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Results: 1 - 15 of 22
View Jody Wilson-Raybould Profile
Ind. (BC)
Thank you, Mr. Chair.
Thank you to the members of the committee, many of whom look a bit tanned. I appreciate that it's summer. I'd like to thank everyone for convening today in August. I recognize that it's summer and that this means you're being pulled away from your ridings and perhaps some personal plans, but I greatly appreciate the opportunity to be able to speak with all of you about the government's approach to the Supreme Court of Canada appointment process, the new selection process that we outlined on August 2.
As you know, the Honourable Justice Thomas Cromwell will be retiring on September 1, 2016, creating a vacancy that we are aiming to fill in this court's fall session. As stated in my mandate letter, the Government of Canada is committed to a Supreme Court of Canada appointments process that is transparent, inclusive, and accountable to Canadians, includes engagements with all parties of the House of Commons as well as consultation with all relevant stakeholders, and ensures that those appointed to the court are functionally bilingual.
My aim today is twofold: first, to outline the new process to you, detailing how it encompasses these and other fundamental values; and second, to hopefully hear the committee's views and perspectives, given your experience and expertise.
Before continuing, I want to emphasize the great sense of responsibility with which our government approaches the Supreme Court of Canada appointment process. This committee knows well that the Supreme Court is an essential pillar of Canada's constitutional architecture. As the final court of appeal on all legal questions, including constitutional questions, the Supreme Court plays a pivotal role in promoting respect for fundamental rights and the rule of law. The way we select judges to the Supreme Court is therefore of the utmost importance. Enhancing the credibility of the appointment process will bolster Canadians' confidence in this fundamental institution.
The appointment of a Supreme Court of Canada justice is one of the most important decisions the Prime Minister makes. The top court's decisions affect us all. They influence our economy, our cultural mores, and our definition of individual and collective rights and responsibilities. Throughout our history, we have most often found and been served by the very best within our legal community, but the process used to appoint Supreme Court justices is opaque, outdated, and in need of an overhaul. We believe Canadians deserve consistent, rigorous processes that are transparent and inclusive and that set a high standard for accountability.
I wish now to briefly describe how these three important values—transparency, inclusiveness, and accountability—play out in the new selection process. I will then note two other factors that are equally crucial, namely, the need to safeguard judicial independence and the desire to identify jurists of the highest calibre who represent the diversity of our country.
A transparent process is one that is clear, open, and easily understood. This requires a clear public explanation of how the process is to operate. We have therefore provided not just a detailed description of the various steps in the process but also information, such as the criteria used to assess candidates and the identity of those doing the assessment. Last week we posted this information online so that Canadians can know and understand how and on what basis the next justice will be selected. My appearance before you today is another important part of this effort to publicly explain the process and to ensure that it is clear to all.
Transparency is also a prerequisite to accountability. If the process and the criteria for decision-making are not publicly known, it is difficult to hold decision-makers to account for the exercise of their responsibilities. As such, this process is designed to be open, transparent, and based on established and publicly available criteria. As I will make clear later in my remarks, you, as members of the justice and human rights committee, will play a crucial role in holding the government to account, both for its selected nominee and for its adherence to an established process.
An inclusive process is one that ensures that the widest range of candidates from the broadest variety of backgrounds is available for selection. It is a process characterized by outreach and engagement. The goal of inclusivity must be reflected in matters such as the manner in which the initial list of candidates is generated. Further, an inclusive process avoids criteria or procedures that can hinder individuals from traditionally under-represented groups from receiving fair and equal consideration in the process.
A further value is the need to safeguard judicial independence, a requirement flowing from the Constitution itself. Judges must be, and be seen to be, fair, impartial, and open-minded, and not beholden to any particular group or interest. Supreme Court justices must in no way be seen to be indebted to or dependent on those who selected or appointed them. The role of an independent, non-partisan advisory board, which I will describe shortly, advances this principle.
Further, the selection process must safeguard the integrity of the Supreme Court and the judiciary in general in order to maintain public confidence. Care must be taken to avoid a process that inadvertently undermines the judiciary as an institution or the reputation of individual judges. This requires, for example, that the confidentiality of applicants be respected and preserved by all those involved in the process. The selection process must be designed to identify individuals with the highest degree of professional excellence and personal suitability. Assessments of candidates must be based on objective criteria that set out the professional capabilities and personal qualities needed to serve effectively as a justice of the Supreme Court of Canada. To this end, consultations and decisions at all stages of the selection process will be guided by assessment criteria that have been published on the website of the Office of the Commissioner for Federal Judicial Affairs, criteria that I will review later in my remarks.
