JUST Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Thursday, November 6, 2003

Á

1115

The Chair (Hon. Andy Scott (Fredericton, Lib.))

Prof. Edward Ratushny (Professor, University of Ottawa, Faculty of Law, Common Law Section, As Individual)

The Chair

Prof. Edward Ratushny

Á

1120

Á

1125

Á

1130

The Chair

Prof. Edward Ratushny

The Chair

Prof. Edward Ratushny

Mr. Garry Breitkreuz (Yorkton—Melville, Canadian Alliance)

Á

1135

The Chair

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)

The Chair

Mr. Garry Breitkreuz

Mrs. Marlene Jennings

The Chair

Mrs. Marlene Jennings

The Chair

Mr. Garry Breitkreuz

The Chair

Mrs. Marlene Jennings

The Chair

Á

1140

Mr. Garry Breitkreuz

The Chair

The Chair

Mr. Benoît Sauvageau (Repentigny, BQ)

Prof. Edward Ratushny

Mr. Benoît Sauvageau

Á

1145

Prof. Edward Ratushny

Mr. Benoît Sauvageau

Prof. Edward Ratushny

Á

1150

The Chair

Mrs. Marlene Jennings

Prof. Edward Ratushny

Mrs. Marlene Jennings

Prof. Edward Ratushny

Mrs. Marlene Jennings

Prof. Edward Ratushny

Á

1155

The Chair

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance)

Prof. Edward Ratushny

Â

1200

Mr. Kevin Sorenson

The Chair

Mr. Kevin Sorenson

Prof. Edward Ratushny

Â

1205

The Chair

Ms. Hedy Fry (Vancouver Centre, Lib.)

Prof. Edward Ratushny

Â

1210

The Chair

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

Prof. Edward Ratushny

Mr. Richard Marceau

Prof. Edward Ratushny

Mr. Richard Marceau

Â

1215

Prof. Edward Ratushny

Mr. Richard Marceau

Prof. Edward Ratushny

The Chair

Mr. John Maloney (Erie—Lincoln, Lib.)

Prof. Edward Ratushny

Â

1220

Mr. John Maloney

Prof. Edward Ratushny

The Chair

Prof. Edward Ratushny

The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Prof. Edward Ratushny

Â

1225

The Chair

Mrs. Marlene Jennings

Prof. Edward Ratushny

Mrs. Marlene Jennings

Prof. Edward Ratushny

Â

1230

The Chair

Mr. Richard Marceau

Prof. Edward Ratushny

Mr. Richard Marceau

The Chair

Mr. Christian Jobin (Lévis-et-Chutes-de-la-Chaudière, Lib.)

Prof. Edward Ratushny

Mrs. Marlene Jennings

Mr. Christian Jobin

Prof. Edward Ratushny

Â

1235

The Chair

Prof. Edward Ratushny

Â

1240

The Chair

Mr. Richard Marceau

The Chair

Mr. Richard Marceau

The Chair

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CANADA

Standing Committee on Justice and Human Rights

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NUMBER 079

l

2nd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Thursday, November 6, 2003

[Recorded by Electronic Apparatus]

Á  (1115)  

[English]

    The Chair (Hon. Andy Scott (Fredericton, Lib.)): I call to order the 79th meeting of the Standing Committee on Justice and Human Rights. Today, pursuant to the order of reference of Wednesday, October 1, we're studying the process by which judges are appointed to the courts of appeal and to the Supreme Court of Canada.

    As a witness this morning we have Edward Ratushny, professor at the University of Ottawa, faculty of law, common law section, appearing as an individual. We will be hearing from the professor.

    Perhaps you could explain the way you would like to proceed.

    I only want to advise that we will be possibly interrupting the session for probably no more than ten minutes to entertain a motion put by Mr. Breitkreuz.

    Professor Ratushny.

    Prof. Edward Ratushny (Professor, University of Ottawa, Faculty of Law, Common Law Section, As Individual): Thank you very much.

    I was asked to come and speak on two issues. One is on the appointment of judges, primarily at the appellate and Supreme Court levels, and the second issue is judicial conduct, that is to say, what the process is when judges misbehave.

    Judges are entitled to be wrong; that's why we have courts of appeal. But judicial conduct may go beyond that and involve misconduct, in which case, there is a process in place.

    I suggested to your chair that these are two quite distinct items. It might be most efficient for me to speak about one appointment and have the discussion on that, and then for me to introduce the second one and have the discussion on that. The chair seems to think that would work.

    Unless anyone has any objections, I would go on that basis.

    The Chair: We run a pretty tight ship here, so if you and I agree, that's pretty much it.

    Prof. Edward Ratushny: Oh, I see. Thank you. I wanted to be inclusive.

    Essentially, if you're looking at alternatives to the present appointment process, there are three avenues that might be pursued.

    One is to have a direct election of judges, in the same manner that you people are elected and other representatives are elected in the political process.

    The second avenue would be to have a nominating committee, where a number of people are charged with the responsibility of putting forward names. The government either takes that into account or agrees to select from the short list of names that is presented by some committee that has stature and confidence.

    The third alternative is confirmation hearings, where the government puts forth the name of a person for appointment and the person must appear before a committee and be approved by that committee. This is the system in the United States, where the President puts forth names. The Senate judiciary committee must approve those names and must ratify the nomination of the President.

    I understand there has been a lot of interest primarily in that third avenue, the idea of some form of hearings whereby judicial nominees would come before a parliamentary committee. While of course the committee could not approve or disapprove, they could question the witness.

    I propose to focus on that subject for any questions you may have afterward or any other things you want to discuss.

    Those who are in favour of that type of confirmation hearing tend to ignore many of the problems that have occurred in the United States with their confirmation process.

    It's important to keep in mind, first of all, the nature of the judicial role. Obviously, judges are human beings. They have opinions. They have values. However, it's important that judges approach each case with an open mind, conscious of their values and willing to reassess their own values in light of the case that comes before them.

    It's inconsistent with this approach for judges of the Supreme Court or Courts of Appeal to be driven by personal, ideological agendas. Even when a judge is strongly committed to certain values, such as equality or liberty, they act with integrity only when they're prepared to give serious and honest consideration to the facts and arguments, which may limit the influence of those values in particular cases.

    That is why there's no virtue in a judge consistently deciding cases in favour of the police, rather than the accused, just as there is no value or virtue in judges consistently deciding in favour of accused persons. Blind adherence to such results really should be the target of more criticism than it has been in the past.

    It's also important to keep in mind that judges are not representatives of particular constituencies. That is a political function, not a judicial function. Judges may act politically in the broad sense of making policy choices, but not in the sense of being driven by the will of the people at any particular time.

    Unlike representatives of the people, such as yourselves who are elected, judges do not rely on the approval of the public to remain in office. That's not their role. It's an important aspect of your role, although even members of Parliament, I think, will diverge from popular views from time to time when their conscience demands it.

    It's important to keep in mind that diversity on the courts is a different matter from being representative of different constituencies. It's important on the courts that when Canadians look at the court, they see people from different ethnic backgrounds, they see women, as well as men, and they see people from different regions of a province or of a country.

    The court represents the people of Canada in that sense, in the sense that it's diverse. It doesn't mean that if they're appointed from Saskatchewan they must always decide cases in favour of Saskatchewan farmers. That's not the role of a judge. They don't represent the area they come from or any particular constituency.

