, they proceed differently from one end of the country to the other. Some of those differences no doubt depend on their territory of jurisdiction. I should mention that, in my press interviews, I committed the error, out of ignorance, of saying that they could not inquire about the persons appearing on the list as references by the postulant. Without any regulation prohibiting it, they can and do this, and that's a good thing.
Having made my views public with regard to what has triggered your wanting to hear from me, I shall stop here. I am sure some of you will want to take up on what has been reported or ask me other questions unrelated to what I have said. I prefer not to take up my full 10 minutes, and I will turn what's left over to you.
Mr. Chairman, with your permission, I'll make my address in English because that's easier for me.
Mr. Chairman, I appreciate the invitation to appear before this committee to share with the committee my views on the changes to the judicial appointments advisory committees introduced late last year and early this year by the Harper government, and on the changes that, in my view, are essential if federal judicial appointments are to be based exclusively on a merit basis and not on extraneous and irrelevant factors.
I've read the evidence given before this committee by Professor Sébastien Grammond and Professor Peter Russell. I fully agree with them that the unilateral changes made by the Harper government to the composition of the advisory committees and the assessments to be made by the committees are quite incompatible with the merit-based system of appointments and they will only further diminish public confidence in the integrity of the appointment process.
However, it is a serious mistake to assume that the advisory committee system was working well before the Harper government introduced its changes and that the present government is responsible for all the problems that have arisen. The truth is that the pre-Harper advisory committee system was deeply flawed because of the following reasons.
First, the advisory committee system, introduced in 1985 by the Mulroney government, and continued by the Chrétien and Martin governments, was only a screening system. Contrary to the recommendations of the Canadian Bar Association and the Canadian Association of Law Teachers, the advisory committees were not involved in the actual filling of vacancies and were not entitled or required to provide the federal government with a short list of the best-qualified candidates to fill the vacancies. Consequently, despite the introduction of the advisory committees, political patronage and political favouritism continued much as before.
Second, circumscribed as the roles were, the advisory committees were not involved and are not now involved in any meaningful way in reviewing applications for lateral promotions from provincial courts to provincial superior courts, in promotions from the trial superior courts to appellate courts, and in appointments to the Federal Court of Canada and, at least until very recently, in appointments to the Tax Court of Canada. Just as importantly, the advisory committees play no role in the appointment of chief justices of the provincial superior and appellate courts.
Third is the fact that the advisory committees are not required to interview applicants for appointments and are not required, indeed it seems not permitted, to publish an annual report whether on a provincial or national basis about their work and experiences. Also, it seems applicants for appointments are not advised of the results of their applications and therefore, of course, have no recourse if the advisory committee reviewing the application did not find the candidate of acceptable quality.
In short, Mr. Chairman, there is no more transparency and accountability in the operation of advisory committees than there is in the actual appointments made by the federal government. And if I may add here, I think what the Chief Justice has just told us exactly confirms what I have said about the problems he encountered in trying to ascertain how the committees worked and practised.
One of the ostensible reasons for the appointment of the advisory committees was to eliminate political patronage and to make merit the basic yardstick for the appointment of judges. There is strong, if not conclusive, evidence that this hope has not been realized. The CBA report previously referred to gave its own assessment of the continuing role of political patronage as of 1985. Similarly, Professor Peter Russell and I, in an empirical study we published in 1991 of judicial appointments made by the Mulroney government between 1984 and 1989, found that nearly half of the appointees had political connections to the Conservative Party at the time of their appointment.
Things did not improve during the Chrétien and Mulroney eras—I'm trying to be impartial, Mr. Chairman. Disclosures during the Gomery inquiry prompted several reporters working for the Ottawa Citizen to conduct an investigation to determine to what extent federal appointees to the bench had made contributions to political parties. Their findings were that more than 60% of the 93 lawyers who had received judicial appointments in Ontario, Alberta, and Saskatchewan since 2000 had made donations exclusively to the Liberal Party in the three to five years preceding their appointments.
Allow me also, Mr. Chairman, to draw the committee's attention to the important and comprehensive study of donations to political parties during the Mulroney and Chrétien eras made by three political scientists—Professors Riddell, Hausegger, and Hennigar—the results of which will shortly be published in the University of Toronto Law Journal. In my written submission I reproduce a table prepared by these authors of political donations made by future judges during the second period of the Mulroney regime and the three terms of office of Prime Minister Chrétien. What they show is that overall, of all the appointments made during this period, 30.6% are probably donors to the appointing government and only 5% of all the appointees had made political contributions to another party.
