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View Steven MacKinnon Profile
Lib. (QC)
Thank you, Mr. Chair.
We all appreciate the efforts of the Conflict of Interest and Ethics Commissioner and his office, as well as their support to members and Parliament. As far as this report is concerned, the Prime Minister has thanked the commissioner and accepted his report. This matter has been thoroughly studied. As we all heard, the justice committee heard from 10 witnesses for a total of 13 hours of testimony over five weeks.
In addition, we now have this detailed report from the commissioner. It represents months of work for him, and it’s 63 pages long. The Prime Minister has stated unequivocally that he was only trying to protect the jobs of thousands of Canadian workers the whole time. I would think all workers and all Canadians would expect that if their jobs were in jeopardy.
We also have a guide by the Honourable Anne McLellan. She spoke with all the former attorneys general. Her guide helps clarify the relationships between—
View Steven MacKinnon Profile
Lib. (QC)
I will start over. We also have a guide by the Honourable Anne McLellan. She spoke with all the former attorneys general. Her guide helps clarify the relationships between attorneys general and their colleagues in cabinet. The Prime Minister has already pledged to all Canadians that he will act on Ms. McLellan’s recommendations.
The combined processes of the justice committee and the commissioner, which took many hours, months and pages to complete, were detailed and thorough. It’s obvious to me, after hearing my honourable colleagues speak, that the opposition’s real objective is simply to play politics.
We're all thankful for the work of the commissioner's office in support of all members of the House at all times. The commissioner's report is quite detailed and Canadians have had a good opportunity to familiarize themselves with the content. The Prime Minister has thanked the commissioner and accepted the report.
Some hon. members: Oh, oh!
Mr. Steve MacKinnon: Though he disagrees with the conclusions, especially when so many jobs were at stake—which is no laughing matter—he has already announced that steps will be taken to ensure that no government goes through a similar situation in the future.
This government, as any government, should take seriously the responsibility of standing up for jobs and growing the economy. It's the responsibility of any Prime Minister to stand up for people's jobs. In fact, it's the responsibility of all members of Parliament. People whose jobs are on the line should expect no less of their elected representatives.
View Steven MacKinnon Profile
Lib. (QC)
No.
Some hon. members: Oh, oh!
Mr. Steven MacKinnon: Nor is that a point of order, Mr. Chair.
View Steven MacKinnon Profile
Lib. (QC)
That member, with his rich experience in Canada's private sector, we'll have to look at his views with some skepticism too.
It's the responsibility of any Prime Minister to stand up for people's jobs and livelihoods across the country, and that should also be the job of all members of Parliament while upholding, of course, at all times, the rule of law.
View Steven MacKinnon Profile
Lib. (QC)
Mr. Chairman, where I come from, we listen to folks and then get to speak and have a healthy exchange.
I've now been interrupted three times by things that were not points of order. I hope the committee will indulge in hearing the rest of our statement.
View Steven MacKinnon Profile
Lib. (QC)
Of course he does.
View Steven MacKinnon Profile
Lib. (QC)
I'm just expressing it through you, Mr. Chair—
View Steven MacKinnon Profile
Lib. (QC)
Thank you.
I appreciate your chairmanship today, Mr. Chair.
The Prime Minister's objective throughout, as he stated, was to protect thousands of jobs in Canada, all the while ensuring the integrity and independence of the justice system. As has been confirmed on multiple occasions, no direction was ever given to the former attorney general.
Also, former attorney general Anne McLellan has authored a report after speaking with all former attorneys general, as well as constitutional scholars, and has offered recommendations, including a process and a set of principles to guide the relationship between the Attorney General and the government. Both the Prime Minister and the Attorney General have already stated that they will be looking at how to best implement those recommendations, such as the protocol on interactions with the Attorney General and better education for all parliamentarians on defining the role.
The matter before us today has been studied quite extensively. The justice committee heard over 13 hours of comprehensive testimony from 10 different witnesses over a five-week span, and we now have a very thorough 63-page report by the commissioner.
The opposition's claim to simply want the facts is contradicted by the fact that what they seek is found in the commissioner's report. It is already public, on top of the 13 hours of testimony that I just referenced, so the only conclusion that I and members of this committee can come to is that the opposition seeks to prolong this process for political reasons and partisan games.
It is for that reason, Mr. Chair, that we will be opposing this motion.
