Interventions in Committee
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Michael MacPherson
View Michael MacPherson Profile
Michael MacPherson
2019-08-21 14:22
We have Ms. Raitt, Mr. Kent, Mr. Angus, Mr. Baylis, Ms. McCrimmon, Ms. Vandenbeld, Madame Fortier, Mr. MacKinnon, Mr. Erskine-Smith....
View David Lametti Profile
Lib. (QC)
Thank you, Mr. Chair.
I will make a statement, then the Right Honourable Kim Campbell will speak, and then I will speak again. Afterwards, we will answer your questions together.
Mr. Chairman, Right Honourable Kim Campbell, members of the committee and other parliamentarians in the room, good morning. I also note the presence of the Honourable Irwin Cotler, whom I thank for being here.
First and foremost, we recognize that we are on traditional unceded Algonquin lands. It is very important to underline this fact today.
I would like to thank the chair for convening this extraordinary meeting of the committee. I also thank all honourable members for being here today. I recognize, of course, that many of them have changed their summer plans to be with us. I am very grateful to them.
As the chair has just pointed out, this is the third time our government has implemented its reformed process for appointing judges to the Supreme Court of Canada.
The modifications we introduced in 2016 are designed to ensure greater openness, transparency and accountability in the appointments process. Many of you here today are seasoned participants, having been part of the 2016 and 2017 processes that resulted in the appointments respectively of justices Rowe and Martin. Madam Campbell was the chair of those committees as well.
As you can imagine, I have followed these processes with great interest and attention. It is now a great honour and privilege for me to participate more directly in the process to fill the position that will become vacant on September 15, 2019, following the retirement of Justice Clément Gascon.
I would like to take this opportunity to once again thank Justice Gascon for his contribution and to acknowledge the courage he has shown throughout his career.
I have the pleasure of appearing today with the Right Honourable Kim Campbell, who joins us via video conference from Vancouver. Ms. Campbell previously served as the chairperson of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments. Ms. Campbell also served as the chairperson of the current advisory board that was adapted to ensure the appointment of a judge properly grounded in the legal experience of Quebec and its legal tradition. Ms. Campbell's extensive experience with the selection process has been an invaluable resource in this process. We are grateful for her continued dedication to serving Canadians in this role and we say thank you.
In a few moments, I will turn things over to Ms. Campbell to describe the specific work the advisory board undertook in order to produce the short list of candidates for the Prime Minister's consideration. Before doing so, however, I would like to briefly outline the unique aspects of the current process to fill this Quebec seat on the court.
According to the Supreme Court Act, three seats on the court are reserved for lawyers from Quebec. Under sections 5 and 6 of the act, only judges of the Court of Appeal or the Superior Court of Quebec, or those who have been members in good standing of the Barreau du Québec for at least 10 years, may be appointed.
As specified by the Supreme Court of Canada in the Reference re Supreme Court Act, ss. 5 and 6, these appointment criteria are intended to ensure that Quebec's unique legal traditions are well represented on the court. These criteria make it possible not only to ensure that the court is able to handle civil law cases, but also to ensure its legitimacy in the eyes of the Quebec population.
That is why the qualifications and evaluation criteria stipulate that a "deep knowledge of the civil law tradition is essential for all candidates to the three Quebec seats".
In addition, on May 15, 2019, the Prime Minister announced a memorandum of understanding between our government and that of Quebec. This memorandum of understanding sets out the process for filling the position that will become vacant following Justice Gascon's retirement. As with the process for seats that do not belong to Quebec, this process is based primarily on the work of the independent and impartial advisory board, which is responsible for assessing nominations and developing a short list of three to five names to recommend to the Prime Minister.
The composition of the advisory board has been adjusted to accurately reflect the reality of Quebec, its legal practices and its civil law tradition.
As mentioned, the advisory board was chaired by Ms. Campbell and included another member whom, as Federal Minister of Justice, I had been asked to appoint. The other six members were selected in such a way as to ensure adequate representation with respect to Quebec and civil law. These six other members were appointed by the Quebec Minister of Justice, the Barreau du Québec, the Quebec Division of the Canadian Bar Association, the Canadian Judicial Council and the Deans of the Quebec Law Faculties and the Civil Law Section of the Faculty of Law of the University of Ottawa.
The selected members, all of whom are functionally bilingual, represented a distinguished set of individuals who undertook their important responsibilities with great care and dedication. I would like to thank them, on behalf of the Prime Minister and our government, for their exceptional service throughout this process.
