House of Commons Standing Committee on Justice and Human Rights – Nomination of the Honourable Mahmud Jamal to the Supreme Court of Canada

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Transcript of Justice Committee Appearance (MOJ and Advisory Board Chair – 25 July 2019)

Standing Committee on Justice and Human Rights

Témoignages Number 160,

Unedited copy

Thursday, July 25, 2019

(1100)

[English]

The Chair (Mr. Anthony Housefather (Mount Royal, Lib.)): Good morning, everyone. Welcome to the special meeting of the Standing Committee on Justice and Human Rights.

[English]

We did this for Justice Rowe and for Justice Martin when the were nominated. It is a pleasure to be joined today by the Honourable David Lametti, the Minister of Justice and Attorney General for Canada, and the Right Honourable Kim Campbell our former Prime Minister

[English]

This afternoon, colleagues, we’re going to be joining the Senate’s Constitutional Legal Affairs Committee, and parliamentarians from non-recognized parties to question the nominee. Before that this morning we had the opportunity to hear from Minister Lametti and former Prime Minister Campbell about the process that led to the nomination of Judge Kasirer and to ask them questions about it. I will turn the floor over to the Minister of Justice and Attorney General David Lametti. The floor is yours.

[English]

The modifications that we introduced in 2016 are designed to ensure greater openness, transparency, and accountability in the appointments process. Many of you here today are seasoned participants having been part of the 2016 and 2017 processes that resulted in the appointments respectively of Justices Rowe and Martin, and Madame Campbell above all was the chair of those committees as well.

[English]

I have the pleasure of appearing today with the Right Honourable Kim Campbell who joins us by video conference from Vancouver today. Ms. Campbell has previously served as the chairperson of the Independent Advisory Board for the Supreme Court of Canada judicial appointments. Ms. Campbell also served as the chairperson of the current advisory board that was adapted to ensure the appointment of a judge properly grounded in the legal experience of Quebec and its legal tradition.

Ms. Campbell’s extensive experience with the selection process has been an invaluable resource in this process. We are grateful for her continued dedicated to serving Canadians in this role. Thank you.

In a few moments I will turn things over to Ms. Campbell to describe the specific work the advisory board undertook in order to produce the short list of candidates for the Prime Minister’s consideration. Before doing so, however, I would like to briefly outline the unique aspects of the current process to fill this Quebec seat on the court.

[English]

The selected members, all of whom are functionally bilingual, represented a distinguished set of individuals who undertook their important responsibilities with great care and dedication. I would like to thank them, on behalf of the Prime Minister and our government, for their exceptional service throughout this process.

They did a better job than those working the lights today.

Voices: Oh, oh!

The hon. David Lametti: The core mandate of the advisory board was to assess candidates against the published assessment criteria and to submit to the Prime Minister the names of three to five qualified and functionally bilingual candidates.

[English]

Before turning the floor to Ms. Campbell, I would like to speak briefly about the importance of confidentiality in this process given the concerns that have rightly been raised about improper disclosures surrounding the 2017 selection process.

As I have said previously, the disclosure of confidential information regarding candidates for judicial appointments is unacceptable, and I want to stress that I took strict measures to ensure that confidentiality was respected. This process has implemented strict confidentiality measures throughout.

The terms of reference for the advisory board contain provisions specifically designed to ensure that the privacy interests of all candidates are respected. This includes a requirement that advisory board members sign a confidentiality agreement prior to their appointment. In addition, the agreement with Quebec explicitly states that the sharing of and consultations on the short list are to be conducted in a confidential manner.

In terms of next steps in the process, in addition to the advisory board’s contribution in developing the short list, today’s hearing is another important element. It provides an opportunity for all of you, as parliamentarians, to hear from and question the government regarding the selection process and our choice of nominee, and parliamentarians and Canadians more broadly will have the opportunity to become acquainted with the nominee himself through the question and answer session that has been scheduled for this afternoon.

Having provided this context, I would now look to Ms. Campbell to describe the work that the advisory board undertook in fulfilling its mandate. I will then say a few word’s about the Prime Minister’s nominee to the Supreme Court of Canada, the Honourable Nicholas Kasirer.

Madam Campbell.

Right Hon. Kim Campbell (Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments): Merci. I want to say good afternoon first of all. This is old home week in a sense for me and this committee. This is the third time we’ve had the opportunity to discuss this very important process, and I do regret that I’m not there personally to give you all a valedictory handshake and perhaps a hug since I’m sure this will be the last meeting during this mandate. I do want to say how much I’ve appreciated the opportunity to speak with you and hear your points of view on the work of the committee.

To the chair, Mr. Anthony Housefather, the vice-chairs, the Honourable Lisa Rait and Ms.

Tracey Ramsey and to members of the committee, it is my pleasure to be before you, and it was my honour to chair the committee.

I might say that the difference between the work of this committee and the two others is that

[English]

I will speak more French except that I’m very tired, since I just arrived yesterday from Africa, and I don’t really want to massacrer la langue de Molière in making my report. We did, in fact, did most of our work in French. That was the difference from the other exercises.

I also want to say, as I’ve said to you before about the other two iterations, how every time somebody says to me, “Well, thank you for your good work as the chair”, the members of the committee made my work quite easy. I think you would be very proud and happy to know what incredible professionalism and dedication to serving Canadians across the country, not just Canadians in Quebec, the members brought to their work. My goal has always been, in these exercises, to ensure that each member of the committee has an opportunity to speak freely for himself or herself so that we get a genuine exchange of ideas, and we avoid groupthink and any other dynamics that can undermine the quality of decisions.

I must say this was an outstanding group of Canadians who really took their responsibility very seriously. As I said, it made my job easy and I was very proud to serve with them. I can say nothing but the finest things about them in terms of their competence and their character.