View Nathaniel Erskine-Smith Profile
Lib. (ON)
When I was first made vice-chair of this committee I don't think anyone realized how popular we'd be. Welcome, everyone.
I have two points of clarification. First, when Ms. Raitt talks about procedural fairness, of course, a decision-maker owes procedural fairness to the subject of an investigation. It's not the other way around. Second, to the point about silencing Ms. Wilson-Raybould, I watched hours of testimony before the justice committee. I read 43 pages of testimony, at the the very end of which she said she had nothing more to add to the process. Those are my two points of clarification.
I am not supporting this motion because of any.... Mr. Scheer was in my riding yesterday, and I want to be clear that I'm not supporting this motion because of any purported grassroots Conservative campaign. I got 10 emails from my riding. That's not what motivated me. I will be supporting this motion, though, to invite the commissioner to discuss his report, one, in the interests of transparency and accountability and, two, because in my own considered view, I think the Ethics Commissioner's conclusions are legally flawed in many respects and I'd like to ask him some questions about his legal mistakes.
I've given a lot of thought to what happened. I've read what feels like a never-ending set of materials and coverage, and in the interest of making probably nobody happy, I want to share a few of my own conclusions, a number of which I've shared publicly before.
First and generally, it is both true that the then-attorney general did not exercise sufficient due diligence on the file and that the PMO, at the same time, exerted pressure that should not have been exerted.
The Shawcross doctrine states that an Attorney General may, but is not obliged to, consult with colleagues in the government, and indeed, it would be a mistake in some cases not to consult. A 2014 general directive states that “it is quite appropriate for the Attorney General to consult with Cabinet colleagues before exercising his or her powers under the DPP Act in respect of criminal proceedings. Indeed, sometimes it will be important to do so in order to be cognisant of pan-government perspectives.” Moreover, in examining the evidence, McLellan's report is also clear that the Attorney General could have engaged in conversations with the DPP. She suggested that she could have asked for more information and solicited a second opinion.
Now to understand all public policy considerations here—and I take Ms. May's point that there was not a sufficient economic impact analysis—I'll tell you that if Ms. May or I or perhaps Mr. Kent were the Attorney General, the right course of action would have been to request an economic impact analysis from the finance minister or a third party when you have a section 13 public interest notice from your DPP. While Commissioner Dion was right that these considerations should not bear on his strict analysis under the act, they do colour the overall situation, and the deputy minister's comments in testimony to Dion raised the same concerns for me.
At the same time, Dion's report in its factual findings made clear that the PMO exerted pressure that should not have been exerted. The Shawcross doctrine is clear that the government is not to pressure the Attorney General at all for any reason, and McLellan's recommendations to establish new protocols for existing standards are themselves an acknowledgement that what took place should not have happened.
It is important that the Prime Minister has acknowledged that mistakes were made, and I trust that McLellan's recommendations will be implemented.
Third, I know that my Conservative colleagues, and perhaps all colleagues on the other side, will disagree with me, but personally, having thought about this a lot, I think the reaction and outrage about this situation have been disproportionate to these original mistakes of improper pressure, and I'll give three reasons.
First, in my view, a DPA should have been considered more seriously. Organizations are made up of good and bad people. When bad people do bad things in those organizations, they should be held criminally responsible to the fullest extent of the law, but the good people in those organizations, the innocent employees, so long as the organization has reformed its practices, should not suffer as a result.
Second, given that this was a new law and the Attorney General had never intervened under the DPP Act, getting a second opinion from former chief justice McLachlin made sense to me. I disagree with Dion's finding that there was any tantamount direction, but from what I read in his report, I can see that there were repeated efforts to ask for a second opinion—and proper repeated efforts to ask for a second opinion. Where I disagreed in reading his report was that I could see no evidence that the analysis or advice of Chief Justice McLachlin was in any way predetermined. He made that factual finding, which I think is an incorrect one. A second opinion from a respected jurist would have been reasonable.
Last, in the end there would always have been a great deal of transparency even if the Attorney General had succumbed to that improper pressure and changed her mind. McLellan notes that with the creation of the DPP in 2006—one of the very few things I will say that the former Conservative government did well—the federal justice system has undergone the most significant organizational change in the last half-century and that any decision by the Attorney General to intervene must be in writing and public. Again, McLellan notes that its use would bring a high degree of public and political scrutiny.