They did a better job than those working the lights today.
Voices: Oh, oh!
Hon. David Lametti: The core mandate of the advisory board was to assess candidates against the published assessment criteria and to submit to the Prime Minister the names of three to five qualified and functionally bilingual candidates.
In accordance with the agreement with the Government of Quebec, after receiving the short list provided by the advisory board, I forwarded it to the Quebec Minister of Justice. We then conducted our own separate confidential consultations on the preselected applications.
For my part, I consulted with the Chief Justice of Canada, a number of my cabinet colleagues, the opposition justice critics, members of your committee and the Standing Senate Committee on Legal and Constitutional Affairs, among others. The Quebec Minister of Justice conducted her own consultations, including with the Chief Justice of Quebec, before reporting her findings to the Premier of Quebec. After the conclusion of this consultation period, the Premier of Quebec and I submitted our respective recommendations to the Prime Minister of Canada to inform his choice as to whom to appoint.
Before turning the floor over to Ms. Campbell, I would like to speak briefly about the importance of confidentiality in this process, given the concerns that have rightly been raised about improper disclosures surrounding the 2017 selection process.
As I have said previously, the disclosure of confidential information regarding candidates for judicial appointments is unacceptable. I want to stress that I took strict measures to ensure that confidentiality was respected. This process has implemented strict confidentiality measures throughout. The terms of reference for the advisory board contain provisions specifically designed to ensure that the privacy interests of all candidates are respected. This includes a requirement that advisory board members sign a confidentiality agreement prior to their appointment. In addition, the agreement with Quebec explicitly states that the sharing of, and consultations on, the short list are to be conducted in a confidential manner.
In terms of next steps in the process, in addition to the advisory board's critical contribution in developing the short list, today's hearing is another important element. It provides an opportunity for all of you, as parliamentarians, to hear from and question the government regarding the selection process and our choice of nominee. Parliamentarians, and Canadians more broadly, will have the opportunity to become acquainted with the nominee through the question and answer session that has been scheduled for this afternoon.
Having provided this context, I would now look to Ms. Campbell to describe the work that the advisory board undertook in fulfilling its mandate. I will then say a few words about the Prime Minister's nominee to the Supreme Court of Canada, the Honourable Nicholas Kasirer.
Madam Campbell.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:12
Thank you.
First of all, good afternoon. This is old home week, in a sense, for me and this committee. This is the third time we've had the opportunity to discuss this very important process. I do regret that I'm not there personally to give you all a valedictory handshake and perhaps a hug, since I'm sure this will be the last meeting during this mandate. I do want to say how much I've appreciated the opportunity to speak with you and hear your points of view on the work of the committee.
To the chair, Mr. Anthony Housefather; the vice-chairs, the Honourable Lisa Raitt and Ms. Tracey Ramsey; and the members of the committee, it is my pleasure to be before you. It was my honour to chair the committee.
I might say that the difference between the work of this committee and the two others is that
we almost always worked in French. You will find this surprising when you hear me speak French. Even though I speak French like a Vancouver native, it was very important to do so to reflect the reality: we were in the process of choosing candidates from the province of Quebec.
I will speak more French, except I'm very tired—I just arrived yesterday from Africa—and I don't really want to
massacre Molière's language in reporting to you.
We did, in fact, do most of our work in French. That was the difference from the other exercises.
I also want to say, as I said to you before about the other two iterations, that every time somebody says to me, “Thank you for your good work as the chair”, I say that the members of the committee made my work quite easy. I think you would be very proud and happy to know what incredible professionalism and dedication to serving Canadians across the country, not just Canadians in Quebec, the members brought to their work. My goal has always been, in these exercises, to ensure that each member of the committee has an opportunity to speak freely for himself or herself so that we get a genuine exchange of ideas and avoid groupthink and any other dynamics that can undermine the quality of decisions. I must say that this was an outstanding group of Canadians who really took their responsibility very seriously. As I said, it made my job easy. I was very proud to serve with them. I can say nothing but the finest things about them in terms of their competence and their character.
Incidentally, as I saw in the other two examples, the two members of the committee who are not lawyers often bring a very important dimension and a very clear understanding of what the court means to the legal life of our country. I admire them very much.
The 2019 process was opened on April 18 to fill the seat. Candidates were required to submit their applications by midnight Pacific time on Friday, May 17. That was a period of four weeks. I think we'll come back and discuss this a little. One of the challenges we face is the timing of this.
