JUST Committee Meeting

37th PARLIAMENT, 3rd SESSION

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

EVIDENCE

CONTENTS

Tuesday, March 30, 2004

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1105

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

Hon. Irwin Cotler (Minister of Justice)

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1110

Á

1115

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1120

The Chair

Hon. Irwin Cotler

The Chair

Mr. Vic Toews (Provencher, CPC)

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1125

The Chair

Mr. Vic Toews

Hon. Irwin Cotler

The Chair

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

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1130

Hon. Irwin Cotler

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1135

Ms. Judith Bellis (General Counsel, Judicial Affairs, Courts and Tribunal Policy, Department of Justice)

Hon. Irwin Cotler

The Chair

Mr. Robert Lanctôt (Châteauguay, Lib.)

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1140

Hon. Irwin Cotler

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1145

The Chair

Mr. Joe Comartin (Windsor—St. Clair, NDP)

Hon. Irwin Cotler

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1150

The Chair

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

Mr. Vic Toews

The Chair

Mr. Vic Toews

The Chair

Mr. Vic Toews

The Chair

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1155

Hon. Irwin Cotler

The Chair

Ms. Marlene Catterall

Hon. Irwin Cotler

Â

1200

The Chair

Mr. Vic Toews

The Chair

Mr. Vic Toews

Hon. Irwin Cotler

The Chair

Ms. Paddy Torsney (Burlington, Lib.)

Â

1205

Hon. Irwin Cotler

The Chair

Mr. Richard Marceau

Â

1210

Hon. Irwin Cotler

The Chair

Mr. Richard Marceau

Hon. Irwin Cotler

The Chair

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

Â

1215

Hon. Irwin Cotler

Hon. Stéphane Dion

Hon. Irwin Cotler

Mr. Marc Giroux (Judicial Affairs Advisor, Department of Justice)

Hon. Stéphane Dion

Mr. Marc Giroux

Hon. Stéphane Dion

Mr. Marc Giroux

Hon. Stéphane Dion

Mr. Marc Giroux

Hon. Stéphane Dion

The Chair

Hon. Stéphane Dion

The Chair

Hon. Stéphane Dion

The Chair

Hon. Stéphane Dion

The Chair

Mr. Marc Giroux

Â

1220

Hon. Stéphane Dion

The Chair

Hon. Irwin Cotler

The Chair

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CANADA

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

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NUMBER 007

l

3rd SESSION

l

37th PARLIAMENT

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EVIDENCE

Tuesday, March 30, 2004

[Recorded by Electronic Apparatus]

Á  (1105)  

[English]

    The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): Colleagues, I call the meeting to order.

    We have with us today the Honourable Irwin Cotler, Minister of Justice. Mr. Cotler is here today for the purpose of outlining in a public meeting the existing process for the selection and appointment of Supreme Court of Canada judges. Please mark those words carefully, colleagues. Today we are only dealing with the existing process. Minister Cotler is, of course, prepared to come back and spend more time with us on what it might be changed to, what Parliament might or might not want to do. But today we're going to confine the subject matter to the existing process.

    Because we have allocated only an hour, we're not going to be able to use the seven-minute round format. So we'll go to three rounds and move it around fairly quickly. I will intervene at around the two-minute mark, just to make sure members know they have only a minute left for the answer. I'm sorry we have to be so strict, but we only have an hour. I know that members will be really good at disciplining themselves in avoiding rhetorical speeches in their questions, as I appear to be doing now.

    I'll just note as well that following this, we have an in camera meeting to discuss future business and to try to refine our own views on this particular subject area.

    Welcome, Minister. We understand you have some opening remarks to assist us with this, and then we'll go to questioning.

    Are there any prepared notes? I don't think anything has been submitted to us.

    Hon. Irwin Cotler (Minister of Justice): I think we will be able to distribute them at the conclusion of the hearing today.

    Mr. Chair and members of the committee, I'm pleased to be here today to speak to the question of Supreme Court of Canada appointments. As you know, the Prime Minister announced on December 12, 2003, that the government would “specifically consult the Standing Committee on Justice and Human Rights on how best to implement prior review of appointments of Supreme Court of Canada judges”. On February 4, 2004, the government reaffirmed this commitment in the action plan for democratic reform. Some form of parliamentary review is therefore a value-added given, and these committee hearings may be taken to be an expression of that commitment.

    May I begin by recalling and reaffirming two themes that have characterized your deliberations. First, the review of the appointments process, including this parliamentary review, is of great importance to our country, for not only is the Supreme Court, as the highest appellate court and the final arbiter for the resolution of legal disputes, at the pinnacle of our court system, but our court system is a fundamental pillar of our constitutional democracy.

    In other words, our Constitution frames both the distribution of governmental power between the federal government and the provinces--otherwise known as legal federalism or the powers process--and the limits on the exercise of governmental power, whether federal or provincial, otherwise known as human rights or the rights process.

[Translation]

    The Supreme Court has constitutional responsibility for intervening when governments go beyond those limits, when they exceed their jurisdiction in the context of federal-provincial relations or when they violate rights under the Canadian Charter of Rights and Freedoms. I would point out that Parliament has given this responsibility to the Supreme Court, which has carried out its duties in this regard with diligence, sensitivity and fairness.

    A second theme in your deliberations has been the exemplary excellence of the Supreme Court, whose legal heritage has resonated beyond Canada's borders. Canadians are not the only ones to be proud of our Supreme Court, of course. Our highest court is respected across the country and around the world, as a model of what a vital, modern and independent judicial institution should be.

    As the representative from the Quebec Bar told you the other day, the quality of judges on the Supreme Court is "impeccable". Prof. Weinrib emphasized in his presentation that courts from countries as diverse as Israel and South Africa continually cite rulings from our Supreme Court. The Prime Minister himself said recently that we had excellent Supreme Court judges who are recognized around the world. As you debate this issue, I would urge you to keep that in mind.

[English]

    I was always reminded of this when, as an academic, I went to international scholarly conferences where the Supreme Court of Canada was cited as an international model.

[Translation]

As I have said, our court has an excellent reputation internationally.