It's not difficult to see why, from the beginning of Confederation, successive federal governments have valued so highly the political patronage attached to judicial appointments. The Harper government is no different in this respect from its predecessors.
As of March 1 of this year, there were 1,052 active and supernumerary judges appointed by the federal government and 50 vacancies. About 50 federal judicial appointments are made each year. Judicial appointments are much sought after. The pay is very good—much better, I might add, than law professors' pay. The retirement and pension entitlement is probably the best in the public sector, and a federal judgeship is very prestigious. Judicial appointments also offer an attractive career path for a lawyer tired of the demands of private practice or wishing to play a more public role. Is it cynical to suggest that only overwhelming public pressure or a series of disastrous appointments could persuade federal politicians to surrender such valuable patronage plums?
In my view, a two-step solution is essential to put federal judicial appointments solidly on a merit-based footing, free from political interference and ideology. Here again I find myself in full agreement with Professors Grammond and Russell. The first essential step is to enshrine the judicial appointments process in legislation so that it will be transparent and clear for all to see and cannot be changed without parliamentary debate and approval. I cannot sufficiently stress the importance of legislation being adopted. Without it, all other recommendations of this committee will fall on deaf ears, as has happened so often before.
The second step is for the legislation clearly to spell out the composition of the advisory committees and their precise roles. This role should be not merely to screen and evaluate applicants for appointments, but also to provide the federal government with a short list of highly qualified and not just acceptable candidates from which the federal government, absent special circumstances, will be required to choose one when a vacancy needs to be filled.
As a model to be followed on these points, my preference is for the Ontario provincial judicial appointments advisory system, whose structure and operations were well described in Professor Russell's evidence before this committee. Just as important, Mr. Chairman, the mandate of the federally appointed committees must be extended to cross appointments, promotions of judges to a higher court, and the appointments of chief justices, as I previously mentioned. To the best of my knowledge, no rational reasons have ever been advanced as to why the role of the advisory committees should not be extended into these areas.
In his testimony before the committee, Professor Grammond touched on some important constitutional issues. I agree with him that section 96 of the Constitution Act does not preclude the establishment of statutory advisory committees. The same assumption was made by the Canadian Bar Association and CALT committees in making their recommendations in 1985.
I would also argue that in determining how far the federal government’s appointing powers can be circumscribed by legislation, attention should be paid to the provisions of the Canadian Charter of Rights and Freedoms, notably the non-discrimination provisions in section 15 of the charter, as well as the long-established doctrines of judicial independence and tenure, as enshrined in section 99 of the Constitution Act and the unwritten principles of the Canadian Constitution.
I agree with Professor Grammond that there is a linkage between these provisions and section 96 that must temper and inform the exercise of the federal appointing powers. If necessary, the federal government should refer these issues to the Supreme Court of Canada for the court’s opinion on the constitutionality of the proposed statutory powers of the advisory committees that I have recommended.
Section 96 of the Constitution Act is a carry-over from the pre-Confederation colonial regime and reflects, I believe, an obsolete and unidimensional view of the role of the federal government in the making of judicial appointments. It should not have been adopted in its existing form to begin with.
Regrettably, an important opportunity was missed to democratize the provisions in 1982. However, it is not too late to do so now. Section 44 of the Constitution Act, 1982, grants the federal government the power, subject to sections 41 and 42 of the act, to “make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.”
Section 44 appears to have been used very little so far, and there is some doubt about what falls under the heading of “executive government”. Nevertheless, I believe strongly that an amendment to section 96 should be considered and, if necessary, a reference should be made to the Supreme Court for an opinion on the constitutionality of the proposed amendment to section 96.
So much time has been spent, for so many years, debating the system of appointment of judges that other equally important issues have been ignored. To offer just some examples, I point to the desirability of a system of probationary or part-time appointments for future judges, so successfully used in the United Kingdom for more than a century; tracking the performance of judges after their appointment; the merits of specialization among judges; and providing access to the justice system for the great majority of citizens with modest means.