Of the three examples or three iterations of this committee's work, two were done to replace judges who took early retirement. For replacing the chief justice, we had more time, because her retirement was anticipated. She retired close to her retirement age. I think one challenge, which I want to come back and make some suggestions about, is that when justices of the Supreme Court of Canada take early retirement, this changes the time frame in which it's sometimes most convenient or appropriate to engage in the search process, particularly if we want to ensure that the court is up to full complement at the beginning of a new season of its work.
The remaining advisory board members were announced only on May 15, but as soon as the process was launched and I was confirmed to be the new chair, I set about making contact with all of the organizations that we contacted in the past iterations, to ask them to communicate with their members about the new opening and to encourage them to consider whether they would like to be considered as candidates for the new seat on the court. I didn't wait for the other committee members to be appointed but began right away to communicate. Again, I have some other comments I'd like to make about that process.
You know, of course, that I'm not going to repeat the requirements of the Supreme Court Act to have three civil law trained judges from Quebec. The quality of candidates was really outstanding. There were 12 candidates, which was perhaps about right. We had, I think, 12 or 14 candidates for the western seat.
The first seat we considered had many more candidates, because that was originally meant to be—and it was—a national competition. I will say that only one of the candidates was a woman. Again, that is something that the committee members were disappointed about. There were no indigenous applicants in this process. I think we want to talk about how we can encourage a broader range of Canadians to apply. I will give you some of my reflections on why we have encountered those issues.
The board members, first of all, convened via teleconference. We then met in Ottawa between May 27 and June 7 to discuss our evaluations and to proceed with our methodology of identifying and looking at candidates individually before we came together again—to avoid groupthink, to avoid too much influence before each of us had the opportunity to independently review.
Before that, though, we came on May 21 to meet with the chief justice. As you know, it's been our tradition to meet with the chief justice before setting out on our business. This was our first opportunity, obviously, to meet with the new chief justice, Chief Justice Wagner. As in the other two cases, we found that our meeting with the chief justice really helped to set us up for our work by reminding us of the reality of life on the Supreme Court of Canada, of what is required and what some of the things are we should be looking for as we interact with our candidates.
I think what was interesting for us in talking to Chief Justice Wagner—those are confidential conversations, but I don't think he said anything that he hasn't said to Canadians more broadly—was that, as with the other meetings we had with Chief Justice McLachlin, there was an emphasis on the importance of collegiality. Again, one wants justices who have strong views and who are capable of expressing themselves, but collegiality on the Supreme Court of Canada is not groupthink. It is the ability to try, as much as possible, to create clarity and judgments that become the architecture of Canadian law and that are so important for lower courts and practitioners. This ability to work toward the clearest possible elaboration of the court's views on issues is a very important part of the temperament of a constructive Supreme Court justice.
The other thing that was very interesting was when Chief Justice Wagner talked to us about the uniqueness of the Supreme Court of Canada as both bilingual and bijuridical. Now, we knew, of course, that for our judges, one of the requirements for our candidates has been that they be functionally bilingual. The Supreme Court Act requires that there be three civil law trained judges on the court from Quebec, although Justice Martin is also a civil law trained judge, so the strength of civil law capacity on the court is certainly well established. He made a very interesting comment about how unique this makes our Supreme Court and how, in terms of the way other courts around the world look at our judgments, we have a very special set of competences among our justices. I know that certainly many common law judges enjoy the opportunity to study the civil law because it's a different route, often, to getting to the same answer.
That really put our work in a different context in the sense that we weren't just looking to fulfill the requirements of the Supreme Court Act. We were working on an exercise that helped define our court more broadly in the world as uniquely extremely broad in its juridical competence. I think we felt quite inspired by that notion. Of course, the candidates we interviewed were quite outstanding in that regard.
After meeting with the chief justice and doing our work, we presented our short list to the Prime Minister.
I'm very happy to answer your questions, but I would just like to conclude with this comment. I notice that since 2011 there have been nine nominations, including Justice Kasirer, to the Supreme Court. I remember the first meeting we had with Chief Justice McLachlin. She felt that the ability to commit, say, 10 years to the work on the court was highly valuable for a Supreme Court justice simply because it takes time to ramp up, to get up and running, and to find your feet, but also because continuity and a lack of disruption are very important.
However, clearly, there are reasons for judges to not necessarily serve their full time on the court.
