JUST Committee Meeting

37th PARLIAMENT, 3rd SESSION

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

EVIDENCE

CONTENTS

Wednesday, April 28, 2004

¹

1535

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

Mr. David Gourdeau (Commissioner for Federal Judicial Affairs, Office of the Commissioner for Federal Judicial Affairs)

The Chair

Ms. Paddy Torsney (Burlington, Lib.)

Mr. David Gourdeau

The Chair

Mr. David Gourdeau

¹

1540

¹

1545

The Chair

Mr. David Gourdeau

¹

1550

The Chair

Mr. David Gourdeau

The Chair

Mr. Kevin Sorenson (Crowfoot, CPC)

The Chair

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

¹

1555

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

Ms. Margaret-Rose Jamieson (Judicial Appointments Secretary, Office of the Commissioner for Federal Judicial Affairs)

Mr. Kevin Sorenson

Mr. David Gourdeau

Ms. Margaret-Rose Jamieson

The Chair

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

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

º

1600

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

º

1605

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

Mr. David Gourdeau

Mr. Richard Marceau

The Chair

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

The Chair

Hon. Stéphane Dion

The Chair

Hon. Stéphane Dion

The Chair

Hon. Sue Barnes (London West, Lib.)

Mr. David Gourdeau

Hon. Sue Barnes

Mr. David Gourdeau

Hon. Sue Barnes

Mr. David Gourdeau

Hon. Sue Barnes

Mr. David Gourdeau

Hon. Sue Barnes

Mr. David Gourdeau

Hon. Sue Barnes

Mr. David Gourdeau

Hon. Sue Barnes

Mr. David Gourdeau

Hon. Sue Barnes

Mr. David Gourdeau

º

1610

Hon. Sue Barnes

Ms. Margaret-Rose Jamieson

Hon. Sue Barnes

Mr. David Gourdeau

Hon. Sue Barnes

Mr. David Gourdeau

Hon. Sue Barnes

Mr. David Gourdeau

Hon. Sue Barnes

The Chair

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Ms. Margaret-Rose Jamieson

º

1615

Mr. Kevin Sorenson

Ms. Margaret-Rose Jamieson

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

The Chair

Hon. Stéphane Dion

Mr. David Gourdeau

Mme Margaret-Rose Jamieson

Hon. Stéphane Dion

Ms. Margaret-Rose Jamieson

Hon. Stéphane Dion

Ms. Margaret-Rose Jamieson

Hon. Stéphane Dion

Ms. Margaret-Rose Jamieson

Hon. Stéphane Dion

Ms. Margaret-Rose Jamieson

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

º

1620

Mr. David Gourdeau

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

Mr. David Gourdeau

The Chair

Hon. Paul DeVillers (Simcoe North, Lib.)

Mr. David Gourdeau

Hon. Paul DeVillers

Mr. David Gourdeau

Hon. Paul DeVillers

Mr. David Gourdeau

Ms. Margaret-Rose Jamieson

Hon. Paul DeVillers

Ms. Margaret-Rose Jamieson

Hon. Paul DeVillers

The Chair

Ms. Paddy Torsney

Ms. Margaret-Rose Jamieson

º

1625

Ms. Paddy Torsney

Ms. Margaret-Rose Jamieson

Mr. David Gourdeau

Ms. Paddy Torsney

Mr. David Gourdeau

Ms. Paddy Torsney

Ms. Margaret-Rose Jamieson

Ms. Paddy Torsney

Ms. Margaret-Rose Jamieson

Ms. Paddy Torsney

Mr. David Gourdeau

Ms. Paddy Torsney

Mr. David Gourdeau

Ms. Margaret-Rose Jamieson

Ms. Paddy Torsney

Mr. David Gourdeau

Ms. Paddy Torsney

Mr. David Gourdeau

The Chair

º

1630

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

The Chair

Mr. Kevin Sorenson

Mr. David Gourdeau

Mr. Kevin Sorenson

The Chair

Mr. John Maloney (Erie—Lincoln, Lib.)

Mr. David Gourdeau

Mr. John Maloney

Mr. David Gourdeau

Mr. John Maloney

Mr. David Gourdeau

Mr. John Maloney

Mr. David Gourdeau

Mr. John Maloney

Mr. David Gourdeau

Mr. John Maloney

Mr. David Gourdeau

º

1635

The Chair

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

Ms. Margaret-Rose Jamieson

Mr. David Gourdeau

Ms. Margaret-Rose Jamieson

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

Mr. David Gourdeau

Hon. Stéphane Dion

Mr. David Gourdeau

The Chair

º

1640

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CANADA

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

---

NUMBER 013

l

3rd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Wednesday, April 28, 2004

[Recorded by Electronic Apparatus]

¹  (1535)  

[English]

    The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): We're continuing our review and study of the process for the selection or appointment of Supreme Court of Canada judges.

    We have with us today two persons from the Office of the Commissioner for Federal Judicial Affairs. We have Mr. David Gourdeau, the commissioner, and Ms. Margaret-Rose Jamieson, the secretary for that...I was going to say that huge bureaucracy, but I know it's quite a small, effective, efficient operation.

    We hope our witnesses today will describe the current process through which federal Superior Court judges are now appointed--and, I suppose, Federal Court judges. I think the witnesses have a presentation that will walk us through that. We're looking for a description of the process and the criteria used by the parties involved in that process.

    I'll introduce our witness. You may commence, and when you're finished with the presentation we'll go to questions. Keep in mind that we have set aside an hour for this part of the process.

    Mr. Gourdeau.

[Translation]

    Mr. David Gourdeau (Commissioner for Federal Judicial Affairs, Office of the Commissioner for Federal Judicial Affairs): Mr. Chairman, honourable members, my name is David Gourdeau. I have been the Commissioner for Federal Judicial Affairs since 2001. With me today is Ms. Margaret-Rose Jamieson, Judicial Appointments Secretary and Legal Counsel. She has been with our office since August 2003.

[English]

    We are pleased and honoured to have this opportunity to inform you of the mandate of our office, to make a short presentation, and to answer your questions.

[Translation]

    The mandate of our office, as set out in section 74 of the Judges Act, is threefold: first, the application of Part I of the Judges Act, which entails the administration of salaries and allowances for federally-appointed judges; second, preparing budgetary submissions and making any other administrative arrangements that are necessary for our office and for the Canadian Judicial Council; third, doing such other things as the minister may require in connection with any matter or matters falling, by law, within the minister's responsibilities for the proper functioning of the judicial system in Canada.

[English]

    We will concentrate on the federal judicial appointments process. We are responsible for that process pursuant to paragraph 74(1)(d) of the Judges Act.

    On the federal judicial appointments process, the current federal judicial appointments process was announced by the Minister of Justice in 1988 and was fully implemented in 1989 when the advisory committees created under the process became operational. The process was designed to enable all interested and qualified individuals to be considered for appointment and to provide a means by which the Minister of Justice could receive broadly based and objective advice about their qualifications for appointment.