Canadian society is rich in diversity, and this has important consequences for the selection process. Justices of the Supreme Court of Canada must be able to adjudicate complex legal questions affecting those with a wide variety of experiences, backgrounds, and perspectives. For this reason, one of the assessment criteria is the ability to appreciate a diversity of views, perspectives, and life experiences, including those related to groups historically disadvantaged in Canadian society.
Diversity within the Supreme Court itself is important for two main reasons: first, bringing together individuals with various perspectives and life experiences enriches the collegial decision-making process of the court; second, a Supreme Court that reflects the diversity of the society it serves enhances public confidence in the court. The assessment criteria therefore require that candidates be considered with a view towards ensuring that members of the Supreme Court are reasonably reflective of the diversity of Canadian society.
The selection process that I will now describe is designed to concretely embody these values and objectives.
At the heart of the process is an independent, non-partisan advisory board tasked with identifying suitable candidates for appointment.
The seven-member board is chaired by former Prime Minister Kim Campbell, also a former justice minister and Canadian consul general, and currently the founding principal of the Peter Lougheed college at the University of Alberta.
The board also includes four members nominated by independent professional organizations. These are Richard J. Scott, former chief justice of the Manitoba Court of Appeal and currently counsel in a Winnipeg law firm, nominated by the Canadian Judicial Council; Susan Ursel, a senior partner with a Toronto law firm, who also provides legal research support to Envisioning Global LGBT Human Rights, nominated by the Canadian Bar Association; Jeff Hirsch, president of the Federation of Law Societies of Canada and partner in a Winnipeg law firm, nominated by the Federation of Law Societies; and Camille Cameron, dean of the Schulich School of Law at Dalhousie University and president of the Canadian Council of Law Deans, nominated by the Canadian Council of Law Deans.
The advisory board also includes two government-appointed non-lawyers chosen for their outstanding community leadership and involvement: Stephen Kakfwi, former premier of the Northwest Territories and president of the Dene Nation, currently working to improve the recognition and realities of aboriginal peoples within Canada; and Lili-Anna Pereša, president and executive director of Centraide of Greater Montreal.
We believe that the involvement of respected stakeholder organizations is important to ensuring the objectivity and independence of the process. Representation from the legal community on the advisory board provides critical input into assessing the professional qualifications of candidates. The lay members provide valuable input and help bring diversity of views to the advisory board's deliberations.
Unlike earlier processes, the advisory board will not take as its starting point an initial list of candidates proposed by the government, but it will consider individuals who have submitted their candidacies through an open application process. The open nature of this process is unprecedented. To ensure as broad and diverse a pool of candidates as possible, the advisory board may also proactively encourage outstanding candidates to apply. For the public who may be watching, I encourage you to identify qualified candidates and encourage them to put their names forward. I will continue to repeat that message in all different forums.
The application process will be open to Canadians from across the country. The government is mindful of the important custom of regional representation, and it values the importance of regional diversity on the court. The Prime Minister has specifically asked the advisory board to provide a list of three to five qualified and functionally bilingual candidates, and that includes candidates from Atlantic Canada. In making that selection, he has asked that the board consider the custom of regional representation on the court.
In assessing candidates, the advisory board will be guided by assessment criteria that have been made public and by our government's commitment to ensure that the Supreme Court nominees are functionally bilingual. As part of the assessment process, the advisory board will consult with the Chief Justice of Canada and any key stakeholders that the members consider appropriate. I expect the board's consultations to be wide and all-encompassing.
While the objectives of openness and transparency will inform all steps of the process, current aspects of the process, such as the deliberations of the advisory board, will remain confidential. This protects the privacy interests of candidates and allows for full and frank discussion of all candidates.
To promote transparency, the advisory board will provide a report to the Prime Minister within one month of a vacancy being filled, outlining information about the process, including statistics related to applications received, the manner in which the board executed its mandate, and the costs associated with the process. This report, which must be made public, may also contain recommendations to improve the process.
Upon concluding its assessment, the advisory board will submit a short list of three to five candidates for the Prime Minister's consideration and will include an explanation as to how these individuals meet the statutory requirements and the assessment criteria. All candidates on the short list must be functionally bilingual, as confirmed through an objective assessment administered by the Office of the Commissioner for Federal Judicial Affairs.
