Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 19 - Evidence for May 29, 2008
OTTAWA, Thursday, May 29, 2008
The Standing Senate Committee on Legal and Constitutional Affairs met today at 10:47 to examine Bill C-31, An
Act to amend the Judges Act.
Senator Joan Fraser (Chair) in the chair.
The Chair: Good morning everyone, welcome to the Standing Senate Committee on Legal and Constitutional
Affairs. We are continuing our study of Bill C-31, An Act to amend the Judges Act.
Today, we have the great pleasure of welcoming as our first witness the honourable Thomas J. Burke, Attorney
General and Minister of Justice and Consumer Affairs for the Government of New Brunswick. Thank you for
accepting our invitation.
We are very glad to welcome you, Mr. Minister. As I expect is the practice in New Brunswick as well as in Ottawa,
we will ask you to make an opening statement and then we will have questions.
Mr. Burke has with him Ms. Anne McKay, Director of Program Support Services, Court Services Division, and Ms.
Debbie Hackett, Director of Policy and Planning, both from New Brunswick's Department of Justice and Consumer
Hon. Thomas J. Burke, M.L.A., Attorney General and Minister of Justice and Consumer Affairs, Government of New
Brunswick: I would like to thank you for extending the invitation to myself and to members of my staff to come to this
beautiful city and to present our case in support of Bill C-31. You will note that we had submitted a written submission
for your consideration with respect to this bill. My opening remarks will not be a regurgitation of that submission but
will talk about the generalities of what is happening in New Brunswick with respect to the family law system.
Thank you for the opportunity to speak on Bill C-31. The appointment of additional judges, of course, is an
important component of an overall strategy to improve access to family justice in New Brunswick. I am pleased that
the federal Minister of Justice has listened to our concerns and has introduced this legislation to increase the
complement of Superior Court judges.
It is my belief that improving access to family justice is a shared responsibility between the federal government and
the Province of New Brunswick. We have a long history of working in partnership with the federal government to do
just that. The unified family court in New Brunswick is an example of that type of partnership. It had its origins in
1979, when the province collaborated with the Government of Canada to establish a demonstration project in
Fredericton. The unified family court model was established at the Superior Court level and consolidated federal and
provincial jurisdictions in family law in response to a recommendation by the Law Reform Commission of Canada in
In 1983, the province became the first Canadian jurisdiction to opt out for province-wide implementation. Today,
New Brunswick is one of four jurisdictions to have a unified family court system.
While the unified family court system saw success in streamlining the process for parties with different types of
family court issues, the realities facing the system have changed dramatically since 1983. This is not unique to New
Brunswick. The challenges facing the family court system across Canada have been well described by members of the
Senate on second reading of this bill and in the House of Commons.
There have been changes to federal and provincial family legislation, domestic legal aid, support enforcement and
court social worker services. The number of self-represented litigants has increased and cases are taking longer to
complete. New Brunswick has witnessed significant increases in filing activity and court delays in recent years, while
the complement of justices at the Court of Queen's Bench family division of eight justices has not increased since 1985.
Families now have to wait upwards of six months for the hearing of a motion for interim relief, and nine months can
often pass before a one-day hearing can be scheduled. In my opinion, this is simply unacceptable. These time frames
fall short of the three-month standard recommended by the Canadian Judicial Council.
Having practiced family law myself, I can say with certainty that every family case is urgent, and postponing
appearances has a serious impact upon children and other family members. New Brunswick has not stood idly by in
waiting for new appointments. I am pleased to share with the committee the details of provincial initiatives that have
already been implemented, as well as those that are already well on the way.
Over 10 years ago, the Chief Justice of the Court of Queen's Bench of New Brunswick suspended judicial study
leaves, denied requests for scheduling writing weeks, encouraged more aggressive scheduling practices and established
mandatory settlement conferences in an effort to deal with the backlogs. In addition, court social worker services are
provided free of charge in an effort to reduce the issues for a court to decide.
A child support variation service has been piloted, and the results are extremely encouraging. New Brunswick has
also committed to transforming its child protection service delivery model. Over time, child protection mediation
services should reduce the number of cases that proceed to court.
Most recently, our province made a significant investment to revitalize its support enforcement program through
strict administrative enforcement tools, including the loss of a driver's licence for those who are significantly behind on
their court-ordered family and child support payments. I am personally committed to taking further action to increase
access to family justice in New Brunswick, and so is my premier, as he stated in the 2007 Speech from the Throne.
In early 2008, I appointed a task force on access to family justice, headed by a senior judge, to examine options and
make recommendations that will lead to more timely access to justice, expanded use of alternatives to family court and
increased access to legal information and legal assistance in family matters.
While the task force is exploring several options to improve access, it remains convinced that the three additional
appointments are critical in the overall plan to provide families with better access in the resolution of family court
matters. All of these initiatives, together with the proposed three new judicial positions, are part of an overall strategy
to reform the family court system to meet today's societal demands and pressures.
However, as I am sure you can all appreciate, fundamental reform of a system is deeply embedded in history and is
important to people, as the justice system is never quick, easy or without cost implications. As I have stated publicly on
several occasions, New Brunswick welcomes the appointment of new judges as part of this strategy.
I would, however, like committee members to appreciate that when a province accepts additional justice positions, it
must also make a significant long-term financial investment to provide the necessary infrastructure. In New Brunswick,
we often need to renovate or rent existing facilities to accommodate additional courtrooms, judges' chambers and
other offices. The province must also create additional staff positions so that justices are provided with the support
they need. Again, the cost of providing that infrastructure is considerable, but we are firmly committed to improving
access to justice.
Earlier this month, on May 21, I tabled a bill in the Legislative Assembly of New Brunswick to accommodate an
increase in the complement of the Court of Queen's Bench family division. Once the amendments to the Judges Act are
in force, the corresponding legislative requirements will have been satisfied at the provincial level.
As I stated earlier, New Brunswick has a long history of innovation and leadership on issues related to the judicial
system. As a former practicing lawyer and now Minister of Justice and Consumer Affairs and Attorney General, I
firmly believe that families are better served by a holistic approach to the resolution of family law issues, the provision
of family justice services and the cultivation of judicial experience in the family law area. We want to ensure that family
issues are resolved quickly. We want to be able to attract judicial candidates who have a strong commitment to family
law and experience in that particular area. We want to ensure access to services, both in terms of geographic access and
diversity. It is for that reason that New Brunswick encourages the appointment of judges who can function well in both
English and French, and believes that serious consideration should be given to the appointment of a justice who is
competent in our Aboriginal languages to reflect the cultural diversity of our province's population.
In closing, I would like to thank the Standing Senate Committee on Legal and Constitutional Affairs for the
opportunity to make this submission. In summary, we support Bill C-31 and urge the Senate to also show its support
for the bill. Additional justices for New Brunswick are a key component of my government's plan to increase family
justice. I would be pleased to address any questions that committee members may have.
The Chair: Colleagues, I should warn you that the minister, unfortunately, has to catch a plane, which means he will
be out of here in precisely half an hour. We will all govern ourselves accordingly.
Senator Andreychuk: Thank you for appearing today and thank you for your presentation. I must say it is very
reassuring. Having practiced in family law myself and having operated a provincial-level experiment on family court in
Saskatchewan, you have given me a lot of hope that we are on the right track. You have used the term ``holistic
approach.'' You have talked about dealing with all the issues. I particularly commend you for referring to the fact that
the judges themselves helped diminish the backlog by curtailing their leaves and putting the families first. I was
impressed that you spoke of that in your statement.
You commented about the reinforcing services, which is important. Not only should the court function well, but we
should look at preventive measures and assistance much earlier. I commend all of those in the province who have paid
that much attention to the court.
You have covered my concerns. You are making your case well.
I want to ask about specialization in the court. In the legal community there is sometimes a fear that an opening in
family court is used as a way of getting on the Court of Queen's Bench. How do we ensure that those who work in
family court are dedicated to continue there and do not seek to transfer out? I appreciate that transferring to another
division is fine.
It is my experience that those who care about family law and end up as judges understand all the dimensions beyond
the pure law and serve the public well.
How can we ensure that they have a lifelong commitment to that field?
Mr. Burke: In my experience, the family law system is a dynamic area of law. The law is constantly changing. What
is law one day may not necessarily be law the next day unless, of course, it is statute law. Justices throughout the
country are always making decisions and interpreting them differently. It is an evolving area.
It is my understanding that when a justice is appointed by the federal government, that justice is appointed by the
order-in-council and then is sent to the province and the chief justice designates where that individual will sit.
I can only hope, should the federal government see fit to provide three additional justices to the family court, that
those individuals have experience in that area of law. I understand that it is very difficult when justices with no
background in family law are appointed to the very dynamic family law system.
An experienced corporate lawyer appointed to the bench in the family division would take some time to get used to
the area. It is paper heavy and case law, statute and fact driven. No two family law cases are the same.
One way to deal with this is to ensure that new justices have the requisite experience and knowledge so they do not
require a great amount of time to catch up.