Á  (1120)  

    Some of the claims for reform of the appointment process talk about the need to democratize the court, to make the court a more democratic institution. The Supreme Court of Canada does not function as a democratic institution. It's an institution that is essential to our democracy. It's an institution without which our democracy could not exist, but it does not function in the democratic manner of being accountable to constituents and being responsible to represent a particular point of view.

    In the United States, a couple of the more prominent confirmation hearings were the cases of Bork and Clarence Thomas. They received a lot of publicity and caused a lot of concern, public criticism, and so on. People who support confirmation hearings for Canada often say those were unique, they were aberrations, and that's not what usually happens in confirmation hearings. However, since the case of Brown vs. the Board of Education in the mid-sixties, a large number of confirmation hearings resulted in bitter battles on many fronts. It's something like 40%. There's been a lot of scholarly writing on this by lawyers, law professors, and so on. One estimate is that some 40% have resulted in bitter battles.

    Just let me read a couple of brief excerpts commenting on some of the things that happened before these confirmation hearings.

Thurgoode Marshall

    who is a black judge,

was subjected to a degree of racist smear that the confirmation process had not seen before and has not seen since. Conservatives who believe that Robert Bork or Clarence Thomas encountered unprecedented animosity should read the transcripts...of the...campaign against Marshall.

    Religion has also become a basis for criticism.

Once upon a time, religious inquiry was the province of the radical right which attacked Louis Brandeis for his Judaism and William Brennan for his Catholicism. ... One senator solemnly stated on the Senate floor that he was voting against Robert Bork's nomination to the Supreme Court because he was not sure that Bork believed in God.

Apparently, some opponents of Clarence Thomas mistakenly cited his Catholicism but shifted ground when they learned that he attended an Episcopal church. They then took the position that he attended a conservative church!

In this context neither the defeat of Bork nor the spectacle of the Thomas hearings can be understood as aberrations. Quite the contrary, both stand as models of the new model of confirmation politics.

Another view is that “trashing the candidate” or “digging up dirt” was always the norm but that televised proceedings have projected the muck-raking onto the public.

    It's hard to imagine that our process would reach that stage very quickly, but I think it's a path that leads inevitably to that sort of approach.

    Confirmation hearings in the United States have come to resemble election campaigns dominated by special interest groups. The central objective is to determine the kind of person the candidate is and the kind of judge he or she is likely to be. The problem is not that parliamentarians are incapable of understanding the judicial role and conducting restrained, intelligent, and relevant questioning of candidates. I'm sure all of you are able to do that. The problem is that there will be very little political interest in doing so. On the contrary, public expectations, interest group pressures, and political instincts will cause many to engage in political campaigns, often through the vehicle of judge bashing.

    This may be controlled to a greater extent in Canada because of government majority control of committees, but there's no reason to expect the underlying political dynamics to be any different than they are in the United States. After all, we do have an adversarial system in Parliament, and the object of the opposition—it's called the “opposition”—is to oppose the government and to embarrass the government, where possible, and to point out the flaws in the way the government is governing.

Á  (1125)  

    Unfortunately, this particular avenue of making judges the vehicle for doing that would be highly unfortunate to the role of our judiciary. The problem is that putting judges into this forum exaggerates the political aspect of judicial decision-making rather than the judicial nature of it. I believe some people say this could have an educative role for the public, to see these potential judges and to find out who they are. But I believe the process is counterproductive in terms of education, for some of the reasons I've stated based on the American experience.

    In terms of the public, some of the arguments made are that there should be accountability of the judiciary, that there should be more public participation in the process, that the public should have a right to know about judges. But in the case of confirmation hearings in Canada for the Supreme Court of Canada, for example, it's hard to know what can be presented publicly that's not already known.

    Almost inevitably, judges are selected from provincial Courts of Appeal to the Supreme Court of Canada. Only two judges in the past 25 years were appointed directly from the practising bar. They were Justice Sopinka and Justice Binney, both of whom had very high profiles, were very well known in the legal community, had been involved in cases nationally and internationally, and had a high profile. But for all of the others, the appointments come from the provincial court of appeal.

    For example, when the last appointment was made to the Supreme Court of Canada, it had to be made from Quebec. All you had to do was look at the court of appeal of Quebec and you already had a track record. These people have been lawyers for 15 or 20 years. Any who are being considered for the Supreme Court are likely to have been on the provincial court of appeal for at least 5 or 10 years. You have judicial decisions. You have a track record of how hard they work. You have an indication of the kind of people they are in terms of having integrity and so on.

    Quite frankly, I don't know what further information you're going to get at a confirmation hearing. The problem is that inevitably the process will be driven by these public interest groups to try to get the judge to give an indication as to how the judge is going to decide future cases. How will you decide a case if it relates to abortion? How will you decide a case if it relates to same-sex marriage?

    The answer to these questions will have to be in every case: I can't tell you how I'm going to decide a case until that case comes before me, until I hear the arguments, until I see the legislation, the constitutional arguments, the evidence and so on. That's what the judicial role is.

    Just before I stop, I should say something about the existing process, because it's said sometimes that there's no accountability under the present process. But after all, the government is elected by the people. The Prime Minister is the leader of the party that's been elected, and the people can throw out that party in the next election if they don't like what they're doing. The cabinet makes all kinds of appointments. They appoint deputy ministers and people to tribunals, commissions, agencies, and they could be criticized for it.

    We see criticism of the current Prime Minister for making a lot of appointments that might appear to be based more on political contributions than on merit. We have to be very careful that people are not excluded from appointments because they are engaged in the political process. It's important that all Canadians be encouraged to do that, and that should not be a reason to be disqualified.

    Of course, the merit side of the equation has to be met as well. Ultimately the proof is in the pudding, and the appointments to the Supreme Court of Canada have been outstanding.

Á  (1130)  

    There has been no criticism, that I'm aware of, that the people on our Supreme Court of Canada are anything but excellent jurists of the highest stature. Our court is respected throughout the world. Our charter judgments are used as precedents in South Africa, India, Australia, New Zealand, and other Commonwealth countries.

    We mustn't lose sight of the fact that with the possibility of power being located in the Prime Minister, there is the possibility that the power might lead to bad appointments, but that kind of direct accountability can also lead to excellent appointments. Everyone knows that's where the buck stops, who is responsible for it, and who has to take responsibility for it.

    The tradition has been established in Canada, over the last 25 or more years, that appointments to the Supreme Court of Canada are non-partisan. They're made on the basis of merit.

    It's not so long ago that former Chief Justice Laskin was the first Jew appointed to the Supreme Court of Canada. Since then, an Italian Canadian, a Ukrainian Canadian, and four women, including the current chief justice, have been appointed. There's more to be done in terms of diversity. To move in that kind of direction, having the appointing power for the top honcho essentially allows a tremendous opportunity to mould the court to accommodate some of that diversity.

    So, my friends, I come to this perspective having studied the American process. My conclusion from that, and from following the process, is that it is not really something we want to jump into too quickly.

    Thank you.

    The Chair: Thank you very much, Professor Ratushny.

    Mr. Breitkreuz wants to put a motion. We've been given notice. It's in order.