Incidentally, as I’ve seen in the other two examples, often the two members of the committee who are not lawyers also bring a very important dimension and a very clear understanding of what the court means to the legal life of our country. I admire them very much.

The 2019 process was opened on April 18 to fill the seat. Candidates were required to submit their applications by midnight Pacific time on May 17. That was a period of four weeks. I think we’ll come back and discuss this, how one challenge we face is the timing of this.

Of the three examples, the three iterations of this committee’s work, two were done to replace judges who took early retirement. For replacing the chief justice we had more time because her retirement was anticipated: she retired close to her retirement age. I think one challenge—and I want to come back and make some suggestions about this—is that when justices of the Supreme Court of Canada take early retirement, this changes the time frame in which, sometimes, it’s most convenient or appropriate to engage in the search process, particularly if we want to ensure that the court is up to full complement at the beginning of a new season of its work.

The remaining advisory board members were only announced on May 15, but as soon as the process was launched and I was confirmed to be the new chair, I set about making contact with all of the organizations we’ve contacted in the past iterations, to ask them to communicate with their members about the new opening and to encourage them to consider whether they would like to be considered as candidates for the new seat on the court. I didn’t wait for the other committee members to be appointed but began right away in communicating. Again, I have some other comments I’d like to make about that process.

You know, and of course I’m not going to repeat the requirements of the Supreme Court Act to have three civil law trained judges from Quebec. The quality of candidates was really outstanding. There were 12 candidates, which was perhaps about right. We had, I think, 12 or 14 candidates for the western seat.

(1115)

The first seat that we considered had many more candidates because that was originally meant to be, and it was a national competition. I will say that only one of the candidates was a woman, and again that is something that the committee members were disappointed about. There were no indigenous applicants in this process. I think we want to talk about how we can encourage a broader range of Canadians to apply. I will give you some of my reflections on why we have encountered those issues.

The board members first of all convened via teleconference. We then met in Ottawa between May 27th and June 7th to discuss our evaluations and to proceed with our methodology of identifying and looking at candidates individually before we came together again to avoid too much influence before each of us had the opportunity independently to review. But before that we came on May 21st to meet with the chief justice and as you know it’s been our tradition to meet with the chief justice before setting out on our business. This was our first opportunity obviously to meet with the new Chief Justice Wagner and in the other two cases we found that our meeting with the chief justice really helped to set us up for our work in reminding us of the reality of life on the Supreme Court of Canada, what is required, and what are some of the things that we should be looking for as we interact with our candidates. I think what was interesting for us in talking to Chief Justice Wagner, and those are confidential conversations, but at the same thing I don’t think that he hasn’t said to Canadians more broadly, but he as with the other meetings we had with Chief Justice McLachlin there was an emphasis on the importance of collegiality. Again, one wants justices who have strong views, who are capable of expressing themselves, but collegiality on the Supreme Court of Canada is not a group thing. It is the ability to try as much as possible to create clarity and judgements that become the architecture of Canadian law and are so important for lower courts, and practitioners.

This ability to work towards the clearest possible elaboration of the court’s views on issues is a very important part of the temperament of a constructive Supreme Court justice. The other thing that was very interesting was when Chief Justice Wagner talked to us about the uniqueness of the Supreme Court of Canada as both bilingual, bi-juridical. Now we knew that of course that of course our judges that one of the requirements of our candidates has been to be functionally bilingual. Of course the Supreme Court Act requires that there be three civil law trained judges on the court from Quebec. Although Justice Martin is also a civil law trained judge so the strength of civil law capacity on the court is certainly well-established.

He made the very interesting comment about how unique this makes our Supreme Court and how in terms of the way other courts around the world look at our judgements that we have a very special set of competences among our justices. I know certainly that many common-law judges enjoy the opportunity to study the civil law because it’s a different route often to getting to the same answer. That really put our work in a different context in the sense that we weren’t just looking to fulfill the requirements of the Supreme Court Act, but that we were working on an exercise that helps to define our court more broadly in the world as uniquely, extremely broad in its juridical competence. I think we felt quite inspired by that notion, and of course the candidates that we interviewed were quite outstanding in that regard.

After we meeting with the chief justice in doing our work we presented our short list to the Prime Minister. I’m very happy to answer your questions though I would just like to conclude with this comment.

I noticed that there have been nine nominations since 2011, including Justice Kasirer to the Supreme Court and I remember the first meeting we had with Chief Justice McLachlin she felt that the ability to commit say 10 years with the work on the court was highly valuable for a Supreme Court justice simply because it takes time to ramp up, to get up and running to find your feet, but also that continuity and lack of disruption are very important.

(1120)

Clearly there are reasons for judges to not necessarily serve their full time on the court.

I think, both in terms of getting the quickest response from strong candidates, to the opportunity to be considered as a candidate for the court when retirements come, or when early retirements come, that we have talked about a process—and I would be very interested in the views of members of the committee on how this might be approached—as a way of starting an ongoing conversation with members of the Canadian judiciary in all of the provinces and senior members of the profession, about what it means to serve on the Supreme Court of Canada. What are some of the nuances, what are some of the requirements, because it’s a very difficult job.

It isn’t just that one has to be an outstanding legal thinker, but one has to move to the national capital region, one has to move to Ottawa and often at a stage in life when a spouse’s career may be at its most active and prominent stage of development, when family obligations make it difficult.

I think, by having a broader conversation with people in the profession about what is required to be on the court so that there is greater knowledge of what it actually means, that might first of all enable us to encourage even more people to apply. I think, particularly for women, if they have families and if they’re likely to have spouses who also have careers, this might be something that could overcome some reservations.

If this were an ongoing conversation as opposed to something that we scramble to do just in the face of an imminent departure from the court and the need to recruit a new candidate, I think this might be something that could broaden the scope of the candidates.