Senator Baker: Welcome, Mr. Minister. We heard some nice words about you from the Minister of Justice from
Newfoundland yesterday when he appeared before this committee.
I have a basic question. The Law Society of New Brunswick sent a letter to this committee asking us to pass this bill,
as you have suggested we do. I believe that the president, Maria Henheffer, was counsel before the Supreme Court of
Canada last year when you won your case for minority rights across this country. Congratulations on that terrific win.
You did a marvellous job.
I will not congratulate you on this next point. The president of the Law Society of New Brunswick said that the
Department of Justice, your department, in 2004 recommended the addition of five justices to the family division. We
have here the possibility of only three. Your predecessor in 2005 appeared before the House of Commons committee
on Bill C-51 and suggested that the bill be split to ``move expeditiously on the increased number of family court
appointments, something the province has been seeking for the past six years.''
The Canadian Bar Association backed up that demand for the additional justices in the family court division.
However, not only are you not getting five, which you need, but you are not even getting those that you are getting
under the section of the act that deals with the family court. You are getting them under a section that deals with
appointments of puisne justices.
You are getting only three of the five you demanded. If this had been under section 24(4), these justices would have
had to have been assigned to family court in the pool. It is not. It is under the superior court section of the act, which
provides for a pool over and above what you are granted by section 22 of the Judges Act.
Would you not say you are being short-changed? Should you not be assigned five? Why should we not be approving
100 justices for the pool? Then the government could draw on them when the provinces were willing to pay the costs
for the facility of those justices.
Mr. Burke: You ask tougher questions than some of the Supreme Court of Canada justices. I welcome your
The Government of New Brunswick believes that the appointment of three additional justices to the family court is
appropriate according to the family law task force I recently appointed.
I have full confidence in the capabilities of the family law task force led by the Honourable Justice Raymond
Guérette, who sat as a family law justice in New Brunswick for close to 30 years.
Justice Guérette's mandate is to recommend the best reforms possible to ensure that we have one of the best family
law systems in the country. The objective is to eliminate the backlog in order that it will not take nine months before
interim motion hearings are held and in order to alleviate our concerns about child protection hearings.
At this point in time, we feel three are appropriate. I am looking forward to the recommendations of Justice
Guérette, which our government is committed to implementing. I think the three additional justices, combined with the
family law task force reports and the implementation of those recommendations from Justice Guérette that we will be
well on our way to having one of the best systems.
As much as I would like to say we could have 25 or 100 new justices, we come from a province that does not have a
very large budget. With each additional justice appointed comes a significant cost to our provincial budget.
The province is looking forward to the year 2026 where we can be self-sufficient. We need to be restrained in our
spending at this point in time.
Three are fine for now, Senator Baker, and perhaps down the line 25 to 100 will be better.
Senator Milne: Minister, when you sat down to write this, you indicated that of these three justices that you can
afford and that you need, you will assign one to northern New Brunswick. Is that because of the distribution of the
population in the province or the different sizes of the court load?
Mr. Burke: Much of the assignment of the justices deals with the caseload in particular regions. While I do not
pretend to have these numbers memorized, I can point out that Miramichi-Bathurst and Campbellton have seen a
significant increase in the last ten years on average. If we look at the northern part of New Brunswick, going back to
1997 for Bathurst we see an increase as high as almost 280 in child protection cases alone being heard. We see an
increase in the Miramichi that has fluctuated from 491 cases to approximately 638 cases.
New Brunswick is really a rural province. We see a proliferation of these cases in concentrated areas due to the
distribution of the population throughout the province. We also must consider the split between francophone justices
available to hear cases and anglophone justices available to hear cases.
As well, we also have a disproportionately high number of cases per justice compared to our counterparts in Nova
Scotia and as far as Winnipeg. I believe each justice of the Court of Queen's Bench carries an average load of 700 cases
Senator Milne: You say you would like to have one of these justices proficient in several Aboriginal languages. How
can you establish criteria that they will be or that they will be proficient in New Brunswick's Aboriginal languages?
Mr. Burke: Given that I was the first Aboriginal person ever elected to a legislative assembly, and I believe the only
First Nations Attorney General in modern times, I may have a particular insight on that.
We have two specific Aboriginal languages in New Brunswick, Mi'kmaq and Maliseet. Unfortunately, we are losing
the Maliseet language. However, the Mi'kmaq language is surviving strongly.
I think that is based on the location of the First Nations communities. Mi'kmaq residents are more inland as
opposed to the Maliseet communities, from which I come, that are closer to urban centres.
The awkward thing is that there are not a lot of First Nations lawyers practicing in the province. Needless to say,
there are not a lot throughout the country. There are only five practicing in the Province of New Brunswick and,
perhaps, only one that might be eligible to be appointed to the bench. There is a ten-year requirement before
appointment to the bench.
What needs to be addressed first is the way that First Nations people enter the legal system by getting into law
school. I know that some of the law schools throughout the country have generated particular programs to assist First
Nations people getting into law school.
In Nova Scotia, they created a program called the Indigenous, Black and Mi'kmaq Initiative that was a response to
the Donald Marshall inquiry.
There are particular equity programs that exist at the University of New Brunswick. Some students from New
Brunswick participate in the Saskatchewan law program and then move on from that program to various law schools.
After graduation is the troubling part because finding articling experience is not an easy thing for some First
Nations people. In New Brunswick, First Nations people are dispersed throughout the province. Getting to a
university and spending three years there away from your home is very difficult for First Nations people, particularly if
they are close to their family.
Finding the year of articling experience and working in a system that they are not accustomed to in terms of their
culture, language and identification is not easy. Then moving on and becoming an associate where you are worked to
near death is also a difficult experience.
Making it over that hump is a monumental step. You are able to join the ranks of your peers across the country and
hold your head high to say that you are a member of the legal profession and eligible to become a justice.
I am trying to think very hard here. I do not believe there has ever been a member of a First Nations community
appointed to the Court of Queen's Bench's level in the Atlantic region. I know there has not been in New Brunswick.
The only Aboriginal judge that has been appointed to the bench in New Brunswick is Judge Graydon Nicholas of the
Provincial Court. I am hard-pressed to say that ever one has been appointed in Nova Scotia or P.E.I.
Senator Milne: I understand you have even been losing bilingual judges and they have been replaced by unilingual
English-speaking judges in New Brunswick.
Mr. Burke: I am not certain of that, but I know there is a requirement and a push to have more bilingual judges in
the province because of our official status as a bilingual province.
Senator Joyal: I would like to comment on two issues. First is the determination of the number of judges that should
be appointed in any province. What are the criteria to come to the conclusions that the needs are there?
Second is about the appointment process. You have referred in your brief on page 7, and I quote:
We want to be able to attract judicial candidates who have a strong commitment to family law.
Let us go back to the first question. My first question is in relation to the letter that the Law Society of New
Brunswick addressed to us on May 27 that Senator Baker quoted. I do not know if you have a copy of the letter.
Mr. Burke: Unfortunately, we do not.
Senator Joyal: The clerk will give it to you. It is the second paragraph on the first page:
For several years, members of the Law Society of New Brunswick who appear regularly before the Court of
Queen's Bench, Family Division have been advising both the Provincial and Federal Governments of the extreme
back log that has been building in that Court.
Studies completed by the Provincial Department of Justice in 2004 recommended the addition of five Justices
to the Family Division in New Brunswick. Bill C-31 is expected to provide three additional appointments for
My preoccupation, Mr. Minister, is the following: The right to be judged in a reasonable period of time is found
under section 11 of the Charter of Rights and Freedoms. If that right is to be implemented for all Canadians across the
country on a similar basis with the same measure of justice, the justices must be available in time. The perception I have
is that the province has expressed its needs for five justices. You have three. You are happy with three, which is a
minimum. However, I am concerned that some New Brunswick citizens will not be heard in court within an
appropriate time. If we are to give to any Canadian, wherever he or she lives, similar access to the justice system, then
there should be a series of objective criteria. Once they are in place and measured through analysis, then the judge
should be automatically appointed.
I do not like what I heard you say: That the delay is nine months while the Canadian judicial council recommended
six months. You mentioned that each judge has, and I quote, ``a disproportionately high number of cases in
comparison to other provinces.''
The justice system cannot be different from one province to another. Access to justice in a country like Canada
should be similar across the board. I tried to wrestle with ways to approach that reasonably and in a non-partisan way
so that it does not come down to a backroom negotiation between two ministers, one provincial or territorial and one
federal. Canadians should be satisfied that they will have their judge according to objective criteria.
Do you not think that would be a fair way for you to approach the provincial-territorial Attorney Generals' annual
meeting so that as a group you come forward with criteria that would help to develop a system that would be much
more objective and much less subjected to the whim of the government of the day or the party in power of the day?
