Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 19 - Evidence for May 28, 2008
OTTAWA, Wednesday, May 28, 2008
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-31, An Act to amend the Judges Act, met this day at 4:07 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: We begin this meeting of the Standing Senate Committee on Legal and Constitutional Affairs with the study of Bill C-31, An Act to amend the Judges Act.
[Translation]
We have the pleasure of welcoming our first witness, the Honourable Robert Douglas Nicholson, Minister of Justice and Attorney General of Canada. Mr. Minister, we apologize for the fact that senators will slowly trickle in. That is because the Senate has just finished sitting. But we know that your time is limited, and so it is perhaps a good idea to begin immediately even if not all committee members have arrived.
[English]
Welcome, minister. We are glad to have you with us. I believe you have a statement to give.
Hon. Rob Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you chair and honourable senators. I am pleased to be here to present Bill C-31. The bill will amend paragraph 24(3) of the Judges Act to authorize the appointment of 20 additional judges to the superior trial courts in Canada. There remains no authority to make new appointments that increase the complement of the trial courts without a legislative amendment. Our proposal will authorize 20 additional appointments by changing the number of salaries authorized under paragraph 24(3) from 30 to 50.
These new appointments can be allocated to the provincial superior courts of any jurisdiction in Canada. On other occasions, I have described this bill has being straightforward involving only the amendment of one number in a single provision of the Judges Act. However, while the drafting of this bill may be straightforward, the impact of the proposed amendment is more extensive.
Honourable senators will have heard that the amendment supports two important objectives relating to access to justice in our country. First, 14 of the 20 new appointments will be allocated among six jurisdictions that have submitted requests previously for additional judges to address existing pressures in their provincial superior courts.
Over the course of the last five years, the jurisdictions of Ontario, Quebec, New Brunswick, Nova Scotia, Newfoundland and Labrador and Nunavut have put forward detailed written submissions to the Department of Justice describing the case volumes and delays being experienced in their trial courts, particularly in family law. These statistical and narrative accounts demonstrate the real and increasingly urgent problems that families, children and others encounter when trying to access the justice system.
The 14 new judges are intended to respond specifically to the clearly justified needs that were brought to the government's attention by governments and chief justices of the requesting jurisdictions.
That response does not mean that the government is closed to further proposals for additional judicial resources where a genuine need can be demonstrated based on objective evidence. I have advised provincial attorneys general and chief justices that I remain open to receiving submissions from jurisdictions that have a continued interest in increasing their court complements. Proposals that detail the quantitative and qualitative indicators of need within the relevant court will be given serious consideration and will be kept in mind when future legislative opportunities arise to amend the Judges Act.
For the present, I am pleased that the government has taken the immediate opportunity to respond to the clearly identified and justified needs within the six requesting jurisdictions. I can assure you that I have heard from all chief justices and attorneys general that they are pleased with the initiative. They are anxious to have the new judges in place as soon as possible, and for us to do everything we can to expedite this process. It is my intention to make these appointments as soon as practical, following the passage of this bill to provide the much needed relief for these courts.
I hope we can count on the support of honourable senators for early passage so that this much sought relief to the backlog of the courts can be addressed to meet the needs of Canadians.
Honourable senators are aware that there is another compelling reason to move forward with this bill without delay. The second objective of this amendment is to assist in the establishment of the new specific claims tribunal through Bill C-30, the Specific Claims Tribunal Act.
I believe there is a hearing on this act in the Senate this evening. I understand that the Minister of Indian Affairs and Northern Development will appear before the Standing Senate Committee on Aboriginal Peoples to take members through that bill in detail.
For the purposes of today's discussion, I will clarify how additional appointments under Bill C-31 will serve to support the new tribunal. The bill provides for tribunal members to be chosen among the superior court judiciary to enhance the independence and fairness of the process. By utilizing judges of the provincial superior trial courts, the tribunal will offer the further advantage of local delivery of justice in regions where the specific claims arise. Based on analysis of existing claims by Indian and Northern Affairs Canada, it has been estimated that the tribunal will require the equivalent of six full-time members to address its anticipated workload.
As I mentioned a moment ago, the provincial superior courts are working currently at full capacity with existing case loads. Chief justices will not be in a position to free up existing judges to act as tribunal members on a priority basis without the provision of these additional judicial resources. Consequently, it is proposed that the remaining six new judicial appointments be allocated to the provincial superior courts in the three jurisdictions with the greatest number and complexity of specific claims. The jurisdictions are British Columbia, Ontario and Quebec.
It is not envisaged that these six newly appointed judges will be appointed to the tribunal. While this sequence of events is not precluded, a more likely scenario will see a number of existing judges who have acquired expertise in relevant areas such as Aboriginal law and expropriation cases selected to sit as members of the tribunal.
Bill C-30 provides for the creation of a roster of up to 18 tribunal members. It is anticipated that judges will work on tribunal matters on a part-time basis with the balance of their time spent managing the regular workload of the court.
Obviously, close collaboration between the chair of the specific claims tribunal and the chief justices of the affected courts will be necessary to determine the most effective and efficient assignment of cases to the tribunal members. The goal of the tribunal is to improve and expedite the resolution of specific claims across the country. Both the Assembly of First Nations and the government are anxious to move forward with the objective of implementing the tribunal, and I am sure we share this objective with the members of this committee.
I ask once again that senators consider giving priority to Bill C-31 to allow judges to begin to bring relief to Canadian families, children and Aboriginal peoples. I am available for any questions.
I forgot to mention that I am pleased to be here with individuals from the Department of Justice: Judith Bellis, David Near and Catherine McKinnon.
The Chair: I forgot as well. Judith Bellis is General Counsel and Director of Judicial Affairs, Courts and Tribunal Policy. David Near is Judicial Affairs Advisor from the Minister's Office. Catherine Mckinnon is Counsel of Judicial Affairs, Courts and Tribunal Policy. Again, my apologies for not having made that clear at the outset. We are happy to have all of you.
Thank you for your statement, Mr. minister. We will go to questions.
Senator Andreychuk: Part of the difficulty in addressing the other members of your panel was that we senators were a little late. The Senate ran overtime so we asked you to start quickly.
This bill is extremely important. It seems simple when you read it. It will only add judges. However, I want to know more about how the consultation process works.
I have been in that profession myself as a judge. The workload is constant and never-ending.
You said that you have had intensive discussions with ministers, et cetera. Do you go beyond the ministers, or do you rely on the provincial ministers to provide you with the information of all the other backup services that they must provide?
Adding a judge is not adding only that position. It is adding translation services, transcribing services and all the other services required. I presume it is a complex negotiation and often dependent on the resources of the province to maintain its constitutional responsibility, once the judges are released into the system.
Mr. Nicholson: There is no question about it. It was not long after I was appointed minister that provincial attorneys general raised the question with me of appointing additional judges to the superior courts.
They made a compelling argument. It has been some time since we increased this particular provision. The country is larger than it was; the population is increasing; and there are many new demands on Canada's judicial system.
It is appropriate for us to try and meet those demands. The provincial attorneys general clearly indicated that they would support this increase. I am not sure of your list of witnesses. However, I think you will find that a number of provincial attorneys general are receptive to this particular proposal. I believe the Attorney General for New Brunswick will appear shortly.
We go beyond that, and I know the department works closely on statistics, needs, et cetera. Perhaps Catherine Mckinnon can enlarge on that demand for us.
Catherine Mckinnon, Counsel, Judicial Affairs, Courts and Tribunal Policy, Department of Justice Canada: As Minister Nicholson said, we work with provincial officials who develop detailed statistical indicators in support of their proposals requesting judges. The provincial officials work, in turn, with the courts and the chief justices in their jurisdictions, because the collection of this data is often shared between the provincial ministry of justice, the courts and themselves. They provide statistics giving an indication of trends in terms of case filings, whether there have been trends showing increases in the case volumes and information with respect to delays. We have seen significant delays and backlogs occurring, and inventories growing in the courts, as the minister mentioned, particularly in the family law area. In a number of the jurisdictions, one area that has been particularly notable is in child protection cases. Changes to legislative provisions have created stricter time frames to deal with these matters. As a result of trying to deal expeditiously with these urgent and important cases, other family law matters such as custody and support measures end up being bumped and we see delays.
We received detailed statistics based on the jurisdiction's collection capacity, because in some cases they collect this information manually from their court files. In other cases, they have more sophisticated electronic systems. Also, travel times and cultural and geographical situations affect the workload of the courts.
The Chair: The minister's time is limited, so I ask that the answers be as concise as possible to give senators a chance to ask more questions, which would be greatly appreciated.
Senator Baker: You may give me only time enough for one question, Madam chair, so I better make it complete. Minister and officials, as you know, the Senate committee has the privilege of having an institutional memory. My institutional memory with this bill, that is, the Judges Act, goes back to when I was a member of Parliament in the 1970s, and the creation of the unified family court system. Four experiments in four different provinces in Canada were successful. The unified system took pressure off the provincial courts and the superior courts in the provinces whose judges dealt with those particular cases. Because of the Constitution, these cases are divided, with the Divorce Act being under federal jurisdiction, and children and family being under provincial jurisdiction. It relieved pressure from the courts and was a great success. Parliament then turned around and created a new section, section 24(4), dealing with unified family courts, and we established 36 judges to be allocated in addition to the pool that you are now talking about.