    In 2003, 490 applications for the bench were received, 59 advisory committee meetings were held to assess these applicants in every province and territory, and 55 applicants were appointed to a provincial Superior Court, the Federal Court, the Federal Court of Appeal, or the Tax Court of Canada. In 2002, we received 499 applications. There were 47 meetings and 53 appointments. Each year approximately 40% to 45% of applications received will be either highly recommended or recommended for appointment. The balance are without recommendation, which is basically the kiss of death.

[Translation]

    Independent judicial advisory committees constitute the heart of the appointment process. It is the committees who have the responsibility of assessing the qualifications for appointment of the lawyers who apply.

    There is at least one committee in each province and territory. Because of their larger population, Ontario has three regionally-based committees and Quebec has two.

[English]

    The Chair: Ms. Torsney, on a point of order.

    Ms. Paddy Torsney (Burlington, Lib.): I don't know if our witness realizes there is translation. If there is no pause at the end of a sentence, it's really hard for them. Just breathe at the end of a sentence.

    Mr. David Gourdeau: Okay, I'll slow down.

    The Chair: That is true for both languages, which I know the witness will be using.

[Translation]

    Mr. David Gourdeau: Candidates are assessed by the regional committee established for the judicial district of their practice or occupation, or by the committee judged most appropriate by the commissioner.

    Each committee consists of seven members representing the bench, the bar and the public. The composition of the committee is as follows: a nominee of the provincial or territorial law society, a nominee of the provincial or territorial branch of the Canadian Bar Association, a judge nominated by the chief justice or senior judge of the province or territory, a nominee of the provincial Attorney General or territorial Minister of Justice, and three nominees of the federal Minister of Justice.

    Each nominator is asked by the federal Minister of Justice to submit a list of names from whom an appointment to the relevant committee can be made. The minister, with the assistance of the Commissioner for Federal Judicial Affairs or the Judicial Appointments Secretary, then selects persons to serve on each committee who reflect factors appropriate to the jurisdiction, including geography, gender, language and multiculturalism.

    Committee members are appointed by the Minister of Justice to serve two-year terms, with the possibility of a single renewal. The minister meets each year with the chairs of all the committees, for an exchange of views concerning the operation of the process.

[English]

    On the role of the Judicial Appointments Secretariat.... As Commissioner for Federal Judicial Affairs, I have overall responsibility for the administration of the appointments process on behalf of the Minister of Justice. My responsibility is to ensure that the system treats all candidates for judicial office fairly and equally.

    I have delegated that responsibility to the judicial appointments secretary. It is the commissioner's or the appointments secretary's particular responsibility, on behalf of the minister, to assure that all assessments are completed expeditiously and thoroughly. The judicial appointments secretary must attend every committee meeting as an ex officio member and serves as the link between the minister and the committees.

    All communications between the minister and the committees are effected through the commissioner or the appointments secretary. In short, administrative support for the work of the committees, including information sessions and guidelines concerning confidentiality and other committee procedures, is provided by the Judicial Appointments Secretariat of our office. All committee proceedings and consultations take place on a confidential basis.

¹  (1540)  

[Translation]

    Now let's turn to the expression of interest and eligibility for federal judicial appointment.

    Qualified lawyers and persons holding provincial or territorial judicial office who wish to be considered for appointment as a judge of a superior court in a province or territory or of the Federal Court, Federal Court of Appeal or Tax Court of Canada must apply to the Commissioner for Federal Judicial Affairs.

    In addition to candidates themselves, members of the legal community and all other interested persons and organizations are invited to nominate persons they consider qualified for judicial office. Nominees are contacted by the commissioner to ascertain whether they wish to be considered for a judicial appointment.

    Candidates are asked to complete a personal history form that provides the basic data for the subsequent assessment of, or comment on, the candidature by the appropriate advisory committee. In addition to the usual information which is found in a curriculum vitae, it includes information on the candidate's non-legal work history, other professional responsibilities, community and civic activities, a description of the qualifications for appointment, personal matters such as the candidate's health and financial situation, and competence to hear and conduct a trial in both official languages.

    Candidates are also asked to provide any other information which is relevant to the application, and which might assist the committee in its assessment.

[English]

    The statutory qualifications for appointment are set out in the Judges Act, the Federal Court Act, and the Tax Court of Canada Act. Generally, they require 10 years at the bar of a province or territory, or a combination of 10 years at the bar and in the subsequent exercise of powers and duties of a judicial nature on a full-time basis in a position held pursuant to a law of Canada or of a province or territory. That is taken directly from the act.

    Appointments to a provincial superior court are made only from members of the bar of that province, as required by the Constitution Act of 1867. Appointments to the superior courts of the three territories are open to all persons who meet the qualifications for appointment within their own province or territory. Candidates are asked to sign an authorization form that allows the commissioner to obtain a statement of their current and past standing with the law societies in which they hold or have held membership.

    Upon determining that a candidate meets the threshold constitutional and statutory criteria for a federal judicial appointment, the judicial appointments secretary will forward the candidate's file to the appropriate committee for assessment for lawyers, or for comment only if the candidate is a provincial or territorial court judge. This file also includes the law society report concerning the candidate's current or past standing.

[Translation]

    Lawyer candidates only, are assessed by the committees. Extensive consultations in both the legal and non-legal communities are undertaken by the committee in respect of each applicant.

    Professional competence and overall merit are the primary qualifications. Committee members are provided with assessment criteria for evaluating fitness for the bench. We can give you a copy of those criteria. In any event, I'll be discussing them more thoroughly a bit further on in my presentation. These criteria relate to professional competence and experience, linguistic competency in both official languages, personal characteristics and potential impediments to appointment. Committees are encouraged to respect diversity and to give due consideration to all legal experience, including that outside a mainstream legal practice. Broad consultations by the committees and community involvement through these consultations are essential elements of the process.

    The committees are asked to assess candidates on the basis of three categories: recommended, highly-recommended or unable to recommend for appointment. These categories reflect the advisory nature of the committee process. Once the assessment has been completed, candidates are notified of the date they were assessed by the committee but are not provided with the results of the assessment. The results are kept strictly confidential and are solely for the minister's use.

    Each candidate's assessment must be certified by the commissioner or the appointments secretary prior to its submission to the Minister of Justice.

¹  (1545)  

[English]

    I'll go back to English now.

    The files of all candidates are maintained in a separate and confidential databank in the Judicial Appointments Secretariat in our office for the sole use of the Minister of Justice. Lawyer candidates are notified of the date they were assessed by the committee, and the assessments are valid for a period of two years from that date.

    During that period of time a recommended or highly recommended candidate remains on the list of those available for judicial appointment by the Minister of Justice. A request may be made in the three-month period prior to the date of expiry of the two-year validity period or at any time thereafter.