[English]

    May I turn now to an appreciation of the present appointments process, which is organized around two principles: first, the constitutional framework governing these appointments, and second, the comprehensive consultative process that has been developed to give expression to--or implement--this constitutional responsibility.

    May I begin with the constitutional framework. At present, it should be noted that the Supreme Court Act vests the constitutional authority for the appointment of Supreme Court judges with the executive branch of government--or the cabinet--by way of order in council appointment, and the executive remains responsible and accountable for the exercise of this important power. The threshold consideration in this appointments process is to get the best possible candidates and the best possible court.

    Accordingly, to implement this constitutional responsibility and secure the best candidates, a comprehensive consultative process has been developed. Regrettably, this process is not well known--indeed, it may be said to be relatively unknown--and this has led some to believe, understandably so, that the process is both secret and partisan.

    The point, Mr. Chairman, and I think this point needs to be underscored, is that the process is not so much secretive as it is unknown. Accordingly, what I would like to do now, in the interests of both transparency and accountability, is to describe to you the consultative process or protocol of consultation that is being used to select members of the Supreme Court. I cannot claim, nor would I, that this consultative process or protocol has always been followed in every particular. I can only undertake to follow it as the protocol by which I will be governed as Minister of Justice. I might add that this is the first time that this protocol or appointments protocol is being released, which I would say is yet another expression of the beneficiary of this parliamentary review.

    The first step taken in this appointments process is the identification of prospective candidates. As you are aware, candidates come from the region where the vacancy originated--be it the Atlantic, Ontario, Quebec, the Prairies and the North, and British Columbia regions. This is a matter of convention, except for Quebec, where the Supreme Court Act establishes a requirement that three of the justices must come from Quebec.

    The candidates are drawn from judges of the courts of jurisdiction in the region, particularly the courts of appeal, as well as from senior members of the bar and leading academics in the region. Sometimes, names may be first identified through previous consultations concerning other judicial appointments.

    In particular, Mr. Chairman, the identification and assessment of potential candidates is based on a broad range of consultations with various individuals. As Minister of Justice, I consult with the following: the Chief Justice of Canada and perhaps other members of the Supreme Court of Canada, the chief justices of the courts of the relevant region, the attorneys general of the relevant region, at least one senior member of the Canadian Bar Association, and at least one senior member of the law society of the relevant region.

    I may also consider input from other interested persons, such as academics and organizations who wish to recommend a candidate for consideration. Anyone is free to recommend candidates, and indeed, some will choose to do so by way of writing to the Minister of Justice, for example.

    The second step is assessment of the potential candidates. Here, the predominant consideration is merit. In consultation with the Prime Minister, I use the following criteria, divided into three main categories: professional capacity, personal characteristics, and diversity.

    Let me begin with professional capacity. Under the heading of professional capacity are the following considerations, and I will just cite them: highest level of proficiency in the law, superior intellectual ability and analytical and written skills; proven ability to listen and to maintain an open mind while hearing all sides of the argument; decisiveness and soundness of judgment; capacity to manage and share consistently heavy workload in a collaborative context; capacity to manage stress and the pressures of the isolation of the judicial role; strong cooperative interpersonal skills; awareness of social context; bilingual capacity; and specific expertise required for the Supreme Court. Expertise can be identified by the court itself or by others.

Á  (1110)  

    As I mentioned, Mr. Chairman, this goes to what might be called the professional capacity. This is the comprehensive set of criteria here. Not every candidate must have each of these criteria. This is the composite set of criteria through which evaluation takes place.

[Translation]

    Under the rubric of personal qualities, the following factors are considered: impeccable personal and professional ethics, honesty, integrity and forthrightness; respect and regard for others, patience, courtesy, tact, humility, impartiality and tolerance; personal sense of responsibility, common sense, punctuality and reliability.

    The diversity criterion concerns the extent to which the court's composition adequately reflects the diversity of Canadian society.

Á  (1115)  

[English]

    Mr. Chairman, these are the criteria.

    In reviewing the candidates, I may also consider jurisprudential profiles prepared by the Department of Justice. These are intended to provide information about the volume of cases written, areas of expertise, the outcome of appeals of the cases, and the degree to which they have been followed in the lower courts.

    After the above assessments and consultations, as I've described, are completed, I discuss the candidates with the Prime Minister. There may also have been previous exchanges with the Prime Minister. Indeed, I may be involved in a consultation more than once with a range of persons with whom I've indicated that I engaged in consultations. A preferred candidate is then chosen. The Prime Minister, in turn, recommends a candidate to cabinet and the appointment proceeds by way of an order in council appointment, as per the Constitution.

    This concludes the description of the current protocol or appointment process, which I'm sharing with you.

    Mr. Chair, your committee is now engaged in an important review of the role parliamentarians might play in the appointment process. This review may include both a review of the process of appointments and a review of the proposed nominee recommended by the process.

    In terms of the review of the process of appointment, we must bear in mind the two factors as set forth above: the constitutional framework, which vests authority in the executive branch of government; and the consultative process, as I described, established to implement this constitutional responsibility through which the candidates are identified and evaluated in the manner described. We are now adding a parliamentary review component to this process.

    As for a review of the proposed nominee, the questions now become: what is the form that this parliamentary review might take respecting the vetting of the proposed nominee, and what is the mechanism by which this review might be undertaken?

    There are a number of options that can be considered. First, the committee could undertake its review by hearing representations from the Minister of Justice as to why the nominee was chosen. Second, the committee could undertake a direct interview of the candidate. Third, the review could be conducted by an independent expert representative committee, sometimes referred to as an eminent persons panel, which would include representatives from Parliament.

    There are other issues that may arise apart from the modality of review. First, what might be the appropriate composition of the committee undertaking the review? Second, should the process be confidential, or should some of the review be public? If the context is a direct interview with a candidate, what questions might be asked so as not to embarrass the candidate or politicize the process?

    In conclusion, Mr. Chairman, I identify a number of guiding principles that might assist this review, while helping to address some of the above questions. I might add that a number of these principles have already been identified by your previous witnesses.

    First is the merit principle. The overriding objective of the appointments process is to ensure that the best candidates are appointed, based on merit. As the Prime Minister has pointed out, a process that would discourage good people from applying is one that is not worth having.