    Since Bill C-20 is being debated in the House, we have members who are going to be coming back and forth, so we may not be able to sustain quorum. Only by virtue of the fact that we're concurrently having a justice bill in the House and the justice committee meeting on this subject, I'm going to entertain the motion now.

    Prof. Edward Ratushny: I'll excuse myself for five minutes.

    The Chair: You can do that, but you don't have to do that. I thank you, and yes, you may.

    Mr. Breitkreuz has suggested that he can do this within a few minutes.

    You needn't be excused, Professor Ratushny.

    Prof. Edward Ratushny: Okay. Thank you.

    Mr. Garry Breitkreuz (Yorkton—Melville, Canadian Alliance): Thank you very much, Mr. Chair, and I appreciate the committee allowing me to present this at this time, while we have a quorum at the committee.

    I hope you have before you the wording of the motion.

    In light of the problems that were identified during the recent review we had of the draft firearms regulations and the submissions that have been received by the clerk of this committee, I would like the committee to prepare a report to Parliament with some recommended amendments to these draft regulations.

    Those of you who have read the transcript or heard the problems realize there are some very serious things, and I'm going to give you one example in a moment, but the bottom line is that we as legislators--and not the bureaucrats--are responsible for correcting the problems, and I believe we should take charge of this and recommend changes.

    I think you heard when we had hearings on this how dangerous it is not to correct them, and because of poor drafting they are unenforceable. I think that's a serious problem, and because they're unenforceable it makes the billion dollars even more a waste of money.

    The Senate has just had similar hearings, and if you read the transcript of what is going on at the Senate, it will underline that what we heard at this committee was also verified at that committee.

    In the interest of time, I'm only going to give you one example of the problems that are going to arise within the near future because of the amendments that have been proposed.

    In one area alone, the air gun issue--this is a submission that was sent to this committee, and I don't know if you've all had a chance to read this--Hamilton, Ontario, would like to get the Commonwealth Games. Those games are likely going to be negated and Hamilton will not get those games because of the amendments that have been put forward in regard to the air gun issue. In Toronto we're also probably going to lose the 2004 air pistol competition. This all comes to light because people now are not allowed to come into Canada with those air pistols because of what's happening here. There was only one model, of all the air pistols, that was not restricted from coming into Canada.

    Whether this committee thinks that is important or not, that's how it's going to impact on us in a material way. So I give that one example of a problem that has come up in the last little while. I appeal to the committee to have us prepare some kind of a report with recommended amendments.

    I realize that's a lot of work and there's not a lot of time, but I put that forward and hopefully the committee will approve it.

Á  (1135)  

    The Chair: Does anyone want to respond? Again, out of respect to Professor Ratushny, let's keep this brief.

    Ms. Jennings.

    Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Yes, I'll be brief.

    The committee, following a motion we adopted, did in fact hold a hearing on the regulations. We heard from CFC and we did not hear from any of the stakeholders Mr. Breitkreuz is talking about. The committee, if I'm not mistaken, already reported back to the House on Monday, October 27. Therefore, I would ask the members of this committee not to support Mr. Breitkreuz's motion.

    The Chair: For the record, we did not report to the House. We did not have to report to the House. Basically there was a legislated time. If we did not report at that time, the process finished itself, and we did not report and we did not ask the chair to make a report.

    Mr. Garry Breitkreuz: I think, with all due--

    Mrs. Marlene Jennings: If I can continue--

    The Chair: You continue. You'll have the last word, Mr. Breitkreuz.

    Mrs. Marlene Jennings: Thank you.

    I think the main point is that we heard from CFC. We did not hear from any other witnesses before we allowed the process of adopting regulations through Governor in Council to continue along its merry way, and therefore I personally don't have enough information to determine whether or not amendments are required and, if so, what amendments would be required.

    So I can't support this motion, and I would simply ask the members of the committee not to support it.

    The Chair: Thank you, Ms. Jennings.

    Mr. Breitkreuz—and please, don't engage in trying to convince Ms. Jennings—

    Mr. Garry Breitkreuz: I appreciate the indulgence of the committee to do this, but October 27, I think, is being confused as the date on which the regulations could come into effect. They have to be laid before the House of Commons for one month, but they don't necessarily have to come into effect, and they aren't at this point in effect. They could wait another year. So we have time.

    With all due respect, I wanted to have more witnesses, but there are many who have written submissions to the committee, so we don't need to have them appear before the committee. We can go by the written submissions and the suggestions they have made. There are some experts who have made some excellent suggestions, and there's no reason why we can't use those as well. It doesn't have to be somebody verbally reporting to the committee.

    There are 20 countries that will likely not come to some of these games because of the regulations that are coming into effect. This is serious.

    The Chair: Thank you, Mr. Breitkreuz.

    Ms. Jennings.

    Mrs. Marlene Jennings: Yes, there are written submissions. The problem when we simply have written submissions is that there are contradictory recommendations to be found in them.

    The Chair: Are we ready for the question? I don't want to cut anyone off.

    The question is put. I'll read the motion:

—That, in light of all the problems identified during the Committee’s review of the Draft Firearms Act Regulations and in submissions received by the Clerk, the Committee prepare a report to Parliament with our recommended amendments to these draft regulations.

    All those in support of this motion, please indicate with your hand.

Á  (1140)  

    Mr. Garry Breitkreuz: I want a recorded vote.

    The Chair: You want a recorded vote? That is your right. Take a recorded vote, please.

    (Motion negatived: nays 7; yeas 3)

    The Chair: The motion is defeated. The chair does not have to cast a tie-breaking vote.

    I thank you, Mr. Breitkreuz and the committee.

    Thank you very much, Professor Ratushny. I think you had finished the first half of your presentation, so I will go to Mr. Sauvageau.

[Translation]

    Mr. Benoît Sauvageau (Repentigny, BQ): First of all, Professor, I want to apologize for Mr. Marceau's absence. As the Chair noted earlier, a debate is currently underway in the House of Commons on Bill C-20. Since Mr. Marceau was the mover of the motion calling for a review of the process for appointing judges, he would very much have liked to be here. Nevertheless, given the speed at the which the debate will unfold, he may yet be able to make it here and ask a few questions.

    Correct me if I'm wrong, but to my understanding, judges are appointed in accordance with the following procedure. Names are submitted to 14 or 16 committees in the provinces or territories. Subsequently, potential appointees are interviewed. The list of interesting candidates is then submitted to the Commissioner for Federal Judicial Affairs whom I had the privilege of meeting this week at another committee meeting. The Commissioner then forwards the list to the Minister of Justice. Judges are subsequently appointed by the Governor in Council. The process is undoubtedly much more complex than this, but basically, would this be a fairly accurate description of how the current appointment process works?

[English]

    Prof. Edward Ratushny: That is basically the process for it, but it covers mostly superior court trial judges. The Supreme Court of Canada is not covered by that process, and the appeal court judges are not, if someone is elevated from the trial division to the court of appeal; that's not covered by the process either.

[Translation]

    Mr. Benoît Sauvageau: Thank you.

    If I understood correctly, you say that despite certain editorial comments made concerning recent Supreme Court appointments, notably that of Justice Deschamps, the current appointment process appears devoid of political or partisan considerations. Since you've been examining this question, you've observed that the process is relatively neutral, particularly in that precedence is given to a person's qualifications rather than to his or her political allegiance. That is how it should be.