Canada, it seems to me, needs an institute for the study of justice, in order to study these and many other issues important to the effective, fair, and efficient administration of justice. According to my estimate, the federal government spends a quarter of a billion dollars per year on judicial salaries and perquisites. It should therefore also be able to afford a few million dollars per year to sustain the kind of institute that I envisage for the study of these questions.
Mr. Chairman, complaints about abuses in the system of federal judicial appointments go back to the earliest days of Confederation. It is time to bring closure to the debate. One hundred and 40 years is long enough. The solution is there for all to see and has been adopted by several of the provinces in their respective spheres and by the United Kingdom in the constitutional reform acts of 2005. I respectfully urge this Committee to be firm in its recommendations that the federal government follow these precedents and that the highest priority be given to adopting the necessary legislation.
I agree with Professor Ziegel, who made that recommendation, that you do so. I raised the matter because I was hoping we would get to that.
They're not even sworn. When do they disqualify themselves? What if one of the members is related to—? There is nothing.
I didn't have time to get into asking various people how they proceeded. I just didn't have time. I was out of the country. But I spoke, at least, with the Chief Justice of Quebec about what he knew about how they proceeded. He said that they had sort of established a few rules, but they were skimpy.
So yes, I think you should recommend that there be a comprehensive book of regulations on how to proceed and on who should be on that and on what the criteria should be. Should they be sworn? I think there's nothing wrong with an oath. It helps out a bit, sometimes. And it should even stipulate how many times they meet each year.
In Quebec, they meet twice a year. Well, maybe that's enough, but I don't know how many postulants there are per year. That's kept secret.
Of course I was addressing the composition of the committees, but the professor went much further in addressing the appointment of judges. I'm postulating that the committees remain, and within those four corners. If there can be improvement moving away from committees, I don't know; but I'm postulating that there are going to be committees and that these committees are going to be staffed in the manner that, as I said, will be efficient.
Where I disagree, respectfully, with the professor is that I think the committees have contributed to setting aside this impression that it's political patronage, to a certain degree. I have confidence in the committees. Actually, I was told a story a few days ago. There is a committee somewhere in Canada on which there is a policeman, and in that province, a crown prosecutor who was known to be pretty demanding and severe on crime.... And there's nothing wrong with that. I'm against crime. And I have expressed that view that I sometimes look at certain sentences, and I figure, “Well, wow!”
I think that plea bargaining is going on a little too much, but I understand the crowns are overburdened, and the temptation is there to knock off a couple of years and then save 10 days of hearings. The temptation is there. They're human; they're overworked; they're underpaid. And I understand them, but it's not good for justice. The very word “bargain” gives the message of what's happening. Somebody is getting a bargain, and that's not justice. Justice has nothing to do with bargains.
This crown prosecutor, who was known to never plea bargain, was turned down. The policeman voted against him and said that the reason was that he was not flexible enough.
So my reaction is to what happened to the committees as a result of the changes that were recently made, and I'm saying that our police officers are capable of rising above any agenda, but I'm against their being on committees for a reason of perception. They are part of the prosecutorial process. It's no different for the president of LEAF or the president of REAL Women, people who have an agenda. And I'm for people who have agendas; they've helped the Supreme Court a great deal by intervening in cases, but they should not be on that kind of committee to try to advance their causes. I think some of them are so enthused by their causes that they might be somewhat biased when it comes to choosing somebody. They might go for the choice that furthers their cause or furthers their intent.
Yes, I completely agree with there being criteria and regulations, because what they're doing is very important.
I would also suggest you recommend that the Governor General in Council remain within the four corners of the list and not go outside. One Minister of Justice—I think it was Mr. Rock—made an undertaking to not go outside the list when choosing appointments. Others didn't make that commitment, and I think I remember one or two appointments—I wasn't watching them, as it's a big country and there are lots of appointments—that were outside the list. I remember that one of the two was criticized because there seemed to have been a political connection in regard to that person's spouse.
I would recommend that the government be limited to the list.
Yes, thanks, I'd like that very much.
I'd like to address the last point raised by Mr. Ménard, the alleged reason given by the government for abolishing the highly recommended. I find it quite unpersuasive. It may be perfectly true that different committees apply different criteria in determining what is recommended or highly recommended, but if that's true, that must apply equally to the committee's assessment that the person is acceptable.