Last and related, I do not accept Dion's findings that there was a conflict of interest. In my view, that conclusion is legally incorrect.
Mr. Weir, you have highlighted some of the reasons why. The Prime Minister and his staff, and you can read it in Dion's report, on multiple occasions were referencing jobs. We can question the evidentiary foundations of their intentions, but their intentions.... In the conversations with Gerry Butts, the conversations with the staffers, or Mr. Trudeau himself, they are saying, “We care about protecting jobs”, and Dion documents multiple instances of this. So they were standing up for jobs, albeit with mistakes in doing so, but in my opinion, having read the evidence, they were standing up in the public interest. At no time were they improperly furthering a private interest under the act. There was a breach of Shawcross but not a conflict of interest.
A conflict would occur if, as a public office holder, I further a family member's interest, a friend's interest, my own interest—or, in any basic statutory interpretation where we read the act consistently with reference to other parts of the act and the purpose of the act, we would find that basket clause that one ought not to improperly further a similar interest.
Conflicts are inherent. They demand recusal. They are unchanged actually by proper or improper pressure. Making mistakes to stand up for the public interest is not a conflict, though it was a breach of the Shawcross doctrine. The commissioner's analysis and conclusions are, in my own view, legally wrong on this point.
To the extent that partisan considerations, because those are mentioned on four occasions in the report, were brought to bear, first, no one should have brought these concerns, and in fact McLellan's protocol would prevent any politically exempt staff from participating in any conversations going forward.
Of course, Mr. Trudeau said, “I'm the member for Papineau.” His own evidence to the commissioner was anchored in his experience with his constituents and his understanding of the negative consequences of layoffs for communities. I'll tell you, if Andrew Scheer is elected and stands up for dairy farmers, or if I continue to stand up for animals, or if the member for Oshawa had said, “You know what, I'm the member for Oshawa and I'm concerned about the GM plant closing”, or if I say to Bill Blair, “I'm the member for Beaches—East York, and you're damn right, we have to do something about gun violence”, it's not so clear that these are always partisan considerations.
As McLellan cites one respected scholar, and I think we can all, as partisan politicians, acknowledge this, in many instances the approach that is taken may benefit the public while also serving partisan interests. Lastly, public opinion will be the final arbiter of whether the primary motivation is non-partisan—and yes, motivations do matter.
In my view, the primary motivation in this instance was to protect the public interest in jobs. The public interest was pursued improperly but at no time did the Prime Minister improperly further a private interest. The commissioner is legally wrong, and I would like him to sit right there so he could answer questions about how he got this analysis so completely wrong.
View Nathaniel Erskine-Smith Profile
Lib. (ON)
This is not a comment, Charlie, that I think Peter Kent is more reasonable than you all the time, but in this instance, while his motion—
View Nathaniel Erskine-Smith Profile
Lib. (ON)
Mr. Kent's motion was, I think, a reasonable one. I think this particular motion is an overreach. It's inconsistent with the past practice of this committee and it is effectively.... I am repeating myself from previous occasions, but we are not an investigatory body and it is treating us as one, so I will be voting against the motion. I was happy to support Mr. Kent's motion to invite Mr. Dion, but inviting an endless stream of witnesses is not something I can support.
View Steven MacKinnon Profile
Lib. (QC)
Point of order.
View Nathaniel Erskine-Smith Profile
Lib. (ON)
Mr. Angus made a point that I was going to make as well.
I think it's improper for any number of reasons. It is a standing practice for our committee that there be notice. I would have expected some conversation in advance if there wasn't to be notice. Regardless, forget process, on substance it's not something I can support. I completely agree with Mr. Angus.
View Steven MacKinnon Profile
Lib. (QC)
A recorded vote.
View Michael Levitt Profile
Lib. (ON)
Good afternoon, colleagues. Welcome to the 151st meeting of the foreign affairs and international development committee. I particularly want to thank members who have come from across the country to be here for this session today.
Today's meeting is to consider a request, under Standing Order 106(4), made by four members of the committee.
I understand, MP Alleslev, that you're going to introduce and speak to that motion.
Please take the floor.
View Michael Levitt Profile
Lib. (ON)
Please continue, Ms. Alleslev.
View Michael Levitt Profile
Lib. (ON)
Thank you, MP Alleslev.
We will now move to MP Caron.
View Michael Levitt Profile
Lib. (ON)
Thank you.
We'll now have MP Oliphant, please.