I will then consult on the short list of candidates with the Chief Justice of Canada, relevant provincial and territorial Attorneys General, cabinet colleagues, and opposition critics, as well as members of this committee and the Standing Senate Committee on Legal and Constitutional Affairs. The purposes of my consultations on this short list will be to develop my recommendation to the Prime Minister as to who the government's choice should be. The Prime Minister and I anticipate that choosing from a list of eminently qualified jurists will be a difficult and humbling task, and we will greatly value your views.
After the Prime Minister announces the government's nominee, I will appear with the chairperson of the advisory board before this committee to explain how the process unfolded and how our nominee meets the assessment criteria. The main purpose will be to allow you, as parliamentarians, to hold the government to account for the manner in which the nominee has been selected. There will be a week between the announcement of the nominee and the hearing in order to give committee members time to prepare.
In addition to this hearing, the nominee will take part in a question-and-answer session moderated by a law professor, with members of this committee, the Standing Senate Committee on Legal and Constitutional Affairs, and representatives from the Bloc Québécois and the Green Party. The Prime Minister will review and consider any views of the committee prior to making his final selection.
Before concluding, I would like to briefly discuss the assessment criteria that will guide all decisions throughout this process.
The assessment criteria relate to the skills, experience, and qualities candidates need to excel. The criteria also relate to the institutional needs of the Supreme Court. As I noted earlier, these criteria have been published on the website of the Office of the Commissioner for Federal Judicial Affairs. I encourage you to visit this website, given that the document in which the criteria are set out sets out the rationale for why each criterion has been included.
Candidates will be assessed based on the following personal skills and experience: demonstrated superior knowledge of the law; superior analytical skills; ability to resolve complex legal problems; awareness of, and the ability to synthesize information about, the social context in which legal disputes arise; clarity of thought, particularly as demonstrated through written expression; the ability to work under significant time pressures requiring diligent review of voluminous materials in any area of law; and a commitment to public service.
Applicants will also be assessed on the following personal qualities: irreproachable personal and professional integrity; respect and consideration for others; the ability to appreciate a diversity of views, perspectives, and life experiences, including those relating to historically disadvantaged groups in Canadian society; moral courage; discretion; and open-mindedness.
Finally, in carrying out their assessments, the advisory board will consider the following institutional needs of the court: ensuring a reasonable balance between public and private law enterprise, bearing in mind the historic patterns of distribution between those areas in Supreme Court appeals; expertise in any specific subject matter that regularly features in appeals and is currently under-represented on the court; and ensuring that members of the Supreme Court are reasonably reflective of the diversity of Canadian society.
The government is confident that in the application process, these assessment criteria will lead to the identification of outstanding candidates for our highest court.
In conclusion, I wish to again thank you for coming here and convening today on this matter that is of the utmost importance to Canadians. I look forward to appearing before you again on the same matter. Certainly, Mr. Chair, I would be happy to take questions, and further to that I would be happy to hear any perspectives or contributions that the members care to provide.
Thank you.
View Rob Nicholson Profile
Thank you very much, Mr. Chairman.
Thank you, Minister, for appearing here today.
I think I join with all members of the committee in giving our best wishes to the retiring judge, Justice Thomas Cromwell. We wish him all the best and thank him for his service to the courts of this country.
Minister, you talked about the list that will be considered and you indicated that there would be a judge on there, or judges, from Atlantic Canada. You referred to the process by which judges from Atlantic Canada or from different parts of the country have been submitted and considered in the past. You referred to it as a custom. Wouldn't you say that something that's been in place since 1875 is more than just a custom, and that it could be more properly characterized as a constitutional convention that Atlantic Canada will have one member on the Supreme Court of Canada, as allotted across the country? Wouldn't you say that's a constitutional convention?
View Jody Wilson-Raybould Profile
Ind. (BC)
Thank you for the question, and I would certainly echo your comments with respect to the Honourable Justice Cromwell and his service.
It's fair to say that it is a convention. I recognize that regional representation has existed for over a hundred years. There was a point where that convention diverged, but I recognize that regional representation has been reflected for over a hundred years.
View Rob Nicholson Profile
Are you saying that the person will not necessarily be from Atlantic Canada? Is that what you're saying to the committee?
View Jody Wilson-Raybould Profile
Ind. (BC)
The next appointment to the Supreme Court of Canada will not necessarily be a person from Atlantic Canada. That said, we recognize the importance of regional representation.
View Rob Nicholson Profile
It would be somewhat difficult, if we believed that Atlantic Canada should have the next appointment to the Supreme Court, to know to whom we would give that advice. Perhaps you could tell us what sort of response you got when you contacted the Attorneys General in Atlantic Canada with this new system, these new criteria, and the fact that the next justice of the Supreme Court may not come from Atlantic Canada. Were they supportive, were they indifferent, or did they express some concerns?