    Provincial or territorial court judges who wish to be candidates must also notify the commissioner in writing of their interest in a federal judicial appointment and complete a personal history form for judges. These candidates are not assessed by the advisory committees, but their files are submitted to the appropriate committee for comments, which are then provided to the Minister of Justice, including the results of any confidential consultations undertaken by the committee.

    These comments are strictly confidential and are provided to the Minister of Justice only. They are not binding on the minister, and the names of these candidates are automatically placed on the list of those available for appointment. They must, however, renew their expression of interest every five years, failing which their names will be withdrawn from the list.

    Committees are masters of their agenda and review proposed candidacies depending on the number of applications received and the judicial vacancies to be filled by the Minister of Justice.

[Translation]

    I'm now going to review the assessment criteria for candidates for federal judicial appointment. It may be even dryer than what I've presented so far. Please forgive me if it seems to be a bit of a chore.

    The following list of factors, though not exhaustive, is intended to provide a basis for assessing the suitability of candidates for judicial appointment.

    There's professional competence and experience. While courtroom experience is an asset, it is only one of many factors which may be considered in assessing a candidate's suitability for the role of judge. So there's general proficiency in the law, intellectual ability, analytical skills, ability to listen, ability to maintain an open mind while hearing all sides of an argument, ability to make decisions, capacity to exercise sound judgment, reputation among professional peers and in the general community, areas of professional specialization, specialized expertise or special skills, ability to manage time and workload without supervision, capacity to handle heavy workload, capacity to handle stress and pressures of the isolation of the judicial role, interpersonal skills with peers and the general public, awareness of racial and gender issues, as well as bilingual ability.

[English]

    Personal characteristics are: a sense of ethics, honesty, integrity, fairness, a sense of responsibility, patience, common sense, humility, reliability, courtesy, tact, punctuality, tolerance, and consideration for others.

    The potential impediments to appointment are: any debilitating physical or mental medical condition, including drug or alcohol dependency, that would be likely to impair the candidate's ability to perform the duties of a judge; any past or current disciplinary actions or matters against the candidate; any current or past civil or criminal actions involving the candidate; financial difficulties, including bankruptcy, tax arrears or arrears of child support payments.

[Translation]

    Thank you very much for your attention.

[English]

    Thanks very much for your attention. I'm open to questions.

[Translation]

    If there are any questions, I'd be prepared to answer them.

[English]

    The Chair: Thank you very much for that presentation.

    I have a technical question. In the category of assessments and confidentiality, where you talk about the two-year life of an assessment, you say a request may be made in the three-month period prior to the date. What's that a request for?

    Mr. David Gourdeau: If someone has already been assessed, let's say the person was evaluated on today's date, on April 28, and they were notified of same, if they have not been appointed 21 months from that date they can refile an application to be reassessed anew.

¹  (1550)  

    The Chair: The candidate is therefore requesting that he or she be assessed again?

    Mr. David Gourdeau: Yes.

    The Chair: All right. Thank you.

    Now we'll go to questioning. And I see we have Mr. Harris with us today. Welcome, Mr. Harris.

    Mr. Sorenson for seven minutes.

    Mr. Kevin Sorenson (Crowfoot, CPC): Thank you. I want to thank you both for coming in today.

    Did we just have the one presentation? I was a little late.

    The Chair: Yes, just one today.

    Mr. Kevin Sorenson: Mr. Gourdeau, you may have covered it initially in your opening statement, but how long have you been in the position of commissioner?

    Mr. David Gourdeau: I've been the Commissioner for Federal Judicial Affairs since December 2001.

    Mr. Kevin Sorenson: Who was the commissioner prior to you?

    Mr. David Gourdeau: Mr. Guy Goulard. The position was vacant for about a year, a year and a half. So in the interim, Mr. Denis Guay, who was the deputy commissioner at the time, was the interim commissioner.

    Mr. Kevin Sorenson: Basically, as I understand it, your responsibilities are twofold; first of all, administering the salaries and the annuities, and all those of different levels of judges, but also to oversee the advisory committee on judicial appointments.

    Mr. David Gourdeau: Yes.

    Mr. Kevin Sorenson: Does the work of your office cover the appointment of Court of Appeal judges?

    Mr. David Gourdeau: Yes and no. A person can be appointed directly to the Court of Appeal. We gave you the forms that we normally send out to all the candidates. A candidate can indicate a preference for which court they want to be assessed. So, theoretically, someone could be asked to be assessed for the Court of Appeal only, and these people would go through the same assessment procedure as someone who wanted to be appointed to a superior court.

    What happens is a lot of members of appeal courts are appointed from the bench. At this point in time, most of them have already all been through this appointment vetting process before they were first appointed to the bench. When a minister wants to appoint someone from the bench to the appeal court, there is a consultative process that we do not administer at our office. It is germane to the minister's office and to the exercise of his or her discretion.

    Mr. Kevin Sorenson: There are 16 advisory councils.

    Mr. David Gourdeau: Yes, at last count 16.

    Mr. Kevin Sorenson: All about judicial appointments?

    Mr. David Gourdeau: Yes.

    Mr. Kevin Sorenson: Is that across the country or is that all--

    Mr. David Gourdeau: Yes, on a geographical basis: three in Ontario, two in Quebec, and one for each province and territory.

    Mr. Kevin Sorenson: Then you oversee all those.

    Mr. David Gourdeau: We give those committees administrative support, and their deliberations are reported to the minister through our office, on a confidential basis.

    Mr. Kevin Sorenson: Do you have people coming in and applying directly to you as the commissioner?

    Mr. David Gourdeau: Yes. All of the applications go through our office.

    Mr. Kevin Sorenson: But they would normally go to a committee and then be sent through you, or do they apply to you and then you designate it out to the committee?

    Mr. David Gourdeau: The way it works is in fact people can access these application forms from our website now, but the application form you have with you is sent to our office. We check to see if the candidates meet the minimal requirements--10 years at the bar, things of that nature--and then we ask the local bar to tell us if that person is a member in good standing, and then the application is sent on.

    The only reason why an application would be held up at our office is if someone didn't meet the criteria. For example, if someone had been called to the bar six months ago and decided to file an application for assessment, we would just return it back to them saying, you don't meet the minimal statutory norm, which is 10 years at the bar.

    Mr. Kevin Sorenson: So there are individuals who come in--and I don't know how they do it. Do they drop off their resumé? Do they say they want to be considered? Are there others who are just nominated? Are there others about whom people would say, I think so-and-so would make a great justice?

    Mr. David Gourdeau: I occasionally get letters of that nature, either from a member of the bar, a client who was very happy with a solicitor's work, or whatever, saying Mr. or Ms. so-and-so would be a great appointment to the bench. We say, thank you for the letter, and we also say that if the person is interested, all they have to do is either go to our website or we can send them an application form. But there's no direct appointment without an assessment, to my knowledge.

    Mr. Kevin Sorenson: If someone nominates somebody to the bench, would you contact them and say, listen, you are being considered, or your name has been brought forward?

    Mr. David Gourdeau: No.

¹  (1555)  

    Mr. Kevin Sorenson: You never initiate?