View Robert Oliphant Profile
Lib. (ON)
Thank you, Mr. Chair.
I want to thank all the committee members on both sides for being here and for exercising both their privilege and their responsibility as parliamentarians. It really is a tremendous privilege to be a member of Parliament. It allows us to engage in issues and engage in conversation and engage in matters that are on the minds of Canadians every day. It is also a tremendous responsibility, and we bear that responsibility, I think, because our privilege is so great.
When I received the notice of this meeting and the request that had been made, I welcomed that. It's part of our privilege as members of Parliament that if any four of us request a meeting like this, it is incumbent upon us to give full and due consideration to that request. That's what we are doing, but that also comes with tremendous responsibility. Dispassionately, when I saw the notice of motion, I prepared my remarks, but I'm actually leaving them for a moment because I think that the responsibility we have is far greater than to score political points.
I am very distressed—actually more distressed than I was when I simply read the notice of motion—at the tone, at the idea and at the allegations that are being cast about by members of the opposition. I say that advisedly, because I've been on the opposition side and I've been on the government side and I know what opposition members do, because I have done it myself. But there are times in politics, there are times in public policy, there are times in our Canadian shared life when we let some of that go and we actually think primarily, as the government has been doing since December, about two Canadians who are wrongfully and arbitrarily held in detention in China in conditions that have been horrendous and belittling and that have demanded tremendous courage from both Michael Kovrig and Michael Spavor. I have talked to their family members, and we've had consular visits, and there should be nothing more on our minds right now than ensuring their safety and considering their well-being.
We have lives in the balance and we also have livelihoods in the balance, and those have to do with farmers and exporters of Canadian goods that are also being arbitrarily detained. That means we put aside trying to gain political points and trying to make specious arguments for the sake of some gain. I am well known for not having always been in favour of things that our government has done, and I have been quite free to vote against our government. There are times, whether you are in opposition or in government, when you rally together and offer constructive, important conversation and ideas to make sure that we are doing the right thing.
This government consults. This government engages. On every issue we do those things. On an issue like our current very tense and fragile relationship with China, particularly when lives are hanging in the balance, we consult with everybody. We would open the door. This government—I am speaking as a parliamentary secretary now—would open the door to all opposition parties and independent members to offer constructive, helpful ways to negotiate in a very, very difficult situation. We've been doing that with patience. We've been doing that with firmness. I think our foreign affairs minister has a spine of steel as she engages with all these partners in what is a very complex situation. Part of that is ensuring that our professional public servants are also engaged not only with the government but also with civil society, engaged with everyone who is an opinion leader, to make sure that we have an informed public discussion about key foreign issues.
The issue around China—and there are several issues around China—is no exception. Our very professional foreign service has regular meetings with the key people in government responsible for public policy with respect to China. That obviously engages elected officials from time to time. It obviously engages their staff from time to time, including the Prime Minister's Office. Those are important conversations that happen inside the government, and then we go outside the government to engage civil society, too, to ensure that we are not speaking with one voice but speaking with an informed voice. That's what this government is committed to doing.
Global Affairs Canada engages with people outside government all the time. They do that to ensure there is an informed discussion—not one voice but an informed discussion.
The public service issued a statement last week and I want to quote it so that it is on record. The media has already paid attention to it. This comes from Global Affairs Canada and I will just add my own comment. This is a very distinguished public servant, continuing in an extremely important position in Toronto. He said:
The call with Mr. Mulroney was made with this intention....
We welcome the views and advice of informed Canadians such as Mr. Mulroney on these complex issues and regret that this message was not clearly communicated. There was no intention, nor was there any instruction from anyone, including the PMO, that Mr. Mulroney clear his public comments with the government.
Let me be very clear. He said there was no instruction from anyone, including the Prime Minister's Office, that Mr. Mulroney clear his public comments with the government. The public service in Canada is an extremely professional and distinguished public service. They've been clear that the current assistant deputy minister was not acting under the direction of anyone when he made these phone calls.
Our government has the utmost respect for these two former ambassadors to China. We would never attempt to limit their right to speak freely. That doesn't mean we won't engage with them to ensure that we have a Canadian constructive discussion about important issues when lives are at stake.