Again, as I’ve said, we do reach out to a broad range of organizations of lawyers and judges in Canada, but I think that particularly in finding people who are perhaps members of groups that are under-represented, having an ongoing process of making candidacy for the Supreme Court of Canada less daunting and more appealing, or certainly to at least a greater, more informed view, so that people do not come to the court and find that it really is difficult for them to serve and that their expectations are not what the reality is, is something that we need to think about because, again as I said, we have an outstanding court and a court that, in the context of world courts, is unique and whose work is highly regarded. I think we want to ensure that no person— no man or woman or member of any ethnic group or identification in Canada—is ever discouraged from presenting themselves to be a candidate because of either a lack of confidence in what it might mean, or a lack of knowledge.

I will stop here and be very happy to answer your questions, but I also appreciate, Mr. Chairman and your committee, for accommodating me in being able to speak to you from Vancouver because I sure needed my sleep last night.

Thank you.

(1125)

The Chair: Thank you. Mr. Lametti.

[English]

Following his admission to the Barreau du Québec, Justice Kasirer clerked for the Hon. Jean Beetz at the Supreme Court of Canada.

He then served as professor at his, and my alma mater, McGill University, from 1989 to 2009, and he was the dean of the faculty of law at McGill from 2003 to 2009 when he was appointed to the Quebec Court of Appeal.

Prior to his career at McGill, from 1996 to 2003, he was the director of the Quebec Research Centre of Private and Comparative Law, as well as a part-time instructor at Le Barreau du Québec and a guest professor at the Université de Paris.

[English]

I would like to conclude by reiterating my sincere thanks, on behalf of the government, to the Right Honourable Kim Campbell, to each member of the advisory committee, each person who was consulted and each candidate who applied in this process. You have helped to ensure the strength of one of Canada’s most treasured institutions, a supreme court that is respected and admired throughout the world. We are very grateful for your contribution.

[English]

The Chair: Thank you very much, Ms. Campbell. Thank you very much, Mr. Lametti.

We tried very hard to get the lighting for you throughout that entire presentation. Just for everybody’s edification, the issue is a building-wide one, not for this room. Public Works is trying to resolve it. Please don’t blame anyone here about the lighting issues. It is not staff here who’s doing that.

We’re going to do two rounds of questions now.

[English]

Hon. Lisa Raitt (Milton, CPC): Thank you very much, Mr. Chair. We would never blame the staff for that. It’s fine.

Minister, thank you very much for being here. Ms. Campbell, thank you very much for all the work that you did for Canadians. I want to thank you on behalf of the Conservative Party of Canada for the three times in which you’ve chaired this committee.

Minister Lametti, as you may have noted, today in The Globe and Mail, and indeed many times this week there have been discussions about SNC-Lavalin. I’d like to know whether or not you’ve taken any steps to award a deferred prosecution agreement prior to SNC-Lavalin’s appearing before court on September 20 of this year.

Hon. David Lametti: As you know, as I’ve said many times both in the House of Commons and in other public fora, including in front of the press, I make no comment on anything with respect to that file. Anything that I can or might say might have an impact on ongoing litigation and therefore I’m very careful in that regard. Thank you.

Hon. Lisa Raitt: Okay. Thank you very much.

Ms. Campbell, I want to ask about your process with respect to the advisory committee. I’ll tell you, it’s with a background of trying to understand how to deal with a leak. As you know, there was a leak that occurred in the last process that you chaired. When did you learn about the leak from the last process you chaired?

Right Hon. Kim Campbell: Well, I can say that the leak was not from our process.

After we present our short list to the Prime Minister, the Prime Minister, in partnership with the Minister of Justice and all the other interlocutors—including, I think, critics—has an ongoing series of conversations. One thing that our advisory board is not mandated to do is to select candidates based on their philosophy. Now, if there were candidates who had particular views that might be considered more extreme in some way or unconventional, we might certainly mention this, but it is up to the Prime Minister and his post-short list process to determine compatibility or philosophical views.

There is a process that goes on after our committee. There has never been a leak from our committee—nor, I think, would there be.

Hon. Lisa Raitt: That’s very good to know.

Minister Lametti just indicated though in his opening remarks that he took strict measures in dealing with this unacceptable disclosure by talking about making changes to the advisory committee mandate. If the advisory committee wasn’t the source of the leak, why would Minister Lametti feel the need to talk to the advisory committee about the previous leak?

Right Hon. Kim Campbell: Well, I don’t know. I think he addressed that, but we have a very strict commitment to confidentiality, including not identifying who any of the candidates are. There has never been any suggestion that any of the members of the three committees have ever breached that confidentiality, nor would they.

Hon. Lisa Raitt: The retired Justice of the Supreme Court of Canada Louis LeBel sat on your committee this time, and he gave commentary for the last time regarding the leak from the advisory process where he said it was very serious because this process is a very delicate matter.

Did he bring up any concerns about confidentiality during this process?

Right Hon. Kim Campbell: Not particularly, because we were just obviously so devoted to it and so very careful to maintain that confidentiality.

Hon. Lisa Raitt: Did you take any steps to determine and ensure that there was no leak of confidentiality from your advisory committee? I know that you said there wasn’t and I’m just wondering if you called anybody. Did you talk to the minister? Did you talk to PCO?

Right Hon. Kim Campbell: Well, I don’t think it was necessary. We worked with the commissioner of judicial affairs. On our documents we worked with secure tablets—very carefully controlled. We always left our documents in the meeting room and the clear commitment—we signed an undertaking to making confidentiality, so the process was well established and I just want to repeat that there has been no indication of any leak ever coming from a member of the committee.