Mr. Burke: Thank you for the question, senator. We have an inordinate amount of filings per judge per year — 752
was the number indicated — compared to the work load in Nova Scotia's filing activity of about 444 per judge and
Manitoba's at about 557 per judge. We are looking at provinces with the same approximation of residents within their
borders. Three justices combined with the initiatives that our government is taking I believe will be satisfactory for the
time being. I say that because of the new child protection reforms that our government is committed to and is
initiating. In New Brunswick, a large amount of the time spent per judge in family court is dealing with child protection
Child protection cases before each justice can take up lots of time, lead to many adjournments and cause delays,
resulting in a backlog in our system.
I am not sure if every senator here had an opportunity to look at our brief, which touches upon the child protection
Senator Joyal: Yes, we have it.
Mr. Burke: We are moving toward what we consider to be a unique model in the province whereby there will be a
mediation program with family conferencing. The extended family comes together in that holistic approach where they
will have an opportunity to consider what is best for the child and how the child can stay within the family. Although
these measures may not seem particularly significant, they will have a significant impact on the delays that we currently
experience in the province.
Having said that, I believe that the child protection reforms combined with the family law task force
recommendations when they are implemented, will put us in a position to have a smooth-running, efficient family
law system that will allow us to hold our heads up high and say is one of the best in the country.
Senator Joyal: My second question is in relation to the judicial appointment. You stated that you want to be able to
attract judicial candidates who have a strong commitment to family law. The three justices that you will get will be
appointed under section 24(3)(b), which applies to general justices. If they were appointed under unified family courts,
under section 24(4) of the act, the justices' terms of reference would be dealing with family matters. The judicial
appointment committees that will have to select those candidates will select them based on the general appreciation of
their competence in law. They will not be appointed under 24(4), family law.
I am not sure that your objective to have judicial candidates with strong family law will make it through the
Senator Milne: — or Aboriginal language.
Senator Joyal: Yes, or Aboriginal language. That is why I totally share your concern of having justices well trained
in family law but because they will be appointed under section 24(3)(b) of the act, there is no certainty that you will
have justices that you want. Even the Chief Justice, who is a member of the appointment committee, has lost his voting
right following the reform that the government introduced recently.
Senator Baker: That is right.
Senator Joyal: You might have to rethink how you will be able to manage those justices in the context of your
Mr. Burke: That is an excellent question. I hope we have an excellent answer, and I think we do. The answer is
within New Brunswick and his name is Chief Justice David Smith, who is the Chief Justice of the Court of Queen's
Bench for New Brunswick. He is committed to this process of family law reform and to ensuring that the justices that
come to New Brunswick are put in areas for which they have the necessary experience. The justices that may be in
particular areas that could be in the family law system serve our system well by sitting in those particular divisions.
Senator Merchant: I am from Saskatchewan. You might be aware that 15 per cent of the First Nations people in
Canada live in Saskatchewan. When we talk about access to justice, one of the problems is the cost of litigation, which
is going up all the time. I am not sure that getting more judges will help with that. However, is it fair to say that at times
the judges create some of these problems?
It seems that there are more and more forms to fill out all the time. Streamlining the system can seem to be to the
detriment of the litigant. You speak about delivering justice and we have such a population who are poor. Can you
provide us with some kind of solution?
Mr. Burke: I am glad you gave me the opportunity to answer that question, senator. Two important issues arise
from it. First, is access to justice and the cost of litigation. In New Brunswick and in many other jurisdictions, our
colleagues have been calling upon the federal government to provide a designated revenue fund for family legal aid.
Our province receives zero targeted designated funds for family legal aid. The federal government says that is in
your social transfers and basically you take that money out of there to deal with your legal aid, but doing this affects
our other social programs.
We have called on the federal Minister of Justice for a specific fund provided to each particular province that allows
for the provinces to have an actual pot of money to provide for domestic legal aid. That has been met with some
``unsuccess,'' I should say.
For some particular reason, the federal Department of Justice says that is not our problem, that is the federal
Minister of Finance's problem and you need to go back and speak to your Minister of Finance and he will lobby our
Minister of Finance. However, when that takes place, the federal Minister of Finance tells our provincial Minister of
Finance that belongs to Justice. We seesaw back and forth.
Until that particular issue is resolved, we are going to have an increase in problems, particularly for women and
children, to receive access to justice. Domestic legal aid, in my opinion, really is a huge problem for women and
children. A federal government, whichever federal government it may be, needs to address that particular issue by
providing a designated revenue fund to the provinces to assist each province with domestic legal aid.
The second particular issue is streamlining the process, and whether justices are a part of the problem. I think that
would depend on whatever particular jurisdiction you reside in.
Our task force chair, Justice Guérette, has had an opportunity to visit as far as Australia to look at various delivery
service models. He often quotes the fact that in Ontario, on motions day, justices there can do 20 motions in one
particular day; but in New Brunswick, we are not doing 20 motions a day. We are doing maybe a couple of motions a
month. Those are his words, not mine. I would just ask that the committee draw its own conclusions from that.
The Chair: Thank you very much indeed. We are very grateful to you for having come all this way to help us.
Mr. Burke: It is my pleasure.
The Chair: Our next witness will be Mr. Alfred A. Mamo, Principal, Alfred A. Mamo & Associates, and I warn you
that he too will have a plane to catch, so he will have to be out of here in very short order.
Senator Baker: I wonder, madam chair, in the meantime if you might turn your mind to a question that will come up
later on in these proceedings. Would an increase in the pool actually be an increase in expenditure for the government
under this bill?
In other words, the pool, being described as the minister described it, is simply a pool of numbers that are only
called upon when the minister and the province have the funds available to use somebody in the pool. If the pool were
increased, would that actually be an expenditure of money by the Crown?
The Chair: We shall take this as an excellent question to be investigated by our expert researcher from the Library of
Senator Andreychuk: Do you want to be Prime Minister?
Senator Joyal: I think the decision of the Speaker in relation to the bill that was introduced in relation to the
Aboriginal assembly should be looked into by the legal adviser of the committee.
The Chair: First, let us find out the answer to Senator Baker's first question, and then we, as a committee, can take a
number of things into consideration.
In the meantime, we have a witness. Welcome and we will do our level best to let you catch your plane on time. I
believe you do have an opening statement.
Alfred A. Mamo, Principal, Alfred A. Mamo & Associates, as an individual: I am grateful for the opportunity to
address the committee on the issues raised by Bill C-31 to amend the Judges Act. Very briefly, in terms of background,
I practice family law in London, Ontario. I have done so for 36 years and I will not bore you with my CV.
I have a special interest in this area. Three years ago, I was appointed by the Attorney General to head a team in
Ontario to evaluate the family courts in Ontario. That report was submitted last May before the Attorney General and
is available through the Attorney General's office.
One of the issues that we were asked to look at is complement of judges. It is quite timely. That was among many
other issues in terms of the efficiency of the family court. In doing so, we went around Ontario and interviewed many,
many people — lawyers, judges and those who work in the system.
I have three points that I want to make to the committee. I will speak briefly to each of them and then will be
pleased to answer any questions you might have.
One is the obvious point, which is that the proposed increase in the complement of judges will not begin to satisfy
Ontario's needs in the family court system.
Second, the current system of determining judicial complement is simply conducive to pitting different provinces
against each other. It is not conducive to a principled approach to a system that actually can provide justice evenly
Third is the issue that family law just does not seem to be a priority with the federal government. There is a tendency
to look at the delivery of service in family law as being a private matter, as opposed to a public issue, a position with
which I strongly disagree.
If I can enlarge on that, the public court system, as a way to resolve family law disputes, is not simply a way for a
consumer to go in and get their issues resolved. The system is an integral part of democracy and the rights of every
citizen to impose Charter values on the resolution of family law disputes.
As we tragically saw yesterday in Calgary, family relations can be fraught with emotions. We have to implement a
system that gives recognition to the importance of the resolution of family law matters in a timely fashion with
meaningful access to justice, which now we do not have in Ontario.
Sadly, as you have heard from the minister from New Brunswick, many decisions are made on financial issues. I did
not get to be over 60 years old without knowing that money is always a factor. However, you cannot use a business
approach, a bottom-line approach, to delivery of justice.
Justice is a value that is simply too important in our society to say: Well, you know, if we get more judges, then we
need to have more courtrooms and we need to have more clerks. I appreciate that there is a cost to the province in
appointing more judges and not just to the federal government; but the reality is that without that we have, not to
overstate it, anarchy at some level.
What keeps us a civilized society, what keeps the value systems that we have is how do we deal with families? How
do we deal with those children who are in need of protection and are in foster homes? How do we deal with custody
cases? What opportunities do we give to a woman to go to court in a timely fashion in order to be able to get relief or
custody in temporary support issues?
We need to take seriously the institution of justice as part of democracy. That is the one point.
To go back to my second point: The issue with respect to the determination. I suggest it is unseemly that a number
of judges is simply put forth. In this case, we say we will increase the complement by 20 and we know that six will be
designated to deal with native matters, which I think is an excellent idea.
However, where does the 20 come from? As the senator referred to earlier, we need to have a principled approach to
determining the number of judges necessary to deliver a certain level of justice.
