Interventions in Committee
 
 
 
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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 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.
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 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 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.
View David Lametti Profile
Lib. (QC)
First of all, we have done this in practice. We have enshrined a practice that puts such a high premium on functional bilingualism that it practically is a bar in being selected. We haven't done that formally.
I'm not sure it's a good idea, formally, because there may be other needs of the court at some point—for example, to appoint an indigenous person—where we may have to soften that requirement down the road. I think we're at a nice compromise right now, where, in effect, there is a requirement of functional bilingualism through the process without having to worry about either the constitutionality of such a provision or amending an act formally.
View David Lametti Profile
Lib. (QC)
First of all, thank you for conducting this consultation during the process. It was very valuable. Your comments were very important.
Yes, it was important. We have acted accordingly, especially for this process. We made sure there would be no leaks. We have taken steps in this direction.
There is also an officer of Parliament, the Privacy Commissioner, who addresses these issues. We will collaborate with him during his investigations.
As a government, we took the leaks very seriously. We made sure it wouldn't happen again.
View David Lametti Profile
Lib. (QC)
The Privacy Commissioner has the authority to conduct an investigation. We believe it is a good non-partisan process. There will be an investigation and I hope there will be suggestions.
View David Lametti Profile
Lib. (QC)
As I said earlier to your colleague and to my colleague, I am not commenting on anything that concerns the SNC-Lavalin case, because trials are ongoing in the courts and everything I say could be interpreted or misinterpreted. So I won't comment on that.
View David Lametti Profile
Lib. (QC)
Unfortunately, the answer is the same. I'm not going to comment on that, for the reasons I just gave.
View David Lametti Profile
Lib. (QC)
As Minister of Justice and Attorney General of Canada, I must respect the justice system. I must be careful not to have any influence on the ongoing trials.
View David Lametti Profile
Lib. (QC)
In my case, it's not a matter of politics. I do so out of respect for the courts as Minister of Justice. Not wanting to have an influence on trials is a form of privilege. It is very important for me, in my role, to protect the judicial system.
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