(1135)

Hon. Lisa Raitt: So the Privacy Commissioner—

Right Hon. Kim Campbell: If anything, we were sort of tip-toeing around often afraid we would [Inaudible] upon ourselves, and when we ate dinner together we went someplace where people wouldn’t even realize who we are and what we were doing.

Hon. Lisa Raitt: That’s tough for you to do, I would imagine, Ms. Campbell.

The reason I ask is because, of course, we are concerned with the leak and the way in which it happened. The Privacy Commissioner is concerned as well. The Privacy Commissioner is investigating the leak. They can’t interview the minister’s office or the Prime Minister’s Office.

I’m wondering if he had a conversation with you to understand the confidentiaility around the advisory committee.

Right Hon. Kim Campbell: No, because there’s never been any suggestion that this confidentiality has been breached.

I’m delighted—this is a good job for your committee obviously to be concerned about this, but the nature of the leak, such as it was, was very clearly not from the committee process.

Hon. Lisa Raitt: Thank you very much.

Minister Lametti, you gave an interview to The Lawyer’s Daily in April, and in it you indicated you were very confident that the leak did not come from the Department of Justice or from Prime Minister officials.

Ms. Campbell is now saying that it didn’t come from her advisory committee. Where did the leak come from?

Hon. David Lametti: I don’t know. The Privacy Commissioner has stated that he has opened an investigation into the matter, and I’m not going to comment on his ongoing investigation. I will say that federal departments will cooperate fully with the Office of the Privacy Commissioner, and that I took steps in this current process both in terms of limiting the number of people who had access to the process within my department as well as segregating the server and doing everything securely that we needed to do to make sure that there was no breach of privacy from my department.

Hon. Lisa Raitt: You did indicate—

The Chair: Sorry, we’re out of time.

Ms. Khalid.

Ms. Iqra Khalid (Mississauga—Erin Mills, Lib.): Thank you, Chair.

Thank you to the Right Honourable Kim Campbell and to Minister Lametti for coming in today and for advising us of the process that took place.

I will start my questions with the Right Honourable Kim Campbell.

Ms. Campbell, in 2017 when you appeared before the committee you talked about some of the barriers we faced with respect to appointing or having candidates who were women or from minorities or who were indigenous, and you outlined today that out of the 12 candidates, one was a woman and there were no indigenous candidates.

Were there any minorities who were also part of the candidates?

Right Hon. Kim Campbell: I don’t think there were any who self-identified in that way, and that is a self-identification.

The committee itself was concerned because we are, of course, limited to evaluating those who do apply.

Ms. Iqra Khalid: Right.

In 2016 there were 22 days to submit an application, then in 2017 there were 63 days. This time around there were 30 days.

You talked about some of the processes in which you were reaching out to various organizations in Quebec. Do you think that timeframe was sufficient to get the quality of candidates for the Supreme Court that we were looking for?

Right Hon. Kim Campbell: Well, I would say that the quality of candidates was outstanding. In fact, in all three processes I think our committee members have come away very encouraged by the quality of people who do apply.

One thing is that people have to apply. In the past, when, for example, we would get a nomination—somebody would write to us and say, “I nominate so-and-so to be a candidate”—I would immediately contact that person and say, “Your name has been forwarded to us as an outstanding candidate for the Supreme Court of Canada. Would you please review these materials? If you are interested in being considered, I warmly encourage you to apply.” It’s the best way I could do it. In many cases people are often shy about applying. They feel, “Am I being too arrogant?” It’s nice for them to be able to say, “I was asked to apply.”

It’s something that, maybe, even the members of your committee might want to think about. If you think that there are people you know in the areas where the seats are vacant, there would be nothing wrong with a member of Parliament writing to say, “I’d like to have so-and-so considered.” Then what I or a subsequent chair might do would be to write to that person to say, “Your name has been forwarded”, we don’t say who forwarded it, “as an outstanding candidate and we warmly encourage you to apply.” The more ways that we can overcome people’s reluctance to apply, the better. It might well be something that members of your committee who are very engaged with this issue might want to address, as a committee or just as interested members of the committee.

(1140)

Ms. Iqra Khalid: Thank you.

You spoke also in your remarks about diversity of opinions on the benches as well. When we’re talking specifically about provinces and the allotment from our Constitution with respect to members from certain provinces on the benches, how do the provincial laws and policies—in Quebec I will refer to, specifically, Bill 21 and its long-term impacts—impact diversity of Supreme Court nominees who are being appointed to the bench? How does that impact the overall laws and the shaping of laws within Canada?

Right Hon. Kim Campbell: Well, that’s a question I can’t really answer. You have to follow the cases that go through.

I would say that, on the basis of the candidates who were presented to us, we felt there was a strong commitment to serve not just Quebec but to serve Canada, and consistent with the existent law of the charter. I think these are issues that are certainly beyond the purview for me to answer.

Ms. Iqra Khalid: Thank you.

You also spoke about, as we talked about, diversity. What was the primary objective? Was there any consideration given to the collegiality among current members of the Supreme Court to avoid things like groupthink, as you had mentioned? What were some of the considerations that were taken, in choosing the right candidates you shortlisted, to ensure the diversity of opinions on the bench?

Right Hon. Kim Campbell: Well, in the three processes we’ve had different mixes of candidates, including different types of diversity, but we don’t simply leave it at that. One issue we explore when we are interviewing candidates is to draw them out on their experience, and knowledge and understanding of the diversity of Canadian life. If somebody might not be the member of a self-identified group that we think of broadly as diverse, what we want to know is, in their life, in their experience, in their work, how familiar are they with the challenges faced by the many communities in Canada who may be less represented in the administration of justice? That kind of cultural and diversity literacy is, for us, a very important part of the outlook we would like defined from candidates who would be playing such an important role on the final court of the land.

Ideally we will have more candidates who will represent these communities themselves, but that is not sufficient. We don’t then just ignore it from somebody who is not from a diverse community. We really do want to know how much they understand of the realities of the lives Canadians lead.