The first line is for us to have a dialogue about what time line is acceptable between an application starting and
having the first motion; what time line is acceptable in terms of having a trial, if the trial will be the ultimate result?
After we do that, then we can start looking at different issues. I appreciate that the determination of complement is not
a simple matter. It is not about determination of applications. It is about population and the nature of applications; it
is about many things. However, we need a principled approach as to how to deal with that.
If we make it a principle in our society that that is the value we hold — that, within a certain time frame, you do get
the opportunity to go before a judge on a motion and you do have a trial — it seems to me that we cannot then say that
even though that is the value what we hold to be precious, we cannot afford it. Then you have a dialogue as to whether
justice will be driven by money and to what degree does money enter into the equation. We need a principled approach.
Currently, we effectively have the Minister of Justice and the Chief Justices of the province simply thrown into the
middle of a room, 14 people, and then say, ``Let us fight among us as to which province needs it the most.'' People will
start talking about this, that and the other thing.
This is happening at a micro level everyday with every senior justice in Ontario, as well. Due to the lack of judicial
resources, a decision must be made. We have someone in jail who needs to have a trial and we have a child in a foster
home for whom a determination is required as to what will happen with that child. We have a custody case and we
have a quadriplegic suing for personal damages. However, we only have one judge. The regional senior justices
everyday make decisions as to which cases will go ahead. I do not think that is a fair system in which we in Canada
should operate. We cannot pit one person against another.
In the unified family court in Ottawa, there are four judges. There is consensus that there should be at least eight
judges doing that work. Just in Ottawa, you need at least four family court judges to do the work. At a minimum,
increase the complement by four and the Chief Justice, as was pointed out, can take this increase to the pool. It is not in
the family court pool but in the general pool.
The Chief Justice has made it clear that this is a priority and she will put into the family court the judges that are
needed. The reality is that, because of the need in family law, judges were being put into the family law cases. Then the
civil bar said, ``Enough is enough. Our backlog is increasing because you are putting these judges into the family
court.'' The criminal bar started complaining that their needs were not being met. This has happened in Ottawa — you
can talk to your colleagues on the bench and the bar.
This is the kind of system we have created as a result of lack of judicial resources. We have to ask ourselves if that is
acceptable. My answer to that is ``no.''
We need to have a determination of complement. There is no doubt the amount proposed will not be sufficient. By
my calculation, we need 14 judges in the family court sites alone. In the 17 unified family court sites in Ontario, we need
14 new judges in order to meet a reasonable delivery of service: to be able to have a case conference.
I am also on the Ontario Family Rules Committee. We instituted a method of having a case conference before
bringing a motion. The idea of a case conference is for the family to meet with a judge early in the case and for the
judge to help resolve cases, narrow issues and defuse matters before the affidavits start flying. Affidavits tend to
polarize people because everyone talks about the worst things that happened during their marriage.
I think it is a very good system, if you have the judicial resources to back it up. What is happening, however, in
many jurisdictions is that you have to wait one to five months in some places to get a case conference. Therefore, the
family sits until the case conference. You cannot bring a motion until your case conference has been heard. Then you
wait another one to five months to bring a motion. Six to eight months have gone by before you bring your motion.
Then you bring your motion.
I was talking to someone the other day. In Newmarket, they had to go three times before their motion was heard.
On the first day, they did not get reached. It was adjourned to another second day. They did not get reached again.
They went to the third day and the judge said, ``You have been here three times. We will put you to the top of the list,''
which, of course, pushes someone else at the bottom of the list to another day.
That is what I mean when I say it is simply not enough. This is just addressing the family law needs, never mind the
needs of other litigants in the civil, criminal and the non-family court sites.
My message is: It is not reasonable to say that something is better than nothing. In other words, it is not an answer
to say, ``You will not have your 14 judges but Ontario may get six or seven. Something is better than nothing.'' I do not
know what the number is, but those numbers have been bandied about.
Well, something is not better than nothing. It is not about whether a piece of a pie is this big or that big. The system
of justice should not depend on some people receiving half justice. Decreasing the backlog by a little bit does not mean
we are creating an acceptable justice system.
We have to have a justice system commensurate with our Charter values and not one driven by saying, ``You have to
make do.'' I do not think compromises are the way to run an institution such as the administration of justice.
We need to have a dialogue about the whole issue of the delivery of service: What is acceptable and how to
determine judicial complement. Then we should implement a system that is beyond the Chief Justice of the day; one
that is beyond the provincial or federal government of the day. The institution of justice is bigger than any of those
holding office at any particular point in time.
The Chair: Colleagues, we undertook to liberate Mr. Mamo at 12:15 p.m. If you would all bear that in mind, we will
begin with questions.
Senator Andreychuk: I will keep that in mind. As I hear your submission, I find it curious. You are saying the
democratic system is not working. We have elected people to administer our justice system, to implement and legislate
our laws, and you are simply saying their negotiation and responsibilities are not good enough. I thought the safeguard
was the Charter, when in fact it is not. The election system is another safeguard.
I find it rather curious that you would say that compromises are not the way to implement a system. Compromises
are value judgments that people make as to what is necessary within the system and within the means, weighing all of
the other responsibilities and issues facing a country. We have the justice system, we have the medical system, and I can
go on with a whole list, but the chair will cut me off.
I will take your point, but I would question whether what you are saying is a fair assessment. Would it not be better
to say that perhaps the system that is creating the backlogs, et cetera, is not the system that we should have in place?
There are other ways to approach family issues and family disputes than the present system. Waiting until you get to a
court to determine whether you have a conference for mediation, et cetera, was good because it tried to stop full-blown
court cases. However, more and more people are saying that we should be assisting families long before they ever think
about or see a court, if we are to help children. That means we should go back to look at primary services long before
people have to reach to a justice system.
I could agree with you if you were saying there should be a whole re-evaluation of how we approach families and,
therefore, family law. You seem to be saying that we have the system, it is backlogged, and therefore let us address
those systems in a more principled way. With respect, I think that once we have a system, the people who are
responsible for it should be trusted. If not, there are checks and balances. Do I make myself clear?
Mr. Mamo: Yes. The report we filed with the Attorney General asked for a comprehensive review of the delivery of
family law in Ontario. Let me make it very clear: I have, for many years, been on the forefront of what used to be called
alternative dispute resolution, which I have now renamed appropriate dispute resolution, because most of it should not
be an alternative to the justice system but part of a menu, of a continuum. I agree that we should not be looking at the
trial process as the way to resolve family law disputes. When I speak, I am taking all that into consideration.
For example, in 1995, when the expansion of the family court took place in Ontario, mediation services were
attached to the court. It was thought then that having those mediation services would free up judges because many
cases would be resolved by mediation. That did not happen. What ended up happening is that mediation services ended
up dealing with cases that were not actually in court. If those cases had gone to court, mind you, it would have put a
significantly higher stress on the system. They did not take cases out of the court system.
I am taking into consideration those other ways of resolving issues when I speak about the numbers. There is danger
in emphasizing dispute resolution methods outside the public system. In our report, we talk about a measurement of
conflict. You measure the amount of conflict between the protagonists, and then you institute a case management
system that will fit the level of conflict. If there is a low level of conflict, those people are susceptible to mediation and
primary services that can assist in resolving their dispute. When you have a high level of conflict, when people are
entrenched in a custody fight and cannot talk, those people need the formal authority of the court. The court can deal
with them in maybe some different methods than we have in the past. I am not saying we should simply be coercive.
However, we cannot leave it up to some private system to deal with those cases. Those are the most volatile cases.
Those are the cases, if you read the annual report issued by the committee chaired by the coroner of deaths in domestic
violence cases, that have all had some contact with the justice system where everyone said, ``It is not my problem; it is
someone else's problem.'' We cannot have those cases out of mind. They need to be in the public system, I would
submit to you.
I am all for looking at different ways of doing things, but I am saying judges should be part of doing things
differently. We need judges because judges, in the public eye, have a special place. I do a lot of private mediation
arbitration. People trust me to do arbitration for them, but that does not mean it is for everyone. People cannot rely on
paying for a judge. They need to have a public system where they can go to a judge and not have to be pushed into the
private system because they cannot get to see a judge for six months.
Senator Andreychuk: I am not talking about a private system. I am talking about alternate issues and methods
within a public system, such as health care, psychiatric services, support for families, understanding various cultures,
addressing our Aboriginal problems, et cetera. All of that goes into family issues.
Mr. Mamo: I agree. That is part of the report. The family law information centre, which is now in some of the family
court centres, should be the hub or entry into the system to be able to look at social services and other services, not just
legal services. I agree that the system needs reform, but the point I am trying to make is that no amount of reform or
efficiencies in the system will replace the need to have more judicial resources.
Senator Milne: What is the backlog in the family law court system in Ontario now, if you know that? Do you know
what the average length of time would be for a case to be resolved?