    Furthermore, if I understood you correctly, you are not a proponent of the third option, namely the confirmation hearing, as they have in the United States. As for striking a nomination committee, I have to say that the quality of the questions put yesterday by the members of the Government Operations committee to the new Privacy Commissioner does not paint members in a very good light. Therefore, I tend to agree with you that if the nomination committee were a House committee, political considerations of a lowly nature could interfere with the nomination process. Consequently, you're recommending that the present system be retained.

    For starters, I'd like to know if, in your opinion, the system should be improved in some ways, specifically as regards the Commissioner of Federal Judicial Affairs. I was very surprised to hear the Commissioner state during the course of his testimony that he was in some respects an intermediary. If I understand correctly, he receives an envelope containing suggestions from provincial or territorial committees. He then forwards the names of the prospective appointees to the Minister of Justice. I don't know whether he even opens the envelope. Regardless, I'm curious to know if you feel the Commissioner should have broader powers.

    Specifically, I'd like to know what could be done, as part of the appointment process, to ensure compliance with section 19 of the Charter of Rights and Freedoms and section 14 of the Official Languages Act, that is to ensure that all Canadians have access to Canadian courts in their preferred language. The question was put to the Commissioner of Federal Judicial Affairs. No one was able to tell me how many of the approximately 1,060 judges appointed by the Governor in Council were bilingual, unilingual English or unilingual French. Nor could anyone tell me how many bilingual judges there were per province.

    In the event no consideration is given either to section 19 of the Charter, a component of the Constitution, or to the Official Languages Act in the appointment process, would you be prepared to recommend that this important aspect of our law and our Constitution be incorporated into the appointment process?

Á  (1145)  

[English]

    Prof. Edward Ratushny: You've raised a number of important issues.

    The privacy commissioner is a completely different type of office. The commissioner is a creature of Parliament, and I believe there are all-party consultations on the appointment of the commissioner, as there are with some of the others. I believe a hearing in that situation, particularly in view of what transpired with the previous commissioner, was probably something very worthwhile doing that perhaps would provide some assurance to the public as well. I see that as being a completely different avenue.

    In terms of the power of the commission to get good appointments on a comprehensive basis, particularly if someone has not been a judge before, information is crucial. I served in the early 1970s—from 1973 to 1976—as the first adviser to the Minister of Justice on judicial appointments. Prior to that time it was simply a matter of a few phone calls among members, with very little consultation. The Chief Justice might call the Minister of Justice—that sort of thing. At the time, the Judges Act was amended to create a whole set of new positions, and the supernumerary provisions came into force. These allowed a judge to step down after serving for 15 years, creating a vacancy, but still after stepping down to serve part-time. This created a whole raft of vacancies.

    The Minister of Justice at the time was quite concerned about the lack of information he had concerning people whose names were being put forward. My role became essentially to develop lists of lawyers and to go out and consult with leaders in the bar—chief justices, other prominent lawyers—and try to get diversity: legal aid lawyers, for example, and people from different communities. We would compile information about people who were being considered. I'd keep this in my own handwriting for confidentiality, but the Minister of Justice would see a person's name, the date the person was called to the bar, what the person's career was—in terms of what firms—and he would see maybe ten different opinions, in two or three sentences, about what the individual thought about the one being considered for appointment. As a result—

[Translation]

    Mr. Benoît Sauvageau: I'm sorry to interrupt you, but we only have seven minutes. What you're saying is very interesting, but I'd like to know if, if your opinion, the process used to appoint judges is in compliance with section 19 of the Charter and section 14 of the Official Languages Act.

[English]

    Prof. Edward Ratushny: I just wanted to get to your point about the commissioner, because I don't see the commissioner being able to fulfill that role of gathering information. The commissioner I think basically is the conduit. I don't see a greater role for the commissioner in terms of the merits of the appointment. I see the Minister of Justice gathering information for that.

    Concerning the ability to conduct bilingual trials, there's no question that is something that is taken into account, perhaps not always completely successfully. To take Ottawa as an example, there are a certain number of judges who can conduct trials in French as well as in English. In fact, I was talking to the senior judge here, who is a French Canadian, Justice Métivier, and she mentioned that at times the trials in some of these cases will switch from English to French, depending on the people involved, and that it works pretty well in terms of accommodating people. I think it's an avenue where our courts still have improvements to make in having an adequate number of judges capable of conducting trials in both official languages.

Á  (1150)  

    The Chair: Madame Jennings, you have seven minutes.

    Mrs. Marlene Jennings: Thank you very much for your presentation.

    I have a few questions. I'm not going to ask questions about the process, particularly at the court of appeal and at the Supreme Court of Canada, because as you've said, all of the appointments, with the exception of two, after the last 25 years, have come from justices already appointed to the court of appeal, or to superior court, or a supreme court, as I believe it's called in other provinces.

    Prof. Edward Ratushny: In different provinces.

    Mrs. Marlene Jennings: And those appointments do go through a very, very well-defined nomination process. So I want to examine that process.

    I do understand that a committee is set up in each of the provinces and the territories, and that each receives applications from lawyers who are interested in seeking a federal appointment to one of the courts, and each does check their references and so on.

    I'd like to know, what is the process for choosing who sits on those committees? That's the first thing.

    Secondly, once those committee members have actually been appointed, what kind of training do they receive in establishing an actual evaluation scheme as to what factors they should be looking at? One of the reasons why I ask that is because, historically, if I look at Quebec, there are no visible minority judges there—a federal appointment. Recently, in the last couple of years, the provincial court has appointed several visible minority judges.

    If all of the judges appointed federally in Quebec are all white.... And we know that studies have shown that visible minorities have a difficult time, regardless of what their marks are like, being engaged by the senior, well-known law firms, and that an over-proportion of them are sole practitioners because they simply can't get hired for their articles. And if they manage to get hired for their articles, they're not retained. There have been real studies that have looked at that whole issue. If one of them has their 10 years at the bar and then applies for a nomination, nobody on that selection committee is going to know who the heck they are, as they may not have been able to highlight their talents as a result of some of the barriers that already exist.

    So I would like your expertise and knowledge of the actual process for federal appointments, to the superior court, to the court of appeal, to the Federal Court, to the federal court of appeal, and to the taxation court. This might give us more meat, I think, in terms of determining whether or not that process is adequate in ensuring diversity and the most qualified candidate, because it is a question of merit.

    Prof. Edward Ratushny: I think you raise a number of excellent points.

    Just as a matter of information, is Justice Westmoreland-Traoré not a superior court judge?

    Mrs. Marlene Jennings: No, she's with the Quebec court, as a provincial judge. She and Daniel Dortélus are both provincial court judges.

    Prof. Edward Ratushny: I see.

    I should say, first of all, that I have not been part of the appointment process; I haven't been for many, many years. So I'm a bit of an outsider in that respect, and I think it would be useful to have someone from the minister's office, perhaps the current adviser on judicial affairs or the minister, give some details about the appointment process, about who goes on the committee, what information they're given about their role, and so on. I would think they probably have guidelines.

    I think the committee appointees come from different groups. I think the Canadian bar appoints someone, and the minister appoints someone, so they do try to have some variety there. But that's about all I can say about appointment and training.