View Jody Wilson-Raybould Profile
Ind. (BC)
I have had an opportunity on one or more occasions to speak with the Attorneys General of the Atlantic region. While I would like most of those conversations to remain between the Attorneys General and me, broadly speaking there was a recognition that an appointment from Atlantic Canada was a convention, as we've talked about, but there was a general positive reception to opening up the process, ensuring that there's clarity around how the process will unfold, and an appreciation of having conversations. Again, I encourage the Attorneys General to bring forward and encourage candidates that they know of within their jurisdictions to apply for this esteemed position.
View Colin Fraser Profile
Lib. (NS)
View Colin Fraser Profile
2016-08-11 14:30
I'd like to join my colleagues in thanking Mr. Justice Cromwell for his exemplary service on the Supreme Court of Canada.
Thank you, Minister, for being with us today. I believe this is your fourth appearance before the committee.
I would certainly like to thank you for all your work on the new appointment process we are discussing today.
I'd also like to commend the new process for the independent advisory board. I agree with you that making the process more open and transparent and basing it on criteria that are known by the public will serve Canadians well. That said, as a lawyer from Nova Scotia, and knowing the importance of regional representation on the Supreme Court of Canada and how that has played out in our past, I believe that the custom of regional representation has served us well as a country. I do have some concerns regarding what has already been discussed here today, namely, there not being certainty that the next appointment will be an Atlantic Canadian.
I wonder, then, given the fact that the seat is being vacated by Justice Cromwell and that it is a long-standing custom that an Atlantic Canadian holds one seat—there are two from the west, three from Ontario, and three from Quebec, by the Constitution—what preferential weight will be given in the selection criteria for the next representative to be an Atlantic Canadian.
View Jody Wilson-Raybould Profile
Ind. (BC)
I understand the importance of regional representation on the Supreme Court. In this process we have made it very clear that regional representation is something fundamental that the advisory board should consider in assessing candidates.
Likewise, in terms of our government commitments, the next Supreme Court justice, and all members of the short list that's put together by the board, must be functionally bilingual. We also want to ensure—and this is in the assessment criteria—that there is a reflection of diversity in terms of the candidates that are brought forward. The mandate letter that the Prime Minister wrote to former Prime Minister Kim Campbell states very clearly that on the short list of three to five candidates, there will be candidates from Atlantic Canada.
Again, I recognize that regional representation is important. So too is diversity. So too is ensuring that we have the most qualified jurist to fill the vacancy of Justice Cromwell. I have every expectation that there will be a significant number of qualified jurists from Atlantic Canada who will put their names forward.
View Colin Fraser Profile
Lib. (NS)
View Colin Fraser Profile
2016-08-11 14:33
I certainly concur that there are excellent jurists in Atlantic Canada, and no doubt we'll be well served by having their names on the short list for consideration. I certainly encourage those people to submit their application to the new process so they can be considered.
With regard to the Atlantic Canadian seat, if you will, on the Supreme Court of Canada, that representation from Atlantic Canada is considered, I think, in the mandate letter as one factor to be considered. I'm wondering if there will be different weight apportioned to the different factors. How do you see that playing out when making the decision on who the next Supreme Court nominee will be?
View Jody Wilson-Raybould Profile
Ind. (BC)
As you quite rightly state, there are different criteria or factors for the advisory board to take into account, which I certainly will take into account in my review of the short list in the consultations, as will the Prime Minister upon making his recommendation to the Governor in Council to officially appoint the next Supreme Court justice. As we've discussed, regional representation is important and is a consideration, as is ensuring that we have a diversity of candidates brought forward who are reflective of Canadian society. Another important criterion that we have put in place and are committed to is having a functionally bilingual next justice of the Supreme Court.
It's equally as important, to underscore the realities and highlight the assessment criteria that are articulated publicly, that we have the most qualified, meritorious candidates. There are a lot of different categories in the breakdown of what merit actually means in terms of the next justice of the Supreme Court. There are a number of different criteria, as you rightly point out, all of which will be considered by the advisory board.
View Thomas Mulcair Profile
Thank you, Mr. Chair.
I'd like to welcome the minister to the committee and thank her for being here today.
I'd like to begin by setting the backdrop, if I may, with a quick recap of the summer all of us parliamentarians have been experiencing. I think we're witnessing a fundamental shift in the executive branch's attitude towards the legislative branch, and, as we are seeing, it's becoming quite the problem. Allow me to explain.