Ms. Iqra Khalid: Thank you.

[English]

Right Hon. Kim Campbell: I wonder if I could just add, Mr. Chairman, just to clarify for the honourable member. The short list is not given with any order. In fact the names are given alphabetically. The list, or short list, we do not distinguish among them. I have often said that our goal is to present the Prime Minister with a short list of candidates that will keep him up at night trying to figure out which one of these excellent candidates to select. On the committee we may have our personal favourites, but we do not make any indication of an order among the candidates who are presented on the short list.

[English]

Right Hon. Kim Campbell: The judicial commissioner has developed a series of tests. For example, with the anglophone candidates they do a test and I think the criteria is that you have to be able to understand and respond to oral argument, to be able to read without translation, etc. For the first two iterations we actually lost some outstanding candidates who did not meet the standard of functional bilingualism.

I must say with the Quebec process, we didn’t lose anybody because the quality of bilingualism is perhaps better established in the Quebec French language legal profession.

There is a test and I’m sure they’d be pleased to share it with you, but yes, it is performed and after candidates are reviewed they must undergo this test as the final barrier to being considered for a short-listed candidate.

[English]

Mr. Colin Fraser (West Nova, Lib.): Thank you very much, Ms. Campbell and Mr. Lametti, for being with today.

I want to thank you, Ms. Campbell. You’ve already done this twice now and this is the third time and I want to sincerely thank you on behalf of all Canadians for the work that you and your committee members have done in all three different iterations of these committee processes. I think once again it has led to an excellent nomination of Mr. Kasirer, so thank you for that work.

I’d like to talk a little bit more about the timing of the application phase for people who want to be considered for the position. I know that after the first one, which produced Justice Rowe, there was some discussion about the process being too short—I think it was only 22 days—and then for Justice Martin’s appointment in 2017 I think it was 63 days.

You’ve talked a little bit about some recommendations you think could be made in order to encourage more people to be ready to apply when the time comes. This time around there were 30 days. Do you think that was sufficient?

Are there any other recommendations you would like to give the committee so that we can perhaps recommend to the government, going forward, a process where there is enough time for these people who may wish to be considered to get their applications together?

(1150)

Right Hon. Kim Campbell: I think you’ve put your finger on what is the most challenging issue for us to face. We would welcome recommendations of other approaches.

I was not aware, I did not have the sense that there was anyone who did not apply as a result of the tightness of the application time.

The first time, as you may recall, the applications were at the end of the summer and that was very difficult because people were coming in from their summer cottages and trying to get hold of their assistants, who could help them put together their dossiers on their cases, etc.

I think this was much more mainstream, in the middle of the work year, and people were around. I think it was a little easier to do.

I think, at the end of the day, we’re not going to be able to rule out early retirements from the court. To assist the court in its business you want to make sure that the court would start a new season fully equipped and that the person who is chosen to make this important commitment has the opportunity to organize his or her private life. I think that’s where there is the possibility of creating a greater preparedness among people who would be good candidates, and that would go even with members of the committee. If there are people who you think would be excellent candidates, even to make them aware and thinking about the process.

Of course it depends on whether there are going to retirements, but as we’ve seen, we can’t predict the actuarial retirements and people sometimes retire early. The answer to your question is, we can do it better. I am not aware that it was a major barrier, but I don’t know that for sure and I would hate to think that it was.

Mr. Colin Fraser: Okay, well thank you very much for that.

I know that this time around it was a bit of a unique process, given the fact that it was filling one of the Quebec seats, so there was an advisory board for Quebec set up. As you mentioned, given the fact that the Constitution recognizes, or the Supreme Court Act recognizes that there are to be at least three seats from Quebec, to recognize the uniqueness of the civil law jurisdiction.

Were there any differences in the criteria in the minds of the members of the committee in putting forward names for the Quebec seat, and were there any different questions in the questionnaire this time, as opposed to the previous two that you did?

Right Hon. Kim Campbell: There were no differences in the questionnaire. Actually, as the process unfolded it was very much like the others in terms of the kinds of things we wanted to know from people. Again, going back to the earlier questions about diversity, etc., we looked for the same kind of breadth in people.

I think the candidates were conscious of the fact that being selected for a Quebec seat brought with it a particular kind of responsibility in terms of the role of the civil law and Quebec values, but I think it was actually remarkably similar.

I have to say that the committee members were quite outstanding and they made the point that yes, there is a particular set of criteria because of Quebec and its language and juridical uniqueness, but that this is a seat that will serve the whole of Canada, so that breadth of knowledge and understanding was important.

Mr. Colin Fraser: Thank you.

Minister Lametti, if I can ask you because you touched on the qualifications of Mr. Kasirer and I agree with you that it’s an excellent appointment. You talk about collegiality and temperament and obviously in reviewing Mr. Kasirer’s application it’s clear that he has the legal mind and ability to do this job and he’s been widely regarded as an excellent choice. Also his collegiality will be an asset that he’ll bring to the bench. Can you talk a little bit about why that is so important for a justice of the Supreme Court of Canada to have that collegiality and temperament that is appropriate in order to bring that along with the legal skill and mind that he has?

(1155)

Hon. David Lametti: Thank you for that question. As Ms. Campbell pointed out on a court you have a dynamic when cases are heard and there’s interaction amongst the judges both in terms of the hearing as well as in the preparation prior to the hearing, and then in the decision- making phase afterwards where there will be back and forth between and amongst judges in order to get better decisions. That doesn’t mean [Inaudible] either there will be consenting and concurring judgements in which a judge may feel strongly about a point, or about the decisions outcome generally, but you’ll get better decisions.