    The Supreme Court bench should, to the extent possible, reflect the diversity of Canadian society. A diverse bench ensures that different and plural perspectives are brought to bear on the resolution of disputes.

    Second, the system should preserve the integrity of the Supreme Court and the court system. The judiciary is an institution that is vital for the maintenance of the rule of law and the health of our democracy. It must not be politicized, nor should any damage be done to the reputation of its members.

    Third, the system should protect and promote judicial independence. The independence of the judiciary is a cornerstone of our legal system, and nothing should be done that might undermine or diminish this principle.

    Fourth, the system should be more transparent. As I mentioned, the present consultative process, which is comprehensive, is simply not known. In the interests of transparency, I have shared with you the protocol describing this consultative process. I trust that the release of this protocol will enhance public confidence in the appointment process and help underscore the excellent quality of appointments to the court that have been arrived at through this process.

    Of course, transparency must be considered on a continuum. In addition to the protocol, we are now factoring in—as I said, this is a value-added given—a parliamentary review process. It may be suggested that complete transparency can only be achieved by the kind of full hearings that we see in the American process. However, the objective of transparency must be weighed against the other guiding principles I have outlined, including the integrity of the institution and the continuing independence and capacity of individual judges.

Á  (1120)  

    Fifth, the system should recognize the value of provincial input. Indeed, the present consultative process does provide for important provincial input through the consultation with appropriate provincial chief justices, provincial attorneys general, provincial bar leaders, and other interested provincial bodies that may wish to make recommendations.

    Finally, the system should recognize the value of parliamentary input, as this process seeks to do.

    Mr. Chairman, colleagues, as I said earlier, but it bears repeating in closing, the current process has resulted in the appointment of truly exceptional members of the Supreme Court. If there are any complaints about the current process--and there can be--they would not come from a sense that we have been appointing second-rate or second-best candidates. Indeed, Supreme Court judges are recognized as being of the highest quality. They continue, as I indicated, to be admired and respected both at home and abroad, as your witnesses also stated.

    I want to conclude by expressing my appreciation for your committee's hard work on this issue. As you pointed out on the first day of hearings, Mr. Chairman, this is a very serious issue. Whatever solution we find, it must be the right solution.

    I look forward, Mr. Chairman, to any questions that you or the committee may have.

    The Chair: Thank you, Minister Cotler.

    For the record, I want to indicate that the minister is joined by Marc Giroux and Judith Bellis, both of whom were able to provide the committee with some valuable insights on the current process at our last in camera meeting.

    Hon. Irwin Cotler: Mr. Chair, Judith Bellis is a general counsel and director of judicial affairs in the department. Marc Giroux is my adviser on judicial affairs.

    The Chair: Thank you.

    Colleagues, the purpose of the one-hour appearance today is to deal with the current process. The minister, in his remarks, did attempt to assist us with principles that could guide us in our work, but I believe the minister would prefer to stick with the existing process.

    Let's begin now. We're going to have three-minute rounds only. At two minutes I will make a sound to simply assist the member in being aware that there's a minute left.

    I will begin as usual with the official opposition. I'll look to Mr. Toews for three minutes.

    Mr. Vic Toews (Provencher, CPC): Thank you.

    Since the time is so brief, I just want to make a few comments on this not secret, but unknown process that we now know something more about.

    In respect of the broad range of consultations, there are a number of very disturbing things I see happening there. You indicate that you consult with the Chief Justice of Canada and perhaps other justices. Again, no criteria are set out for that.

    You indicate that you raise issues or discuss the appointment with the attorney general from the region where the judge is to be appointed, either by convention...or from Quebec. What about the other AGs, I'm thinking to myself?

    When you appoint a judge of the Supreme Court of Canada, he deals with division of powers not simply for a region but for all provinces. It appears to me that it's quite deficient to only consult with perhaps the Quebec attorney general. There may be valid interest in consulting with the other attorneys general.

    On the other points, you indicate you consult with a senior member of the bar association. Frankly, that tells me nothing. There are thousands of senior members of each bar association and, as well, senior members of the law society.

    Wouldn't it be preferable, if you want some measure of objectivity of what the bar is thinking at a current time, to in fact consult with perhaps the president of the law society or the president of the bar association in a particular region? That would avoid undue political guarantees. We know that members of the bar association actually do have political views.

    Regardless of what political party is in power, if you say, I will consult with the president of, let's say, the Manitoba Bar Association, the Saskatchewan Bar Association, or the Quebec bar, so there needs to be some particular....

Á  (1125)  

    The Chair: Mr. Toews.

    Mr. Vic Toews: Well, I'd rather just use my three minutes, Mr. Chair. I think these are important points that need to be made.

    My concern, then, is that while it appears it's objective, in fact the process is so subjective that it really gives us no comfort about this not secret, but unknown process. I think frankly that even though you've disclosed a lot, it's still an unknown process.

    Thank you.

    Hon. Irwin Cotler: Thank you, Mr. Toews. I will go through your questions seriatim.

    With regard to the Chief Justice of the Supreme Court, that of course is the person who is consulted, because that person will have the requisite appreciation of the needs of the court as a whole. And one would consult appropriately other judges of the Supreme Court. I might add that these consultations do take time.

    One would hope that one could consult all members of the Supreme Court, but with a prospective vacancy, for example, I think one would consult the Chief Justice, and at least the judges from the province from which these vacancies would come.

    Secondly, as to whether it is deficient not to consult with all attorneys general, I think that one consults with the attorneys general of the provinces or the regions from which the vacancies ensue, because they will be the ones who have the requisite understanding and expertise with respect to any prospective nominees from their region. It has not been my experience that attorneys general even prefer to comment on nominees from other regions; it is enough for them to be able to comment fairly and appropriately on those from their region.

    Third, you asked why I did not mention the president of the Canadian Bar Association. I should tell you that in my first draft, I had the president of the Canadian Bar Association and the president of the law society. I changed it only because I thought of the hypothetical possibility—and don't impute anything into this, as it's only in the interest of fairness that I say this—but what if the candidate is the president of a bar association? So I use the words “leading member” only so that somebody doesn't say, “Well, you didn't consult the president”.