Mr. Mamo: I do not have the statistics at my fingertips. I can tell you that the County and District Presidents Law
Association has just done a study in Ontario about that. It would be beneficial to get a copy of that report. They
established, for example, that resolving a case six months from when you have a settlement conference would be a
reasonable benchmark. They found that in most cases, the trial is at least twelve months away from the settlement
conference, and the settlement conference is about six to twelve months away from the start of the application. You are
looking at a two-year span where families, in essence, are waiting for a determination.
One reason it is so difficult to deal with those statistics is that along the way, people run out of energy and money, so
they settle. You sometimes hear, ``Look at how many settlements we get. Only 6 per cent end up going to trial.''
However, the reality is that there are a lot of improvident settlements being made because of lack of access to justice. In
Ottawa, there is now a Master, which was a band aid put in by the province to assist with the lack of judges in Ottawa.
Because you could not get see a judge for a motion for months, people were settling cases, not because they received the
right amount but because getting some money is better than getting no money at all.
People have different interests. Someone is trying to get support, and someone else is saying they will not pay
support unless they get a tax deduction, which they can only get for spousal support if there is an agreement or court
order. They then make a deal saying, ``I will pay you $2,000 a month.''
Even though the right number might be $4,000, you settle for $2,000 because you cannot wait four months to get to
court. That is how the statistics get skewed, and that is why anecdotal evidence helps in determining what is happening
on the ground floor.
Senator Milne: It might be worthwhile to find out how the clerk can get a copy of that report.
Mr. Mamo: I can provide that.
Senator Joyal: Mr. Mamo, thank you for your presentation. To address your third point: based on your experience,
what practical steps would you suggest should be taken in order to streamline the evaluation of the needs and the
development of a set of criteria applicable across the provinces in Canada to come to an objective evaluation of the
needs and the capacity to fill or answer those needs in terms of judicial appointments?
Mr. Mamo: Our report addresses a number of criteria that should be used and how you go about doing it, actually.
The report is not really public, but you can get it from the Attorney General, so I have no problem releasing a copy of
The Chair: If you will provide a copy to the clerk, we would be appreciative.
Mr. Mamo: I can provide a copy to the clerk.
There is a section that deals with that very issue. Then it is a question of getting the right judicial and government
offices together to actually accomplish that. There have been studies done in the United States about how you do that,
and we can draw on those. It is a combination of different things.
For example, take population. If you are looking at Niagara, where the average age is over 50, you will have less
family law litigation than you will in a place like Oshawa/Whitby with a very young population. That is just one
criterion. There are different criteria you would use in order to arrive at an objective way of determining complement.
Another issue not often addressed is that judges get sick. They get appointed to head inquiries and royal
commissions, and when you have a system that is honed that finely and you take one judge out of the equation, it really
throws the system off. Complement should take that into consideration that those eventualities will come about.
Senator Joyal: Are you aware of a set of national averages that have been established across Canada, for instance on
the length of time a person must wait to introduce a motion, how long it will take to hurry the motion and how long a
trial will last before a conclusion is arrived at in terms of family law?
Mr. Mamo: The short answer is no, but each province keeps its own statistics. The other problem is there is no
consistency in how statistics are kept. For example, some provinces will keep statistics by number of applications. They
try to justify judicial complement based on that.
Some jurisdictions will look at the number of events heard to say whether it is a motion, but that is not quite right
because an adjournment could be an event. You can pump up the numbers by doing that. We first need a consistent
way of measuring the workload and then we need to decide what is acceptable.
Senator Joyal: Thank you.
Senator Baker: I suppose that we are dealing here with a specific type of law? As you pointed out, it may start with
an interim order of support, and then the next step is you go back to the judge for an order, and then if there is a
substantial change of circumstances, you may want to vary the order and so it goes on and on and on. The same judge
who gave the order would be assigned to the person who sought to vary the order in most circumstances. It is a
particularly complex area compared to other fairly straightforward areas of law.
I will ask you this question to which you have perhaps already suggested the answer. We are dealing with a section
of the law under the Judges Act that deals with Superior Court judges and a pool that is separate from the number of
judges who are assigned — in your case to the Province of Ontario — under sections 16 to 22. Right across the country
you have perhaps 1,000 Superior Court judges, 800 to 1,000 all together; and we are now increasing the pool by 14.
You have suggested the answer that this bill should have increased the pool in a different section of the act, which
would be section 24(4), which everyone is concerned about. New Brunswick was here today, Newfoundland yesterday,
tomorrow perhaps it will be Quebec. They are all concerned about the same thing: unified family court. This is where
they want to put the judges.
Would you agree that pool should be increased in section 24(4) to a point that satisfies the whole purpose of that
section, which was not to set a number of judges but to provide a pool that could be drawn upon without having to go
back and continually change the act? Do you agree with that? Is that your suggestion?
Mr. Mamo: Yes, I do. Interestingly enough, when I read Hansard, Mr. Moore spoke of how there is this need in the
Atlantic provinces and Ontario for family court judges and the need for families to actually have more timely access to
justice. When I read it, I thought I must have missed something and that this is in addition to a complement of family
court judges. However, it is not.
I concede that the Chief Justice can assign these judges into the family court. However, as was pointed out earlier,
with the appointment process there will not be any special attention paid to the expertise of those appointed in family
law because it is not a family law appointment.
That is an important issue to be addressed. That is why it seems to me the argument is being made for how
wonderful this is because it will help families. Yet, at the end of the day, the appointment is not about those judges
adjudicating family matters.
Senator Baker: What is your interpretation of the pool? In reading the Judges Act, where we have from sections 16
to 22 the allocations per province on the basis of salary, they are allocations; and then you come to section 24, which is
then the addition. First is the additional pool for Superior Court judges below the Court of Appeal, and then you have
a special pool set up for unified family court. That is it right now. If we were to increase the pool for family court
judges, that may not suggest to the government immediately an expenditure of money but it could in the long run when
the money became available.
Would you recommend that we have a pool under section 24(4) of perhaps 100 judges instead of 36 that can be
drawn on for the next ten years?
Mr. Mamo: I am not a very political person. I wonder why it is so necessary to determine a very precise, finite
amount for a pool when whether you will access that pool or not has in itself a very extensive process. In other words, if
we say you will have 100 new judges, it does not mean 100 new judges will be appointed. It means when the money is
found, when the province negotiates, when the need is there, et cetera, you can access it. If the integrity of that process
is maintained, then why do we have to go through this always trying to justify the increase in the pool? If it is indeed a
pool, then let us say when the need arises, we will access that pool. Then the dialogue can be about need and on a
principled approach of determining complement, not about political issues as to whether we should increase it in
theory or not.
Senator Baker: In conclusion, not only are all of these different things different when it comes to family law, but the
law is substantially different in each province, and the precedents you use in your cases in Ontario are drawn from
Ontario cases because your Ontario Family Law Act and your Children Act could be different in some respects from
that of an adjacent province.
It is unlike any other form of law that we deal with because normally in criminal or civil matters, you go directly to
the precedents of the superior courts in other provinces, as well as your own. That in itself lends itself to a rather
unique set of circumstances in every province. Therefore, it is difficult to compare one province to another. I think that
is your conclusion, as far as statistics are concerned.
Mr. Mamo: That is a very good point, Senator Baker. For example, a few years ago there was a change in the child
protection legislation which basically broadened the definition of children in need of protection who could then come
before the court. All of a sudden, the number of applications increased dramatically in Ontario because now the
Children's Aid Society, having the legal mandate to ensure that children are in need of protection, saw this as saying it
was too lax about not apprehending some children. That made a huge difference.
The law itself can make a huge difference and the rules themselves can make a huge difference.
Senator Baker: Just one final question: Are you on the Rules Committee for Ontario?
Mr. Mamo: I am.
Senator Baker: Some of us senators, we are sober second thought here in this place, and we have time to deal with
the rules and examine the rules and read the rules. I have the rules of the Federal Court here in front of me, trying to
understand some recent changes.
You do not have to answer this question, but do you find sometimes that changes in rules are brought about in
order to speed up the trial process and, at times, operate to the detriment of the Charter by imposing, for example,
restrictions like two weeks in advance, pre-trial or prior notification of any Charter arguments brought forward in the
courts here in Ontario? I just noticed that in your rules.
The rules themselves are being utilized to speed up the system in order to take care of the shortage of judges in each
province. Do you agree with that?
Mr. Mamo: Yes, I agree with that. Again, an example of that is Ottawa. The rules were changed to provide for a
Master in order to try to put on a band-aid because of the lack of judicial resources in Ottawa.
As a result, in Ottawa and nowhere else, there is another tier with respect to a Master that people must go through
as a result of the lack of judicial resources. One part of the system impacts the other. What happens is we are
Frankensteining the system in order to try to make do.
There is a trend towards more and more people representing themselves in family court matters. That is for a
number of reasons. That is not just here. If you look at all the Commonwealth countries, they are experiencing the
Statistics are showing that in large jurisdictions — we are not quite there yet — only three out of ten cases have
lawyers on both sides. We are halfway there, wherein four out of ten cases do not have lawyers on both sides. Again,
that really creates another set of problems, and you need judges to deal with those.