A bill came before this chamber not long ago, in 2005. What was in the bill? It was what Ms. Mckinnon was talking about. Yes, the chief justices of the provinces put in their shopping lists and justified judges, and the bill created 63 new judges to replace the 36, and 27 judges justified by the chief justices of the superior courts of the provinces. That bill was not passed. It did not make it because of the election.
Now, we have a bill that says 14 new judges are needed. Granted, you have put them in paragraph 24(3)(b), in the pool that can be used in the unified family court, as we all know. However, what are they there for? They are there for unified family court cases, as Ms. Mckinnon said a moment ago.
What has happened here? Have the chief justices of the provinces changed their minds over the last three years? Now, they do not need 63 judges of the superior court handling family matters but only need 14? Mr. Minister, this question is not for you but mainly for the officials because they have more institutional memory in the department than you do. I am totally confused here. What has happened here? Madam Chair, I remember the minister way back when he was a Member of Parliament, so maybe he does have the institutional memory. Can you explain that change? None of this issue was addressed in the House of Commons. No one addressed it because they do not have the institutional memory that we have.
Mr. Nicholson: Ms. Bellis would like to comment on your comments, Senator Baker.
Judith Bellis, General Counsel and Director, Judicial Affairs, Courts and Tribunal Policy, Department of Justice Canada: I have a lot of institutional memory about the Justice Act, I am afraid.
Senator Baker, your question is a good one and one that we have responded to. The 27 judges proposed in Bill C-51, which is the bill to which you referred, were intended to allow for the expansion of the unified family court model in Canada, as you have indicated. However, it is important to remember that those 27 judges were to replace, because that is critical. The unified family court model involves essentially the superior courts assuming all the jurisdiction that is currently exercised in the provincial courts. Essentially, the family courts then disappear. Many of those judges are elevated because they have specialized expertise.
Essentially, in the unified family court model, the federal government assumes the responsibility for salaries and benefits of all judges working in family law, and the provincial court judges are no longer working in family law. The current government has taken the view that, at this point, as a policy matter, they are not ready to move forward with a further expansion of the unified family court, which requires essentially assuming the responsibility for the judges. I will give you an example. Three-quarters of the 27 judges to whom you referred would have been those provincial court judges who would have been elevated. It was the same amount of work, only the federal government would take on that responsibility. That is not what Minister Nicholson and his government have decided to do at this point. They are not embracing an expansion of the unified family court, but they are recognizing nonetheless the superior court family court branches we had seen as a result of the proposals for the unified family court and the stress that the superior courts were under, and this initiative is to relieve some of that stress. As senators know, the superior courts, as section 96 courts, must exercise certain jurisdiction as a result of the Constitution. Matrimonial matters touching on property and other important issues can be done only at the superior court level.
I know that answer is longer than you would have liked, chair. It is not uncomplicated, but that is the answer to why 14 and not 27. If we look at three-quarters of 27, this number is more than the component that would have gone to the superior courts in the Bill C-51 model. Is that helpful?
Senator Baker: No, it is not helpful. You said that instead of putting in 27 new judges, we put in 14 new judges because, perhaps, the other 13 did not have that much work to do. That is what you are telling us. A superior court salary, plus pension, costs about $350,000. That is the pension, and so on. The basic salary is about $235,000 a year, across the nation.
Submissions were made to you by the chiefs of the supreme courts across the country. Seven submissions were made to you; one from Newfoundland and Labrador, for four additional judges. I understand what you are saying because the judges doing this work now are the provincial and superior court judges. This increase is to take the strain off the system in the provinces. You are saying, Let us keep the strain on the system in the provinces, and we need to appoint only 14 to the superior court. That is the logical conclusion to what you said.
Mr. Nicholson: That is the logical conclusion, indeed. We are responding to the needs of the provincial attorneys general and you can talk to them about that response. I indicated in my opening comments that I am prepared to receive further submissions in the future from provincial attorneys general. We will be in touch with everyone and every component of the judicial system.
Senator Baker: Increase the pool?
Mr. Nicholson: I keep an open mind about this, but it has been a long time. It has not been changed probably since you became a member back in the 1970s. It is time to make a change.
Senator Joyal: It changed in 1992 the last time.
Mr. Nicholson: That is fair enough. It is time to move ahead and time to act on this issue.
The Chair: The problem is that we can only have a minister for a short period of time. That is the problem. If we had two hours with the minister, we would have a lot more fun.
Senator Milne: Mr. Minister, how will these 14 additional judges be apportioned across the provinces?
Mr. Nicholson: Negotiations are still taking place, senator, because we must ensure that everything is in place for them. Approximately 10 will be split between the provinces of Ontario and Quebec, with most of them going to Ontario. The others will be spread among British Columbia, New Brunswick, Nova Scotia, Nunavut, and Newfoundland and Labrador. We will make that clear.
Senator Milne: That adds up to 15.
Mr. Nicholson: Again, I can give you an example. The present plan in New Brunswick, for instance, is three new judges to meet their needs.
Senator Baker: That is your announcement today?
Mr. Nicholson: No, I had another announcement. We will work with them carefully but, as Senator Joyal pointed out, this goes to a pool. We will work with them to try to meet their needs.
Again, the door is not shut. I will listen to them. I meet with them on a regular basis and I will hear any other suggestions that they have.
Senator Milne: Will a certain number of these judges be bilingual? I understand that in New Brunswick they have had problems with delays because of the appointment of monolingual anglophone judges.
Mr. Nicholson: It could be. The vast majority of appointments were made before I or this government was in office. We work closely with the chief justice to ensure that bilingualism or official language capacity is met. I think four of the judges we appointed in New Brunswick are bilingual, but I am open to suggestions. Again, we work closely with chief justices to ensure their needs are met.
Senator Milne: Four of how many?
Mr. Nicholson: We have appointed eight in the province of New Brunswick.
Senator Joyal: Welcome, Mr. Minister. How many vacancies are there as of today at the superior court level?
Mr. Nicholson: That is a good question, senator. We fill them on a regular basis. There are not too many.
David Near, Judicial Affairs Advisor, Minister's Office, Department of Justice Canada: It varies almost weekly, based on whether someone goes supernumerary or becomes gravely ill. Approximately 25 are spread across the country, give or take one or two.
Senator Joyal: With this bill, we add 20 or 25 more judges. That means the minister must fill 45 vacancies, as you said, making those appointments as soon as practical.
Mr. Nicholson: The challenge is ongoing, senator. As soon as we think we have caught up, we are often faced with retirements or, as we indicated, people who become ill. The appointments are a priority and we will continue to make them.
Senator Joyal: You stated on March 4 in the House of Commons that, since taking office, your predecessors and you have appointed 146 judges to this point in time.
Mr. Nicholson: That may be an older quote. We are up to about 165 right now. We look at this situation on a continuing basis. Generally, every month we make another group of appointments.
Senator Joyal: How many of those appointments are bilingual?
Mr. Nicholson: I think about a third, senator.
Senator Joyal: Are they distributed in all provinces?
Mr. Nicholson: We try to meet the needs of the province. We do this in discussion with the chief justices, but in places like Ontario and New Brunswick, it is of critical importance, so we try to meet those needs.
Senator Joyal: In the House of Commons in February 2007, the Prime Minister stated that he wanted ``to make sure our selection of judges is in correspondence with those objectives'' of making sure that we crack down on crime and make streets and communities safer.
How do you manage to select judges to ensure that those policy objectives are taken into consideration in the selection of judges?
Mr. Nicholson: We have a process known as the Judicial Advisory Committee, senator. This process is something newer than when you were in government. It is a system that has worked well. There are individuals from different aspects of society, for instance, the law society, the provincial governments, representatives of the police, representatives from the minister, and so on. We receive good advice and I think the system has worked well. You can canvass people about the 165 appointments. I have received good feedback right across the country. Everywhere I go, the feedback has been consistent. People have complimented me and the government, and they are pleased about those appointments. I have been proud of those individuals who are prepared, as I indicated in the House of Commons, to step forward to serve their sovereign and their country. I think we can all be proud of them. They go through that system and I can tell you that the applications that people put before those judicial advisory committees are extensive. We have had great individuals and I am proud of the ones that we have appointed.
Senator Joyal: Did you change the questionnaire or form that the candidates file so that they must state their approach to ``crack down on crime'' and ``make our streets and communities safer''?
Mr. Nicholson: I do not have the form; I can forward it to you. I have not made any changes to the form, but individuals are given the opportunity to say things, for instance, about their community involvement, their volunteer service and their history of involvement with the legal community. We are fortunate in this country that the group of individuals who have been appointed over the last 2.5 years are outstanding individuals of whom we can all be proud.
Senator Joyal: What I do not understand about that objective is that the selection committee that is composed of four people do not question the candidates. Unless I am badly informed, there is no one-to-one encounter between the selection committee and the various candidates. They study the form that each candidate or any potential candidate is invited to file.
Since there is no living questionnaire, how can you ensure that what the Prime Minister has stated, namely, that ``We want to ensure that our selection of judges is in correspondence with those objectives?'' How do you ensure that those objectives are taken into —
Mr. Nicholson: There are many objectives. As I indicated to you, there are many components of the application that potential judges receive. Some of them include things such as I indicated like their extracurricular or volunteer service. These individuals are all well-rounded.