    What I'm saying is that there may be instances where one would normally go to the president, but there may be instances where one may go outside of the president, for reasons that I mentioned.

    I just want to conclude by saying that I don't claim that this process is exhaustive, nor do I claim that it is exemplary. I'm only saying that it is comprehensive with respect to two particular requirements for that process. One is to identify the best prospective candidates, and the second is to have a set of criteria by which those candidates so identified can be evaluated in as objective a way as possible.

    That is the purpose of the consultative process, but of course I'm open to any suggestions that this committee may make with regard to any improvements as to how that consultative process might best be undertaken.

    The Chair: Thank you.

    I have three members on the government side, Monsieur Lanctôt, Ms. Catterall, and Ms. Torsney, and we have Monsieur Marceau.

    So I'll look to Mr. Marceau for three minutes. I'll give a two-minute warning, and then I'll look to someone on the government side.

[Translation]

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

    Thank you for being here with us, Minister. In your introductory remarks, you said that all this began on December 12, 2003, with a speech by the Prime Minister. I would remind you that the process started with a motion tabled here on October 1^st, 2003, and that, to use an expression that you know well,

[English]

it's Parliament driven and not government driven.

[Translation]

    It is important to acknowledge that the process was initiated by members of Parliament.

    My first question is as follows. One witness that we consulted, Peter Russell from the University of Toronto, stated, and I quote:

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...

    If it is true that people heap so much praise on the Canadian system and if it is as good as some people claim, why is Canada the only western democracy in this situation? I will pose my other questions now since we have a little bit of time.

    Here is my second question. According to one witness, the fact that the Prime Minister has absolute discretion in appointing judges to the Supreme Court puts him in a conflict of interest position. He is acting as both judge and advocate since, in many cases, especially where the division of power is concerned, there are disputes between the provincial and federal levels. If the Prime Minister has absolute discretion to act as he wishes, he can appoint judges who take his side.

    You mentioned that we need to try to avoid politicizing all this. From what we have been told by you and the people with you, jurisprudential profiles are created on candidates who could be appointed to the Supreme Court. Is that not a way to focus to some extent on their opinions, if you know how they have decided in various cases, if their ruling was overturned in an appeal, etc.?

    Here's my last question. The protocol that you have presented us today seems a bit vague in that it says that a given person is generally consulted, but you said yourself that you could not confirm that it was done in every case. Do you not find it a bit strange that the protocol is not followed to the letter when we are dealing with an institution of the Canadian State as powerful as the Supreme Court? We are talking about Supreme Court judges whose decisions have a major impact on policies affecting the lives of citizens and even governments, since these people are interpreting extremely important details. I find it strange that the protocol is not followed to the letter. Thank you.

Á  (1130)  

    Hon. Irwin Cotler: Thank you for your questions, Mr. Marceau.

    To begin with, you are right that the parliamentary review began in this committee. I simply mentioned the government announcement as a government decision to undertake a parliamentary review. So we can say that the process started here, but also that the Prime Minister acknowledged the importance of carrying out such a review. It can therefore be considered a dialogue between Parliament and the government, rather than between Parliament and the courts, and the review is taking place within the context of a democratic process.

    I read the remarks made by Prof. Peter Russell, who appeared before the committee, and I must say that I do not agree with him. In my opinion, his approach is more typical of a political science professor than of a law professor. I do not want to express a preference for one type of academic over another—I see that Stéphane Dion is here—but in fact the Prime Minister does not have absolute discretion.

    The Prime Minister has to act in accordance with the Constitution, which gives the executive branch of government responsibility for appointments. Under the Constitution, that power cannot be delegated to another entity. The important thing is to ensure that this responsibility conferred by the Constitution to the executive is exercised in such a way as to guarantee compliance with the merit principle when appointments are made.

    It is not the Prime Minister personally, or the Prime Minister himself, but the executive that makes the appointments on the basis of the Prime Minister's recommendation, which itself stems from a process of consultation with Justice ministers. So we are talking about an exhaustive consultation process. The Prime Minister's role in these appointments must be considered within the context of this constitutional power and the consultative process.

    With respect to conflict of interest, I really do not see where that comes in. In fact, any participant in the political process could be considered to be in a conflict of interest situation. Someone has to make the appointments and be involved in this process. As I have said, the Constitution gives that power to the executive, and the Prime Minister has a role to play and responsibilities to fulfil in that process as a member of the executive. The most important thing is the merit principle.

    I will ask Judith Bellis to answer you with respect to the jurisprudential profiles.

Á  (1135)  

[English]

    Ms. Judith Bellis (General Counsel, Judicial Affairs, Courts and Tribunal Policy, Department of Justice): Mr. Marceau, I believe the clerk has distributed the description of the methodology that my colleagues and I are utilizing for the statistical profiles, and in particular, in relation to the subsequent history, if I can put it that way, what happens in relation to the cases that are decided.

    You will see at the top of page 2 that we essentially track both what happens in relation to the appeals...and in particular it is of use for the minister to be aware of the outcome in the court of appeal, or in particular, the Supreme Court of Canada. That is not just whether the position of the writing judge was upheld, but as you know, in some cases, it is notable that the decision of a judge who writes in dissent in a lower court decision may in fact be followed in the Supreme Court of Canada. So it's not just what happens in terms of success, if you like.

    The other factor that ministers find useful to know is essentially the influence that the cases written by a particular judge may have had in the case law below, to the degree that the cases are followed and become guiding precedents and of legal consequence. That's also useful information to ministers.

    I should point out, as I did when I appeared the last time, that as you can appreciate, these statistical profiles are a piece of information. They are only one piece of information, and some would suggest they're a very limited piece of information. But it is one that I think ministers find gives them comfort that they have a complete package.

    Hon. Irwin Cotler: I just might add--I hope you don't mind the personal reference--as a former law professor, I might be one of the few who look forward to reading jurisprudential profiles.

[Translation]

    In conclusion, I would like to congratulate you, since it was your motion of last October that initiated this parliamentary review. Thank you.

[English]

    The Chair: Thank you.

    Monsieur Lanctôt, for three minutes. Then I go to Mr. Comartin, and then I'll go to Ms. Catterall.