To get back to the point made earlier, it is fine to have alternative dispute resolution, but you need lawyers to assist
with that process. When you have people representing themselves, they have to be in court, and you need judges to deal
with those people. Those cases move slower.
That is not a trend that will go away. I am telling you that. I will stake any reputation on the fact that that trend will
We made family law and law, in general, more user friendly. We have forms. We got rid of the Latin. We now have
the Internet that tells you what your rights are, so people will not pay a lawyer $400 or $500 an hour when they figure
they can read the law, fill out the forms and advocate for themselves as well as anybody else.
Senator Baker: Or they cannot afford it, but the judge has the inherent jurisdiction to assign a lawyer at Attorney
Mr. Mamo: They do not do that often, but they could.
Senator Baker: That is the problem.
Mr. Mamo: The issue is, those people who can afford it can obtain high-priced lawyers and go to mediation or
arbitration to avoid the delays. However, the middle class who cannot obtain legal aid are the ones who end up acting
for themselves because they cannot afford the system otherwise.
The Chair: Senator Baker, I know you could go on, as could we all, for a long time. Mr. Mamo, thank you very
much. It has been an extremely interesting session. We are grateful for you being here.
Mr. Mamo: Thank you for the opportunity.
The Chair: We are very glad to welcome our next panel of witnesses. We have with us Professor Jacob Ziegel,
Professor Emeritus, Faculty of Law, University of Toronto.
We will also be hearing from Mr. Sébastien Grammond, Vice-Dean of Research and Associate Professor, Civil Law
Section, Faculty of Law, at the University of Ottawa. Welcome.
I will ask each of you to make a statement and then go to a joint question period. This time, honourable senators, it
is not our witnesses who are pressed for time. It is we because, as you know, the bells will start ringing in a little under
an hour. Senate committees are not authorized to sit while the Senate is sitting. That is the constraint we face this time.
We have been so good this morning about getting our questions put within a tight time frame that I am sure we will be
able to do it again.
We will start with Professor Ziegel.
Jacob Ziegel, Professor Emeritus, Faculty of Law, University of Toronto, as an individual: Thank you, Madam Chair.
I appreciate the opportunity to appear before the committee today. I have supplied the committee with a written
statement. I am not going to attempt to read it, partly because it is too long and partly because I think I can convey my
message more adequately by summarizing what I have to say.
Regrettably, my message is not a new one. I feel very much like the young man who sounded the alarm about the
wolf at the door. It is a very old message that I give today. In fact, it is a message that goes back to the earliest days of
The problem is how we go about appointing our superior court and appellate judges.
Under section 96 of the Constitution Act, the federal government has the constitutional power to appoint the
judges. This is the source of many of the problems. For a very long time, governments of all stripes have found it very
difficult to resist the temptation to use their appointing powers for inappropriate purposes — to put it boldly, for
patronage purposes, to promote friends, to pursue other objectives, but not the ones for which the power was given
them, namely, to ensure that the best qualified lawyers are appointed to sit in our higher courts and to administer
justice to the highest possible purposes.
It is true that in 1988 the then-Conservative government introduced some changes. They introduced a committee
known as the judicial appointment advisory committee. The point I make in my submissions and have made, as have
so many others, is that that is a misnomer. It is not an advisory committee. It only screens candidates. Not only that:
the government of the day is not obliged to follow the committee's advice. Because it is only a screening committee, it
reviews a large number of applicants for judicial appointments. That leaves the federal government at any time with an
enormous amount of discretion with regard to the people they are going to appoint, and that discretion is often
exercised along partisan lines.
Again, there is no need to discriminate between Conservative governments or Liberal governments. They have both
fallen prey to the same weakness — the inability to resist the temptation to use their appointed powers for patronage
Unfortunately, that fragility continues to this very day. I noticed that Senator Joyal in his second reading of the bill
refers to concerns that were expressed about changes made to the remit of the advisory committees, and many others
have criticized those changes as not being positive or constructive. They do not go to the root of the problem, senators.
The point I want to emphasize as vigorously as I can is that the only way we can address the current weaknesses in
the system of appointments is by having legislation. It is one of the many anomalies of the current system in Canada.
We have a long judges bill running a couple of hundred sections. It deals in detail with salaries, emoluments, pensions,
spouses' entitlements — it deals with everything but the system of appointments. I find it highly anomalous.
We have a system of advisory committees, but it is not in statutory form. It is precisely because it was not in
statutory form that the Harper government was enabled to make changes without having to go to Parliament, without
having the changes scrutinized by a committee here or in the House of Commons. That potential for abuse will
continue so long as we do not have at least the minimal safeguard of legislation.
Regardless of what we think of the existing system, and I have explained in detail what the serious weaknesses in the
current system of appointments are, we can talk until the cows come home. Nothing will change until we have
legislation that obliges the government to conform to the legislative remit.
That is not an extravagant demand. The British totally revolutionized their system of judicial appointments in 2005,
although even before then their system of appointments was significantly superior to our own, for reasons I cannot go
into here. Please accept my word for it.
Since 2005, they have a very comprehensive judicial appointment system, not just for judges of superior courts but
judges at all levels in England, and also including many tribunals. It is really quite remarkable. Their judicial
appointments commission has a staff of about 100 people. I was just looking at their annual report. It runs to more
than 100 pages, highly detailed. We have none of these things in Canada. Judicial advisory committees are not
permitted to publish their report. The Minister of Justice does not publish a report as to what the advisory committees
do. Everything is done behind screens.
From every point of view, our current system of appointments at all levels is, in my view and the views of many
others, extremely unsatisfactory.
I urge you, senators, if you do nothing else, make the strongest recommendation. In fact I would urge you to go
beyond the recommendation and draft some legislation as to how the federal government should go about making the
appointments, by beginning to provide a legislated mandate to the established judicial appointment advisory
committee to give it truly advisory functions, not just screening functions. If we can get that enacted, we will already
have made significant improvements to the current system of appointments.
If you will permit me, I want to address also the question of appointments to the Supreme Court of Canada. That
has become a lively topic again in light of Justice Bastarache's impending resignation from the Supreme Court.
The last federal government actually introduced an informal system of changes to the appointment of Supreme
Court judges. Those changes were implemented by the Harper government when it had to fill a vacancy in 2006. It was
not a perfect system, as I point out in my submission, but it is certainly vastly better than anything we had before. In
fact, we did not have a proper system before. Again, it was left totally to the discretion of the prime minister and his
My concern is that since Justice Bastarache announced his forthcoming retirement, about six weeks ago, the federal
government has not said a word about how it proposes to fill that vacancy. I cannot believe that is accidental. My
concern is that the current federal government may turn its back on the system that was adopted by the Martin
government — adopted, I may say, on the strong recommendations of the House of Commons Justice Committee,
which included a significant component of Conservative members of Parliament.
I am concerned about it. Again, this points to the need for legislation. The Supreme Court of Canada has its own
act. It is not governed by section 96, something that people often overlook. When the governments talk about having
the constitutional mandate, it is not correct. As far as the Supreme Court of Canada is concerned, it is not a
constitutional mandate. It is a statutory mandate. That statute can easily be amended to provide explicitly for the
format for the appointment of Supreme Court judges.
We established a format last time. It was a good format. It started off with the appointment of a committee of nine
people, including a representative from each of the political parties in the House of Commons. They provided some
guidance as to how the committee was to go about doing its work. The committee provided the federal government
with a short list of three highly recommended and qualified candidates to fill the vacancy. It was then left up to the
government to choose one of the three. Then, as you know, the government's preferred candidate was actually exposed
to an interview by the House of Commons committee.
We established an important precedent. Mr. Harper has not yet indicated what he intends to do. I find that
worrying. We are now on the cusp of June. The new appointee will be expected to take his position in September. He or
she must be given an opportunity to prepare themselves for the very demanding task of a Supreme Court judge. He or
she will not be given enough time if the government decides late in the day how they will go about appointing them.
Though the issue is slightly different from one that confronts appointments to Superior Court judges, the basic
challenge is the same, namely, to have a proper legislative format setting forth the appropriate procedure and striving
for as objective a system as we can. There is no such thing as perfection in this area. There is an element of subjectivity
and value judgment. However, within these constraints there is enormous scope for vastly improving the system we
have at the present time.
The Chair: Thank you very much, Professor Ziegel.
If my memory serves, I saw a press report this morning suggesting that the Minister of Justice, Mr. Nicholson, had
said yesterday in an interview that for Justice Bastarache's replacement, he did intend to follow the same process that
was used for the appointment of Mr. Justice Rothstein. You were undoubtedly on a plane. It arrived in our offices. It
will bear further examination, I am sure, but I thought you might be interested in that.
Sébastien Grammond, Vice-Dean (Research) and Associate Professor, Civil Law Section, Faculty of Law, University of
Ottawa: Madam Chair, I understand that we have been invited not to speak to the very specific issue contained in Bill
C-31, and that is the number of judges that are part of the pool of additional nominations that can be made without
amending the Judges Act. That is a relatively technical issue. However, it conceals many others, as Professor Ziegel
pointed out, in terms of the judicial nomination process.