    However, the point I made earlier with Mr. Sauvageau in terms of information is very valid here. It's not enough for the minister to rely solely on these committees, because they are looking at individual names rather than the composition of the court as a whole. The minister has a responsibility to take that broader view; therefore, when selecting from names that are put forward, the minister is going to have to take into account.... I understand from members of the bar, from the chief justice, that we really need a couple of judges who are strong in criminal law. We really need someone who is strong in labour law, for example. We're getting a lot of cases in that area, and we don't have a real crackerjack person who understands the dynamics, and so on. That kind of expertise is one thing.

    I think diversity is crucial. I think it's important that every citizen in the community be able to look at our institutions and be able to say, “The community I belong to is represented there”—that they're part of the institutions that have decision-making authority, and so on.

    But I think that requires some initiative from the Minister of Justice in terms of canvassing the composition of the courts—and when selecting people, to make sure that some of those deficiencies are filled.

    You may not be aware, but I was on a royal commission in Ontario on racism in the criminal justice system. These were some of the things we grappled with, about how to make the courts more inclusive for people from minority communities, so that these people are able to come in and feel comfortable and feel that it's their institution.

Á  (1155)  

    The Chair: Thank you very much.

    Mr. Sorenson.

    Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): I just want to say that I don't have many questions, but I do appreciate you coming here. Obviously you understand what we're doing.

    It's probably fairly obvious that we're here because there is a feeling in the general public that perhaps we are not being as well served in the appointment process as we could be. In my riding, for example, even with the same-sex marriage issue, a lot of people are wondering why the courts are doing this. How can one or two judges in a lower court override a decision of Parliament? How can they take part of the charter and just override it?

    So I think a lot of people are just frustrated. There are people in my constituency who write to me and ask who's running the show here--is it Parliament or the courts? I suppose in reality it's both. There has to be a balance, with both bodies working together. So a lot of the concerns derive from the fact, as you suggested--and you made a good argument on the appointment process--that democracy is still served on the judiciary. Is justice being served? We are bringing forward good men and good women to the board. Some of the other concerns have been brought forward.

    If we build poor law here, we hear about it in the next election. But if judges come with what the public may deem poor decisions, what is the process? What accountability do they have? Is it in-house? I'm not a lawyer, so I really don't understand that. But what is the process for accountability?

    Again, there's the question that was posed to you by the Bloc member--I did miss part of your presentation and I apologize for that, but I was in the House--that if there were any way to make the appointment process or the decision of who serves as our judges better, what would you do? If you could make your wish list happen, how would you do that?

    Prof. Edward Ratushny: I think you raise a really fundamental issue on the relationship of the courts to the legislators. It's a very legitimate issue. It isn't always clear where that dividing line should be. In Canada, we've struggled with that with the Charter of Rights and Freedoms.

    On your last question of how to make it a little better, the Prime Minister could establish a protocol informally, not by legislation. He could say that when Supreme Court vacancies arise he's going to set timeframes and tell you who he's going to consult. He might consult with additional people, but for sure he's going to consult with the attorney general of the province--say it's Quebec. He'll make sure he receives full submissions and the names of who the attorney general prefers, and the Prime Minister will take them seriously. He'll consult with the chief justice of the court and the head of the law society--the Barreau du Québec, for example.

    Then at least people will know that he's done those things. He'll do them within a certain timeframe, because sometimes you see a lot of speculation and names being thrown around in the newspapers. The press is actually pretty good at looking at the courts of appeal and checking around. People on the short lists the press comes up with are often pretty close to who you'd expect to be at the top, and they are often the people who are appointed.

    A little more formality in the process leading to the appointment would be helpful. It wouldn't be very difficult to do; it would just require a little more discipline in terms of timeframes, who's consulted, and so on.

    I'd like to return to your fundamental point on the relationship between Parliament and the courts. On one of the difficulties for members of Parliament, when you go back to your constituencies and there have been decisions like the same-sex marriage decision, you have many intelligent people in your ridings who are committed, have very good intentions, and so on, but they don't understand some of the subtleties of exactly what the role of the judiciary is.

    The judiciary is not there on some of these issues to reflect the will of the majority. The majority may not like the fact that a minority is given a certain decision, because that decision will respect the equality and dignity of that minority group, but that's why we have courts and a charter. The charter is intended to protect rights that the majority might not like. Once you decide to put them in the charter and say that a group is going to be protected by the charter, it's the court's responsibility to draw the boundary as to how far the legislators can go.

    You can be critical of judicial decisions and say, “I think they've got it wrong. I think it's unfortunate. They made the wrong decision.” But that's their jurisdiction and they're entitled to do that.

    In this article I have here, I actually have a quote--

  (1200)  

    Mr. Kevin Sorenson: The problem occurs when it affects the--

    The Chair: Mr. Sorenson, you're way over your time.

    Mr. Kevin Sorenson: --social fabric of the country and they may be wrong.

    Prof. Edward Ratushny: That's a pretty vague term, “social fabric of the country”. Vague phrases like that are very dangerous because they allow discrimination to be disguised. I think that has happened with a lot of these confirmation hearings. The religious attacks, and so on, aren't always direct. They're often very subtle, but they appeal to a discriminatory attitude.

    I know when you go back to your constituencies you don't have the time or facility to conduct courses in political science, law, and the fundamental principles of our judicial system on a regular basis. But I think that's where the gap is, and we all have to work at making that better.

    Let me just give you a little quote from an article that was written in response to Preston Manning. It says:

On most Charter rights, our legislators can reject or modify the judicial policy product for five years at a time, and if what the courts have produced is overwhelmingly unpopular they can reverse them permanently by amending the Constitution.

    So the judiciary has its role, and it has to be given respect to fulfill that role. If we don't like what we're doing sometimes, some of us have to live with it knowing that there is a bigger goal there of protecting those who can't be protected by the majority.

  (1205)  

    The Chair: Thank you.

    Ms. Fry.

    Ms. Hedy Fry (Vancouver Centre, Lib.): Thank you very much, Mr. Chair.

    I have to say that I really agree with what you said with regard to judges not being there to reflect the will of the majority, or to be popular, but to interpret the law. That is an important role for judges, and that is why I suppose someone like me believes that if you elect judges, what you're doing is having people there who have to do the will of the majority and be popular so that they can get re-elected.

    I just wanted to ask you a question, though. Some people have talked about the South African model of choosing supreme court judges. Can you tell me a little bit more about that model and what the pros and cons of it are?

    Prof. Edward Ratushny: They do have a confirmation process. I think you have to take into account the dramatic revolution that occurred in that country and how their constitution attempted to address and provide for.... Gee, I don't know how many official languages they have; it's a lot.

    The idea of putting in the constitution vehicles for respecting diversity and having a voice for different communities was part of that, and I think it should be treated, possibly, as relatively unique to that country.

    I gather that the confirmation hearings there have been going pretty well so far, and that they haven't had too many problems.

    Just while you touched on Africa, I might say that I was part of a committee that was asked to provide recommendations to the constitutional review committee of the Government of Kenya. Under the previous regime they were drafting a new constitution there. The committee felt it was going to have some problems with reactions to the judiciary, because the judiciary was corrupt, so they brought in someone from the Supreme Court of Uganda and from the Constitutional Court of South Africa. I was privileged to be a member of that committee.