    Mr. David Gourdeau: From our part?

    Mr. Kevin Sorenson: Yes, if someone has been nominated.

    Mr. David Gourdeau: If someone has been recommended by a member of the public, you mean?

    Mr. Kevin Sorenson: Yes. Do you follow that up? Do you then say, hey--

    Mr. David Gourdeau: Do we send them an application form?

    Ms. Margaret-Rose Jamieson (Judicial Appointments Secretary, Office of the Commissioner for Federal Judicial Affairs): We contact them, generally by telephone, and just say that their name has been suggested and are they interested in applying. If they say yes, then we send them an application form or refer them to the website for the application form.

    Mr. Kevin Sorenson: This committee is meeting because we want to oversee or look at exactly how justices are appointed to the Supreme Court.

    Again, I wonder what you would bring to this discussion. Obviously you, in some ways, are involved in the committees that would check out qualifications.

    Do you ever have a group where you're saying, yes, it's going to be one of these five that we're going to put on the bench, and where all five of them know they're being considered for that position? I ask that because yesterday we had someone who came in—again in reference to the Supreme Court—who was concerned that not a lot of people should be called forward and questioned because some of the questions may cause embarrassment.

    When you question these people or go through their resumés and bring them forward, do you ever have anyone say, “Listen, this is causing me a great deal of embarrassment, especially as I'm with a large firm who understands that I'm being considered for an appointment, but it's going to cause them grief if I don't get the appointment because maybe a few other people are aware that someone nominated me”?

    Mr. David Gourdeau: It doesn't exactly work that way. I'll give you the broad strokes of it, but in the assessment, the committees go through the application forms and check the references, but they don't question the candidates directly.

    This is all done on a confidential basis, for the exact reason that you raised. An applicant can indicate to us on the form that they don't want the partners in their firm to be contacted on this because it might compromise their future career with the firm. You have to understand one thing: of all of the people who are recommended, there aren't positions for all of them. So even if there are a certain number of highly qualified individuals who can be appointed to the bench, there aren't positions for all of them. So a lot of them continue on in private practice, and it remains on a confidential basis.

    Insofar as an appointment to another court is concerned, of someone on the bench, there might be a form of embarrassment if there's only one position and there are five highly qualified candidates. Only one person can be appointed; therefore, it might be a bit of an embarrassment for an external person who didn't make the cut, if you will, even though they're very highly qualified.

    Ms. Margaret-Rose Jamieson: If I can add one point here, it's quite rare for someone to suggest the name of a candidate; 99.9% of the applicants contact us directly and send in their applications. So no one else knows about their application.

    The Chair: Thank you.

    Mr. Marceau, for seven minutes.

[Translation]

    Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Mr. Gourdeau and Ms. Jamieson, thank you very much for being here and for your very interesting evidence.

    First of all, I'd like to ask you whether it works.

    Mr. David Gourdeau: A straightforward question deserves a straightforward answer: yes!

    Mr. Richard Marceau: I like it that way. So using advisory committees for positions as important as judges' positions basically works well.

    Mr. David Gourdeau: It works quite well.

    Mr. Richard Marceau: Okay. It was important to say so. Do you see any factor that would stand in the way of using a system similar to yours for higher levels, meaning the Supreme Court and Courts of Appeal?

    Mr. David Gourdeau: First, as I explained earlier, it applies somewhat to the Court of Appeal, when someone applies directly. For the Supreme Court, however, we are not involved in the process.

    Could a similar process apply? I guess so.

    Mr. Richard Marceau: Okay.

    Mr. David Gourdeau: Is it up to us to decide? Probably not, but the system works. I can tell you that. The system works quite well.

º  (1600)  

    Mr. Richard Marceau: Okay, this is what I wanted to know. That's why I asked the question.

    How are members of your committee selected?

    Mr. David Gourdeau: As I said earlier basically, each committee has a maximum of seven members. One member represents the provincial or territorial law society.

    In the case of the province of Quebec, there are two committees. Each has a member from the Barreau du Québec and another from the provincial branch of the Canadian Bar Association.

    Mr. Richard Marceau: I understand that. This means that the Barreau du Québec or the Quebec branch...

    Mr. David Gourdeau: ... recommends someone to the minister.

    Mr. Richard Marceau: They tell him they would like Mr. so and so to be appointed. Is that right?

    Mr. David Gourdeau: Actually, they recommend three names and the minister picks one.

    Mr. Richard Marceau: So the Barreau du Québec would recommend X, Y and Z, and the minister picks one of them.

    Mr. David Gourdeau: That's right.

    Mr. Richard Marceau: How long is the term?

    Mr. David Gourdeau: Two years.

    Mr. Richard Marceau: Is it renewable?

    Mr. David Gourdeau: It can be renewed once.

    Mr. Richard Marceau: What selection criteria are used by committee members?

    Mr. David Gourdeau: Since the minister asks those bodies for nominees, of course he will want people involved in their community and with sound judgment, but as far as I know these criteria do not exist in writing.

    Mr. Richard Marceau: Let's take Quebec for example. The Barreau will do its own assessment of potential judges.

    Mr. David Gourdeau: Yes.

    Mr. Richard Marceau: Assuming that Mr. so and so sat on that committee, can he during his term or shortly afterward apply for a judgeship?

    Mr. David Gourdeau: There is a one-year cooling off period.

    Mr. Richard Marceau: If I'm appointed to the committee by the minister, following a suggestion from the law society, with my term ending in 2000, I cannot be considered in 2001 but I can be in 2002.

    Mr. David Gourdeau: That's right.

    Mr. Richard Marceau: When the committee meets, can it have consultations outside the committee?

    Mr. David Gourdeau: Yes. Let's see how it works. There are assessment forms. People are asked to write in the names of colleagues or fellow lawyers they have shared cases with. They may indicate the names of judges who have heard their cases. They are then requested to provide references from the community. Committee members check these references.

    Mr. Richard Marceau: After the committee has done its work, does it send a short list to the minister? Imagine there is a vacancy at the Quebec Superior Court. Would it send a short list or the name of a single nominee?

    Mr. David Gourdeau: No. Here is how it works. Committees must assess all applications they receive. Let's take the Montreal committee, for example. Let's say that at one meeting, the Montreal committee must assess 25 applicants. All 25 will be assessed and a report will be sent to the minister with a list of those “Highly Recommended”, those “Recommended” and those without recommendation. That's all.

    Mr. Richard Marceau: So it's pass or fail. You can very good, good or not eligible for appointment.

º  (1605)  

    Mr. David Gourdeau: That's right. The minister picks from the “Highly Recommended” or“Recommended” list.

    Mr. Richard Marceau: Are there marks or a rating from top to last?

    Mr. David Gourdeau: No.

    Mr. Richard Marceau: There are three categories. The committee will not indicate who, from the highly recommended list, should...

    Mr. David Gourdeau: No, this is left at the minister's discretion.