I can tell you that the judicial advisory committees call references and make their own inquiries. These individuals are plugged into their communities and, in particular, the legal communities. They do an excellent job.
I was there when this process was begun by Ray Hnatyshyn in 1998. I remember being a member of the Justice Committee when he described it. I could not help but think this process was a big improvement over the way things had been done. You could probably tell me how chaotic things were when there was nothing organized like this process. I thought it was a huge step forward.
It was instituted by then justice minister and later, Governor General of this country. I believe most people think the system has worked well.
Senator Milne: I am concerned about how many of these people have practiced in the province where they have been appointed. I understand that, recently, a man was appointed to the bench in New Brunswick who has never practiced law in New Brunswick.
How is he plugged into the community?
Mr. Nicholson: For example, we appoint people to the Federal Court. The individual may be eligible for appointment to the Supreme Court from a particular area, depending on where they were born or lived.
Do you have an example of an individual?
Senator Milne: Brad Green.
Mr. Nicholson: Again, this is another individual who goes through the judicial advisory committee. I do not consider people who serve the public in a judicial capacity as individuals who would be excluded from that process. I can tell you his appointment has been well received.
Senator Milne: However, I gather he has not.
Senator Joyal: I have the form that the candidate is invited to file. I do not see anything in the questions asked that would allow a committee of selection to evaluate the degree to which a potential judge would be tough on crime when he or she would have to adjudicate on such an issue.
Mr. Nicholson: Senator, I am sorry you do not like the particular form. I think it is a well-balanced form.
If, some day, you want to make recommendations to us that this form does not meet certain needs or concerns of yours, you are welcome to do so. However, I think it has worked well. The feedback I receive suggests it works well in allowing individuals to tell about themselves and their involvement in the legal community.
If you have a problem with this form, I accept that. However, I think you will agree with me that this system is better than the one we had, perhaps, 25 years ago.
Senator Joyal: I am not questioning the system. I am puzzled by the changes you brought to the membership of the committee by removing the capacity to vote from the presiding judge, and adding a representative of the so-called law and order community.
There was something in the system that you did not like when you made those changes to be tougher on crime.
Mr. Nicholson: I appreciate that and I appreciate your consistency, senator. I have heard not only from you, but members of the Liberal Party in the House of Commons. They have been consistent in their opposition to police officers being part of that committee. You have carried that through for the last year and a half.
All I can tell you is that the feedback I have had suggests members of the law enforcement community have worked well and made a positive contribution. Perhaps you can talk to Tony Cannavino from the Canadian Police Association.
I know it is not only you. I receive this comment from Liberal members of Parliament. They are upset about the involvement of the police.
For me, it has worked well and I have found police officers dedicated to the best interests of our judicial system.
Senator Joyal: With great respect, Mr. Minister, you are trying to make the issue a partisan one.
I read that Parker McCarthy, Past-President of the Canadian Bar Association expressed deep concern about the independence, transparency and merit implemented in the selection process in the House of Commons on March 20. He is not a Liberal and the Canadian Bar Association is not a Liberal. Professor Jacob Zeigel, who expressed a similar view, is not a Liberal. Professor Peter Russell is not a Liberal and former Justice Antonio Lamer is not a Liberal.
Mr. Nicholson: I was complimenting you on your consistency. People sometimes say that politicians change their opinions on some of these views. I know this issue has been a long-standing one with the Liberal Party of Canada. There may be others who support you, and you have listed some of them.
All I am saying, respectfully, is that I disagree. The police I have met and known that are prepared to serve, I think, do an outstanding job. You do not need to take my word for it. I invite you to canvass the Canadian Police Association and Canadian Association of Chiefs of Police.
I think they will confirm what I and others have said. They have made a positive contribution on these judicial advisory committees. However, I respect your right to disagree with me on that issue. I have a different view.
Senator Joyal: I am not the only one disagreeing with you, Mr. Minister. The Canadian Bar Association disagrees with you. As you know, they have members from all parties and have no allegiance to any party. This issue is not partisan at all.
Mr. Nicholson: I appreciate that. I wanted to be fair to your political party and said that they have been consistent in their views about police officers participating in judicial advisory committees.
It is a view that I do not happen to share.
The Chair: I think both sides of that issue have been established. I will put you down for a second round, Senator Joyal.
Senator Merchant: I want to plant a kernel in your thoughts about the specific claims tribunal. In your presentation, you said that a large number of claims come from B.C., Ontario and Quebec.
As you may know, I come from Regina. Thirty per cent of the Aboriginal population of Canada resides in Manitoba and Saskatchewan. Have you given any thought to setting up this department in the West, for example, in Vancouver, if there are a lot of claims there or somewhere else in the West?
As you said, it is good for judges to be plugged into their communities. For example, everyone involved in the Tax Court of Canada lives in Ottawa. I think, as westerners, we would like to think there is some place in the whole system that acknowledges us. When you ask someone to serve on this tribunal, not every western judge wants to move to Ottawa because we live where we live. We live in Regina, Saskatoon, Edmonton or Vancouver, and the West has a concentrated population of First Nations.
Mr. Nicholson: Yes.
Senator Merchant: How do you feel about setting up the specific claims tribunal in the West?
Mr. Nicholson: You can also address that question to my colleague, the Minister of Indian Affairs and Northern Development, whose Bill C-30 is being studied by the Senate. I will pass on those comments.
With respect to the judges who will sit on the tribunal, they will be located in the province in which they hear the claims. Unlike the Federal Court or the Supreme Court, they will not be centred here in the nation's capital.
Senator Merchant: I have asked one of the people on the Standing Senate Committee on Aboriginal Peoples to put that question to the minister. I want to plant the seed in your mind as well. I appreciate your response.
Senator Oliver: Thank you for your presentation. I missed the first part because I was late arriving here. I hope my question has not been answered already.
The Canadian Bar Association that represents 37,000 lawyers and jurists across Canada has sent a letter urging the Senate to adopt the amendments to the Judges Act and Bill C-31 without delay.
Mr. Nicholson: They are not members of the Conservative Party, are they?
Senator Oliver: They are very much in favour of this bill. They say that many courts have significant backlogs and delays that only add to the financial and emotional burden of litigation, et cetera. They want to see this bill passed because it will add more judges.
I listened carefully to the question put to you by Senator Baker. As a result of that question and your response, I have one question for you: Are you personally satisfied that this legislation will provide you with enough new judges to resolve the difficulty that the Canadian Bar Association and others have talked about in terms of backlog? Is the number correct?
Mr. Nicholson: I think it is, senator. It is a judgment call, of course. Again, we work closely with the provincial attorneys general and we have the input of the chief justices. Ms. Mckinnon spelled out in some detail the analysis that goes into this number.
I am not disclosing anything here that is confidential, but I told the provincial attorneys general that we want to assist, to the extent possible. If they have further needs — and, there will be further needs in the future, I am sure — I am open to suggestions from them. I will deal with them accordingly.
We must move on this matter. It has been some time. This pool was last expanded in 1992. The country is bigger now and our judicial system has more challenges today. I appreciate the input and the support of the Canadian Bar Association. Senator Joyal and I do not agree on everything, but is my hope that this bill will be passed in an expeditious manner and that we can get on with it.
Senator Peterson: My question regards the specific claims tribunal for which you are gearing up. Will there be physical plant required in the provinces and who pays for that physical plant?
Mr. Nicholson: Generally, with the appointment of superior court judges, as Senator Baker pointed out, the salary and pension is paid for by the Government of Canada. The other services provided to judges, including everything from courthouses to the individuals who record the evidence, and so on, are provided in the province. This is why it is important to us to work closely with the provinces. We cannot operate in a vacuum and say, ``You will receive six more judges,'' unless the need is there and the capacity is available. That is why we are careful. We work closely with them to ensure that we are in sync with their needs, capabilities and budgets. The cost of one new judge is not limited to salary and benefits; a lot more goes into it.
The Chair: This question is supplementary to Senator Baker's earlier line of questioning. Ms. Bellis said in response to Senator Baker that the government had made a policy decision not to expand the unified family court system. I think I paraphrase her accurately. Can you tell me why that policy decision was made?
Mr. Nicholson: There are no plans in this particular legislation but that does not preclude a plan in the future. It will be done in consultation with provincial governments and we will act accordingly.
This bill is to meet the specific need, as articulated by the provincial attorneys general. We will go forward on that initiative.
The Chair: My question was about the policy decision. As I understand it, the earlier policy was to expand the unified family court system. However, the government has made a policy decision not to expand that system, for whatever reason.
Mr. Nicholson: You make it sound as if some formal decision was taken. At this time, we are moving forward with this particular initiative. I am not closing the door for any additional judges within that court or any other court.
The Chair: My second question is about the system of the appointment of judges and the role of the judicial advisory committees.
There is no undertaking or rule by this government or previous governments that judges who have not gone through that system will not be appointed. Why not? Are you not prepared to say, ``We have such confidence in the system that we will not appoint someone who has not been through that system and been approved?''