In terms of getting the quickest response from strong candidates to the opportunity to be considered as a candidate for the court when retirements come, or early retirements come, we have talked about a process—and I would be very interested in the views of members of the committee on how this might be approached—as a way of starting an ongoing conversation with members of the Canadian judiciary in all of the provinces and senior members of the profession, about what it means to serve on the Supreme Court of Canada. What are some of the nuances, what are some of the requirements? I say this because it's a very difficult job.
It isn't just that one has to be an outstanding legal thinker, but that one also has to move to the national capital region, to Ottawa, and often at a stage in life when a spouse's career may be at its most active and prominent stage of development, when family obligations make it difficult.
I think that having a broader conversation with people in the profession about what is required to be on the court so that there is greater knowledge of what it actually means might, first of all, enable us to encourage even more people to apply. I think, particularly for women, if they have families and are likely to have spouses who also have careers, this might be something that could overcome some reservations.
If this were an ongoing conversation, as opposed to something that we scramble to do just in the face of an imminent departure from the court and the need to recruit a new candidate, I think it might be something that could broaden the scope of the candidates.
Again, as I've said, we do reach out to a broad range of organizations of lawyers and judges in Canada, but I think that in finding people who are perhaps members of groups that are under-represented, having an ongoing process of making candidacy for the Supreme Court of Canada less daunting and more appealing, or certainly to at least allow for a greater, more informed view, so that people do not come to the court and find that it really is difficult for them to serve and that their expectations are not the reality, is something that we need to think about. I say this because we, again, have an outstanding court and a court that, in the context of world courts, is unique and whose work is highly regarded. We want to ensure that no person—no man or woman or member of any ethnic group or identification in Canada—is ever discouraged from presenting themselves as a candidate because of either a lack of confidence in what it might mean or a lack of knowledge.
I will stop here and will be very happy to answer your questions. I appreciate you, Mr. Chairman, and your committee for accommodating me to be able to speak to you from Vancouver because I sure needed my sleep last night.
Thank you.
View David Lametti Profile
Lib. (QC)
Thank you very much, Ms. Campbell.
I will take the floor for a few moments again to talk to you about the Honourable Nicholas Kasirer.
Born in 1960 and originally from Montreal, Mr. Justice Kasirer was called to the Quebec Bar in 1987, after graduating with distinction from the University of Toronto in 1981 with a Bachelor of Arts degree in Economics and Political Science and a Bachelor of Civil Law and Common Law degree from McGill University in 1985. He also studied at the University of Paris 1 Panthéon-Sorbonne, where he obtained an advanced degree in international public law in 1986.
Following his admission to the Barreau du Québec, Justice Kasirer clerked for the Hon. Jean Beetz at the Supreme Court of Canada.
He then served as professor at his and my alma mater, McGill University, from 1989 to 2009, and he was the dean of the faculty of law at McGill from 2003 to 2009, when he was appointed to the Court of Appeal of Quebec.
Prior to his career at McGill, from 1996 to 2003, he was the director of the Quebec Research Centre of Private and Comparative Law, as well as a part-time instructor at the Barreau du Québec and a guest professor at the Université de Paris.
Judge Kasirer is perfectly bilingual. As you will have the pleasure to see this afternoon, he speaks both Molière and Shakespeare's language equally well.
A prolific author, he has participated in the writing of nearly two dozen books, as author or contributor, and has written numerous legal publications, mainly devoted to the law of obligations, property law, family law and the law of wills and estates, both in civil law and in common law.
Known for his generosity and great collegiality, Judge Kasirer has had, as the Prime Minister said, an exceptional career as a judge and professor, and has earned the esteem of his peers in Canada and around the world. There is no doubt that he will be an asset to the Supreme Court of Canada.
I would like to conclude by reiterating my sincere thanks, on behalf of the government, to the Right Honourable Kim Campbell, each member of the advisory committee, each person who was consulted and each candidate who applied in this process. You have helped to ensure the strength of one of Canada's most treasured institutions, a Supreme Court that is respected and admired throughout the world. We are very grateful for your contribution.
I would also like to thank the Commissioner for Federal Judicial Affairs and his staff, who provided exceptional and professional administrative support throughout the process.
Finally, I thank my colleagues in Parliament for helping to place the values of democracy, transparency and accountability at the heart of the selection of judges for our final court of appeal.