[Translation]

    Mr. Robert Lanctôt (Châteauguay, Lib.): Thank you, Mr. Chairman. Since you are asking us to stick to the current process, I would like to ask you two questions.

    As we know, the courts are playing an increasingly politicized role. I would like to know a few things about how the appointments are made and the consultations carried out. Are there a limited number of people who work with you in the Prime Minister's Office and the Department of Justice? I would like to know who exactly works with you to carry out these consultations.

    Moreover, after your consultations or recommendations, do people in the Prime Minister's Office undertake another process or is there a parallel process? In other words, after your recommendations, does his office do another process, or are your views and consultations the sole basis for the appointment of a chief justice?

    I have another question on a different topic. If there is a need for a private law expert, we know that we have a real problem. There is a lot of talk about the Charter and public law; however, the court lacks the time to really give consideration to private law. Suppose there was a need for a private law expert, that an issue is put to a judge, that a very important recommendation is made and that there is a position open in the Quebec region. Quebec, of course, uses civil law and not common law. What will you do if an expert is needed, but if that expert is only knowledgeable about comparative law, since he has no training as such in common law? How will you make a good choice? Thank you.

Á  (1140)  

    Hon. Irwin Cotler: Thank you for your question. I must say at the outset that there is only one person who helps me in the consultation process, and that is judicial affairs advisor Marc Giroux. He is the only person who helps me in that respect. Only the minister is involved in the consultation process; I do the consultations. If a potential candidate comes out of the consultation process, the Prime Minister will be consulted, since he is the one who has final responsibility for the appointment.

    You are asking if there is another process. There is a consultation process, as the protocol describes, which comes under my responsibility. If the Prime Minister does his own consultations, I cannot speak to that because I know nothing about it.

    Concerning candidate's expertise, we try to find people who meet the various criteria that I listed. There might be a need on the court for a criminal law expert, for example. If it is possible to find a person through the consultation process in the region or province in question, that is both a criminal law specialist and has the required expertise, that may be another criterion for the recommendation.

    When it comes to Quebec, we look for civil law specialists. Training in both civil and common law could be another criterion used to select a person.

    It is difficult to answer that question hypothetically, since it depends on a whole set of factors, ranging from professional ability to personal qualities, and we also have to consider the diversity of representation on the Supreme Court and other similar factors.

Á  (1145)  

[English]

    The Chair: We'll go to Mr. Comartin for three minutes, followed by Ms. Catterall.

    Mr. Joe Comartin (Windsor—St. Clair, NDP): Thank you, Mr. Chair, and thank you, Mr. Minister, for being here.

    Mr. Minister, I understand you've already responded to Mr. Marceau that the process was initiated by his motion through this committee, but obviously the Prime Minister publicly has been very clear that some review is going on. I think it would help this committee if we knew what process is underway in your department to review the appointment process and how soon we would have a position from the government. That's my first question.

    This is my second question. In terms of the people you and your predecessors have consulted with, is there any sense that anybody has a veto? I'm going to use the Chief Justice. Let's say the Chief Justice is absolutely, vehemently in favour of or opposed to an appointment. Would that be enough to determine the outcome of that appointee?

    Third, with regard to other groups consulted, you didn't specify any, but let me ask, as we look to try to achieve some type of gender balance on the court, were there national groups representing women consulted, and if so, to what degree did that consultation play on the ultimate appointment of some of the appointments we have had of women?

    Finally, when the assessment is done of an existing judge, of his or her decisions, is there any assessment made of their judicial activism, and does that play any role in the assessment, either pro or con?

    Thank you.

    Hon. Irwin Cotler: Thank you, Mr. Comartin, for your remarks.

    First, it allows me to also recall that in fact the first reference to a parliamentary review emanated from the Prime Minister, then a Liberal member of Parliament for LaSalle--Émard, in a talk at Osgoode Hall Law School in October 2002 in which he raised the question of parliamentary review of appointments to the Supreme Court of Canada.

    Subsequently, this committee had a motion before it, which died on the Order Paper. Then the Prime Minister, almost immediately after being sworn in as Prime Minister, made reference to the process of parliamentary review. As I said, this was confirmed by the government in its own release of its government action plan for democratic reform on February 4, 2004.

    So that's why I said it has been a kind of parliamentary executive approach.

    With regard to the process that is being carried out, what we have determined is the framework within which we carry it out. One is the constitutional framework. In my department I have to take cognizance of the fact that the constitutional framework within which this is carried out vests the authority to do so in the executive branch of government. This is what might be called a constitutional given. This has to be our starting point, because as I say, this is not a responsibility that can be delegated.

    The question then becomes, how does one give effect to this constitutional framework? How does one assure that the responsibility that was vested in the executive branch of government is carried out in such a way as to secure the best candidates and achieve the best court? Then I described to you the process that has been carried out in the past, which I think, as the evidence would demonstrate, has produced excellent candidates and has produced an excellent court.

    I've described to you the range of consultations that I will undertake in accordance with this protocol, which is reasonably both specific and responsive, as well as the criteria by which prospective nominees will be evaluated, which again is both comprehensive and specific. As a result of that process, our candidate's identified, and in consultation with the Prime Minister, a judgment is made and a recommendation made to cabinet to discharge its constitutional authority for an order in council appointment pursuant to this process.

    You then asked whether the Chief Justice has a veto on this. As I say, this is a consultative process. I wouldn't imagine that anyone would have a particular veto with respect to any prospective candidate. This is a consultative process, one that will factor in the various evaluative assessments in accordance with the criteria I mentioned. This process has worked in the past. As I said, the best evidence is that it has produced excellent candidates.

    It doesn't mean that the process cannot be improved upon. It just means that whatever improvements are recommended must take into account the constitutional framework within which it takes place, the present protocol of appointment, and the set of criteria that I mentioned to you, in particular the merit principle, preserving the integrity of the Supreme Court as an institution on the principle of independence of the judiciary.

    You mentioned gender balance and whether national women's groups were consulted. I can't speak, Mr. Comartin, as to what occurred in the past. I didn't conduct that process. I would not presume to speak to what occurred in that process. I can only say that a national women's group or any other organization, as the protocol sets forth, could if it wished make representations with respect to either a particular candidate or with respect to the criteria that they believe should be observed with regard to the appointment.