I had the good fortune of hearing Guido Calabresi speak two weeks about the American Supreme Court and he clerked under the warn card and he felt it was an outstanding court because specifically the judges spoke to each other. They all brought different kinds of expertise to the court and they were quite collegial and he felt that the kinds of judgements that they came up with were better because of their collaboration and their collegiality and we would hope for the same kind of thing here.

The Chair: Thank you very much.

[English]

Mr. Ali Ehsassi (Willowdale, Lib.): Thank you, Mr. Chair, and than, you to Minister Lametti and Madame Campbell for once again making themselves available and explaining the intricate process which is involved in selecting Supreme Court justices.

The first question I had was for Ms. Campbell. I’m turning to something that other members of this committee have touched on. That is the issue of collegiality. You yourself kindly highlighted how significant that is. For me the question remains, how do you quantify, or how do you try to measure whether a candidate does actually appear to be collegial? Is it a process of speaking to their peers, people they have previously worked for, or as you I think were attempting to highlight is it reading their previous judgements, or their jurisprudence in trying to get a sense that they come up with clear decisions?

Right Hon. Kim Campbell: Thank you for the question and it is an important one. All of the candidates do have references that we consult and that’s one of the things that we ask about is how collegial they are in working better. If I can give you an example from the very first iteration the successful candidate who is now Justice Malcom Rowe when we asked him his approach because we asked him, how do you do this, what is your approach? He made a very interesting comment and I hope I’m not breaching confidentiality when I say this because he’s already there, but we said “I can put a lot of water in my wine and I have no pride of authorship”. I thought that was a very specific and powerful way of explaining his approach that he wants to get some place. The important thing is what is the fundamental idea that you want to see in the decision, how much water do you need to put in your wine, and perhaps allowing someone else to have the honour of writing the opinion if it’s the opinion that you are agreeable with is good enough. He was basically saying I’m not an eagle maniac and I understand what’s important and what isn’t.

When we ask candidates of their approach they are often very revealing and I hope Justice Rowe isn’t cranky at me for saying that, but there he is already. That’s the kind of thing that we look for. What has been your experience and how have you approached it? For many of them they have a lot of experience in this area which is one of the reasons why judges have already served on an appellate court have a clear understanding of what that question means.

Mr. Ali Ehsassi: Thank you very much for that. Now another thing that you actually did touch on was you actually did say that you were concerned that only one candidate was a woman and there were no indigenous candidates. You touched on the fact that there is a need for ongoing consultations and this is in between what the advisory committee does. Who in your opinion does that obligation fall to reach out to people and familiarize themselves, familiarize various lawyers and jurists with what serving on the Supreme Court is like?

(1200)

Right Hon. Kim Campbell: Well, I’m not actually sure whose responsibility it is. I think it might be something that could be done in partnership with a number of different groups—law societies, bar associations. That might be something your committee could look at as well, what the ideal situation is.

One thing we have, as a result of nine new appointments since 2011, including Justice Kasirer, is that there are quite a few retired Supreme Court of Canada justices lurking about, who might be available to give some honest reviews about what it really means to serve on that court. Some of them, I believe, are under 75—obviously they took early retirement.

[Technical difficulty] There was a gathering—I think it was in Saskatoon—that talked about this, where in fact some of the people who attended were surprised at what some of the benefits and attractions of working at that level were but they hadn’t really thought about them. It’s not just to warn people about how hard the work is, but to talk honestly and openly about what it means to serve on Canada’s highest court, and perhaps sow the seed in some person of a desire to be considered for such a seat if the times align correctly.

Mr. Ali Ehsassi: Thank you very much for that.

Now if I could turn to Minister Lametti for my last question, as you know, Minister, the Senate Standing Committee on Official Languages recommended that changes be made to formalize the Official Languages Act to make sure that Supreme Court justices who are appointed are functionally bilingual. Is that something you would favour going forward?

Hon. David Lametti: Thank you for the question. First of all, we have done this in practice. We have enshrined a practice that puts such a high premium on functional bilingualism that it practically is a bar in being selected. We haven’t done that formally.

I’m not sure it’s a good idea, formally, because there may be other needs of the court at some point—for example to appoint an indigenous person—where we may have to soften that requirement down the road. I think we’re at a nice compromise right now where, in effect, there is a functional requirement of functional bilingualism through the process, without having to worry about either the constitutionality of such a provision or amending an act formally.

Mr. Ali Ehsassi: Thank you.

[English]

I just want to remind everyone that we are here today to talk about the nomination of the Supreme Court justice and this process that led up to that. I’ve been very flexible so far as permitting questions, and the minister has been very kind in answering those questions, but that is what we’re here to talk about.

Now Ms. Vandenbeld and Ms. Fortier are sharing the next time.

Ms. Anita Vandenbeld (Ottawa West—Nepean, Lib.): Thank you very much, Mr. Chair and Minister Lametti.

My question actually follows up, Ms. Campbell, on something you said in an earlier response about looking at diversity and cultural literacy.

I also share the disappointment that only 1 of the 12 candidates who put themselves forward was a woman, and I notice that in addition to professional qualifications, legal skills, the criteria also included a number of individual qualifications like discretion, judgment, integrity, respect and ability to empathize.

With regard to gender equality, with regard to sensitivity on gender issues, could you elaborate a little bit about how your committee was able to make sure when you were looking at the different candidates? What kind of questions did you ask regarding the various candidate’ gender sensitivity?

(1210)

Right Hon. Kim Campbell: This was in the broader questions of their own experience with respect to diversity. We would have an ongoing conversation, but there is no question that there are opportunities for the candidates to discuss this in their own questionnaires, their references were asked about this and it was kind of a fundamental value this sensitivity to gender issues and issues beyond because these are all issues that come before the court. I’m sorry if I went back and looked at the question more specifically I could give you a more specific answer, but I think there was certainly a consensus. Incidentally, I think half of our committee members were women and very distinguished women. There was a strong kind of institutional support for recognizing openness to the quality and equal treatment of women under the law as part of our whole mandate.