We have the government's decision to deploy troops to Latvia without the least bit of discussion in Parliament, despite the fact that, when they were part of the opposition, the Liberals were very vocal about the need to consult Parliament on any decision to send our troops abroad. Then, we have the talks that took place in the Prime Minister's very own office with the parliamentary budget officer—not the Prime Minister's budget officer, I would point out, but indeed the parliamentary budget officer. No matter what example we use, we've seen this strong trend building yet again. In this case, a mere letter was sent out, not to every newspaper simultaneously, but to just two of them, The Globe and Mail, which published the letter in its print edition, and La Presse, which obviously no longer puts out a print edition on weekdays.
I tried to understand the legal nature of what we have before us today. I searched high and low to see what the law says about statutory instruments, but to no avail. I found a reference to publication in the Canada Gazette, but there's no mention of publication in the Gazette. We are trying, unsuccessfully, to figure out whether this involves a substantive change, as the Supreme Court indicated in Nadon. In its decision, the court deemed such a substantive change ultra vires of Parliament itself. The ultra vires finding is even more applicable when you have the executive branch making substantive changes of this nature. As my Conservative colleague, a former attorney general, pointed out, the century-old convention of appointing judges from regions of the country such as Atlantic Canada cannot simply be flouted as though it were business as usual. What we're dealing with here is completely short-lived.
My first question for the minister has to do with one of the first criteria she talked about today, that is, that a judge be able to understand and read both official languages. On that point, I want to thank the former member for Acadie—Bathurst, Yvon Godin, who fought so persistently to make bilingualism a requirement for the appointment of judges to the Supreme Court.
I have been in Parliament for nine years, and this is at least the third completely different set of criteria for judicial appointments to the Supreme Court I have seen in that time. If the minister is indeed sincere when she says she wants judges to be bilingual, why has she still done nothing about it? The Liberals have been in power for nearly a year. We've known since March that Justice Cromwell was retiring, and yet this is all being done in haste. It's a completely short-lived solution. There is absolutely nothing permanent about the process being announced today.
If the minister feels so strongly about making bilingualism a condition of judicial appointments to the Supreme Court, why, then, was she content to have the Prime Minister submit a simple letter to two newspapers? Given her party's majority in the House of Commons, why did she not use her authority to enshrine the process in law? Why be satisfied with such a short-lived solution?
View Michael Cooper Profile
Thank you, Madam Minister, for that answer.
Turning to the substance of why you are here today, in terms of the process that your government has unveiled, I have to admit I have some concerns with it. One of these is with respect to the fact that the process does not respect the long-standing constitutional convention of ensuring that Atlantic Canada has at least one seat on the Supreme Court, a convention that dates back more than a hundred years.
I was wondering if you might be able to comment on what authority the executive has to overturn a constitutional convention—the effect of which will change the composition of the court—unilaterally, without the consent of Parliament and without the consent of the provinces, as provided for in paragraph 41(d) of the Constitution Act of 1982.
View Jody Wilson-Raybould Profile
Ind. (BC)
Thank you for the question.
Again, focusing on regional representation, I will underscore that regional representation is an important consideration criterion for this process. We recognize, as I said earlier, that this appointment process does not preclude an appointment from Atlantic Canada. The Prime Minister has, based on the policies and the approach, ensured that other criteria are present, such as diversity, such as ensuring we have a deep pool of qualified jurists for consideration of the advisory board.
That is not to say that regional representation is not important, and we recognize there will be candidates from the Atlantic on the short list that is provided to the Prime Minister.
View Michael Cooper Profile
Thank you, Minister. I certainly agree that diversity and all of those things are important. I also acknowledge what you said—that Atlantic Canada would not necessarily be precluded—but you've also said that the government may appoint someone other than an Atlantic Canadian, and I want to get back to the question of what authority the executive of the government has to do that unilaterally.
To that end, I would just draw your attention to paragraph 74 of the Nadon decision. I'll read it. It says, and I quote:
Parliament cannot unilaterally change
—so in this case, it's not even Parliament; it's the executive—
the composition of the Supreme Court of Canada. Essential features of the Court are constitutionally protected under Part V of the Constitution Act, 1982. Changes to the composition of the Court can only be made under the procedure provided for in s. 41...
—which, again, requires the consent of Parliament and the consent of all 10 provinces.
Could you perhaps clarify, in light of the clear pronouncement of the Supreme Court in Nadon, what authority the executive has to unilaterally overturn this constitutional convention related to the composition of the court?
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