    In the matter of judicial activism, I don't think this would be a nomenclature that you'd find in the criteria, nor would it be a nomenclature that I would find to be even predictable. I can tell you, both as a law professor and as someone who appeared a fair number of times before the Supreme Court of Canada, I often did not know which way the court would go or a particular judge would go.

    The same judge...I'll use the example of Madam Justice Louise Arbour, who will be leaving the court at the end of June. Her appointment to the Ontario Court of Appeal was done under a Progressive Conservative government; her appointment to the Supreme Court was done under a Liberal government.

Á  (1150)  

    So I think what you have here is that when it comes to the appointments process, people want to protect the independence of the judiciary, want to protect the integrity of the Supreme Court as an institution, want to secure the best candidates possible and approach this with a certain degree of humility, because this is one of the sustaining legacies that we leave. Every time we appoint a judge to the Supreme Court of Canada, we have to bear in mind the juridical legacy, and we are trustees of a process here that we have to protect with respect to the principles that I enunciated earlier.

    In the past it has worked very well. I trust that in the future it will continue to do so, with now the added parliamentary review component, which I respect, and with the added transparency, which has been warranted and which we sought to respond to by releasing the protocol, among other things.

    The Chair: Thank you.

    Ms. Catterall, for three minutes.

    Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): That's a good starting point that re-emphasizes that--

    Mr. Vic Toews: I just want to know how many minutes that was.

    The Chair: It was one minute and forty-five seconds by Mr. Comartin, and six minutes by the minister in response.

    Mr. Vic Toews: That's a fairly consistent pattern, Mr. Chair.

    The Chair: Mr. Toews is of the view that I should be interrupting the witnesses. You can put that to me and I'll consider it, but at the moment, I'm allowing the witnesses to give responses.

    Mr. Vic Toews: On a point of order, Mr. Chairman, I was just suggesting.... You told us specifically these were three-minute rounds. I wanted to get a point in during the first round, and I had almost three minutes done. I know you gave the minister a little more time, but to go for two minutes and then eight minutes.... Why didn't we just proceed the way we usually do, Mr. Chair, so that we have the proper disclosure of questions and testimony?

    The Chair: The reason, Mr. Toews, is that if I allowed the members to take seven minutes and the justice minister chose to take another seven minutes in response, we'd be at fourteen minutes. So the members have three minutes; I'd prefer them to complete their remarks and questions within two minutes and allow time for the witness to respond.

    Mr. Toews is essentially asking the witnesses to be as brief as they possibly can in the circumstances. Anything other than that will have to wait until a future meeting so we can discuss it among ourselves.

    Mr. Cotler.

Á  (1155)  

    Hon. Irwin Cotler: Mr. Comartin, as did other questioners, put six questions to me. I was trying to respond to them as succinctly as I could, but to respond to each one of them. I respect him for the succinct way in which he put the questions, but I sought to answer each one of them.

    The Chair: Thank you for that.

    Ms. Catterall, three minutes.

    Ms. Marlene Catterall: I think we're all a little more aware than we were a few weeks ago of the importance and the long-term significance of the task we've undertaken here. Numerous witnesses, virtually every witness, told us to take our time to do the job well and carefully. So it's somewhat unfortunate that we're faced with two vacancies on the court that I presume it's desirable to fill as soon as possible and as well as possible.

    I think we've also been made aware of the risks of certain directions we might take: one, including candidates who might not wish to subject themselves to a parliamentary grilling; two, compromising the issues that you've raised with us, the integrity and independence of the court; and three, in my own personal view, potentially influencing the choice so that we're choosing somebody who can pass muster of a parliamentary review rather than necessarily the best person for the job.

    So I guess what I'm looking for as we proceed with this is, how do we develop a process that brings value-added to what now is being undertaken? I would appreciate the minister's views on what sorts of issues one might raise with a nominee that could add value to the process that has been laid out before us today.

    Secondly, I'd appreciate knowing his views on the expected timing of when a recommendation might be ready to come forward.

    Thirdly, I would ask his comments on my own personal feelings about how we should proceed, which is, given the urgency of what's in front of us, to adopt an interim process and then spend the time that all our witnesses have told us is necessary to review the process.

    My particular question to the minister is, would he be prepared to come before this committee and justify the nomination he has made? Then I think we might know if we need additional parliamentary review.

    Hon. Irwin Cotler: Thank you for the question.

    In regard to the question as to how your committee might develop a parliamentary process that is value-added, I would not wish to presume as to how you might undertake your process. I just sought to share with you some questions that you might wish to consider, and in respect to your process as well as the process that I undertake, what are some of the guiding principles. But you are the people who will make the best judgment as to how you should go about your work, and I would not wish to presume on that.

    As to when the recommendations would be ready, I have already begun the consultative process. As I indicated, I would like it to be as comprehensive as possible in terms of the range of people who are consulted, and as uniformly systematic as possible in terms of the criteria by which candidates identified in the consultative process are appropriately evaluated. And then, of course, when that process is concluded, I would then make my recommendation to the Prime Minister. I would hope that the process could be concluded by June of this year, but that's just a reasonable expectation.

    As to whether I would be prepared to come back to this committee and make representations to this committee as to why a particular nominee has been designated, yes, I would be pleased to do so and to share with you both the process, the criteria, as I've done today, and the evaluation arrived at that recommended a particular nominee.

  (1200)  

    The Chair: Colleagues, I have Ms. Torsney, Mr. Dion, Ms. Barnes, Mr. Toews, and Mr. Marceau who still want to ask questions. Mr. Toews and Mr. Marceau have already asked questions. We're up to noon, so.... I see, Ms. Barnes will not be asking a question. Thank you, Ms. Barnes.

    I don't know quite how to handle this. I wouldn't ordinarily recognize Mr. Toews on a second round, because he has already asked questions, but I'm prepared to recognize other members of his party. They've indicated they wish to cede their time to Mr. Toews. So I'm in your hands. I think I have to allow Mr. Toews to ask another round.