Ways to involve parliamentarians in the process of appointing judges to the Supreme Court of Canada have been sought for at least 20 years. I believe this is a crucial role, and members of the 42nd Parliament can be proud to have made progress toward consultation and inclusion.
Thanks to this continued support for the core values of transparency, inclusion and accountability, the selection process for judges of the Supreme Court of Canada will continue to strengthen the confidence of Canadians in this fundamental institution, as will the appointment of outstanding jurists who reflect the diversity and bilingual and bijural character of our country.
Thank you.
View David Lametti Profile
Lib. (QC)
As you know and as I've said many times in the House of Commons and in other public fora, including in front of the press, I make no comment on anything with respect to that file. Anything that I can or might say might have an impact on ongoing litigation. Therefore, I'm very careful in that regard. Thank you.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:32
Let me say that the leak was not from our process. After we present our short list to the Prime Minister, the Prime Minister, in partnership with the Minister of Justice and all the other interlocutors, including, I think, critics, has an ongoing series of conversations. One thing our advisory board is not mandated to do is to select candidates based on their philosophy. Now, if there were candidates who had views that might be considered more extreme in some way, or unconventional, we might certainly mention this, but it is up to the Prime Minister and his post-short list process to determine some compatibility or philosophical views. There is a process that goes on after our committee.
There has never been a leak from our committee, and nor, I think, would there be.
Kim Campbell
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Right Hon. Kim Campbell
2019-07-25 11:33
I don't know. I think he addressed that, but we have a very strict commitment to confidentiality, including not identifying who any of the candidates are. There has never been any suggestion that any of the members of the three committees have ever breached that confidentiality, nor would they.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:34
Not particularly, because we were obviously so devoted to it and so very careful to maintain that confidentiality.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:34
I don't think it was necessary. We worked with the commissioner for federal judicial affairs. We worked on our documents on secure tablets—very carefully controlled. We always left our documents in the meeting room and the clear commitment.... We signed an undertaking to maintaining confidentiality, so the process was well established. I just want to repeat that there has been no indication of any leak ever coming from a member of the committee.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:35
If anything, we were sort of tip-toeing around and were often afraid, even among ourselves. When we ate dinner together we went someplace where people wouldn't even realize who we were and what we were doing.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:35
Well, no, because there's never been any suggestion that this confidentiality has been breached.
I'm delighted—this is good for your committee obviously to be concerned about, but the nature of the leak, such as it was, is that it very clearly was not from the committee process.
View David Lametti Profile
Lib. (QC)
I don't know. The Privacy Commissioner has stated that he has opened an investigation into the matter, and I'm not going to comment on his ongoing investigation. I will say that federal departments will co-operate fully with the Office of the Privacy Commissioner and that I took steps in this current process both in terms of limiting the number of people who had access to the process within my department, as well as segregating the server and doing everything securely that we needed to do to make sure that there was no breach of privacy from my department.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:37
I don't think there were any who self-identified in that way, and it is a self-identification.
The committee was concerned, because we are, of course, limited to evaluating those who apply.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:38
I would say that the quality of candidates was outstanding in all three processes. I think our committee members come away very encouraged by the quality of people who do apply, but one of the things is that people have to apply. In the past, when we would get a nomination where, for example, somebody would write to us and say, “I nominate so-and-so to be a candidate”, I would immediately contact that person and say, “Your name has been forwarded to us as an outstanding candidate for the Supreme Court of Canada. Would you please review these materials? If you are interested in being considered, I warmly encourage you to apply.” That was the best we could do. In many cases, people feel shy about applying: “Am I being too arrogant?” It's nice for them to be able to say that they were asked to apply.
It's something that maybe even the members of your committee might want to think about. If you think there are people you know in the areas where the seats are vacant, there would be nothing wrong with a member of Parliament writing to say, “I'd like to have so-and-so considered.” Then I or a subsequent chair might write to that person, tell them their name was forwarded—we wouldn't say who forwarded it—as an outstanding candidate, and warmly encourage them to apply.
I think the more ways we can overcome people's reluctance to apply, the better. It might well be something that members of your committee, who are very engaged with this issue, might want to address as a committee or just do as interested members of the committee.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:41
That's a question I can't really answer. You have to follow the cases that go through. I would say that on the basis of the candidates who were presented to us, we felt there was a strong commitment to serve not just Quebec but to serve Canada, and consistent with the existing law of the charter. I think these are issues that are certainly beyond my purview to answer.
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