For me, personally, it is absolutely our responsibility to come here to deal with a motion that is in order, and it is our responsibility to ensure that politics do not get in the way of doing the important work of being government. Whether it's the legislative branch or the executive branch, we share that responsibility together and it's given to us and we hold it in an earthen vessel and we do it the best we can. We should not be wasting public resources to drive down avenues that simply will not help save lives and there is no story there.
Thank you, Mr. Chair.
View Michael Levitt Profile
Lib. (ON)
Thank you.
Next I have MP Wrzesnewskyj, please.
View Borys Wrzesnewskyj Profile
Lib. (ON)
Thank you, Chair.
Colleagues, we often have different points of view in our legislature. However, I know that I speak on behalf of all of us when I express our united, heartfelt support for the two Michaels—Michael Kovrig and Michael Spavor—and their families. The fortitude they've displayed while unjustly incarcerated in harsh circumstances is a testament to their values and courage.
Colleagues, during our last major study in this committee on the threats to liberal democracy, we repeatedly heard from renowned international experts and academics that Canada is a shining example to the world in its steadfastness and conduct. At a time when populists have attacked the fifth estate—the free media—our Prime Minister, in public meetings in Canada, when tough questions are asked and there's been hostility towards the media from members of the public, has come to the defence of the media's right to ask these tough questions. Yesterday in Vancouver, when the media asked about calls made to former Canadian ambassadors to China, the Prime Minister was clear. He confirmed that the PMO did not direct that these experts be pressured, as has been previously confirmed by our foreign minister Chrystia Freeland.
A hallmark of our government is our strong belief in consultations and speaking with experts. In her opening remarks MP Alleslev spoke repeatedly of muzzling. We had a previous government that often attempted to muzzle experts and scientists, because of its ideologically driven denial of climate change. It was the previous Harper government that not only muzzled experts and scientists, but also attempted to prevent our gathering of data on such important issues as the multicultural nature of our society by cancelling the long-form census, by cancelling our very ability to gather information and for the public to access information.
Our government believes in reaching out, in broad consultations, and not just within Canada but also internationally, especially with our allies in countries that share our liberal democratic values. That's why we've had such great international successes on difficult files, landing free trade agreement after free trade agreement—something the previous government attempted and could not achieve. It just couldn't bring these across the finishing line. Today we're the only G7 country with free trade agreements with every other G7 country. Why? It is because of broad consultations and patient negotiations. We're also a respected member in the Americas on the difficult Venezuelan crisis. I'd like to thank the tremendous consultative work and legal research done by human rights champion Irwin Cotler.
Colleagues, we believe that Canadians will be safer and more prosperous if more of the world shared our values. It's foundational to our foreign policy approach. During this time of geopolitical crisis, when the rules-based international order and the principle of the sanctity of international borders is being fundamentally undermined by Russia's military invasion and annexation of Ukraine's territory, we stand steadfast in our support of Ukraine, lifting the previous government's prohibition on the supply of lethal defensive weapons.
We've not only championed an international rules-based order; we've championed individual rights, the rights of women and girls. We've appointed an ambassador for women, peace and security to champion these rights and to help bring about peace and security in difficult places globally.
Let me conclude by thanking all of the experts who've provided us with invaluable insights on difficult global files, and all of our international allies who've stood with us and spoken out against Beijing's unjust incarceration of our two Canadians.
Chair, we will not be supporting this motion. Thank you.
View Michael Levitt Profile
Lib. (ON)
Thank you.
Next is MP Weir, please.
View Michael Levitt Profile
Lib. (ON)
Thank you, MP Weir.
We'll have MP Paul-Hus, please.
View Michael Levitt Profile
Lib. (ON)
Thank you.
Next is MP Barrett, please.
View Robert Oliphant Profile
Lib. (ON)
On a point of order, Mr. Chair, we know that in the parliamentary rules, it is inappropriate to raise comments about anyone else in the room other than those sitting at this table. I know the member is relatively new, but I would ask the chair to please advise him that it is not an appropriate parliamentary thing to do at a standing committee of the House of Commons.
View Michael Levitt Profile
Lib. (ON)
Thank you, MP Oliphant.
MP Barrett, could we contain the observations to people who are actually seated at the table?
View Michael Levitt Profile
Lib. (ON)
I will do so.
View Robert Oliphant Profile
Lib. (ON)
Mr. Chair, I'd again ask that you enforce decorum and remind the members that all comments are meant to be directed to you and not directly across the aisle to the other side.
Thank you.
View Michael Levitt Profile
Lib. (ON)
Thank you.