Mr. Nicholson: My understanding is the judicial appointments — and I can speak definitely for the ones made by this government, but I believe as well for the previous government — were all approved by the judicial advisory committees. The process is somewhat informal in the sense that there is no legislation; it is not part of the Constitution; and these individuals are not even paid for what they do. It came from an idea, as I indicated to you, proposed in 1988 by the then Minister of Justice. He had a number different than what is used. Again, all we can say is that this sounds like a substantial step forward in terms of organizing this process. Indeed, I was part of a government that altered the committee at least two more times after that to try to meet the needs. There is nothing in legislation and it is not constitutional, but the practice has been, certainly in this government, that those individuals have been approved by the judicial advisory committee. The committee is there to provide the best advice it can to the Minister of Justice. Ultimately, these are Governor-in-Council appointments. It has been a system that has worked.
The Chair: We should understand that you plan to continue the practice?
Mr. Nicholson: I have no plans to change that practice.
The Chair: I guess that is the best answer we will receive from you on that point.
Senator Andreychuk: I will resist asking the question about what ``practice of law'' means. It does not mean one type of practice. I sit here and see the expertise that many nonlawyers have here. They come out with better experience sitting on the Standing Senate Committee on Legal and Constitutional Affairs. As Senator Carstairs used to say, you do not need to be a lawyer to sit here and scrutinize the law.
I want to ask a question on the judges who will end up hearing the specific claims. You have made the point that some of them may have the expertise now, perhaps as a result of where they sit in a jurisdiction or because of following their own inclinations and understanding Aboriginal law, and so on.
Mr. Nicholson: That is right.
Senator Andreychuk: Will you have any consultations with the Assembly of First Nations or anyone else in new appointments to ensure that there is some understanding of specific claims, or do you believe that the people involved in the judicial appointments process will take that understanding into account?
Mr. Nicholson: That is a good point. The AFN is welcome to give advice. I would treat any advice that they gave me on any Governor-in-Council appointments on a confidential basis.
With respect to obtaining the expertise, of course we will work closely and receive the input of chief justices. They are the ones ultimately assigning the individuals to hear these cases and they have the requisite knowledge to decide. Under the legislation with respect to the tribunal, these appointments will be Governor-in-Council appointments. There would be approximately 18 so that one individual would not be there continuously. They would be assigned by the chief justice to hear a case, and then they would return to their usually scheduled hearings. This appointment will be made in conjunction with the directions of the chief justices in each province. Again, I welcome the advice of the AFN on any issue.
Senator Andreychuk: A quick clarification on Senator Merchant's point about why not Saskatchewan or Alberta. Are you pinpointing British Columbia, Ontario and Quebec because they have the largest backlog, if I can use that term, of cases in the Aboriginal field? Perhaps others have settled some claims or do not have that many.
Mr. Nicholson: That comment is fair. That is where most of the claims are located, in those three particular provinces.
Senator Baker: Of course, the Canadian Bar Association agrees with the bill. Of course, each Attorney General agrees with the bill. Who would disagree with increasing the number of judges?
The problem that some of us have with this bill is that the increase in judges is in a pool. I remember that when we enacted this section, it was a pool so that they could adjust. When it was determined that the province needed an extra judge, they would not have to go back and change the act but would draw from the pool. Of these 14 judges, you announced that three will go to New Brunswick, which means there are 11 left.
Senator Milne: That is five for Quebec and five for Ontario.
Senator Baker: Did he announce that?
Mr. Nicholson: I said most of those judges would go to Ontario.
Senator Baker: He did not give numbers. He has maintained up to this point, and I give him credit for this, that he will not announce where the judges go until the bill receives Royal Assent. We appreciate you telling us because we are preparing the detailed analysis of the bill. There are 11 judges left for Quebec, Ontario, Nova Scotia and Newfoundland.
If someone receives one judge, they will not disagree. It is an additional judge at the superior court level. They would have received 27 extra at the unified court level, which would have relieved the pressure in the provincial and superior court. Why would you approve a pool of judges for which each judge costs you, as you admit, about $350,000 a year? That is peanuts for a judge doing that function. The province must pay for all the support staff, facilities and all of rest, so it is their bill. They will not ask for a judge just for the heck of it if they do not need it. I guarantee that. Why make the pool so small? You will have to come back again and ask to increase the pool, because every single one of those judges will be gone the day after proclamation, or within six months when things are in order. Why do you not allow an amendment? As I understand it, you wanted to put forward an amendment relating to another matter when it reached the final stages, and you announced in the committee in the House of Commons that you were thinking about an amendment in report stage in the House. Will you entertain an amendment before the Senate to increase the pool by an additional number beyond the 14?
Mr. Nicholson: This number is a well reasoned one, senator. We have had extensive consultations. Ms. Mckinnon told you how carefully we look at that number. This number is in line with what we have been told right across the country. I am encouraged by you saying that the Canadian Bar Association and the provincial Attorneys General are in favour of this bill, so please let us pass it. As I indicated, when the time comes in years forward, when requests are made to me, I will keep them in mind. I always keep an open mind about these things. I am careful about that. Next year, if the Attorney General of Newfoundland said to me, We need one more; see what you can do about it,'' I would be receptive to that request.
Senator Baker: Good for you. Ms. Mckinnon made an interesting point, and it is important. She said at the beginning that there is pressure in the system because these matters must be adjudicated quickly. They involve children and family matters. There is a huge problem of family breakup and what happens with children. These matters must be dealt with quickly. In every court in the nation, they must deal with them on an urgent basis, and they put off other things when they deal with these matters. Minister, I think you should increase the pool number from 14 to reflect the fact that those 14 will go to family court. I bet you every single province that receives an additional judge will put that judge in family court. Why do you not increase the pool now by an additional four, five, six or seven so you will have something left in the pool six months after this bill passes?
Senator Oliver: He said he was satisfied with the number in the bill.
The Chair: I think the question was to the minister.
Senator Baker: Senator Oliver forgets that he is not a professor at Dalhousie University any more but a member of this committee.
Mr. Nicholson: He was an outstanding professor, from what I heard. I suspect that if I had come here and asked for 30, someone would say, why not 40 or 50. I did not come here with 10, 15 or 20. The House of Commons agreed with me. I was pleased about that. I do not have to tell you the challenges of a minority Parliament in gaining the support of four political parties in the House of Commons.
Senator Baker: They do not have the institutional memory.
Mr. Nicholson: One or two of them do, although not to the extent that perhaps you and I have, but there are a number of them, and they are well-meaning individuals. They looked at this bill and said bravo to the Conservative government and wanted us to move forward. Many people agree with this bill, and I believe you will hear from one Attorney General as soon as tonight, and I think the Attorneys General will agree with me. This bill is a great step forward.
The Chair: Thank you, Senator Baker.
Senator Milne: I suspect that the reason they will agree with you is on the basis of some being better than none.
Mr. Nicholson: Senator, please.
Senator Milne: Ms. Bellis said during an answer to a question earlier that currently, there are 25 vacancies for justices.
Mr. Nicholson: Perhaps it was Mr. Near. He would be more involved with that.
Senator Milne: That number seems to me to be high. Can you perhaps tell me, minister, the average vacancy rate over the last few years? What was it back in January of 2006?
Mr. Nicholson: I do not have that number in front of me, senator, but we are replacing them at a more rapid pace than was the case in the previous government. The other aspect is that when we made changes to the Judges Act, we had a bump, so to speak, in terms of individuals who decided to retire, et cetera, when that act came into effect, so we had a considerable increase at that moment. I try to have seven, eight or ten appointments every month, and we continue to appoint. As you can imagine, the appointments do not go through only the judicial advisory committee. The department looks at these appointments carefully, and it takes time. We keep moving forward on these appointments. They are an important component of what we do in the Department of Justice.
Senator Joyal: Mr. Minister, among the changes you brought to the selection committee was the removal of the ``highly recommended'' category. Before your changes were in place, the selection committee made one of three recommendations: highly recommended, recommended and not recommended. I think that was the way the committee functioned. The ``highly recommended'' were seen by the committee as the best candidates. Since the objective is to appoint the best candidate, it gave you a list of the best candidates. Now, the best candidates are brought into the recommended category. I do not understand why you made that change if you think you will still maintain appointments on a full merit basis?
Mr. Nicholson: I looked in terms of people who were recommended or not recommended, and in terms of the percentages of people who end up in the not recommended category, the difference between the two is about the same.
That being said, it has worked up to this point in time. At times, it makes it difficult for the group to start arguing, discussing or delaying whether someone should be highly recommended or recommended. It adds one more burden to a group of individuals who are serving their country, and they are providing this service without remuneration. I hope it expedites the process and that they have one less thing to concern themselves with. A person is recommended, and is capable or not capable of being a judge. That step forward is huge from the days back in the 1960s, 1970s or early 1980s when there was no system like this one in place. You can speak to what it was like in those days. This change adds order to and streamlines the system. The feedback that I have received in the last year and a half that I have been Minister of Justice is that it has worked well.
Senator Joyal: It surprised me that you made those changes. Any law firm that wants to hire a lawyer coming out of university will say, ``Give me your academic record,'' and they will take the top ten and give interviews to those top ten.
They are already vetted and at the top of their class. Why do you want to avoid having in front of you the list of the best candidates highly recommended by the selection committee on the basis of the merit?