    So Mr. Toews, you have, from your colleagues, three minutes.

    Mr. Vic Toews: We're going to have to look at a steering committee.

    The Chair: We'd be delighted to. You have three minutes.

    Mr. Vic Toews: This is just a comment, and I do appreciate your testimony here today, because I've learned more about the appointment process than I've known for 20 years. But I do find it surprising that you would state that attorneys general would not be interested in the appointment to the Supreme Court where those appointments, by convention, or statute, or otherwise, come from another region.

    Certainly, as a former attorney general, I would have been very interested in the appointment of the Supreme Court of Canada judges who would be judging Manitoba laws when they come from Quebec or British Columbia. I think it's a vital interest that I would have as the attorney general.

    Similarly, we heard some very interesting testimony from Peter Russell. I know some members got into a debate with Peter Russell, and one of the concerns that he mentioned--and I don't necessarily agree with his appraisal.... He called appointment at the court of appeal level shabby patronage; I think that was his term. That was his term, and I certainly don't agree with that assessment overall. But my concern, from a perception point of view, is that if we are taking Supreme Court of Canada judges out of a pool that's perceived to have been built on the basis of shabby patronage, what does that do to the administration of justice and the perception?

    So what I would do, Mr. Minister, is encourage you to look at that process underneath the Supreme Court of Canada as well, so that the perception is not just in terms of the pool that we're drawing on from the Supreme Court of Canada but also the court of appeal.

    Those are my comments. I think that transparency would go a long way to avoiding this kind of characterization that judges, who I consider very good judges, have been appointed simply on the basis of shabby patronage. So those are my comments. I don't think you have time for an answer, but I just leave that with you.

    Hon. Irwin Cotler: Thank you for that.

    I would only say that I wouldn't characterize even those who are appointed in the lower courts as a result of shabby patronage. I think that's a rather inappropriate characterization. It is unfair both to the individuals on the court and even to the principle of the independence of the judiciary.

    The Chair: Ms. Torsney, three minutes.

    Ms. Paddy Torsney (Burlington, Lib.): Thank you.

    I think you have identified that we've been given an incredible task in what is perceived to be a fairly short timeframe. It's against a backdrop where, in fact, people didn't know about the process that we currently have in Canada. People are making comparisons, clearly, to what happened with Clarence Thomas and some of the other American Supreme Court justices. I don't think any Canadian wants anything even close to that.

    Mr. Marceau identified that some of the witnesses have told us that Canada is the only one who makes this comparison. Even in terms of making comparisons, we're comparing apples and oranges. The supreme courts in these various countries function in a different manner. The supreme court justices are appointed for term limits, perhaps. Is there a greater need to analyze and compare across systems to come up with a better one?

    In reviewing the next two appointments that are coming forward, you talked about how the committee needs to look at what composition this committee should have. Should it be in public or in private? Should there be a direct interview?

    In trying to tease that out and figure out what we would do, what kind of questions could you imagine an individual could be asked before any kind of committee that they would be able to answer?

    Certainly, their perspective is on future cases. We all know that there's a Supreme Court reference on same-sex marriage. That would be inappropriate. Their appreciation of whether Manitoba laws trump B.C. laws, what the role is between the federal and provincial governments, or aboriginal issues, could affect the outcome of other cases.

    It's my understanding that their job is to review the law in question, listen to the people who come before them, and then make a decision based on the case that they have at that time. While looking at prior judicial rulings is interesting, those were the cases that were before them, at the time, and the understanding and evolution of the country, at the time. We can't predict how that will necessarily be in the future.

    What kind of process would you envision if there was such a thing? Isn't the very nature of asking questions to any Supreme Court justice nominee, in fact, politicizing the process?

  (1205)  

    Hon. Irwin Cotler: Okay. As to your two questions, in the matter of relevancy of other jurisdictions, this committee has heard, and may yet hear, evidence with respect to other jurisdictions. I would concur with you that other jurisdictions must be seen in context, because number one, the constitutional framework may be very different in another jurisdiction.

    I met last week with the chairman of the constitutional court from Russia. We discussed the comparative approaches to the appointment of judges to the Supreme Court. What was clear to me is that the appointments process in Russia takes place under a very different constitutional framework.

    Here, in Canada, we've refined our own constitutional framework. We've moved from being a parliamentary democracy now to a constitutional democracy. The constitutional framework is very important. Each country may have, or at least we have, developed an appointment protocol, a consultative process by which this is carried out.

    As to the questions to be put, I would think that one would wish—again, this would be your determination—to be guided by the principles that I set forward. In other words, one ought to avoid questions that would have the effect, even if it is not the intent, of either politicizing the process or somehow prejudicing the reputation of the nominee or the court.

    Therefore, I would think one would wish to put questions that relate to the criteria that I described earlier and that are of a professional character that can be assessed regarding the candidate's superior ability in law, etc.--the matters I described earlier.

    The Chair: Thank you.

    There are two other questioners. I'll go to Mr. Marceau first, if you like. Then Mr. Dion can wrap up.

[Translation]

    Mr. Richard Marceau: Minister, I would like to know how things work in concrete terms.

    Let us suppose that a position comes open. How is a list of potential candidates established? Do you come up with that list? Does your department put people on a list when they hear about worthwhile potential candidates? There must be a master list that you work from when you do your consultations. Do you call the Minister of Justice in a given province and ask him or her for names, or do you already have candidates in mind?

    After that, when you or the Minister of Justice goes to the Prime Minister's Office, do you recommend only one name on the list or do you recommend three, four or five?

    Finally, what role is played by the Prime Minister's Office? Do the staff there recheck things and do further consultations, or if only one name is selected, do they simply rubber stamp the recommendation that you or the previous Minister of Justice has made?

  (1210)  

    Hon. Irwin Cotler: There may be a preliminary list consisting of the names of judges from the region, particularly from the Court of Appeal of a region or province. Provincial bar presidents and eminent academics can also give their opinions. A preliminary list can be made, but it is based on consultations with all the people that I mentioned. There may be another list that results from those consultations. So I would study a preliminary list that might be suggested to me with the remaining names of sitting judges, Appeal Court judges and bar presidents. Then at the end of an exhaustive consultation process, a preferred candidate is recommended.