Ms. Anita Vandenbeld: Thank you very much.

I’ll turn my time of to Ms. Fortier.

[English]

Right Hon. Kim Campbell: Not only does candidate meet it in fact the francophones on the committee spoke about the rechercher quality of his French. He speaks beautiful French. I think you will find Justice Kasirer he feels his work in the civil law and in French really kind of defines him and his connection to Quebec. It was actually quite remarkable to see that he is a man who loves the language and loves to use it in its most refined and excellent and precise way.

That is actually kind of the whipped cream and cherry on the top of his qualifications. He’s not just profoundly bilingual and profoundly competent in both languages, but that he relishes the use of both languages, particularly French, and I think his preferred language of expression is French in a way that really elevates its importance. The notion of the official language this has been a criterion that has been fundamental to all three of the processes. There were some candidates who had very fine qualities who did not pass the functional bilingualism test and therefore were not considered to go on the sort list.

It is a principle that has been adhered to over the last three searches quite fastidiously. It’s not just that people argue in French I think the idea is to make it possible for judges to communicate with one and other and to have that capacity to reason together in either language that the underlying principle behind functional bilingualism.

[English]

Hon. Lisa Raitt: Thank you very much, Mr. Chair. Ms. Campbell, I wanted to ask in the terms of reference there’s a provision in there that says if there is a declared person of interest, or if the member of the advisory committee has a business or a personal relationship with somebody who has been nominated then they recuse themself from the discussion. Did that happen in your process this time?

(1215)

Right Hon. Kim Campbell: Yes, it did. One of our committee members had served in a firm. I don’t want to go into too much detail, but he recused himself from the conversations about that person.

Hon. Lisa Raitt: Would that be something you’ll publish in your report that follows on?

Right Hon. Kim Campbell: I think that is perfectly appropriate to mention. Again, I want to go back. The committee members were very conscious of their responsibility and their desire to conduct themselves in a way that was beyond reproach.

Hon. Lisa Raitt: I appreciate recusing oneself and following the rule of law on that.

Minister Lametti, let’s be very precise here because you’re a lawyer, I’m a lawyer, and precision is important when it comes to this.

Ms. Campbell has indicated that there is no way the advisory committee was the source of the leak of the information regarding the former proposed candidate, Mr. Justice Joyal. You have indicated to the media that you’re convinced that it did not come out of the Prime Minister’s Office nor out of your office. The Privacy Commissioner is conducting an investigation with which you said people are cooperating, but is it not the truth, Minister, that the reality is the Prime Minister, yourself or any member of your staff or his staff are exempt from the Privacy Commissioner’s powers and will not be part of this investigation?

Hon. David Lametti: I have said from the outset that my department will cooperate and that I am, as I said, confident that the leak did not come from the very few people in my ministry—

Hon. Lisa Raitt: Minister, your department will cooperate because the Privacy Commissioner has the power to summon anybody in that department. However, the Privacy Commissioner does not have the power to summon yourself, the Prime Minister or anybody who works on the political side of your department or the Prime Minister’s Office.

Are you telling me they are going to voluntarily speak to the Privacy Commissioner in order to make this a fulsome investigation?

Hon. David Lametti: I’m going to let the Privacy Commissioner do his work.

Hon. Lisa Raitt: He is working within his own mandate, but what I’m pointing out is that contrary to what you’re hoping to say here, that everything is being covered, the reality is there are some significant witnesses who are not being investigated on this, and we are left to rely upon your word and the word of the Prime Minister.

I think that’s a fair statement.

Hon. David Lametti: I’m going to not comment on anything that’s an ongoing investigation by the Privacy Commissioner, other than to say, as I’ve already said, that there will be cooperation.

Hon. Lisa Raitt: Minister Lametti, the advisory committee chair has indicated that there was no leak from her committee. You have indicated that it did not happen from the Prime Minister’s Office, that it did not happen from the Department of Justice and it did not happen from your office either. However, you did say that you could ask another department in government to investigate but again “the Prime Minister has been quite clear that he doesn’t feel it has come from PMO, and I believe him”.

Have you investigated beyond the Prime Minister’s feelings?

Hon. David Lametti: I’m letting the Privacy Commissioner conduct his investigation, as I’ve stated publicly on a number of occasions and as you have rightfully pointed out.

Hon. Lisa Raitt: Minister, you actually indicated to a publication that you felt the leak came from people who had been consulted after the advisory committee through your own consultations. Can you provide a list of the people who were consulted post-the advisory committee in the last round of the process so we can get to the bottom of where the leak really is coming from?

Hon. David Lametti: I was not the minister at the time, so I wasn’t privy to all of those consultations.

Hon. Lisa Raitt: You are not going to ask the department to provide a list of those who were consulted in order to help us figure out who leaked the personal information of Mr. Justice Joyal?

Hon. David Lametti: Once again, those conversations would come under the purview of the Privacy Commissioner. Therefore, I’m going to let the Privacy Commissioner do his work. He’s an officer of Parliament. We have respect for officers of Parliament. I’m going to let him do his work unrestricted by—

Hon. Lisa Raitt: Mr. Lametti, you’re splitting the hair and it’s not fair because you know the difference between what a member of your political staff is subject to and what your department is subject to, and, Mr. Chair, given the comments from the Right Honourable Kim Campbell that the leak of information related to Justice Glenn Joyal is an important issue for this committee to study, I move the motion:

That the committee immediately begin to study this matter.

The Chair: There was a motion moved.

Do you have it in writing, Ms. Raitt?

(1220)

Hon. Lisa Raitt: I have it in scribble.