It seems to me that at that point, the whole process of assessing candidates falls apart. That surely is another reason why we need both legislation and some mechanism to evaluate the performance of the committees themselves. But this can't be done unless you have at least a minimal degree of transparency about the operations of the committees as well as the operations of the government. At the moment we have neither, as I tried to emphasize in my written submission.
Allow me also to make a small correction. I hope I didn't throw any aspersions on members of the committee. That was not my intention, and I don't think I did. I want to make it very clear for the record that the issue is not the good faith of the members of the committee; I accept that wholeheartedly. My complaints were that the terms of reference of the committee were much more circumscribed. In particular, the committee did not in fact make recommendations, they only screened the candidates, and there's a huge difference between the two.
Allow me also to make some comments on the much-discussed issue of whether or not police officers should be included. I think it's a huge red herring. As my colleague Professor Russell pointed out in the course of his evidence, at best only about 2% of Superior Court judges are ever involved in criminal cases. So I don't know what the fuss is about.
Even if the percentage were higher, how could a police officer, or for that matter anyone, possibly go about determining whether or not an applicant for office is going to be tough in dealing with anything? He never sees the candidates—one of the many problems we have. Are we going to add a question to the questionnaire asking whether this guy, if he's appointed, will be sufficiently tough? What if the guy has never had a criminal case in his lifetime? Then the whole thing falls apart.
So I think it's completely a red herring. I very much hope that the committee, in addressing the issue, will bear this in mind. As the Chief Justice rightly points out, it raises anew the whole question of the function, the purpose, and the effectiveness of having a so-called police representative on the committee, given all the factors that have been raised.
Thank you very much.
You can ask your colleagues.
Some hon. members: Oh, oh!
Right Hon. Antonio Lamer: How many is it?
An hon. member: Cinq.
Right Hon. Antonio Lamer: Well, I'll go further. Adding sections, it's 17 or 19.
So who's getting nervous about all this? Those who talk about judicial activism do so because they don't agree with the judgment. When they agree with the judgment, they don't talk about judicial activism; they just don't mention it.
We're not talking about many laws that have been struck down, because the very introduction of the charter triggered, throughout the country in the various departments of justice, the creation of committees that would vet any bill before it went to the House—their respective houses—to see whether it was charter-suspect. It was mainly in the field of administrative law, which is full of reverse onus clauses, with a punishment at the end for having violated the law—some of them indictable offences, one of them punishable up to five years—with reverse onus clauses.
So what they did, after a couple of judgments from the Supreme Court—I think it was Chief Justice Brian Dickson who wrote the unanimous judgment—after that judgment, they scrambled and cleaned up a strew of laws doing away with reverse onus clauses where they weren't warranted.
Reverse onus clauses sometimes are okay. I mean to say, the person, the citizen, is the only one who can come up with the explanation and it can be found out.
So I never did get excited about people talking about judicial activism. There were some glaring things that had to be corrected and were corrected. Certain forms of constructive murder were murder to me and to my colleagues—because, let's not forget, you have to get a majority, at least, for it to be a judgment; otherwise, you don't talk about it. Constructive murder was rearranged, because murder is a crime of intent.
I think that's one of the most criticized judgments of those days. There are some that have been criticized lately, the kirpan thing and the gay rights, but there again, these are issues where you can't win. I mean to say that society is split down the middle, practically, and you're bound to have half of society saying they're activists and the other half saying they didn't go far enough. So I don't get excited about people who talk about judicial activism.
What effect, you asked me, has this had on the government's wanting to get tough on crime? What I know about what's being said is that it gets tough on crime. Well, the Criminal Code is there. It can be very vicious. I don't think the fact that the courts have applied the charter and that a few laws were struck down and re-enacted—and some of them were not re-enacted....
Let's not forget one thing, and this is apolitical as a comment. Successive governments have been shovelling to the Supreme Court and have recently shovelled—I've been gone for seven years—their hot potatoes. They want to get the brownie points, if there are brownie points to get, but they don't want to get the blame. The day after a judgment is handed down by the Supreme Court, there is a Gallup poll taken to see if the judgment is popular or not. And the comments of the members in the House will take into account the result of the poll. They'll be for the judgment, or they'll be against it. I call that parliamentary activism.