Mr. Nicholson: Obviously, the buck stops with me, does it not, senator? It stops with the Governor-in-Council and it stops with the government who makes these appointments. Under the Constitution of Canada, it is the constitutional responsibility of the Governor-in-Council to make those appointments. In answer to one of your colleague's questions about the number of vacancies, sometimes I am pressured to appoint a bunch of people. I try to be careful with this pressure because, ultimately, the buck stops with me. If someone is not the best candidate or is not an outstanding individual to serve, it stops with me. It would not be for me to say, ``I wish the judicial advisory committees had done a better job of vetting candidates.'' It stops at my desk and that is the way the system is.
Senator Joyal: I know it stops at your desk. The article in the Edmonton Journal may be incorrect, but it claims that at least half the 33 volunteers that Justice Minister Rob Nicholson named to the revamped committees last month have political ties to the Tories. Of course, the buck stops with you because you are the one to decide if the selection process is transparent —
Mr. Nicholson: I can tell you something about that, senator.
Senator Joyal: Let me finish and then I will listen to you. The selection process is to be adequately independent, transparent and objective to ensure that we have the best qualified candidate. I do not claim that someone with political involvement is not fit to sit on those committees. However, when half those appointed seem to lean to one side, the perception is created that the system is loaded.
Mr. Nicholson: That point is interesting senator. I did have someone make the point that someone in Alberta who was appointed to the judicial advisory committee was a supporter of the Conservative Party. I had to be honest. Show me someone in Alberta who is not a supporter of the Conservative Party. That challenge is a bigger one in that province. Again, as you pointed out, people who serve and take an interest in public life are prepared to provide this service without remuneration because they believe in the system and they believe in the country of Canada. They deserve our thanks. I am appreciative and I want to make that clear, as I am for the individuals who accept appointments to our superior courts and are prepared to serve their sovereign and their country for the rest of their lives. The commitment is huge, and this country is lucky to have those people. With respect to the people on the judicial advisory committee, I am most appreciative of the people who are prepared to give their time and talent.
The Chair: We might squeeze in another 90 seconds, if someone has a 30-second question. There are no simple 30- second questions, it would appear.
Mr. Minister, we thank you very much. This session was extremely interesting. We will now make an absolutely seamless rapid transition because we have another interesting witness. This meeting today is a good one. In one hour and 30 seconds, approximately, this room is due to be occupied by the Standing Senate Committee on Aboriginal Peoples which, interestingly, will consider this matter. That is why I have been particularly concerned about the timing here.
Honourable senators, we now have the great pleasure of welcoming as our witness the Honourable Jerome P. Kennedy, Q.C, Minister of Justice and Attorney General for the Government of Newfoundland and Labrador. We are delighted to have you with us, Mr. Minister. It is not every day that we have someone from a provincial capital come to this committee. We appreciate the chance to have your perspective on this bill.
Mr. Kennedy is accompanied by John FitzGerald, Provincial Representative in Ottawa for Newfoundland and Labrador; and Ken Morrissey, Director of Communications, Department of Justice.
Mr. Minister, I believe you have a statement. Please proceed.
Hon. Jerome P. Kennedy, M.H.A., Minister of Justice and Attorney General, Government of Newfoundland and Labrador: First, I offer my appreciation to the committee for the opportunity to present here today. I was elected for the first time in October in Newfoundland and Labrador and was appointed Minister of Justice shortly after that. I take advantage of any opportunity to talk to my colleagues across the country and to make our views known.
I caught the last of what Minister Nicholson had to say. From the perspective of Newfoundland and Labrador, it is a question of some is better than nothing. I caught the end of what Senator Baker said, and I want to put that in perspective, namely, where we started and how we arrived at the area of where we are today.
I will be frank with you. I had the opportunity to read Senator Joyal's comments. There were interesting issues in the transcript and I think they should concern the Senate committee and the Senate in general, in relation to the administration of judges in this country; since we are dealing with Bill C-31, that issue is an obvious one. I heard Senator Baker's comment and I know that of the 20 judges, 6 will be appointed to the specific tribunals. Then there was the number 14, but then I heard the number 11. I do not know how we went from 14 to 11.
Senator Joyal: Three were given to New Brunswick.
Mr. Kennedy: That is why my colleague T.J. Burke wants to come and say ``thank you'' to everyone.
From the perspective of Newfoundland and Labrador, we were notified by letter dated November 28, 2007, by Minister Nicholson that one judge would be made available for the province of Newfoundland and Labrador. The letter specifically stated that the case has been made for the new judge to address current pressure in the Newfoundland and Labrador Supreme Court based on the information provided in the context of the 2003 unified family court initiative.
In essence, in 2003 in Newfoundland and Labrador, there was a pilot project called Family Justice Services in the western part of the province led by Justice Richard LeBlanc. The approach taken by Justice LeBlanc, and supported by Chief Justice Derek Green of the Trial Division, was to try to increase the mediation on the front end of the family law system. In the system itself, we see the damage done to children, husbands, wives and family units as a result of the prolongation of family proceedings and fighting over issues that are not that significant, and then the children are lost in the mix. They grow up then having bad feelings toward one side or the other. Justice LeBlanc looked at a process that would provide upfront education, mediation and counselling services in family law matters involving family support, custody and access, and then expand the unified family court throughout the province of Newfoundland and Labrador and remove some of the burden of provincial court by taking over family law. The idea is great. The project starts with mandatory mediation. Before they can start the litigation process, they go to mediation and see if the specialized counsellors can provide the help necessary.
Justice LeBlanc approached the federal government and made a presentation with one of my predecessors and asked for five judges. Under the Liberal administration, Minister of Justice Irwin Cotler, I will not say there was a commitment for five judges or four judges, because there was not a commitment, but I can say that correspondence from Minister Cotler indicated that serious consideration was being given to the request for four judges. The province was looking at expanding the family justice services based on those four judges.
After we were notified there was one judge, I met with Justice LeBlanc and Chief Justice Green again, and they asked me to make the pitch again to Minister Nicholson. He met with me and was cooperative. I asked for the opportunity for the judges to present to him and make the case for four judges, based on the unique procedure utilized by family and justice services. However, that opportunity has not been provided.
I have been told by the chief justice, who knows me well, not to come here and lose our one judge on us, so I have to make it clear that we do support the bill. I am sure the chief justice and Justice LeBlanc are on the edge of their chairs wondering what I will say. We support the bill, but there is a concern, and we made the case for four judges. I was a criminal defence lawyer for 20 years prior to becoming Minister of Justice, so excuse me if that line between law and politics is still somewhat blurred. I still think like a lawyer, perhaps more so than an Attorney General. I am acutely aware of my role as Attorney General and what I should and should not say, but we are concerned. The people of our province are concerned that the relationship between the federal government and our province is causing a backlash in different areas, that the imbroglio, as it has been referred to, between Premier Williams and Prime Minister Harper is affecting everything from the appointment of judges on. I want assurance from the Prime Minister and from Minister Nicholson that it is not the case and that the one judge is based on reason. I have to tell you, I do not see it. With all due respect to Minister Nicholson, and to my friend and colleague in New Brunswick, I do not know how they can make a case for three judges in New Brunswick and one judge in Newfoundland and Labrador when we put forward a reasoned, logical and sound case.
The second issue that caught my attention, and Senator Joyal raised it, was the appointment process. We are at a crossroads in this country — that seems to be a term I use a lot lately — in relation to where we are going as a legal system. I said to someone today, where else do you receive tenure for life once you are appointed, other than the judges, but then I think, Senate and university professors. The appointment process becomes so important because the concept of judicial independence means that after a judge is appointed, I will not use the word `untouchable,'' but I tell you that for the removal of a judge from office under section 99 of the Constitution, where security of tenure is guaranteed, they must come before Parliament. I think only Parliament can remove a superior court judge.
I was concerned about the comment made by Senator Joyal in relation to the selection process currently in place and its ability to affect judicial independence. Judicial independence, as pointed out by Senator Joyal in his previous comments, is one of our most basic principles, and goes back to at least 1700. If the appointment process allows politics to enter into it too much, then judicial independence can be hampered. I know that Senator Joyal referred to the change in the classification system in his comments to Mr. Nicholson, and to the judge who is a member of the committee and cannot vote, and to the police officer who is on the committee. I do not see any defence lawyers on the committee to choose judges, so why would we put the police on the judicial selection committee? Even then, the government is not bound by the recommendation. This whole issue of appointment is so important. It is one that I will suggest at the end of my comment that the Senate committee look at. If we are to have an appointment process that allows — again I will not use words like ``tampering'' because that is not what I mean — for influence or allows for factors that should not enter the picture to affect the appointment process, then there must be greater accountability, and that is we are missing in our society today as it relates to judges.
I read Senator Joyal's comments about judges being the most respected individuals by the Canadian public, but all officials must have a degree of accountability. In Newfoundland and Labrador, we have gone through the spending scandal of the members of the House Asembly, MHA, and the concepts of openness, transparency accountability are predominant in everything we do. I looked this item up, and I will give you some statistics. It is startling to me. I found some numbers on the judicial council, because once they are appointed, once the appointment has taken place, then the process of judicial independence, the principle, means we cannot interfere. As the Minister of Justice, I cannot tell judges what to do. I learned the hard way recently. In Newfoundland and Labrador, there was a backlash when the premier and I made comments — well, I supported the premier's comments — about an inquiry. That was seen as interfering with the function of the inquiry, and there was a public backlash.