The Chair: You have it in scribble. Okay, what we will do is this. I am going to give the floor to Ms. Moore and then we will come back to telling you whether the motion is receivable or not after I’ve consulted with the clerks.

Ms. Moore.

[English]

Right Hon. Kim Campbell: No. Simply to say that as the author of the revision of the [Inaudible] provisions in the Criminal Code back in the early 1990s, it’s been a source of great frustration to me that many of those principles do not seem to be applied often in the courts, and that’s a challenge that I think you, as legislators, are going to continue to be addressing, aside from the culture of the courts.

I think that our view of Justice Kasirer was that he was very knowledgeable and I think very equipped to uphold those principles, which are in fact based on legislation.

[English]

The Chair: Before I get to the motion by Ms. Raitt, I want to thank the Right Honourable Kim Campbell for her continued service to this country and for the incredible work she continues to do in this regard and in many other regards. Thank you so much on behalf of the committee and all Canadians. I know all members of all parties would join with me in that.

Thank you so much to Minister Lametti for being here today and giving us his very frank answers to questions.

I will excuse the witnesses because I think they don’t need to sit there the entire time as we go through the motion, but you’re welcome to stay of, of course, to the extent you would like.

I am going to suspend for a second to let the minister leave, and to let Ms. Campbell leave, and then I’ll come back to the motion.

---

(1235)

The Chair: I am now resuming the meeting. I wanted to look at all of the issues surrounding the motion. There are some small issues in terms of rewriting that I think Ms. Raitt is comfortable with providing slightly revised wording, so I’m not even going to get into that issue.

The issue I was trying to look at was that we had met on April 11, and Mr. Cooper had presented the following motion:

That the Committee sit additional hours to study the leak of information surrounding the Supreme Court of Canada selection process, particularly as it pertains to the leak of information surrounding the Chief Justice of the Manitoba Court of Queen’s Bench; and that the Committee report its findings to the House no later than Friday, May 31, 2019.

I had a concern that this was an issue that the committee had already visited and defeated, which would make it not receivable. However, I always, in the three and a half years, have erred in favour of receivability of motions. I can say that in the way the motion was worded, it was based on something that was said by Ms. Campbell today. In principle, I think it’s better to allow the motion to come forward and have a discussion on it, and the committee can treat it how it wishes.

I’d ask Ms. Raitt to simply reread the motion as the clerk had redrafted it.

Hon. Lisa Raitt: Thank you, I will.

The motion, as it reads, Mr. Chair, is, “That the Committee immediately begin a study into the leak of information related to the possible appointment of Justice Glenn Joyal.”

The Chair: Thank you very much.

I’ll give the floor to whoever from the….

Ms. Raitt.

Hon. Lisa Raitt: I will, yes. Thank you very much, Mr. Chair.

Thank you very much for ruling this admissible. Through the questioning today something has become quite apparent to me, and it has been confirmed for me as well in the discussion I had with Ms. Campbell, that this is truly an important issue for us to study. The chair of the advisory committee on the Supreme Court of Canada nomination process has indicated that this would be something that she thinks MPs would be interested in getting to the bottom of. I agree with her, and I appreciate that piece of advice.

I also am concerned that there seems to be a miscommunication, deliberate or not deliberate, with respect to what is actually being investigated now and who is being investigated. I understand that part of the, I guess, defence to saying no to a justice committee’s inquiry was because the Privacy Commissioner was doing his job.

As you may have noticed today, I brought up the fact that section 50 of the Privacy Act exempts any political staff or ministers or Prime Ministers from an investigation. Simply put, the Prime Minister will not be interviewed by the Privacy Commissioner. Minister Lametti will not be interviewed by the Privacy Commissioner. The cabinet ministers who were consulted as part of the previous process will not be interviewed by the Privacy Commissioner. Elder Marques will not be interviewed by the Privacy Commissioner. Mathieu Bouchard will not be interviewed by the Privacy Commissioner, and neither will Ben Chin be interviewed by the Privacy Commissioner.

The reason I’m concerned is that in response to my questions, the minister was very careful when I asked whether or not his political staff were going to be interviewed. He responded by saying his department will co-operate. That is, I believe, a deliberate attempt to split a hair. As a former minister, I don’t appreciate it because I don’t think it’s being fair to Canadians to allow them to understand exactly what is being investigated now.

As a result, I’m proposing this motion so that no gap will be present in any investigation regarding this incredibly egregious leak of information, personal information of Mr. Justice Glenn Joyal to the press, with the purpose, quite frankly, of delegitimizing whether or not Jody Wilson-Raybould was in favour of the charter. That’s where it all comes back to.

As a result, I look forward to the comments, from my colleagues around the table, regarding the matter.

I would point out one last thing with respect to what Minister Lametti testified today. When I put it to Ms. Campbell whether or not she discussed the matter of the leak with Minister Lametti, she indicated that she did not discuss the matter of the leak with Minister Lametti as he went forward in the new process. That as well, to me, is of concern. At the very least, I think Minister Lametti should return to answer questions on the topic, and as I indicated before, anybody else who was involved in it.

This committee has the ability to call everybody. The Privacy Commissioner is barred by statute from calling the key people who politically had the information of a discussion between the former Minister of Justice, Jody Wilson-Raybould, and the Prime Minister of Canada. We’re not going to be getting to the bottom of anything unless we have those people come forward and tell us what happened.

Thank you.

(1240)

The Chair: Thank you.

Does anyone on this side wish to intervene?

[English]

Perfect. A recorded vote?

Yes. I am going to turn to the clerk, then, please.

(Motion negatived: nays 5; yeas 4)

[English]

Not seeing any, I want to thank everybody for being here with us today.

I imagine this is perhaps our last meeting before the election, so I wish everybody a very nice summer and a good campaign.

Meeting is adjourned.

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