For the information of those transcribing this debate, you should know that, since you've been talking about Mr. Ménard, you've been talking about Réal Ménard, a regular member of this committee. My name is Serge Ménard, and I'm sitting on this committee on an exceptional basis.
As I am an assistant, my speaking time is only five minutes. I will ask my two questions first, then hear your answers. That doesn't mean that I didn't appreciate the presentations that were made. On the contrary, I've always appreciated Judge Lamer's presentations, and he knows it.
Professor Ziegel, this is the first time I've seen such an ambitious project. I'm sorry I didn't see it at the end of the last millennium. I hope someone will one day decide to carry it out.
Mr. Justice Lamer, I understand you when you say we shouldn't pursue secondary goals. Ultimately, you've put the finger on what this is about, that is to say including police officers who will have objective to pursue, whatever it might be.
I can answer some of your questions because I've had the benefit of sitting on a lot of selection committees. In 1977, there were the first committees, and the people were appointed by Minister Marc-André Bédard. I even attended the first meeting, chaired by Judge Alan B. Gold, where it had to be decided how we would operate in the context of the new procedure. I appreciated the contribution by members of the public to the meetings of those committees.
The question before us here concerns the appointment of police officers to sit on selection committees for superior court judges. However, in my assessment, and perhaps yours will be similar to mine, the superior court judges appointed by the federal government practise very little criminal law; Mr. Ziegel mentioned 2% of criminal cases. The vast majority of sentences handed down—more than 99%, in my opinion—and of criminal trials conducted are conducted before provincially appointed judges.
Although I'm in favour of keeping public representatives, I wonder why police officers would be systematically selected—and I'm not saying that a police officer wouldn't be a good public representative—to select judges who will mostly hear cases in family law, commercial law, liability law and so on. I think that choice is unjustifiable. So I would like you to address that aspect.
Then, Mr. Ziegel, there is something that intrigues me when I read your presentation, which I respect a great deal. I get the impression you think that political activity doesn't prepare a person well for the judiciary. Could you clarify your thinking?
As a result of the intensity of political activity today, one definitely loses the experience acquired by pleading. Although we are legislators, we have less time to consult, read and analyze case law and the new statutes that are not related to the duties we have been assigned, either as minister or critic of a political party. Can you give us more details on this question, Mr. Ziegel?
Judge Lamer, given your experience on the Superior Court, Court of Appeal and Supreme Court of Canada—and I know you cleaned up all those courts, particularly the Superior Court in Montreal, where there was a great deal to do—can you tell me whether my estimate of 2% is correct?
I would also say that I read an estimate by the Chief Justice of British Columbia, who said that 95% of the cases his judges heard were not Criminal Code cases.
I called the Chief Justice of Quebec and I spoke to him about a number of topics. He told me that, last year, 45 criminal cases had been heard by Superior Court judges across the province. We're talking about 45 cases, whereas I'm convinced that thousands of those cases are heard in the Court of Quebec, Criminal Division. More than 75% of accuseds plead guilty in Provincial Court. I say Provincial Court to cover Canada, provincial courts.
If the goal is to get harsher sentences and to tighten up the criminal law—I said that in my interview, but that wasn't published—the Prime Minister is indeed entitled to have that objective. I might be in favour of it, but I think he is not going about it the right way. That won't get done by appointing police officers who will put on a list the names of judges who practise virtually no criminal law. At the Tax Court of Canada, they practise none at all. The situation is the same at the Federal Court: they do patents. What can you say, they don't do any at all.
At the Superior Court, this is a very small minority of cases. I gave you the figure that the Chief Justice gave me: 45 cases last year across the province.
That's not the way to go about achieving one's ends. At the federal level, the way to have an impact on criminal law is legislation. I understand that he's frustrated because he's the head of a minority government. He can't implement his policy. I'm not giving an opinion on his policy. I won't interfere in that, because I'm neither for nor against it. I have ideas, but I don't know his policy well enough. I understand his approach of wanting to look elsewhere because there are legislative obstacles, but he's looking in the wrong place, in a pointless place. Ultimately, he won't be able to do it by appointing judges to the Superior Court who he thinks will be harsher.