    Mr. Richard Marceau: Why are proceedings kept confidential?

    Mr. David Gourdeau: Why are they confidential? As I was saying earlier, some people do not necessarily want their partners to know they are considering a career on the bench. It's a kind of privacy, as when someone applies for a position. Let's say there is no public posting as such. Thanks to confidentiality, we manage to get attractive applications. At one time it was felt that if it was fully transparent the system would be deprived of top applicants who would not want it to be known they were coveting that position.

    Mr. Richard Marceau: Can an applicant seek his or her file?

    Mr. David Gourdeau: How so?

    Mr. Richard Marceau: After you have been assessed, can you know why you were only“Recommended” and not “Highly Recommended”?

    Mr. David Gourdeau: No, this remains strictly confidential.

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

[English]

    The Chair: Thank you, Monsieur Marceau.

    I will just point out for the record that the committee was originally looking at the broader question of judicial appointments, based on a motion referred to the committee from the House, which was originally moved by Monsieur Marceau. So your evidence today is certainly relevant to that envelope, although we've now moved on a little bit into the Supreme Court of Canada file.

    So on the government side, I'll recognize Monsieur Dion for seven minutes.

    Hon. Stéphane Dion (Saint-Laurent—Cartierville, Lib.): Well, I was the one with the seven minutes yesterday. Maybe one of my colleagues can take the seven minutes today.

    The Chair: It's--

[Translation]

    Hon. Stéphane Dion: [Editor's Note: Inaudible]

[English]

    The Chair: So many members are deferring, and that's great.

    I have on the government side, Barnes, Dion, DeVillers, and Torsney.

    Hon. Stéphane Dion: I'll be the second one.

    The Chair: And the first one is? Ms. Barnes.

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

    I want to go a little into this confidentiality. You obviously have a large number of people across Canada in different provinces and territories who sit...and from the sound of it, you must have a number in highly populated areas. For instance, in Ontario you must have a number of these committees sitting.

    Mr. David Gourdeau: Three committees.

    Hon. Sue Barnes: All right.

    Mr. David Gourdeau: Sixteen times seven will give you the number of committees.

    Hon. Sue Barnes: Is there anything statutory or legislative that binds them to the confidentiality you're talking about, or are they told to keep it secret and they do?

    Mr. David Gourdeau: There's nothing statutory.

    Hon. Sue Barnes: You don't have problems with that, everybody understands it, and it's kept confidential? I would suggest that it's not just for partners; it might be for a client base and a whole pile of other reasons.

    Mr. David Gourdeau: There is one thing I would like to point out. The members of these committees do this work pro bono.

    Hon. Sue Barnes: Okay.

    Mr. David Gourdeau: I apologize, I forgot to mention it, but it is pro bono work, and my understanding is that they do it often in the interest of their communities. They want to have some input, because these people who are appointed will have a lot of influence for a long period of time in their communities. They take this pro bono work very seriously.

    Hon. Sue Barnes: Acknowledging that it is pro bono work, on average, how long would it take for one file to be evaluated? Is it done over time? Would one application generate 10 hours of work, 30 hours of work? Would it be done in one meeting, or would it be done with people taking information and following up with references or something on private time?

    Mr. David Gourdeau: It would vary from committee to committee and from committee member to committee member. Normally, an application is reviewed within six to nine months. Nine months would be a very long time, and that would be more predicated on the amount of work the committee has to go through. Some committees from the smaller regions don't get that many applications, whereas in Ontario and Quebec, especially those committees that cover the larger metropolitan areas, they receive many more applications than other committees and they have more vacancies, so there's more work. But it's usually done within six months.

    Committee members do their work individually before they meet as a committee. They check the references and then they report back to the committee. It does occur sometimes that after members of a committee report back to the committee, the assessment is deferred to a further meeting, because something has come up or another member of the committee has raised something and they want to look into that. A final report is brought back to the committee and then an assessment is made.

    Hon. Sue Barnes: Thank you.

    Is there any province or territory operating differently from any other one, or is it all a paper and reference check procedure, without any live interviews?

    Mr. David Gourdeau: It's all paper and reference checks.

    Hon. Sue Barnes: Okay.

    Mr. David Gourdeau: It's not as dry as that, because the reference checks the individual committee members do, to my understanding, are fairly extensive. It's usually by phone, or occasionally some people meet to discuss this.

º  (1610)  

    Hon. Sue Barnes: Ms. Jamieson, did you want to add something?

    Ms. Margaret-Rose Jamieson: I was just going to add a few points. Sometimes the reference checks are fairly extensive. In some cases up to 40 references are checked for one candidate. The norm would be more around 20, but some candidates have had that more comprehensive check, especially when there are questions or doubts in the committee's mind.

    With regard to confidentiality, there's nothing statutory that requires the committee members to operate in confidentiality, but when the Minister of Justice appoints the members, he sends a letter nominating them and they have to sign the acceptance. In that letter they are promising to adhere to the confidentiality of the process. We at the Judicial Appointments Secretariat reiterate that when we send out our own documentation and guidelines at the beginning of the mandate of each committee member.

    Hon. Sue Barnes: You also mentioned that there are lay people on these particular screening advisory councils. What does the term “lay people” encompass?

    Mr. David Gourdeau: It's not on a religious basis.

    Hon. Sue Barnes: I realize that. There is the lay person with no knowledge or expertise in the area, there is the community activist who is just interested in the public good of their community, and then there is the person who is not a lawyer but who has incredible expertise in the area. Do you go for a mix of that?

    Mr. David Gourdeau: The lay people, as we call them, are non-lawyers. It can be a mix. One committee has an architect on it. I remember that on one committee a couple of years ago there was the past dean of a university. It's usually people who have some form of involvement in their community. They're well respected and well-known in their communities, generally speaking. They can come from all walks of life. They can be either community activists or business people. But those three people cannot be lawyers, or judges, obviously.

    Hon. Sue Barnes: So the largest percentage of people who would ever make it to the nine positions on the Supreme Court of Canada have gone through this level of screening, which is, I would say, fairly stringent. Then you're probably coming from the Court of Appeal, which involves another screening process that has occurred at some stage, usually inside the Ministry of Justice, I presume. Then we're at the next highest level.

    Do you have an opinion about using some variation of methodology for an advisory commission, or do you not wish to give an opinion? It's up to you.

    Mr. David Gourdeau: Since it's out of our purview, I might have an opinion, but it's probably a lot safer for me not to have one on this. So I'll pass.

    Hon. Sue Barnes: I understand.

    The Chair: Thank you.

    We're now going to three-minute rounds.

    Mr. Sorenson.

    Mr. Kevin Sorenson: You mentioned that the advisory committee meets and it puts these candidates into the different categories. What percentage of judges are appointed from each category? The categories are highly recommended, recommended, and not recommended.

    That leads to my next question. Has anyone ever been appointed from the not recommended category?

    Mr. David Gourdeau: To my knowledge, no. They are appointed from either recommended or highly recommended.