However, I want to give some statistics. We took this information from the Canadian Judicial Council summary of complaints. If our appointment process is flawed, there is a need for greater accountability. In 2002-03, there were 173 complaints, and 168 were closed by the chairperson or the vice-chairperson, with 86 without a response from the judge. In other words, they were closed automatically. Four were closed by the panel, and one went on, out of 173. I have similar totals for the previous two years. Between 2000 and 2003, 502 files were closed, and in total, only 11 went to either a panel or a full council. Think of that number: 502 files were closed by the chairperson or vice-chairperson to panel or full council, 11 went on to a panel and two went to a full council. Out of the 174 in 2001-02, one judge received a letter of reprimand and a second resigned. In 2000-01, there were two letters of disapproval. Is that the kind of accountability that the public — not me as lawyer or Attorney General, but the public — wants in our system? Is that really accountability? For the principle of judicial independence to have full effect, if there are questions, as Senator Joyal indicates, about the appointment process, there must be greater accountability.
The three principles of judicial independence are security of tenure, financial security and administrative independence, with the overriding principle that a government cannot do anything to interfere with decision making. We all accept that.
I have read those comments with great interest. It struck me that this issue is something this committee should look at. I suggest a committee of the Senate should look at the whole question of judicial independence in Canada today. A Senate committee should look at the issue of the appointment process, and make a recommendation to ensure consistency throughout this country on the appointment process. Each province differs.
Then there are the issues of accountability. If the principle of judicial independence will have full force and effect in the year 2008, there cannot be blind adherence to precedent and principle of the past. We must ask ourselves the question, does it respond to the needs of the modern-day Canadian society? Those comments stemmed from Senator Joyal's comments.
I feel that as the Attorney General for the Province of Newfoundland and Labrador, I have the ability, if not an obligation, to make these comments because we are responsible. I am responsible; I have a constitutional responsibility for the administration of justice in the province under section 92(14).
We all want this country to have the best possible legal system. In the best possible legal system, I suggest to you, those principles of openness, transparency and accountability can apply to everyone.
The last comment I want to make before I open the floor to questions again comes back to appointment process. The issue is one I feel strongly about. This committee will probably wonder why I raise it here. Since I am here, unless I am told strongly not to, I will. That issue is the upcoming appointment to the Supreme Court of Canada.
Newfoundland joined Confederation in 1949. The man on my left, Dr. FitzGerald, is an expert on what took place around the time of Confederation. We have not had an appointment to the Supreme Court of Canada.
There is a constitutional convention. Professor Peter Hogg, in his book, Constitutional Law of Canada, 5th edition, describes a convention as rules of the Constitution that are not enforced in law courts. In other words, it is non-binding but it regulates the working of the Constitution. The conventions prescribe the way in which legal powers can be exercised.
Until yesterday, I did not think Prince Edward Island had ever had a Supreme Court of Canada judge. However, in fact, from 1901 to 1924, there was a Supreme Court of Canada judge from Prince Edward Island and he became the Chief Justice of Canada — Louis Henry Davies, I think. Then we move into 1949 and we have Justice Ivan Cleveland Rand from New Brunswick from 1959 to 1884. From 1984 to 1997 was Justice Gérard La Forest from New Brunswick; and then from 1997 to the present, we have Justice Michel Bastarache from New Brunswick, so we have had representation throughout the Atlantic provinces.
Professor Hogg again, for anyone who is interested, refers to the issue of reasonable representation at I think it is page 8-5, the pattern of regional representation.
We have three judges from Quebec — that is a statutory requirement, three from Ontario, two from out West and one from Atlantic Canada. Atlantic Canada is an interesting concept because there is Newfoundland and Labrador; we are a province unto ourselves. In fact — and I do not know what Senator Baker would say about this — we still feel we are a country within a country. We are part of this great federation, but it is time to take a place on that Supreme Court, as a province that has never been represented. Then again, will the fuss that continues to go on at a political level affect the Supreme Court of Canada appointment?
I will read you something now that really offended me — not enough to write a letter to the editor — in the National Post editorial of May 16.
Observers acknowledge, however — without wishing to demean the quality of the Newfoundland bar — that it is a challenge to create a short list of senior, respected, intellectually outstanding legal figures from a jurisdiction that has never had more than a half-million or so people.
Is that the kind of attitude perpetuated in this country toward our province? I suggest that it is insulting, demeaning, scandalous and totally inaccurate. Does it reflect the reality of how some people see us? Nothing is further from the reality.
I will give you three names of judges who I suggest are eminently qualified. I referred in The Globe and Mail article to Chief Justice Derek Green, and I said if he were appointed today, he would learn French between the time of his appointment and sitting on the bench. He is that bright. That is only a couple of months so I might have to backtrack on that one a little.
Another great judge is Madam Justice Margaret Cameron, who is now conducting the estrogen receptor and progesterone receptor, ER-PR, inquiry and who was thought to be the subject of the premier's and my comments recently, but she was not. The other judge is Justice Leo Barry.
Among these three judges, in Justice Green, we have a Rhodes Scholar; I think Justice Barry has an MA from Harvard; and Justice Cameron has been on the bench from 1985 and is, I understand, fluently bilingual.
These are situations where it all comes back to the appointment process and what must be depoliticization — I do not even know if that is a word. We must reach a point where we appoint the best judges and we appoint them on merit. However, in the Supreme Court of Canada, I suggest we follow the constitutional convention.
Thank you for allowing me to make those comments, and I am open to any questions.
Senator Baker: I want to make a comment, but I will ask a question.
Senator Joyal: We will give you preferential treatment today.
Senator Baker: The Minister of Justice and Attorney General for Newfoundland and Labrador is perhaps one of the most quoted lawyers one can find on Quick Law, West Law, Carswell or any of our sources. I recall him starting in the late 1980s and it only took about 10 years for him to have over 100 cases reported in case law. It is absolutely outstanding.
I do not think any other minister of justice has ever been appointed who has handled so many cases reported — civil, mostly criminal — at the Court of Appeal level, covering every single subject of every single federal act we have ever passed. He was an outstanding criminal defence lawyer who has made law in Canada from some of the decisions of the court that have been quoted in other jurisdictions across the nation on a regular basis.
Chief Justice Derek Green is a Chief Justice of the Supreme Court, trial division. He was on the Court of Appeal but he was then appointed as Chief Justice of the Trial Division. He is another person who, as a judge, is perhaps quoted more than any other chief justice I know of in case law; that is, his court decisions have been quoted in other jurisdictions throughout the nation. I wanted to preface my remarks with those observations.
As the minister has outlined, a proposal was made relating to the unified family court in which four or five judges, he said, were suggested. The proposal was in place, I believe, under Bill C-51, which was supported by all parties at the time. The Canadian Bar Association said the bill was a must because the unified family court system in Canada was working.
My question to the minister is this: As I understand it, the unified family court system relieved the pressure of the provincial court and the Supreme Court of Newfoundland and Labrador. It placed the emphasis where he pointed out it should be placed: in family law, which would develop an expertise by judges in a particular area of law. It also facilitated dealing with the serious problem of family breakdowns today as well as the matter of children.
He has told us he will receive one judge. The Supreme Court continually deals with the Department of Justice on this matter. Does he believe that the Chief Justice of the Supreme Court of Newfoundland and Labrador, to whom he has spoken recently, can still justify four or five judges in family court in Newfoundland and Labrador today?
Mr. Kennedy: I have no doubt in my mind that if Chief Justice Derek Green and Justice Richard LeBlanc were to appear before this or any other committee, they could justify statistically, practically and philosophically the request for at least four judges.
Senator Andreychuk: I will take about as much time as Senator Baker, but I hope I will frame questions.
Mr. Minister, you are new in your portfolio and I am pleased that you are taking every opportunity to make your case. I think it is important for provinces to do that.
I find it rather curious: The bill talks about judges, not about the appointment process. Had I known you were thinking of zeroing in on Senator Joyal's piece — which puts out one point of view admirably — I might have risen in the chamber —
The Chair: For the benefit of the television audience, when we talk about Senator Joyal's comments, we are referring to a speech in the chamber on second reading of this bill earlier this month. We are not referring to things he said earlier today in the committee.
Senator Andreychuk: I do not think Minister Kennedy was referring to comments here. He was referring to Senator Joyal's comments in the chamber on second reading. Had I known the minister was thinking of paying particular attention to those comments about the appointment process, I would have risen in the chamber to address that issue.
I think the issue is important. The bill itself is about adding judges to the courts. Now that I know you are in your position as minister, I will be careful that, when Senator Joyal speaks, I will address those issues because I know you will come to our committee afterwards.
I find your points are all interesting; ones that can be addressed by this committee in study. If we had time, we would study the independence of the judiciary and accountability.
I want to discuss two areas. First, the federal government has a role in the administration of criminal law and other law. One area, of course, is the appointment of the number of judges and to pay the salaries, et cetera. Many things that flow from an appointment of a judge are within the structures of the province to pay for. Having been a provincial court judge, I know how much of the load of the court the province must bear.