I'd like to say something on that, Mr. Chairman. I've been in the profession for more than 50 years. I knew one Crown attorney who did his job, who was very effective as an attorney and sought sentences that were tougher rather than not tough enough. When he was appointed to the bench, he went to the extreme: he completely changed. Another example is that of Judge Lagarde, who wrote the Criminal Code in French, the annotated code. Police officers didn't want to testify before him because he was merciless with them as witnesses. He never believed them. Perhaps he was right, since he had been a Crown attorney, but I don't think so. He went too far. Judge Lagarde really went too far. You can't predict a judge's conduct.
I knew one judge—I won't name him—who was pickled at 10:00 a.m. He arrived in court completely drunk. He was appointed to the Provincial Court bench. He stopped drinking the day of his appointment, and he became, in my opinion, one of the best judges we had ever had at the criminal court of the time, the Court of the Sessions of the Peace. I won't name him because of my first remarks.
The committee wouldn't have put him on the list of candidates, but nevertheless... So it's impossible to try to predict the conduct of a person who takes a judicial oath. There could be three police officers on the committees, in my view, but that's a matter of perception. I'm not in favour of doing it that way for reasons of perception. I believe that police officers are able, as the saying goes,
to rise up to the occasion, and rise up and do their duty as it should be done. I have confidence in that.
So I'm saying that it's a useless change and it's an unfortunate change, because its purpose has been explained in the House, it will achieve nothing in terms of getting stricter sentences, and it sends out a bad perception to the population. The population might be behind that kind of thing, because I think—and I'm not in the polling business—that if a poll were taken, a majority would say that the judges are not sentencing severely enough. I think the general population.... But when you look at a sentence, you must be very careful before coming to the conclusion that it's too lenient, because unless you've been involved in the case, you get it second-hand through the press and you don't necessarily get all of the facts that the judge got.
But there are sentences, in my opinion, that you don't need to know more of, that were, in my opinion and in my experience, really too lenient. That reveals that some judges should not be sitting in criminal law and should be assigned to other kinds of cases. But in some provinces that's not easy to do as the chief justice, or the chief judge does not have enough judges. He has to use his judges in all kinds of fields. In a large province like Ontario, the chief justice can pick and choose and have people who know their criminal law to sit. In certain other provinces, not only P.E.I., everybody has to do a little bit of everything and has no choice.
But I say that it's the perception in the public that the government is trying to get more severe sentences. As Mr. Ménard has raised, I'm saying he's not trying to influence the list of judges who deal with the criminal law and he will not achieve his goal. I'm not saying I disagree with his goal; I'm not saying that, but I'm just saying that he will not achieve his goal by having done that.
We're having interesting discussions on a lot of things going on here today.
I'm still not clear in regards to the question brought up by Mr. Comartin, and maybe he can help me with this. It's the makeup of the JAC committee. Who is that going to be? Wasn't that the gist of your question? That's what's going on in my mind.
I was the principal of a high school, and I had to hire teachers quite often. On the selection committee we had the superintendent of schools and me, two members from the school board, both of whom happened to be farmers—this was over a 15-year period—and three people from the parent advisory committee at large. Sometimes there would be a nurse or a housewife or a policeman—just people at large.
We'd sit on a committee, and we'd have to select somebody to fill the job. When I went to these committees, I knew the superintendent was going to look for the education. How educated are you? What degrees do you have? I knew there were a couple on there who thought that women should be teachers and men should be farmers, and that they would be looking more towards the women. So I knew that given its makeup, that committee had preferences well in advance of beginning any discussions on the selection.
I don't see how anybody could get on any kind of committee and not have some kind of idea in the back of their mind of what they'd like to see for a teacher. Why wouldn't they feel the same way about what kind of a person they'd like to see for a judge? I don't care if it's a police officer or a high school principal. I have a pretty good idea of what I'd like see for a judge, and I think Mr. Comartin would know what that would be. It wouldn't be a softy; it would be a hard man, who would say the punishment's got to fit the crime. And I want to move from there.
Now, I don't know who the best judge would be. A lot of times I didn't even know who I thought would be the best teacher, but a lot of times I had to go by that gut feeling, just knowing that if that person was in front of a group of children I could rely on them to do the best job possible to relate to them. I want the same thing to come out of judges, and I think these JAC committees could do it. The makeup of them, to me, isn't nearly as important as the objective of the judges across this land. What are we trying to achieve here?