    Mr. Kevin Sorenson: What would be the percentage of those appointed from recommended?

    Ms. Margaret-Rose Jamieson: We don't have statistics with regard to the judges as to whether they have been recommended or highly recommended.

º  (1615)  

    Mr. Kevin Sorenson: Is it fairly common?

    Ms. Margaret-Rose Jamieson: We do have statistics with regard to the number of candidates from recommended and highly recommended. For instance, a cumulative list from 1989 to the present would indicate that 7,003 applications were dealt with. Of those, 2,092 were recommended and 589 were highly recommended, for a total of 2,681 out of 7,003 candidates who were highly recommended and recommended.

    Mr. Kevin Sorenson: Would it be common to have an appointment made from the recommended side when you have some that are very highly recommended?

    Mr. David Gourdeau: I don't know if it would be common. It's up to the minister's discretion. As I understand it, there is no obligation on the minister's part to go to highly recommended first. As long as the person is recommended, he or she is given that discretion.

    Mr. Kevin Sorenson: So that minister is given the discretion, and I would imagine politics might be a factor.

    Mr. David Gourdeau: You would have to ask the minister. It's the exercise of ministerial discretion. Under the present legislative scheme, that's the way it works. Only a minister could answer that question.

    The Chair: Thank you, Mr. Sorenson.

    Mr. Dion wanted to wait for the second round.

    Mr. Dion, for three minutes.

[Translation]

    Hon. Stéphane Dion: Thank you very much.

    You said that on the list of applicants sent to the minister by the different bodies, such as the provincial law society, etc., there are three names.

    Mr. David Gourdeau: These are the people who can sit on selection committees. Maybe Ms. Jamieson should give you the answer because she is more familiar with the details related to this.

    Mme Margaret-Rose Jamieson: Are you talking about the list of committee members or the list of applicants?

    Hon. Stéphane Dion: I'm talking about the list of committee members. In your presentation I read:

Each nominator [the provincial law society, etc.] is asked by the federal Minister of Justice to submit a list of names from whom an appointment to the relevant committee can be made.

    So they do not send the name of a single applicant; they send a list. Earlier, you said to Mr. Marceau that there were three.

    Ms. Margaret-Rose Jamieson: There are seven members on the committee and the minister is in charge of the process. At first, he writes to the law society to ask for their nominations. The law society submits three nominees to the minister. The Justice minister then invites nominations from the provincial Attorney General or territorial Minister of Justice. Here again, he will receive three nominations. He asks for one submission from the provincial or territorial chief justice. Historically, he asked for three, but in practice the chief justice nominates one.

    Hon. Stéphane Dion: This is his own privilege.

    Ms. Margaret-Rose Jamieson: That's right. At any rate, he or she exercises it.

    Hon. Stéphane Dion: It's an established practice.

    Ms. Margaret-Rose Jamieson: The same goes for the Attorney General. So, it's the Minister of Justice who receives these nominations.

    Hon. Stéphane Dion: Does the provincial Attorney General submit three nominees or his own preference?

    Ms. Margaret-Rose Jamieson: He submits three, as far as I know.

    Hon. Stéphane Dion: What is the rationale for this? Is it, as it is written here, to ensure a more balanced representation in terms of regions, gender, language and multiculturalism or is there another rationale?

    Mr. David Gourdeau: I'm sorry but these criteria are used for assessing the candidates.

    Hon. Stéphane Dion: Yes, but the committee itself is not concerned with—

    Mr. David Gourdeau: In the existing legislative framework, committees were created after a request made by the minister in 1988. The process evolved over time. At one time committees were made up of five members. Since 1994, at the request of the minister of the day, it was decided that they would have seven members. To ensure community representation, it was decided to add two people in tune with their community and who could bring a different perspective.

    Hon. Stéphane Dion: But why let the minister choose among three people and not let the Bar choose its own representative? There must be a reason for that.

º  (1620)  

    Mr. David Gourdeau: I think this practice came about perhaps to give the minister a better choice. In the end the minister will exercise his or her discretion. It is an advisory process.

    Hon. Stéphane Dion: All right, but perhaps one of the reasons is that the minister wants a committee made up of members who complement each other in terms of skills, experience, gender or location. In this case, for the Supreme Court of Canada, I would imagine that the minister would want the committee to be particularly knowledgeable and skilled in the fields where the court has certain needs.

    Mr. David Gourdeau: Yes, I would imagine. We believe that our purpose is to help the minister use his or her discretion to make an informed choice by giving him or her as much relevant information as possible.

    Hon. Stéphane Dion: Okay.

    The other question is about the people who aren't lawyers, the lay people. How are they chosen? By the minister?

    Mr. David Gourdeau: Yes, the minister appoints them.

    Hon. Stéphane Dion: I'm going to ask you a question that has more to do with your assessment than the actual facts. Would it make sense to leave it up to the committee to choose those people?

    Mr. David Gourdeau: In theory, perhaps, but that could also paralyze the work of a committee. If a committee decided to be dysfunctional, it could spend the entire two years just debating the choice of the three other members.

    Hon. Stéphane Dion: Yes, but that's easy to get around. You give them a deadline, and if they don't meet it, then the minister chooses.

    Mr. David Gourdeau: Yes, that could be done, but it remains a matter of ministerial discretion. It could be completely different if the legislation were changed. For the time being, it's an exercise of ministerial discretion.

[English]

    The Chair: Okay. A couple of other members here do have questions. We're getting down to the last 10 minutes that we had allocated. We could add time if we wished, of course, but I'll recognize Mr. DeVillers and then Ms. Torsney.

[Translation]

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

    On the personal history form, there's a section on references. Candidates are asked to give at least four references. At the end, there's a note asking the candidate to authorize the committee to consult others. You can answer yes or no. If a candidate answers no, what are the consequences?

    Mr. David Gourdeau: It's up to the committee to assess that. In theory, the committee could be satisfied with the four references. If the four references are inclusive as far as the committee is concerned and provide it with the full range of information that it needs, then it will be satisfied with that. A committee might come to the conclusion that someone who checked “no” had something to hide. But you'd have to be able to get into the hearts and minds of the members of the various committees in order to ascertain that.

    Hon. Paul DeVillers: As a candidate, if I were asked that question and answered no, I would wonder whether that could subsequently be held against me.

    Mr. David Gourdeau: Not necessarily. As I said, it depends. The members of the various committees are the only ones who could tell you. I think that it might also depend on the individual candidate being assessed.

    If a candidate thinks that he or she is less well-known in the community, four references might not be enough. If the person is very well-known in the community, four references might be enough. Sometimes too many is like too few, and too few is like too many.

    Hon. Paul DeVillers: The candidate is asked for permission to consult other people. If the candidate answers no, that may be...

    Mr. David Gourdeau: No means no.

    Ms. Margaret-Rose Jamieson: I'd just like to clarify something. When they say no, they are saying that you may not contact their colleagues. That's the point of the question. It doesn't mean that you may not contact judges whom they've appeared before. It doesn't mean that you may not contact members of their community. It only has to do with their co-workers, their partners.