    During the course of our deliberations, we had a magistrate come to see us one evening; he didn't want to do it in public. He was with a couple of his colleagues. He said he was on a drug case in Mombasa, and the question was whether this guy was going to get out on bail. The chief justice called him and said, “He's got to get out on bail.” The magistrate said, “I don't think so, Chief Justice. I've looked at the file. It looks pretty bad. I'll hear the argument tomorrow, but I doubt I'll be able to let this guy out.” So he said, “Well, I'm going to come to see you tonight,” and he flew from Nairobi to Mombasa and offered him money and a promotion to make sure this guy got out on bail. The magistrate stuck to his guns, went in, and said, “I am not going to release you. You have to stay in custody.” The magistrate then got transferred to a very remote region of Kenya. The case got moved to Nairobi, another judge heard it, and the guy was out on bail.

    Our system in Canada has never had problems with corruption of that nature. I can think of no case, at least at the federal level, where there's been a case of a judge being bribed. The corruption that is endemic in some of these countries—and sporadic even in quite developed countries—is something our judiciary has been able to avoid. It is fundamental to our process to have that kind of confidence.

    I might say that the Government of Kenya, of course, has been overthrown in an election. There is a new government, and there is an anti-corruption commission. I think the chief justice and something like 15 to 20 judges have resigned, and that a total revamping of their judiciary is going on right now.

    So I'm hopeful that some of the countries that are looking for new models will continue to be interested in what we've been doing in Canada, because around the world, if I may say, our judiciary has an extremely high stature.

  (1210)  

    The Chair: Thank you very much.

    Monsieur Marceau.

[Translation]

    Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you very much, Mr. Chairman.

    Mr. Ratushny, first off, I want to thank you for coming here and to apologize for being late, given that I am the mover of the motion that led to this very discussion. I was detained in the House where members were debating the issue of child pornography. Therefore, I missed a portion of your presentation. However, my colleague has filled me in on the highlights.

    As I understand it, you are relatively satisfied with the current system and you do not feel that elected officials should play a part in the appointment process. Therefore, I'd like to put the following question to you. Do you have so little confidence in federal MPs, and conversely, so much confidence in the Prime Minister that you would give him free rein to make appointments, without any input whatsoever from Members in the process?

[English]

    Prof. Edward Ratushny: Yes, that was part of what I had said.

    The Prime Minister, of course, has a lot of power to be able to make appointments to the Supreme Court of Canada, but the bottom line—to repeat myself—is that the appointments have been excellent. They've been outstanding.

    So, yes, I do have confidence that the process is working.

[Translation]

    Mr. Richard Marceau: You've done some prestigious work. Earlier, you mentioned your work in Africa. In a state of law, one of the basic tenets of democracy is, naturally, the trust people place in their judicial system. I think everyone would agree with that premise. As a legal expert, professor and even as an ordinary citizen, are you not concerned by the fact that many people, whether in the newspapers, on television or on the radio, seem to feel that persons are appointed because of their ties with the governing party?

    I want us to be very clear. I'm not saying that if a person has political experience at a given level, that should disqualify him or her from being appointed to the bench. On the contrary, I'm saying that public service should be a determining factor. However, in light of the expanding role of judges in defining public policy and the reservations many people have over whether a person was appointed because of ties to a particular party, do you not think something needs to be done to counter this dangerous perception? Do you not think a parliamentary committee, comprised of course of representatives of more than one party, could take it upon itself to confirm whether a person is qualified to be a judge? This would help to dispel some of the doubts a growing number of Canadians harbour.

[English]

    Prof. Edward Ratushny: First of all, I would take issue with the extent of the doubt or the problem you raise. I think, by and large, the people of Canada have quite a bit of confidence in the judiciary—and I think at the Supreme Court level especially.

    I would ask you, who on the Supreme Court of Canada is there because of their political contributions?

[Translation]

    Mr. Richard Marceau: Are you asking me? Let's be very clear about one thing. I'm not questioning anyone's legal qualifications. However, when Michel Robert was appointed Chief Justice of the Quebec Court of Appeal and when Marie Deschamps was appointed to the Supreme Court of Canada, the Gazette, the National Post, the Globe and Mail, the London Free Press and La Presse, all of which are fairly influential newspapers read by the public at large -- I'm not talking about the Journal du Barreau which has only several thousand subscribers -- mused that perhaps their political contributions had something to do with their being appointed.

    That's what concerns me, as a lawyer and as an ordinary citizen. When we travelled across the country for our hearings on same-sex marriage -- and I concur with the Ontario Court of Appeal ruling on this matter -- we sensed the quiet anger of many people who maintained the appointment process was ludicrous.

    If judges wield so much power, somewhere along the line, elected officials should have a role to play in appointing persons to such important positions. Moreover, this involvement shouldn't come at the very end of the process, unless of course it comes down to invoking the notwithstanding clause. However, I'm not at all comfortable with the prospect of suspending rights and freedoms that have been recognized by the courts.

  (1215)  

[English]

    Prof. Edward Ratushny: I'm glad you don't have any problems with the quality of the Supreme Court of Canada appointments, because I think they're universally acclaimed.

    You mentioned Michel Robert. I said in my presentation that we have to be careful that we don't disqualify people from important positions because they've had political involvement.

    The experience that all of you get from representing people in Parliament, from realizing that you have to balance interests, from having to analyse legislation, and so on, I can see as being a very helpful dimension for a judge to have. It will increase the sensitivity of the person as a judge in future. I don't think that should be a disqualification. I think we should be encouraging people to be involved in politics, and not fostering the idea that politics is something nasty that people shouldn't get involved with.

    Michel Robert, in my view, is one of the most outstanding jurists in Canada; I think he's an excellent lawyer. He took on very high cases.

    Was he not a bâtonnier of the Barreau du Québec?

[Translation]

    Mr. Richard Marceau: He also argued that the process needs to be reviewed. You read his article in The Lawyers Weekly.

[English]

    Prof. Edward Ratushny: Well, you can get all kinds of people sniping...you can read Frank magazine and probably find stories about some of us in it. But I don't think someone should be tarred because they were involved politically before, that somehow they can't be a good judge. I think the example you used is a person who is an outstanding jurist.

    Same-sex marriage, I know, is a big problem for elected representatives, and it's natural to use the courts as the whipping boy rather than explaining the role of the judiciary, which is often difficult to do in your circumstances. It's easier just to say, yeah, that judiciary is terrible.

    The Chair: Mr. Maloney.

    Mr. John Maloney (Erie—Lincoln, Lib.): You indicated there's a possibility of making the process better by establishing a protocol, and you gave some examples. I have no idea how they go about it now, but I would think the protocol you suggested is a very plausible process that they have now--but I don't know that.

    You said the protocol should be informal, not codified. What would be the problem of making that protocol a written guideline saying it should include certain items, in addition to any other criteria?

    I think the concern is transparency and accountability. The public should know that something is being considered in any event. Rather than making it informal, why not make it formal, but not necessarily inclusive?

    Prof. Edward Ratushny: Sure, it could be, for example, a policy--the Prime Minister could say he has decided to adopt this policy. When Supreme Court vacancies occur or are anticipated, he's going to engage in this process. Now, I suppose if the Prime Minister doesn't have to do it, his advisers will say, “Why restrict yourself? Why tie your hands like that? All you're doing is opening yourself up for criticism if there are delays and you can't meet the deadlines.”