The public, the ones who pay the bills, are saying they're not happy. You're right, a poll would show that they're not very happy with some of the decisions.
Last week, a nine-year sentence was handed out in Calgary. Is that correct, Art? They had an appeal, and it was reduced to seven. There was a big flare-up because of the appeal. The judge decided it was too stiff and lowered it. Well, the war was on. Calgary is not even in my riding, but it's close enough that I had people coming into my office demanding that we straighten up this judicial system. What is going on that this is happening?
All I'm saying is that I think we're putting way too much emphasis on the makeup of the committee. These are people of all walks of life. I almost felt as though you were implying that the police were a special interest group, and I really object to that. I hope that's not true, but I felt that way, and I wanted you to know that. They are not a special interest group, nor is anybody on these committees, should that be the case. I don't want anybody there for the purpose of pushing their own agenda, but I'm still looking for an answer as to who's going to decide who goes on these committees and what they should be made up of?
You said something about writing a book of regulations, that there should be a book of regulations to follow. Well, who's going to write the book? That's where I'm getting all confused. We're wandering off into different questions about activism and about this and that. I want to stick with the JAC committees. Who are they made up of? Why are they on there? Why should some be eliminated and some not?
I certainly don't believe they should all be lawyers. We've got all lawyers in this committee, and that drives me nuts. We've got a bunch of special interest groups over there.
I think this ties directly into the burden of my written submission, namely, that Parliament should be deciding these questions, not the government of the day. As I strongly emphasized, judges are appointed—until they reach the age of retirement—not to serve the purposes of a single administration, but to serve the country and the people of this country.
In most other areas of the law, Parliament has to be consulted; Parliament has to approve. If Parliament in its wisdom were to decide it wanted the advice of committee members, including police officers and people who are very tough on crime, so be it. I might not agree with that judgment, but at least I would know it's in the legislation and at least a majority of the members of Parliament had approved this direction.
But I strongly resist the notion, under which we've laboured for the last 140 years, that the appointment of judges is the prerogative of the particular administration. I've tried to argue repeatedly—and I'm not the only one—that it has been abused. It's a power that has been abused for 140 years, and that should be the focus of this committee. I think we're becoming too fixated on the issues of the treatment of crime, despite what the Chief Justice said.
Others have said that in fact superior court judges try only a very tiny percentage of the cases. I think we're doing a grave injustice in the whole concept of judicial appointments when we focus on a very tiny percentage of cases that are decided by a tiny minority. Remember also that we have appeal courts, and if the Crown feels that a trial judge has been too lenient, the Crown should appeal—and often does.
I seem to recall some years ago Chief Justice Lamer sat on a series of appeals from Manitoba in which the court said the Manitoba courts were inconsistent in their sentencing policy and many of their sentences were too lenient. I think it's completely misleading to suggest that appeal courts are indifferent to public opinion or the appropriate sentence.
It's not an easy question, and I disagree with you, Judge Lamer, when you say we have to be tough on crime. I don't know what that means. If that means a long jail sentence effects the purpose, I think you'll find a lot of criminologists disagree.
But leaving that issue aside, the point I want to make is that there are ways and means for the public to make known their views. There are appeal courts. Public opinion does influence judges, you may be sure. But the point I come back to—and it's absolutely fundamental to my position—is that we shouldn't get fixated. Our first priority should be to have legislation to get rid of this 140-year obsession with letting the government of the day decide who's going to be appointed a judge and how that appointment is going to be made. Unless we can overcome that, which I perceive to be an enormous hurdle, we will continue to debate this issue time and time again.
As I said in my written submission, I have appeared three times before this committee over the last three years. It's not that I have any misconceptions about my own role, but I don't see that the committee has much of an impact, precisely because they're not willing to move to the legislative stage.
My keen concern is that regardless of what the committee says, the government will ignore it if it disagrees. Obviously if the committee underscores the government's partiality it will feel vindicated, but if the committee disagrees, the government will simply ignore it and proceed on its way.
As I've argued, we need legislation to both reaffirm Parliament's role in this situation and, once and for all, bring to an end this highly subjective, non-merit-based system of appointments that now exists.