The real problem with judicial appointments is the fact that the process currently is highly politicized. In my view,
politicization is contrary to the principle of the independence of the judiciary. There are two aspects of that.
First, there is partisan politics. As my colleague said, judicial appointments have been viewed as rewards for various
forms of collaboration with the governing party. The system that was adopted in 1988 has perhaps contributed to hide
this from public view but certainly has not suppressed partisan influences in the judicial appointments process.
A recent study published in the last issue of the University of Toronto Law Journal proves that there is a high
correlation between giving donations to the appointing party and the appointment of judges, for the Mulroney era as
well as for the Chrétien era. This is not a one-party thing; it is common to both parties that have been in government in
I think the current system does not result in the appointment of the most qualified judges, for various reasons that I
will detail later, but basically because it gives too wide a discretion to the Minister of Justice and, ultimately, to the
There is another aspect of politicization of which we see alarming signs, and that is the ideological aspect of politics.
There are indications that the current government, in changing the composition of these judicial appointments and
advisory committees, wants judges to fit a particular ideological mould. I am referring specifically to the fact that one
seat in those committees was reserved for a person representing police officers, basically.
I think this is wrong, because in many cases, the police are on one side of the cases that these judges will be hearing.
It is wrong to give one side in a trial a particular say in the appointment of the judge who will be deciding the case. It
gives the public the impression that somehow judges are accountable to the police, whereas it should be the other way
I think that the judicial appointments committee should not be composed in such a way that the public will believe
that they pursue a particular political agenda.
My submission, and you will receive a text that I prepared in both official languages, is essentially the same as
Professor Ziegel's, with some additional details; in other words, we need legislation on judicial appointments that will
detail the process.
In my brief, I challenge an objection that is often raised: Since section 96 of the Constitutional Act of 1867 gives the
Governor General the authority to appoint judges, we are unable to legislate in this area. I explain why this is not the
case and why, in my view, section 96 is an issue of federalism; judicial appointments must be made at the federal rather
than provincial level, however, that does not prevent Parliament from structuring how the Governor General exercises
I believe this legislation should create committees that are not made up primarily of members appointed by the
Minister of Justice or by the party in power. I also believe that these committees should include representatives from
the provinces, since we are talking about provincial superior courts, and above all, I believe that the committees should
produce very short lists of recommended candidates.
At the present, for each potential candidate, the committees issue a recommendation as to whether or not the person
is qualified. Clearly, there is a vast array of qualified candidates, and the government exercises considerable discretion
to choose among these people, base on criteria we are not familiar with but which appear, according to recent studies,
to be based on partisan criteria.
Look at what is done in Ontario. In Ontario, committees may provide a list of two names. That considerably
restricts the government's discretion and ensures that the most competent people are appointed.
In the United Kingdom, as Professor Ziegel pointed out, the list has one name on it. In other words, the minister has
discretion that may be exercised only in exceptional circumstances provided that it is accompanied by reasons why he
has rejecting the committee's recommendation.
The United Kingdom has ensured that the process is depoliticised. I believe that is the model to follow.
Just a few words about the Supreme Court appointments process, which is based on different considerations. As you
know, a press release was issued yesterday and the government said that it would essentially adopt a process similar to
that employed for Mr. Justice Rothstein's appointment, with the exception that the Parliament committee that will
screen the pool of applicants and bring it to three persons will be composed exclusively of House of Commons
members, whereas last time, if my memory is correct, there were also representatives from the bar and from the
judiciary. It was a wider committee, and I think it was a good thing to include persons who have firsthand knowledge
of judicial activity.
I will make two comments. First, I have grave doubts about the interview process. The positive part of the process is
the screening committee composed of representatives of all parties. However, we learned from Mr. Justice Rothstein's
experience that by interviewing judges nominated by the Prime Minister we learn nothing that we did not know before.
I spent three hours on the Internet researching Mr. Justice Rothstein's judgments when on the Federal Court of
Appeal. I tabulated what sort of decisions he rendered. I compared that to the answers he gave to committee members.
It is much more instructive to read the judgments.
I understand that a law professor created such reports on the judgments rendered by the various persons who were
considered. I think the Prime Minister should make public that report for the person he nominates. The process was
defended in terms of accountability, which is a very popular word. The only person not accountable in that process is
the Prime Minister himself, because Prime Minister Harper did not say why he chose Mr. Rothstein.
Moreover, it gives the impression to the public that judges are appointed because they give answers that please the
government. In fact, it was expressly said in several newspapers the day after that, given his answers, Mr. Rothstein
was sure to be appointed. That gives a wrong impression of the judicial role to the public.
The issue of bilingualism is in the media these days. There are several reasons why any Supreme Court judge should
be bilingual. First, the Charter and federal legislation, as well as the legislation of several provinces, are bilingual. How
can you interpret federal legislation if you are unable to read one of the two official versions?
The second argument for bilingualism is fairness to lawyers who argue before the court. Yes, you can have
simultaneous translation, but it is not as good as being heard in one's own language. In addition, litigants are entitled
to have justice in the official language of their choice as a matter of principle, and I believe that having unilingual
judges at the Supreme Court detracts from this principle. What would you think if a unilingual francophone were
appointed to the Supreme Court?
I will stop here and will be glad to answer your questions.
The Chair: Thank you. Your comments were both very interesting. We will now move on to the question period
with Senators Joyal, Oliver, Merchant, Baker and Milne.
Senator Joyal: My first question is in relation to the existing screening process, which Mr. Ziegel described, the
appointment system that was put in place in 1988 and was recently changed by the government unilaterally. If I
remember correctly, those changes were not recommended by academia or by the Canadian Bar Association. They
were not the result of consultations, as I understand it, unless I have been badly informed.
The government introduced three fundamental changes. They removed the voting right of the judge, and they
removed the upper classification of ``highly recommended'' and maintained only the categories of ``recommended'' and
``non-recommended.'' Finally, they introduced a representative of the law enforcement community, which is the term
used to describe the changes.
One of you commented about the representative of the law enforcement community on the basis that it would give
to a group that has a vested interest in the course of a trial the capacity to be seen as influencing the selection of judges.
That is your argument. However, you have not commented on the two other changes, the one that removed the ``highly
recommended'' classification and the removal of the voting capacity of the judge in the selection process.
I would like to hear your comments on those two aspects of the changes.
Mr. Ziegel: You are right that it was wrong for the government to make these changes unilaterally, but that does not
go to the root of the problem. The root of the problem is that we do not have legislation. The Harper administration is
not the only one that made unilateral changes. As I recall, the Chrétien government also made some changes, although
they were not as controversial as those the Harper administration made.
In both cases, you are merely reflecting on the ability of government under the current system to chop and change as
it pleases. There is no accountability because we do not have legislation that restricts the government's discretion. As I
tried to emphasize in my opening remarks, if we are committed to the rule of law and not the rule of subjectivity, we
desperately need some legislation. That will not resolve all the problems, but it will be a very important part
conceptually and also in binding the government to a set of norms.
I do not derive satisfaction from pointing fingers at the Harper government. We can criticize him until the cows
come home, but it will have no impact. It is like the old story about someone complaining to Stalin during the war
about doing something the Pope might dislike. His response was, ``How many divisions does the Pope have?''
As long as Mr. Harper is running the country, he will pursue the line that best reflects his own philosophy about
judges and the role of judges. We cannot bring about changes by having endless debates, as attractive as that may
seem, or by my colleagues and I writing more articles. Change will only come about if Parliament is willing to make
We currently have a minority government. Mr. Grammond, I and others made submissions to the Commons
committee last year. I hoped that committee would take the initiative to introduce legislation. They certainly had the
power to do so. For reasons I do not understand, the opposition parties failed to do so. I find that very troubling. They
never gave any explanation.
The Bloc Québécois, curiously, fully supported the need for legislation. They were the ones who initially raised the
issue of partisanship by Mr. Harper.
If we are to point fingers, we must not point them only in the direction of Mr. Harper and his perception of the
judicial role, but equally at the opposition parties who failed to exercise their opportunity to introduce legislation of
I again urge you in the strongest possible way to do what the House of Commons should have done, that is, to
introduce legislation. I appreciate that it may be ignored. It will not bind anyone, but at least you will have established
an important precedent and it will then be incumbent upon the parties in the House of Commons to explain why they
are not willing to pursue that precedent.
I want to reinforce what Mr. Grammond said: To the extent that constitutional objections may be raised, I entirely
agree with him. It is perfectly competent of Parliament to change the system of judicial appointments. That does not
create constitutional difficulties.
Mr. Grammond: Both of the other changes mentioned by Senator Joyal increased the government's discretionary
power in two different ways. Eliminating the right to vote for the judge presiding over the committee means that the
majority of committee members are appointed by the Minister of Justice, which gives him free rein to appoint people
who will simply carry out the wishes of the party in power.