You said that the chief justice made a case for four judges. Have the police made a case for more police in your province? Have social workers made the case for more social workers in your province? If the case workers indicate they need 50 more case workers, then do you provide 50 case workers, or do you balance all the needs of your government, saying, yes, there is an emerging need for 50; perhaps we can give them 10 and, out of our next budget, we can do more?
In other words, does negotiation occur? Are you not better off, therefore, to make your case of negotiating for an increase of judges within the federal-provincial context — within the two levels of government — rather than coming to us and saying you should have four more judges? I do not see that as my role.
Mr. Kennedy: Thank you, senator. I can answer your questions. They are good questions.
We happen to be in a good financial position in Newfoundland and Labrador at present. In the last three or four years, we have created 100 new positions in the Royal Newfoundland Constabulary. We have so many social worker jobs that we cannot fill them. We have 65 social workers now. We cannot fill all the jobs. In this year's budget, we have doubled the size of the Royal Newfoundland Constabulary drug squad. In a city of 100,000, we moved from five to ten overnight, with a canine unit.
The unfortunate reality is that we feel in our province that we are on our own, politically. Since the issue with Prime Minister Harper and Premier Williams on the Atlantic Accord, we have not looked to the federal government for assistance. We feel isolated and, being in the middle of the ocean, perhaps a certain isolation exists anyway.
We are taking the opportunities to come before this committee and outline the problems that exist at the federal- provincial level. I do not point out Minister Nicholson. He has been good to deal with.
However, for example, our courthouses in St. John's are excellent, beautiful facilities but they are antiquated. We are looking at building a new courthouse in St. John's that could cost $120 million in today's costs. We have asked the federal government to contribute to the building of a prison since we have not had one since 1949. We have not heard back from them.
I appreciate your comments but, with all due respect, I wish I could say there was an upturn in federal-provincial relations. However, there is not and I do not expect there will be.
Senator Andreychuk: That statement is interesting that you do not think it will be better. The minister has said he has an open-door policy to discuss more increases in judges. I think he was extending a generous hand for you to rethink the provincial-federal relationship.
We have our Constitution and we have the federal system. We must make it work. With respect, I hope you will rethink your position because I do not believe that you put forth the federal position fairly.
Mr. Kennedy: I sat down with Minister Nicholson in early April and asked him to look at our request for four or five judges. The next day I sat down with Minister Day and asked for a contribution to a federal penitentiary. I have not heard back from either of them.
That is the reality of the situation. There is a way to fix that reality but that fix is a political one in Prime Minister Harper's hands. When he honours his agreement of the Atlantic Accord, then the people of Newfoundland and Labrador will start to trust him. Until then, we do not and will not.
The Chair: I think that issue may be beyond the purview of this bill.
Mr. Kennedy: I think it may be, senator.
Senator Andreychuk: You raise the issues of both the appointment process and the accountability process of judges. I found those issues interesting.
Tell me how you appoint provincial court judges. What process do you use and what is the accountability for the provincial court judges within your province?
Mr. Kennedy: I have not had an opportunity yet, senator, to appoint a judge since I have been Minister of Justice. My understanding is that we have the categories, highly recommended, recommended and not recommended at this time.
In the highly recommended category, there can be up to seven or eight people and their names do not have to be on a list. For the Minister of Justice or Lieutenant Governor in Council to make an appointment, that individual must be at least in the recommended category. We cannot choose someone who is off the list.
It is hard for me as the Attorney General to say I will strike a committee to look at the appointment process, without appearing to be trying to influence the judiciary or to interfere with judicial independence. That is why I see a body like the Senate as an opportunity to suggest the best appointment process in this country; one we can all abide by.
I read Professor Hogg's comments during the affirmation hearing — if that is what is it called — of Justice Marshall Rothstein. There were three candidates: Peter MacKinnon, former dean of law at the University of Saskatchewan, Madam Justice Constance Hunt and Justice Marshall Rothstein. It was not a bad system: a selection committee made up of judges and members of the public. I would never agree to the police on the committee. An advisory committee and ministers of justice across this country would agree to one of the three candidates. That system lessens, but does not eliminate, the opportunity for political patronage.
Senator Andreychuk: Mr. Minister, as a previous family court judge, I ask you to go back to your premier and reflect on perhaps rethinking the negotiation. I used to say to people in my court whose relationship was in trouble or seemingly irreparable to try again. I suggest that you reconsider whether the relationship with the federal government is, as you stated, or perhaps the relationship needs to be reflected on by both sides with a little optimism.
Mr. Kennedy: I will bring the message back to the premier, who would be happy to sit down with Prime Minister Harper anytime, if the $10 billion were paid.
Senator Joyal: Minister, you have commented on the participation of police representatives on the selection committee. Based on your professional experience in the court system before being appointed Attorney General of Newfoundland and Labrador, why do you conclude that a representative of the police group on a selection committee is not a good idea?
Mr. Kennedy: It is not so much the presence of the police as the comments you made in the context of the tough-on- crime agenda. I have a good relationship with the Chief of Police in the Royal Newfoundland Constabulary and the Assistant Commissioner of the RCMP. If either of those gentlemen were on a selection committee for judges, I would have no problem.
However, would anyone ever consider putting defence lawyers, for example, on a selection committee? I looked at whether it is balanced. When looking at law or appointments, we want balance. I have no problems with the police. However, we must consider public perception of looking for a certain kind of judge, a liberal judge and a conservative judge in terms of their attitudes toward the law.
For example, any judge can find that section 8 of the Charter has been breached. There must be a balance.
Senator Joyal: You might be aware of the Ontario model of entrenching the appointment process into a statute, as Ontario has done for a number of years. The Ontario government has a statute in respect of their provincial judges that is, in my opinion, one of the most transparent processes in Canada for the Ontario court, per se. It has functioned well, and it is objective and transparent. There is a capacity for the public to judge how many candidates each year, what kind of candidates, how many female candidates, how many male candidates, how many bilingual and so forth. The public knows about the process of appointing.
The federal process, which was started in 1988 under the initiative of former Attorney General Ray Hnatyshyn, was good and it was improved in 1992. However, we have not brought the federal system to a mature point whereby the appointment process is entrenched in statute.
Two years ago, Great Britain adopted a statute to entrench the appointment of the lords, which is a fully transparent system now. The prime minister recommends the name to Her Majesty and council. If the prime minister refuses, the prime minister must submit the reason in writing.
One way to correct Canadians' perception of the system to select judges is to entrench the selection process in a statute whereby, on a yearly basis, the appointment commission must give a report. The report is public and details the elements taken into consideration and the names of the people on the committee, so that the process is fair, open, transparent and based on merit. The fundamental system is the merit. If the system appoints a person who is not seen to be the best person equipped intellectually and legally with the capacity to judge, then the system is in question.
One way to bring the system to a higher level of maturity in Canada is to entrench it in statute. You will have a tremendous opportunity at the annual conference of Attorneys General to bring forward that concept. I am sure that the Ontario Attorney General will stand by you to give the Ontario experience. This issue has nothing to do with who is exercising the power of recommendation in Canada, but the system must evolve. You can be instrumental at the Attorney General provincial level to bring that concept forward. It is an important step to take if we want to maintain the credibility of the system.
Mr. Kennedy: That is a good point. Without even thinking any further, I can tell you I will bring forward the issue of the appointment process to the federal-provincial-territorial meetings this year. I am not familiar with the Ontario statute but I am open to it because we are looking for merit. I must make this point: It does not mean that someone with a political connection can never be appointed to the position of judge. I have never taken that position.
Your idea is good. The problem is that I am trying hard not to trample on the principle of judicial independence. I am almost leery of having extensive discussions with judges because I find there are never-ending letters. We have proposed certain amendments to the provincial court act, and about 10 or 15 letters went back and forth. I have to consult with the judges. I am open to that procedure. I will look at the Great Britain model and at the Ontario model. That would be a great discussion at the federal-provincial-territorial meetings.
Senator Joyal: I will move to the subject of how many judges Newfoundland and Labrador will receive under this bill. There was a general understanding of four but it is only one.
Mr. Kennedy: There was no commitment.
Senator Joyal: It is fair to say that on your part, and I recognize that. However, I always feel a little uncomfortable when there seems to be a back-door negotiation. The issue of the rights of Canadians to be heard in court and judged fairly is not for the back door. The criteria to select the number of judges are not transparent. What criteria are used to decide if the number of judges is fair? A set of criteria should be developed for which a province can say: Here is the number of cases; here is the waiting list; and here is the legal aid system applicable in those cases. Develop a certain number of criteria whereby, regardless of who is the minister at the federal or provincial level, the judiciary does not find themselves caught in political bickering between two levels of government. The justice system should be kept outside that approach. Perhaps one way to solve this problem would be to develop a certain list of conditions for the proposed budget. They must pay something to judges. They must provide office and clerical support and all the amenities that a judge is entitled to, to be able to function. It is not only a prize from the federal government: You are the winner of two more judges this year. A justice system should not work that way. I hate to create the impression among Canadians that the way they are to be heard on time or fairly will be negotiated behind their back. That is not the way the Canadian system should work. Although we have a system that is credible outside Canada — we are seen to have a system that works — we should make sure to improve the system so Canadians are convinced they have the best system in the world. To have the best system in the world, however, is to ensure that we have the judges to be heard.