You can proceed with your comments.
View Michael Levitt Profile
Lib. (ON)
Thank you, MP Barrett.
Next is MP Alleslev, please.
View Michael Levitt Profile
Lib. (ON)
Thank you.
Next is MP Caron, please.
View Michael Levitt Profile
Lib. (ON)
Thank you, Mr. Caron.
At this point we are going to call the question.
View Michael Levitt Profile
Lib. (ON)
We'll do a recorded vote.
(Motion negatived: nays 5; yeas 4)
The Chair: At this point, because we have some housekeeping to do, I'm going to suspend and we're going to go in camera so that we can deal with the budgets, as discussed previously.
We shall suspend.
[Proceedings continue in camera]
View Anthony Housefather Profile
Lib. (QC)
Good morning, everyone. Welcome to the special meeting of the Standing Committee on Justice and Human Rights.
We are here to study the nomination of the Honourable Nicholas Kasirer to the Supreme Court of Canada.
This is the third time we have conducted such an exercise.
We did this for Justice Rowe and Justice Martin when they were nominated.
It is a pleasure to be joined today by the Honourable David Lametti, Minister of Justice and Attorney General of Canada, and the Right Honourable Kim Campbell, our former prime minister.
Ms. Campbell is the chairperson of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments.
This afternoon, colleagues, we will be joining the Senate's constitutional and legal affairs committee and parliamentarians from non-recognized parties to question the nominee. Before that, we have the opportunity this morning to hear from Minister Lametti and from former prime minister Kim Campbell about the process that led to the nomination of Judge Kasirer and to ask them questions about it.
Minister of Justice and Attorney General David Lametti, I will turn the floor over to you.
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.
View Anthony Housefather Profile
Lib. (QC)
Thank you.
Mr. Lametti.
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 Anthony Housefather Profile
Lib. (QC)
Thank you very much, Ms. Campbell, and thank you very much, Mr. Lametti. We tried very hard to get the lighting right for you throughout that entire presentation.
Just for everybody's edification, the issue is building-wide, not just in this room. Public Works is trying to resolve it. Please don't blame the staff here for the lighting issue. They're not the ones doing it.
We'll do two rounds of questions now.
We'll start with the Conservative Party.
Ms. Raitt, you have the floor.
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.
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.
View Anthony Housefather Profile
Lib. (QC)
Sorry, but we're out of time.
Ms. Khalid.
View Iqra Khalid Profile
Lib. (ON)
Thank you, Chair.
Thank you to the Right Honourable Kim Campbell and to Minister Lametti for coming in today and advising us of the process that took place.
I will start my questions with the Right Honourable Kim Campbell.
Ms. Campbell, in 2017 when you appeared before the committee, you talked about some of the barriers we faced with respect to appointing or having candidates who were women or minorities or indigenous. You outlined today that out of the 12 candidates, one was a woman and there were no indigenous candidates.
Were any minorities part of the candidates?
View Iqra Khalid Profile
Lib. (ON)
Right.
In 2016 there were 22 days to submit an application. Then in 2017 there were 63 days. This time around there were 30 days.
You talked about some of the processes in which you reached out to various organizations in Quebec. Do you think this time frame was sufficient to get the quality of candidates for the Supreme Court we were looking for?
View Iqra Khalid Profile
Lib. (ON)
Thank you.
You also spoke in your remarks about the diversity of opinion on the benches as well. When we're talking specifically about provinces and the allotment from our Constitution with respect to members from certain provinces on the benches, how do the provincial laws and policies—in Quebec, I will refer specifically to Bill 21 and its long-term effects—impact the diversity of Supreme Court nominees who are being appointed to the bench? How does that impact the overall laws and the shaping of laws within Canada?
View Iqra Khalid Profile
Lib. (ON)
Thank you.
We talked about diversity. What was the main or the primary objective? Was there any consideration given to who the current members of the Supreme Court are and to collegiality, to avoid things like groupthink, as you mentioned? What were some of the considerations that were taken in choosing the right candidates to be shortlisted, to ensure the diversity of opinion on the bench?
View Iqra Khalid Profile
Lib. (ON)
View Anthony Housefather Profile
Lib. (QC)
Thank you very much.
Ms. Moore now has the floor.
View David Lametti Profile
Lib. (QC)
The question is clearly intended for me.