    Hon. Paul DeVillers: But the committee reserves the right to consult judges or other associates.

    Ms. Margaret-Rose Jamieson: Absolutely. Even judges who aren't named by the candidate.

    Hon. Paul DeVillers: Thank you. That's all.

[English]

    The Chair: Thank you.

    Ms. Torsney.

    Ms. Paddy Torsney: I just want to clarify the numbers: 589 were highly recommended out of the 7,000, and 2,092 were recommended. That means 4,322 were not recommended. That was over--

    Ms. Margaret-Rose Jamieson: Of the 7,003 applications received, 3,538 candidates were not recommended.

    As to the discrepancy of 255, they're the provincial or territorial court judges who applied but were not assessed. They're not given a cote. They're either not recommended or unable to recommend. The committee simply had the discretion of submitting comments on the provincial court judges to the Minister of Justice.

º  (1625)  

    Ms. Paddy Torsney: The people who apply, these 7,000 individuals over this time--and there's some repeat business in there because your application is done after two years, so you have to reapply--they never find out that they're one of that group of 3,000 who were not recommended?

    Ms. Margaret-Rose Jamieson: No, they don't. When the process started in 1988, at the beginning, up until 1990, the candidates did know what the recommendation was and they had access to the reasons, if they asked for that, but it was found that the process was becoming far too litigious. In other words, candidates were challenging the recommendation and the reasons. So it was decided in 1990 that from then on the recommendations and the reasons would remain confidential. The minister at that time was finding that because there were more and more challenges by the applicants, the advisory committee members were becoming more and more reluctant to give candid comments with regard to the applicants.

    Mr. David Gourdeau: There was also a liability question that was coming into play.

    Ms. Paddy Torsney: Was that for the people on the committee?

    Mr. David Gourdeau: Yes, for the people on the committee, and it had the potential of becoming very litigious, to the point where the committee's work would have been paralyzed; it would have defeated the purpose. It was--

    Ms. Paddy Torsney: Well, it's kind of ironic; it was the lawyers who weren't recommended who were suing. It's kind of twisted.

    An hon. member: Not well, though.

    Ms. Paddy Torsney: Not well; they might not have sued so well.

    Julian Porter was here before us. He heads up, I think, one of the committees in Ontario; he's on the Toronto committee, and he gave us some inside--

    Ms. Margaret-Rose Jamieson: Yes, that's for Toronto and Hamilton. It's called the Toronto south and west committee.

    Ms. Paddy Torsney: Hamilton doesn't have its own committee, headed by John Evans?

    Ms. Margaret-Rose Jamieson: Julian Porter is on the Toronto metro committee but he's not the chair.

    Ms. Paddy Torsney: Oh, he's not the chair.

    He was telling us that in fact the lay members do all the reference checks in their committee in Toronto, and that gives them a better feel, I guess, for the people and the individuals and the perceptions of those individuals. Of course, sometimes people list people who don't recommend them, which is always interesting.

    Does the minister have an obligation to pick from the list?

    Mr. David Gourdeau: Theoretically, as long as a potential appointee met the statutory requirements, the minister could appoint that person.

    Ms. Paddy Torsney: The person could be quite outside the list?

    Mr. David Gourdeau: Yes, but I don't think it would be very advisable.

    Ms. Margaret-Rose Jamieson: In 1994, Allan Rock, then justice minister, gave his undertaking that he would only choose from the recommended and highly recommended candidates. That had been a practice prior to that, but he actually confirmed it in writing and made that public.

    Ms. Paddy Torsney: And the consultation with the bar for the area or with the judiciary in the area is for complementing the court based on people's skills. Suppose we have a list of five candidates who have applied for the Hamilton Unified Family Court and they've all been approved, highly or otherwise. There are normally four judges there, and we're looking for someone to round out what the other three judges have. Is that how they sometimes pick between candidates on this list, to make sure there's perhaps gender representation or some other things?

    Mr. David Gourdeau: As to how a minister exercises the discretion, it's really up to the minister. My understanding is that there may be and there probably often is consultation with the chief justice of the various courts or the court to which the person may be appointed.

    Ms. Paddy Torsney: That's to see what they're looking for?

    Mr. David Gourdeau: It's to see what the needs are. They may need someone who has extensive background in the practice of criminal law, corporate law, or family law. If you're talking about the Federal Court, they might need someone who has extensive experience in intellectual property, admiralty law, immigration law, or things of that nature. It would vary from court to court, but my understanding is that there is some form of consultation with the chief justices of the various courts.

    The Chair: Thank you.

    Mr. Sorenson.

º  (1630)  

    Mr. Kevin Sorenson: Did you get your answer, Paddy?

    Mr. David Gourdeau: She wanted to know what happens to the letters we receive recommending someone who's applied. They're simply added to the person's file.

    Mr. Kevin Sorenson: The minister can appoint someone from outside, but you say it's never happened?

    Mr. David Gourdeau: I don't think it's happened since 1994, and before that, between 1989 and 1994, I don't think it happened either.

    Mr. Kevin Sorenson: But if the minister could do it, and if--

    Mr. David Gourdeau: The minister can do it.

    Mr. Kevin Sorenson: Yes, but suppose the minister was to do it and meanwhile you'd taken in all this information and made it very confidential. Would you then let it be known he had appointed someone from outside any of your categories?

    Mr. David Gourdeau: I'm not a politician myself, but I've learned one thing in following politics: never answer a hypothetical question.

    Some hon. members: Oh, oh!

    Mr. Kevin Sorenson: But in all reality, the public never really knows. Unless they've sat in on this committee, they never know if he's--

    Mr. David Gourdeau: I hate to repeat myself, but I don't answer hypothetical questions, and that's a very hypothetical question.

    Mr. Kevin Sorenson: No, that's not hypothetical, because the public would not have the opportunity to know. It's not hypothetical.

    The Chair: Mr. Gourdeau isn't in a position to say what might happen if something else happened, but he has stated very clearly that to his knowledge there have been no appointments ever made from outside the list since this process was implemented in approximately 1989.

    Mr. Kevin Sorenson: And the process is working--

    Mr. David Gourdeau: Yes.

    Mr. Kevin Sorenson: --as you told Mr. Marceau. The consultative public involvement works.

    Thank you.

    The Chair: Thank you.

    We have Mr. Maloney.

    Mr. John Maloney (Erie—Lincoln, Lib.): Thank you, Mr. Chair.

    Has there been any thought given in the review of other candidates to the possibility that your judicial advisory committees might interview these candidates?

    Mr. David Gourdeau: There has been thought given; I think at the beginning it was done a few times. My understanding is--because I wasn't there at the time--that it proved to be a bit burdensome. Maybe because of the nature of the candidates involved it kind of stretched out a lot. Because you're interviewing lawyers, I suspect--being a lawyer myself--it might go on and on.