We heard the minister who has said, I gave you 20 more, so you should be happy. We should get away from this thinking. Senator Baker said that 20 is better than nothing — and, everyone will say that — but is it what Canadians, who expect to be judged fairly, are entitled to? As a citizen in this country, I am entitled to have a fair justice system available to me. It is fundamentally linked to my citizenship. That is why I am proud to be Canadian and entitled to the judicial system. When we decide on the number of judges, there should be an objective way to appraise that and it should not be done in a paternalistic way by saying: I will give you 20 and you should be happy and applaud me.
I respect the position of the Minister of Justice, Mr. Nicholson. It is fundamental to Canadian citizenship. However, can we come to something more reliable?
Mr. Kennedy: I do not know how, senator. After this meeting, if we ever have a chance to discuss this issue again I would be interested in your views as to how we can develop that system. It is a great idea.
At the end of Professor Hogg's introduction on the hearing for the Supreme Court of Canada judge, he outlined the qualities we should look for in Supreme Court judges. There should be a benchmark for the individuals and, if we agree on that point, then we can agree on a formula. Unfortunately, from the view of the province of Newfoundland and Labrador — I read it to you in the editorial — there is a view that because there are 500,000 of us in the province, it must be based on the population. Unfortunately, we live in a large province — as are other provinces — and the number of judges must take into account the regional character and the distance that judges travel. A multitude of factors must be considered.
The Chair: It is fascinating to all of us, but Senator Milne is on the list and I wanted to squeeze in a question myself.
Senator Milne: Minister Kennedy, what is the average time it takes for a case to come to trial now in Newfoundland and Labrador?
Mr. Kennedy: That is a great question. After I became the Minister of Justice, I created a task force to look at improving efficiencies in the court system. Recently, we received that report. St. John's has nine sitting courts and the provincial court was taking 10 to 12 months on average. With a tweaking of the system and an infusion of monies, we can bring that average down to three or four months. We have created the capability to have per diem judges — that is, retired judges — return to sit on cases, as needed. That capability enables us to double-book to move our system along. We created a trial coordinator and will use video conferencing in the provincial court. That is the whole purpose of what Justice LeBlanc and Chief Justice Green tried to do with the family justice system where court cases can take two, three or four years to go through the court system. Justice LeBlanc tried to resolve a lot of these cases through mediation and counselling within 90 days. The cases going through court then move quicker because the system is not blocked. However, as pointed out by Senator Baker and Senator Joyal, we need provincial resources to do that.
In the provincial court, we hope the system will improve. The next step is, hopefully, the superior court. Senator Joyal might have made reference to this point, but the numbers of criminal cases that go to our superior courts are minimal nowadays because the cases are only homicide cases and jury cases.
Senator Milne: You said it takes two to three years in a family court. Is that an average time?
Mr. Kennedy: I do not know the average time. I can try to find that out for you. I do not know if Justice LeBlanc has those statistics.
Senator Milne: What will one judge do for you? By how much will it bring down the time?
Mr. Kennedy: A judicial resource will bring it down. A new judge, working with Justice LeBlanc and Justice Cook in the family court in St. John's will help. We have two hard-working judges but Justice LeBlanc is probably working about 12 to 15 hours a day, seven a days a week, trying to bring this system in. He needs assistance and lot of that must be provided through judges.
Senator Milne: What would four judges do?
Mr. Kennedy: They would clean up the backlog in less than a year. I think I read that somewhere; I believe Justice LeBlanc said that.
The Chair: You wanted four judges. At one point, you thought you had reasonable grounds to expect that you would have four judges. It is now your understanding that you will have one judge.
You were eloquent, minister, on what you see as the political backdrop to all these decisions, but earlier today we were told by one of the officials from Department of Justice Canada that the government had made a policy decision — and, I want to distinguish between policy and politics — not to expand the unified family court system, which sounds if it may feed into the statistical situation in which you find yourself. Have you been given any explanation of why such a policy decision was made?
Mr. Kennedy: I read something where there was reference to 27 judges for the unified family courts. I think the Liberal administration, if I have this correctly, were leaning toward the unified family court system and its expansion throughout the country to deal specifically with family law issues. Under one of the previous ministers in the Conservative government, I think less emphasis was placed upon family courts and more emphasis on superior courts in general. I think that shift would be, as you have indicated, in policy. I remember Minister Nicholson not being opposed to the unified family court.
I emphasize that the most vulnerable members of our society right now are women and children in terms of our criminal justice system as victims of crime and in the family law system. Oftentimes, the husband has the capacity to hire the private lawyer, and the women and children are left out in the cold in terms of trying to access legal aid resources and go through what can be a cumbersome system.
I take the senator's comments into context, but in the last four years at the federal-provincial-territorial meetings, the number-one issue has been civil legal aid. The federal government takes the position that civil legal aid is not a responsibility other than through the budget process and monies provided to the province.
Then, when we go to family court, Family Justice Services will even the playing field. It will ensure that women, children and men are given equal opportunity. How often do we see the situation where a woman is 40 years old, has two children and has been at home raising her children, or she has been away from the workforce, or she is working full time and raising her children? It is an unfair playing field. The husband has the advantage.
We are trying to eliminate that situation. I am not saying this for political gain. It is what I see on the ground. We must protect the most vulnerable, and we are not doing that. That is where Family Justice Services plays an important role.
Senator Andreychuk: You made the statement that you seem to have enough resources. You said you have caseworkers, et cetera. Why are you not expanding, not what we call civil legal aid but those resources that need upfront the preventable services within the provincial jurisdiction? By the time they reach the court, it is almost too late; we are salvaging then. We should do a lot of work upfront. Are you helping families there? If you want to work at family problems, you do not wait until family court. You must reach them far before that. You have the resources. Are you planning anything?
Mr. Kennedy: I will give you examples from this year's budget. Again, we must look at geography. In Labrador West — Wabush and Churchill Falls area — they have been without a court and a legal aid lawyer for a couple of years. We brought in a legal aid worker and opened up the court. When I met with the women's group there, they did not have access to legal services.
We expanded the child, youth and family services into western Newfoundland in terms of access, trying to help people to obtain legal aid, social workers and access to the courts.
We are starting a pilot project of domestic violence court this year in St. John's. All the women's groups are supportive. We are looking at root cause of criminal activity and we are trying to bring the family unit together by offering counselling, not only to the offender but to the wife and children.
We are taking a lot of steps. We are told by Justice LeBlanc and Justice Green that, as a province, we are trying to increase the capacity. However, the province is growing so quickly that the main concern is having the judges to hear the cases. It is not a matter of the incidental costs of providing an office, a desk or clerical staff. Last week, for example, we provided two or three workers a full-time lawyer and a family justice administrator, and we brought them from the justice department.
We are looking at all those issues, at the root causes of not only crime but family breakdowns and relationships. We are trying to support the Family Justice Services project, but it needs the infusion of federal money.
Senator Andreychuk: It is preventive service I was trying to get at, not the justice service.
Mr. Kennedy: In terms of counsellors, psychologists and mediators, that is exactly what Family Justice Services is trying to do.
The Chair: I have one last question. When we talked about judicial appointments at the provincial level, you said that you have to appoint someone who has made the highly recommended list. When you said ``I have to,'' does that mean that it is solidly established practice, or is there a rule or a written commitment somewhere that binds you to pick from the highly recommended list?
Mr. Kennedy: I misspoke. The person has to be recommended. They can be either from the highly recommended or the recommended list. They must be on the list.
The Chair: What obliges you to pick from a list?
Mr. Kennedy: I brought a couple of amendments into the provincial court Judges Act last week and I am trying to remember. I do not think there is anything in the act, senator, but I know that it is accepted practice. Senator Joyal's point is that maybe that practice should be in statute.
The Chair: That is what I was driving at: Is it in statute?
Senator Joyal: As a supplementary question to Senator Andreychuk's, with great respect: In the Ontario statute, the minister must appoint a highly recommended or recommended candidate. If the minister does not appoint the person, the minister must provide, in writing, the reasons why the minister should not appoint one of the highly recommended candidates.
The Chair: This is not the system in Newfoundland and Labrador, but if, upon reflection or upon checking the contents of your briefcase — your overloaded briefcase, I am sure — you find something that is written down in some form that obliges you to do that, will you write to us and let us know?
Mr. Kennedy: I will look at what Senator Joyal said.
The Chair: I am asking about your jurisdiction.
Mr. Kennedy: There is an unwritten rule in our jurisdiction. One thing that we, as a government, now strive for is gender equity. Unfortunately, our provincial court does not have the gender equity that we should have. If there are four appointments to the provincial court in Newfoundland and Labrador next year, two of them, for example, will be women.
Senator Andreychuk: How about four?
Mr. Kennedy: I am open to that, senator.
The Chair: At least two.
Mr. Kennedy: Yes: That is where we are going as a society. That is not written anywhere either, but it is something we must do and something that we, as a government, are committed to.
The Chair: Mr. Minister, the discussion has been lively and interesting. We are grateful to you. Thank you very much indeed.
Mr. Kennedy: Thank you. I am sorry if I strayed at times.
The Chair: Colleagues, our next meeting will be tomorrow morning, in this room, at 10:45. I want to hammer that point home.
The committee adjourned.