I do not agree with this proposal. According to the Supreme Court Act, this decision belongs to the Prime Minister , i.e. the governor in council. We do not want to weaken the Prime Minister's ability to make the best choice, in his opinion. He accepts the recommendations, of course, but it is up to him to decide.
I made recommendations based on the consultations I had conducted here in Ottawa. If I had disclosed my recommendations and my Quebec counterpart had done the same, it would have given an idea of the short list submitted to the Prime Minister and thus reduced the confidentiality of the process. We want to protect the privacy of the candidates who applied, especially those on the short list.
View David Lametti Profile
Lib. (QC)
The problem is that if I make a recommendation that is not included in the final decision, journalists and you, my parliamentary colleagues around the table, will ask me who I recommended. It would become too difficult to protect the confidentiality of the process. It is also necessary to protect, with all due respect, the ability of the Prime Minister to make his own choice.
View David Lametti Profile
Lib. (QC)
It is easier to close the door from the beginning. Otherwise, we could go down a slippery slope.
View Anthony Housefather Profile
Lib. (QC)
I think Ms. Campbell would like to comment on this.
View Anthony Housefather Profile
Lib. (QC)
Thank you very much. Your time is up, Ms. Moore.
Mr. Fraser, you have the floor.
View Colin Fraser Profile
Lib. (NS)
View Colin Fraser Profile
2019-07-25 11:49
Thank you, Mr. Chair.
Thank you very much, Ms. Campbell and Mr. Lametti, for being with us today.
I want to thank you, Ms. Campbell, as you've already done this twice before. This is the third time and I want to sincerely thank you on behalf of all Canadians for the work you and your committee members have done in all three different iterations of these committee processes. Once again it has led to an excellent nomination, of Mr. Kasirer, so thank you for that work.
I'd like to talk a bit more about the timing of the application phase for people who want to be considered for the position. I know that after the first one, which produced Justice Rowe, there was some discussion about the process being too short—I think it was only 22 days—and then for Justice Martin's appointment in 2017, I think it was 63 days.
You've talked a little about some recommendations that you think could be made to encourage more people to be ready to apply when the time comes. This time around there were 30 days. Do you think that was sufficient?
Are there any other recommendations you would like to give the committee so that we could perhaps recommend to the government, going forward, a process in which there is enough time for the people who may wish to be considered to get their applications together?
View Colin Fraser Profile
Lib. (NS)
View Colin Fraser Profile
2019-07-25 11:52
Okay. Thank you very much for that.
I know this time around it was a bit of a unique process, given the fact that it was filling one of the Quebec seats, so there was an advisory board set up for Quebec. As you mentioned, the Supreme Court Act recognizes that there are to be at least three seats from Quebec, given the uniqueness of the civil law jurisdiction.
Were there any differences in the criteria in the minds of the members of the committee in putting forward names for the Quebec seat, and were there any different questions in the questionnaire this time, as opposed to the previous two that you did?
View Colin Fraser Profile
Lib. (NS)
View Colin Fraser Profile
2019-07-25 11:54
Thank you.
Minister Lametti, I want to ask you the following, because you touched on the qualifications of Mr. Kasirer. I agree with you that he's an excellent appointment.
You talked about collegiality and temperament, and obviously in reviewing Mr. Kasirer's application it's clear that he has the legal mind and ability to do this job and has been widely regarded as an excellent choice. His collegiality will also be an asset that he'll bring to the bench. Can you talk a little about why it is so important for a justice of the Supreme Court of Canada to have that collegiality and the temperament that is appropriate, along with the legal skill and mind that he has?
View David Lametti Profile
Lib. (QC)
As Ms. Campbell pointed out, on a court you have a dynamic when cases are heard and there's interaction amongst the judges both in the hearing as well as in the preparation prior to the hearing, and then in the decision-making phase afterwards, where there will be back and forth between and amongst judges to make better decisions. That doesn't mean unanimity. There will be dissenting and concurring judgments in which a judge may feel strongly about a point or the decisions and outcome generally, but you'll get better decisions.
I had the good fortune of hearing Guido Calabresi speak two weeks ago about the American Supreme Court. He clerked under the Warren court and he felt it was an outstanding court because the judges, specifically, spoke to each other. They all brought different kinds of expertise to the court and were quite collegial, and he felt that the kinds of judgments they came up with were better because of their collaboration and collegiality, and we would hope for the same kind of thing here.
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