    Obviously it wouldn't be binding. But I think it would be, as you've suggested, a contribution to transparency and allowing for expectations from the people. When is this appointment going to be made? Well, during this period, we're doing consultations; during this period there will be deliberations; and then we expect a decision will be made around this time. You hear critics say it's like electing the Pope: the cardinals disappear for a long period of time and then all of a sudden white smoke comes up and you realize there's been an appointment.

    That's all this would try to do, to address what goes on in terms of the consultations and set some path for it. I think establishing guidelines like that would be a good idea.

    Sorry, did I miss your point?

  (1220)  

    Mr. John Maloney: No, no, you didn't. You're right on.

    I'm saying establish the guidelines. But do you feel they should be more than just guidelines? I mean, one prime minister may feel this way; the next prime minister may feel another way, and there go the accountability and transparency out the window, at the whim of a prime minister or his advisers.

    Prof. Edward Ratushny: That's the basis on which a prime minister could be criticized publicly as part of the political process--that he's not following a transparent process. Once it's been established by one, and someone else abolishes it, then that prime minister has to take responsibility for abolishing it. That puts us in the political realm, I think, rather than in terms of....

    But just to go back to basics, section 96 of the Constitution Act says that superior court judges are appointed by the governor in council. That is all that's said about it, and it gives them the blanket right to do it. So anything the Prime Minister might want to add to that would be on the initiative of the government rather than something that could be required by Parliament.

    The Chair: I want to continue, because we have a long list. I think it would maybe offer some comfort to members of the committee to know, Professor Ratushny, that we may ask you back on the second half of your presentation. I don't want to cut off what I think is a very interesting discussion, so we're going to continue. I have, as I say, a long list, and I'll reserve the right, if you don't mind....

    Prof. Edward Ratushny: That would be fine.

    The Chair: Fine.

    Mr. Cadman.

    Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair.

    Thank you, Professor, for coming.

    On the issue of public criticism, I think more often than not the public criticism comes from decisions made usually at the criminal level, as opposed to charter issues and constitutional issues, and I go back to my home province to some of the decisions that have come out of there, like Justice Shaw's decision on Sharpe.

    Some of this may be legitimate and some may not be legitimate criticism, but where it comes to an issue where the law itself is either ambiguous or poorly drafted, how much of this can be alleviated if the judiciary, rather than asking the layperson to read the reasons for judgment, was to come forward and say, “Essentially we have lousy law here that we have to deal with”? If people understood that--and I suggest that there is a lot of poorly drafted legislation--and if the judges were aware of that, and their decisions were coming about and they were being criticized for their decisions, but they were doing it because of poorly drafted legislation, is it possible that the courts could come out, themselves, some way and indicate that?

    I'm not suggesting that every judge give an interview after every decision, but it just seems a lot of it comes about because of those reasons, and the public becomes confused, more than anything else.

    Prof. Edward Ratushny: I think, again, it's a very valid point. Often these issues are not simple, and it's difficult to summarize them in a simple way. Sometimes they're complex.

    Certainly, you can have situations where the courts can point out shortcomings in legislation, and as Preston Manning had suggested earlier, Parliament can often change laws to comply with that. I think an excellent example of that was the rape shield legislation, where the government had passed legislation to deal with victims of sexual assault in order to avoid the abuse where any past sexual conduct of the victim could be raised and things like that. This was to make it more fair for the victim, so they didn't become attacked in court cases and so on.

    The legislation went to the Supreme Court, the Supreme Court did a detailed analysis under the charter, and they said much of the legislation was fine, but there were some areas that really transgressed the charter. They gave suggestions as to what would satisfy the charter, and they tried to make a decision that didn't in effect wipe out everything Parliament had tried to do; they tried in their decision to maintain some of those things.

    As a result of that decision, Parliament reviewed its decision in light of the previous legislation and passed new legislation to take that decision into account. There was almost a dialogue occurring between the Supreme Court and Parliament, who both wanted the same ultimate goal, to protect victims but to do it in a way that didn't unduly affect the rights of a person who was accused but presumed innocent until proven guilty.

    I'm sorry to take so long in answering some of these questions.

    But one place where this really seems to hit home frequently is in sentencing decisions in criminal cases, where the public sees a horrific crime and they see a sentence that to them seems lenient. It's a very common reaction, I think, and people say, how could they do that?

    But sentencing is much more complicated than saying, this is the act and this is the maximum; it's a bad act, so let's give him the maximum. You have conflicting goals of sentencing. If it's a young person, rehabilitation becomes the primary goal. If it's someone who has a path of wrongful conduct with previous convictions and so on, then the judge has to think more in terms of the protection of the public and the isolation of the accused to prevent him or her from reoffending. The message going out to the public can be important too: denunciation, to denounce this act as something that's unacceptable.

    Sentencing may involve not just the defence wanting a lenient sentence, but often the crown becomes involved. The prosecutor says it would satisfy the ends of justice to do this because, since the time of the crime, this person has made progress in dealing with his alcohol problem or whatever the case may be; maybe we should come down on the side of not writing the person off and not warehousing him in a prison for so many years but giving him a limited prison term or whatever.

    There's a criminology study done where some professors tried to test the change in public reaction between when they first reacted and after they knew the facts, and they had a series of examples. I don't remember all the details, but they took actual cases, explained the facts to individuals, members of the public, and in many cases the members of the public gave more lenient sentences than the judges had. This was after they knew all the facts that had come out, all the considerations, the pre-sentence reports, and that sort of thing.

    All that is just to say that when you see a headline in the newspaper and you feel for the victim and so on, there's usually more to it than that. I'm not sure how we go about explaining that to the public, but I think it's a fundamental consideration.

  (1225)  

    The Chair: Thank you.

    Ms. Jennings.

    Mrs. Marlene Jennings: Thank you.

    I want to come back to the issue of political involvement and the process of nomination. You made it very clear that in the last 25 years at the Supreme Court of Canada, all of the appointments except for two have come from the judiciary. This would then mean that those judges were not politically involved because as judges they're not allowed to be involved politically. Am I correct?

    Prof. Edward Ratushny: Well, they may have been earlier, though, before they were judges.

    Mrs. Marlene Jennings: Yes, but not since they have been judges, and chances are they have been judges for a while if they are considered to be of the calibre for an appointment to a court of appeal or to the Supreme Court of Canada.

    Do you know what percentage of appointments to the courts of appeal come from justices and not from the outside legal community?

    Prof. Edward Ratushny: I can only speak anecdotally, but I know that a former chief justice of Ontario, Chief Justice Gale, had established his ideal as having half the members of the Court of Appeal for Ontario come from the trial division and half from the bar. His rationale was that we see these judges, we know they're good judges, and so on; they know the judicial role, and we'll get them up there. But we can also use these direct appointments to the court of appeal to attract some outstanding people who might not otherwise accept an appointment to the trial division. Around that time, for example, Justice Estey was appointed directly to the Court of Appeal for Ontario, and Justice Dubin was appointed directly in that way.

    It seemed to work pretty well. You bring some fresh blood in directly to the court of appeal, but you also have the stability of those who have been trial judges. When they are reviewing, trial judges will understand some of the problems other trial judges had. I understand that the current chief justice, Chief Justice McMurtry, feels that it really would be a good idea for all appeal court judges to have trial judge experience. He thinks that if you're going to sit in review of trial judges' decisions, you really should have been there before to understand some of the issues in terms of charging juries and that sort of thing.