    The other thing is, because the people who are members of this committee are doing it pro bono and because of the confidential nature of the work they're doing, it could literally drag on for weeks if you were to interview each candidate. There are some committees that would then be overworked; it would become close to a full-time job.

    Mr. John Maloney: Should they be paid in your advisory committee?

    Mr. David Gourdeau: Well, it hasn't come up yet. I don't think it's ever been directly discussed. I suppose it could be a possibility.

    Mr. John Maloney: Basically, the assessment is really based on a sort of hearsay, what other people feel about a certain candidate. I suppose over a period of time--

    Mr. David Gourdeau: Yes, well, some people tend to give hearsay a pejorative meaning. It depends what kind of meaning you give to hearsay--that's the lawyer in me answering. Tell me how you would qualify hearsay and then I'll be able to answer you.

    Mr. John Maloney: Given what others have said about the legal profession being of a competitive nature, since I may have the best of friends or I may have the best of enemies in a certain judicial district, I may, depending on the luck of the draw on who is consulted, get an A rating or a D rating.

    Mr. David Gourdeau: If there were only one person sitting on each committee, it might be more open to that. But because there are several people on the committee and they check a lot of references, if there were an anomaly that came up where someone completely disparaged someone, let's say, while everybody else gave glowing reports, they might want to look into the disparagement. Then sometimes, even if people don't shoot the messenger, they might look at the messenger's agenda.

    Mr. John Maloney: This is my last question. Do you personally have any suggestions for improvement in the selection process we could apply, perhaps, even at the Supreme Court level?

    Mr. David Gourdeau: It's a question I'd rather not answer. It's because unless the legislative scheme were to be changed, I wouldn't know what answer I could give you.

    Mr. John Maloney: We may do that.

    Mr. David Gourdeau: You may, and since our office isn't involved in the Supreme Court appointments at this point in time either, all I can tell you, I suppose, is that the system we have for the other courts seems to be working well, and you can take it from there.

º  (1635)  

    The Chair: Monsieur Dion.

[Translation]

    Hon. Stéphane Dion: If I understand correctly, you don't conduct any interviews. Is that right?

    Mr. David Gourdeau: That's right, there are no interviews of judicial candidates.

    Hon. Stéphane Dion: Okay... Madam?

    Ms. Margaret-Rose Jamieson: In practice, there are no interviews, but there could be.

    Mr. David Gourdeau: Yes, a committee could conduct interviews, but they don't.

    Ms. Margaret-Rose Jamieson: Like Mr. Gourdeau said, before 1994, there were interviews, but it was far too hard to handle.

    For 2003, we received around 500 applications. That many interviews would really have been too difficult.

    Hon. Stéphane Dion: I'd like to know your assessment of the procedure for judges who are candidates. There's a sentence in your document that I would ask you to explain. Provincial or territorial court judges must also complete a personal history form for judges, a form different from the one used by others. “These candidates are not assessed by the advisory committees, but their files are submitted to the appropriate committee for comments—”

    Mr. David Gourdeau: Yes, it would be very tricky to assess someone who's already on the bench. If such a person were to be assessed and found unsuitable for judicial appointment although already a judge, it would be a rather awkward situation. So the file is referred to the committees for comment to the minister only.

    The process varies from province to province for judges of other courts, but the fact is that these people are already acting as judges. We're not about to reassess someone who's already on the bench.

    Hon. Stéphane Dion: I'd like someone to explain to me what the difference is between the “advisory committee” and the “appropriate committee”.

    Mr. David Gourdeau: The distribution is based on geography. For example, if a judge of the Court of Quebec wanted to become a judge of the Superior Court or the Court of Appeal, the application would be referred to the committee for the appropriate judicial district, in this case, the Montreal or Quebec City committee.

    The committee could make comments, but wouldn't do an assessment per se. It couldn't put the candidate in the highly recommended, recommended or unable to recommend category. It could just provide its comments to the minister.

    Hon. Stéphane Dion: To which committee is it then forwarded? To the minister?

    Mr. David Gourdeau: Then, it's the minister who may—

    Hon. Stéphane Dion: So when it refers to the “appropriate committee”, it means the minister?

    Mr. David Gourdeau: When it comes to making comments, the appropriate committee is the committee for the relevant judicial district. Those comments are then sent to the minister.

    Hon. Stéphane Dion: Okay. The sentence is—

    Mr. David Gourdeau: Yes, the sentence may be ambiguous.

    Hon. Stéphane Dion: I don't know whether it's less ambiguous in English, but it certainly is ambiguous in French.

    Mr. David Gourdeau: Sometimes the ambiguity is common to both languages.

    Hon. Stéphane Dion: And then you say that for Superior Court judges seeking appointment to a Court of Appeal, the process doesn't apply at all.

    Mr. David Gourdeau: That's right.

    Hon. Stéphane Dion: For judges of the Court of Quebec seeking appointment to the Superior Court, are things working equally well?

    Mr. David Gourdeau: Yes, the system works well. As far as I know, in all of the provinces and territories, people move from court to court.

    Hon. Stéphane Dion: What were most Superior Court judges doing prior to their appointment. Were they lawyers or judges?

    Mr. David Gourdeau: Most of them were practising lawyers, either in the private sector or the semi-public sector. Some of them were members of administrative tribunals.

    Hon. Stéphane Dion: So not many of them were lower court judges.

    Mr. David Gourdeau: Some were, but I don't know the exact percentage. It's not like the French system, where there's some kind of judicial cursus honorum. It's very different in Canada.

    To get appointed to the Court of Quebec—and Mr. Marceau can correct me if I'm wrong—the requirements are basically the same. You have to be a member of the Bar for at least ten years, and so on.

    Hon. Stéphane Dion: I take it from what you're telling us that your procedure works largely because people go from lawyer to judge, not from bench to bench.

    Mr. David Gourdeau: That's not necessarily why. The system works, but in any given year, a number of people could go from being judges of the Court of Quebec to judges of the Superior Court.

    Hon. Stéphane Dion: Yes, but not following the procedure.

    Mr. David Gourdeau: That could happen. Those people might even have something of an advantage: they don't have to be assessed.

    Hon. Stéphane Dion: That's right.

    Mr. David Gourdeau: If they apply, they may be appointed by the minister.

    The Chair: Thank you, Mr. Dion.

º  (1640)  

[English]

    Well, colleagues, we've taken up our hour. We've had a very interesting presentation.

    As chair, just looking at the system here, I think we have to acknowledge something about a system that was put in place about fifteen years ago, a system that uses people who work voluntarily, who are not paid, and who work within a system of confidentiality that is based on their personal undertaking and not imposed by law. It seems to work very well, and that has to be a tribute to the people who work in that system. I would just make that point.

    The information today has been very helpful, and I thank Monsieur Gourdeau and Ms. Jamieson for making us familiar with this envelope. Thank you very much.

    Now we're going to suspend for a few moments while the witnesses take their leave. Then we'll go in camera and begin discussion.