    It is difficult to be specific about how the work begins with a preliminary list and how the consultations are carried out. It is a combination of the two. There are really two approaches: first, candidates are identified, and second, they are evaluated. That is done through the same consultation process.

[English]

    The Chair: Thank you.

    Mr. Marceau, is that okay?

[Translation]

    Mr. Richard Marceau: I did not understand the following point: do you submit one name or three names to the Prime Minister's Office? Thank you.

    Hon. Irwin Cotler: As I said, the list is used to evaluate candidates following the consultations, but the Prime Minister or someone else could ask me if I have thought about a particular person who might be an excellent candidate for the Supreme Court of Canada.

    That is part of the consultation process. It is not a case of the Prime Minister imposing someone. On the other hand, it is not necessarily the preferred person who will be appointed: it will be one of the people suggested through an exhaustive consultation process. You can suggest someone to me yourself, Mr. Marceau, and I will take note of your recommendation in the same way.

[English]

    The Chair: Thank you.

    Mr. Dion is next for three minutes.

[Translation]

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

    Minister, I would say that the process that you have described is not arbitrary, as some have suggested. Instead, I would call it informal and confidential. The informal and confidential nature of the process is one of its virtues. It is good that it is done that way.

    That said, we certainly want to formalize at least part of the process. That is what the committee is trying to do. So I would ask you what you consider to be the costs of formalizing this.

    You mentioned a potential problem a little earlier. If, as is done for lower courts, for example, an expert committee is used and parliamentarians were added to that committee—this is one possible model—how would these committee members be appointed, since some of them, if we are proceeding in a statutory manner, may be potential candidates? You pointed out that problem.

    In the current system, it is not really a problem at the Supreme Court level, since there is no committee and the process is informal. If a committee is established and the committee members are chosen on a statutory basis, the situation may arise where a committee member is a potential candidate.

    There must surely be a way to resolve that problem, since it has been dealt with for lower courts where there is an expert committee. How do they get around that problem in the lower courts? If we want the same thing for the Supreme Court, we will have to find a solution as well.

    Here is my second and last question. The current process is indeed very informal and confidential in nature, since, if I understand correctly, the potential candidates are not interviewed. Interviews are not done in the lower courts either, I believe. Is there a reason for that? Why is the decision made on the basis of files and consultations but not interviews?

  (1215)  

    Hon. Irwin Cotler: As you have said, the process is very important. It is not an arbitrary process, but rather a constitutional, confidential, official and informal one. It is up to you to decide if you want to formalize the process.

    Our process is official, confidential, public and constitutional, but problems may arise if we try to formalize it. There is a protocol that does make it more formal. But I am open to all the suggestions and recommendations that this committee may make, whether they call for candidates to be professionally evaluated, interviews to be held, or direct interviews to be used to assess professional qualifications. I do not want to prejudice the parliamentary process. I am here to share certain perspectives with you and not to make specific recommendations to the committee.

    Hon. Stéphane Dion: I asked you a question. I did not ask you to make a recommendation to the committee.

    Why does the current process not include interviews? What is the reasoning there? Some advantage must be seen in not doing interviews. There must surely be advantages to that approach.

    My second question is as follows. How are committee members appointed in the case of lower courts? There are committees at the Appeal Court and Superior Court levels. How are committee members appointed in a way that avoids conflicts of interest, since the members themselves could be potential candidates?

    I would like answers to those two questions.

    Hon. Irwin Cotler: I will ask Marc Giroux to answer, since he has a great deal of experience with high-level judicial appointments. He will certainly be able to share with you relevant aspects of his experience.

    Mr. Marc Giroux (Judicial Affairs Advisor, Department of Justice): The members of the advisory committees in the provinces cannot be candidates to the bench. Consequently, the issue of conflict of interest does not arise for committee members, since they are not eligible to be—

    Hon. Stéphane Dion: Are they chosen in a statutory manner? Does the minister pick the members?

    Mr. Marc Giroux: No. It is done through a minister's directive. To begin with, there are seven committee members. One represents the chief justice of the province.

    Hon. Stéphane Dion: Is that person chosen by the chief justice?

    Mr. Marc Giroux: Yes, that person is appointed by the chief justice. There is also a representative of the provincial attorney general, a representative of the local Bar society, and a representative of the Canadian Bar Association. The minister of Justice also appoints members, including some who are not lawyers.

    Hon. Stéphane Dion: Imagine a process where all those people were appointed in a statutory manner by the associations, etc. They would not be in a conflict of interest situation, because the fact that they were selected would imply that they do not want to be considered as candidates.

    Mr. Marc Giroux: As I mentioned already with respect to the provincial committees, committee members cannot be considered for the bench.

    Hon. Stéphane Dion: It has to work that way, otherwise—

    Now, I would like to know why there are no interviews.

[English]

    The Chair: Monsieur Dion--

    Hon. Stéphane Dion: I just want an answer to my question.

    The Chair: I know, but you have so many good questions and only three minutes.

    Hon. Stéphane Dion: I had only two questions, and the one that came last--

    The Chair: I actually lost count of all the good questions you had.

    Hon. Stéphane Dion: I have the smallest number of questions, so I want an answer to my question.

    The Chair: Let's wrap up with a final question from Mr. Dion.

[Translation]

    Mr. Marc Giroux: The way the committees work right now does not preclude interviews. In practice, however, it would be difficult to hold interviews given both the number of people who are candidates for judicial appointments and the limited time available for evaluating them.

    If I am not mistaken, the commissioner for federal judicial affairs appeared before a committee and indicated the number of people per year who are candidates for the bench. That is the answer I would give.

  (1220)  

    Hon. Stéphane Dion: That is the current system.

[English]

    The Chair: Mr. Cadman is asking if the minister's opening statement is available. Of course it is. It's already in the transcript.

    Hon. Irwin Cotler: I think it's already here, if I'm not mistaken.

    The Chair: Thank you, Minister Cotler, Ms. Bellis, and Mr. Giroux.

    As the minister said, this has been a first parliamentary look at the Supreme Court judicial appointment process. Thank you for being a part of it.

    [Proceedings continue in camera]