    So there's no hard and fast rule. There are different philosophies, but I think there may be a trend towards elevating trial judges as opposed to appointing directly.

  (1230)  

    The Chair: Mr. Marceau.

[Translation]

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

    Professor, you stated earlier that Michel Robert was a legal expert whom you highly respected. You spoke about him in glowing terms.

    Here's what he reportedly said. We note the following in an article in La Presse:

...Quebec's Chief Justice stated that it would be advisable to make more open and more credible the highly secretive process preceding the appointment of a judge to the highest court in the land.

    Quebec's Chief Justice also said this:

The vast majority of today's appointments are good, but at times, some Canadians and Quebeckers get the impression that the appointments are politically motivated.

    If someone whom you hold in such high esteem, someone who now serves as Quebec's Chief Justice, advocates greater transparency and openness, why do you not agree with his position? How can you disagree with someone who has firsthand experience with glasnost?

[English]

    Prof. Edward Ratushny: There are many people for whom I have a very high regard but with whom I disagree. Simply because I respect him as a jurist and as a person doesn't mean I necessarily have to adopt everything he has to say. I know he has wanted to create a more open dialogue on his court. I am familiar with the quote you mentioned, and he has talked as well about sharing more with courts in other jurisdictions as well. But in terms of the ratification process being a value added to the Canadian system, I would disagree, if that's what he is saying.

    Mr. Richard Marceau: Merci.

    The Chair: Mr. Jobin.

[Translation]

    Mr. Christian Jobin (Lévis-et-Chutes-de-la-Chaudière, Lib.): Something happened in Quebec after Justice Therrien was appointed. Once the appointment process was concluded, it came to light that Mr. Therrien had ties with the Front de libération du Québec, a radical terrorist secessionist movement. Despite the process in place in Quebec, it became apparent that the appointment process had some shortcomings.

    I'd like to know if the process that you are advocating for appointing appeal court and Supreme Court justices, namely a consultation process initiated by the Prime Minister, would protect us from this kind of oversight that came to light only after the person was in fact appointed to the bench.

[English]

    Prof. Edward Ratushny: Well, I think Justice Therrien was appointed by the province, so a different process would have been involved there.

    Am I wrong?

    Mrs. Marlene Jennings: It's basically the same process as for federal appointments, except for a court of appeal.

[Translation]

    Mr. Christian Jobin: A mistake was nevertheless made at the time.

[English]

    Prof. Edward Ratushny: But my understanding is that all superior court appointments at the federal level receive security checks by the RCMP. Perhaps the chair could give us more information about that, having been a former solicitor general. In any event, I think a security check would probably have revealed that, but if not, then there are some things you just miss. There's not that much you can do about it.

    There was a case of a federally appointed judge in Montreal who turned out to have been involved in money laundering when practising law before he was a judge, and who was charged with that criminal offence. This is more related to judicial misconduct, which is the other topic, but they started proceedings against him to inquire into that. He ended up resigning because of that.

    So even if you have security checks, sometimes there will be things you miss.

  (1235)  

    The Chair: Thank you very much, Monsieur Jobin.

    I am going to ask a question—if no one else is. I would be interested in what responsibilities you would charge us with in the context of the environment within which the judiciary operates. I think we are all well-intentioned here as members, regardless of how.... We all respect each other, though we may not agree on everything. But I think we must accept some responsibility ourselves for the public's impression of the courts and their decisions and the appointment process.

    Just anecdotally, there was a case very recently when Justice La Forest left the court and was replaced by Justice Bastarache. There was a significant amount of comment somehow about his political background; I think he was maybe in a firm with the Prime Minister at some time in the past, or something. Justice Bastarache may be the only person in the history of New Brunswick who has not been involved in politics. He had a distinguished career as a professor at the University of Moncton. I recall the Poirier-Bastarache report, which changed the nature of our province significantly or completely. It was non-political, and anyone in New Brunswick would know that, I suspect.

    It seemed such a shame that on the very first day that a person who is charged with responsibility for rendering decisions for the Supreme Court of Canada, somehow it not only went unchallenged—because we are not in the strongest position to defend that, because that takes on a political character itself.... But my sense is that we, on all sides, have some responsibility to defend the defensible and to defend the system. We are charged, as members of Parliament, with some obligation.

    I would like you to speak to that, please.

    Prof. Edward Ratushny: Okay.

    Again, I think that's very important. I think respect for one institution can help with respect for other institutions. I think it's in the public interest that parliamentarians encourage respect for other institutions, such as the Supreme Court of Canada. In the long run, I think it's a win-win situation.

    Now, there are rules of procedure, I think in Beauchesne's, that prevent a member from attacking individual judges. There's nothing wrong with criticizing a decision, saying you think the reasoning was wrong; the decision isn't supportable in law. That sort of thing is done all the time. But I've seen some examples of what members have said in the House about judges that come pretty close to crossing the line in terms of almost becoming a personal attack.

    Just as parliamentarians have to show respect for judges, judges have to show respect for parliamentarians. I think of the case, which I'm sure all of you will recall, of Justice Joyal, of the Federal Court of Canada. It's one of the cases I was going to mention dealing with judicial conduct. It was an example of where a judge flippantly made derogatory comments about Parliament and the way Parliament was conducting its business. A number of members of Parliament were very justifiably concerned about it, and the judicial council took the initiative to start a complaint against Justice Joyal because of what he had done. The council inquired into the complaint and commented publicly, in effect expressed disapproval of what the judge had said in that case. And the council made a point of saying that it's important judges accept a role of encouraging respect for Parliament.

    Let me quote from the letter the panel of the judicial council sent to Justice Joyal:

[Your comments were] gratuitous and insulting to Parliament. You expressed a personal concern “as a citizen” but you were not in the role of a citizen. You were acting as a judge and, in the Panel's view, improperly used the unique status of judicial office as a platform for engaging in controversial political debate.

    The panel also said in the same letter:

...the judiciary must also strive to enhance public confidence in Parliament as an institution. In other words, a symbiotic relationship of mutual respect and support must prevail.

    So there are two sides to the coin. I think what you suggest, Mr. Chair, is right on, and the judiciary has to take the same approach.

  (1240)  

    The Chair: I see no further questions. I don't think we really have time to engage in the second half of this. You'll make your luncheon appointment on time, and so will we.

    Thank you very much.

    And to the committee, thank you as well.

    Monsieur Marceau.

[Translation]

    Mr. Richard Marceau: What happens next? Are we to understand that, regardless of whether the House adjourns, prorogues, or whatever, we at least have a gentle persons' agreement—I'm trying to be politically correct—whereby current committee members are interested in pursuing this matter when the House returns?

[English]

    The Chair: I think I can speak for the committee in this case--I'm looking for nodding heads. I think there's interest on the part of everybody to explore this. It doesn't happen very often that a private member's motion is unanimously approved without a vote. That's an indication of how important this is. You have my assurances, and let the record show that the members present are of the same view. This is critically important, and it will be pursued regardless of what happens.

    In fact, I should tell you that arrangements are being made even as we speak to set up witnesses for the week following Remembrance Day week. We are going through that and people are preparing briefs and so on. So we intend to continue if the opportunity arises.

[Translation]

    Mr. Richard Marceau: Fine then. Thank you.

[English]

    The Chair: The meeting is adjourned.