The other aspect, the disappearance of the ``highly recommended'' category, once again broadens the discretionary
power, because it is expected that the Minister of Justice will first appoint candidates who were highly recommended
rather than those who were simply recommended. And the repeated refusal of the various Ministers of Justice to
officially commit to giving priority to highly-recommended candidates was a source of embarrassment for the Minister
of Justice and was almost an admission of the fact that the process was not used to appoint the best candidates but that
candidates were undoubtedly appointed for partisan reasons.
Senator Oliver: You both have told the committee repeatedly that the solution is legislation. You are both
academics and professors; people with a lot of experience in the area.
Have you drafted a bill yourselves and have you a form of a draft? Do you have the contents of what should be in a
draft? If so, can you lay it before this committee so we can benefit from your wide experience and wisdom?
Mr. Ziegel: I have not drafted anything. If you would like me to do so, I would like to try my hand at it. However, it
will take a bit of time.
There are all kinds of precedents. As I mentioned earlier, Ontario has a very sound system of nominees to judicial
appointments. The advisory committee has been in effect since the early 1990s. British Columbia has a similar system.
Quebec has a somewhat different system. I believe Manitoba and Alberta also have judicial appointments advisory
committee. As I mentioned earlier, the British are the ones who have gone the furthest.
There are many precedents. I do not anticipate difficulties in drafting. There may be difficulties in the parties
agreeing as to what they want to put into the legislation. However, those go to value judgments and not to the form of
I want to repeat again that, if this committee invites some academics to put their shoulders to the wheel, I am sure
you will find very willing participants.
Mr. Grammond: I have not drafted anything. My obvious model would be the U.K. legislation. I would be happy to
participate in that exercise, as well.
Senator Oliver: The reason we are here today is a bill called Bill C-31. You indicated that you were invited to come
here not to talk about the bill but to talk about some other concerns you have about judicial appointments. Yesterday
we had someone here talking about the Atlantic Accord under the rubric of Bill C-31.
My question is: Do you support Bill C-31, the bill before us here today?
Mr. Ziegel: As I indicated when I initially received the invitation to appear, I have no particular views about Bill C-
31. I am not an expert on how many judges we need. I am not an expert. I have some thoughts, but I am not sure how
helpful they would be.
I agree with the earlier witnesses that, particularly at the family court level, we need an adequate complement of
judges. However, that takes us into different areas. Ultimately, it turns into a question of money. Someone has to pay
these judges. If they are appointed by the federal government, that means big bucks. I suspect it is the financial
implications that raise a host of new issues for the federal government .
Senator Oliver: Federal and provincial governments.
Mr. Ziegel: Once they are appointed by the federal government, I think the federal government picks up the full
load. Although I have written about issues of judicial compensation, that would raise a whole host of new issues.
Frankly, I would rather not attempt to address those issues now.
Mr. Grammond: With respect to Bill C-31, I can only say that I support the fact that there would be an increased
pool of judges. Are there other solutions? I do not know. The suggestion was made that it should be an open pool or
whatever. I know there would be a concern with respect to the fact that expenses must be specifically appropriated by
Parliament. Therefore, you cannot have an infinite number of judges.
From what I hear, there seems to be a consensus that we need more judges. However, as with Mr. Ziegel, I am not
an expert on that.
Senator Oliver: Did you know that the Canadian Bar Association strongly supports Bill C-31 and they would like to
see it pass? Are you aware of that?
Mr. Grammond: Not specifically. Anything that would bring new judges would help.
Senator Oliver: Do the two of you agree with me that if we are looking at a process to appoint someone to the
Supreme Court of Canada, the essential ingredient should be merit; the most-qualified candidate should get it on the
basis of merit?
Mr. Grammond: I agree, but where we are likely to disagree is with the definition of merit. For example, I include
bilingualism as a required competence. To me it is a matter of competence, not a matter of representation, as the
Premier of Quebec has stated. Competence is not something you can measure as we do when we mark exams. It is a
more open-ended concept.
In my view, however, partisan affiliation is not related to merit.
Senator Oliver: I did not think it was.
Mr. Grammond: That is fine. We agree. In my mind, bilingualism is associated with merit.
Senator Oliver: Thank you.
The Chair: I have a quick supplementary. Partisanship may not be an element of merit, but I do not think you are
arguing that to have been associated with a political party should disqualify a candidate from the bench.
Mr. Ziegel: No. That is a red herring.
The Chair: I just wanted to be sure. I am eating into my colleagues' time and they will have my head.
Senator Merchant: Thank you both. You have raised many interesting questions, but I am not sure how many
answers we will arrive at.
Mr. Ziegel, you and Mr. Grammond have alluded to what the British are doing. I imagine you are talking about
legislation they have put in place. I am familiar with what is happening in Europe. For instance, in France, people go
into a stream and decide whether they will be lawyers or judges. I am not sure the British follow that model. I think you
were talking about something different.
I am wondering about this probationary system. Do you not think that is demeaning? People who are aspiring to be
judges are very qualified people.
In our way of doing things in Canada, are we discouraging some very good people from putting themselves forward
because it is embarrassing? If you are on probation and then you are dropped off. As you have alluded to, our system
may be moving too close to the American system.
I am not sure that is encouraging people to go forward. We know things about people. When we make these lists, we
have ways of knowing the qualifications of these people without putting them through that kind of screening. It really
does not serve any purpose, but it may be used by the government of the day to select a certain type of person.
Mr. Ziegel: I have written about this and have strong feelings. You are mistaken, with all respect.
The British have over a century of experience with the probationary system. It applies particularly to High Court
judges. They have High Court deputy judges appointed on a fee-based system. It is done not simply to add to the pool
of available judicial workers, but to give prospective applicants an exposure to the judicial life, to see whether they like
it and to give the authorities an opportunity to evaluate the candidate.
In fact, it has reached the point in England that you cannot become a High Court judge unless you have served a
period of time on what I describe as a probationary system.
It is not regarded at demeaning at all, any more than what we have at the universities. You start your life as an
assistant professor. You do not have tenure to start. You may have to wait as much as five years. No one has described
that as demeaning. On the contrary, it strengthens the system. It accepts the fact that not everyone is a born teacher or
a born judge.
We have had instances where the appointment turned out to be very disappointing. Some have been disastrous. If
we had a probationary system, those frailties might well have come to light before it was too late. I think there is much
to be said for a probationary system.
Senator Merchant: I am not arguing that because you are an expert on it. However, I think that is precisely my
Some of these decisions are made by academics. In the academic field, you are used to applying for a grant and not
getting it. You are used to applying to teach, for example, at the University of Uzbekistan, but if you do not get that
appointment, you can stay at the University of Toronto.
With lawyers, it works a little differently. If you indicate to people that you want to be a judge, you put yourself in a
different position, in Canada anyway. Maybe in other places people have worked this through. However, as soon as
your firm realizes you are aspiring to become a judge, perhaps then they do not give you the case that may last for a
year or two years because they know that you are looking for an exit strategy.
It is a different mindset, I think, between academics and practitioners. At least that is the way I see it. I could be
wrong, but you are an academic.
Mr. Ziegel: I do not think the British system works that way. It does, indeed, work in Canada. Ontario alone has a
couple hundred part-time Small Claims Court judges. We have many judges who are partners in law firms that act as
arbitrators. It is not a full-time job. No one has ever suggested that because they act as arbitrators that it somehow
impairs their continuing utility as members of the firm.
Likewise, the British system is different because most of the part-time judges have been members of chambers. It
does not mean you have to be a full-time part-time judge. They may serve only a few weeks per year.
I feel that I am cutting into the time of the other senators who may want to raise questions.
Senator Merchant: That is fine. I appreciate that.
Mr. Ziegel: Senator, you have raised important issues. Unfortunately, the federal government has never taken the
issue of probationary appointments serious because of the prejudice to which the Canadian Bar Association itself has
contributed. However, I believe the subject is ripe for serious consideration.
Senator Baker: Mr. Grammond, you have appeared before the Quebec Court of Appeal.
Mr. Grammond: Yes.
Senator Baker: You have appeared before the Supreme Court of Canada.
Mr. Grammond: Yes, I have.
Senator Baker: You have appeared before the Superior Court in Quebec. You have done intellectual property,
contracts and civil matters. Therefore, when you answered the question and said you are not an expert on judges, I
think you are. I am amazed that you would answer the question in that manner given your reputation, which is very
good. That puzzled me for a moment.
My question goes to what Mr. Ziegel and Senator Oliver, who is a former professor at the Dalhousie Law School,
said about the Supreme Court. When you said that the minister had not announced the procedure, Senator Oliver
popped up because he knew that this morning he received the announcement from the minister.
The new system, which is perhaps a portion of the previous procedure, is that the list of names will be drawn up by
the Attorney General in consultation with the Attornies General of the four Atlantic Provinces and others. The public
across Canada is invited to submit names if they wish to the website. However, the list will be drawn up by the federal
Minister of Justice, the Attorney General.
This will be given to a committee of the House of Commons composed of one Liberal Party, one Bloc Québecois
and one NDP member from the House of Commons and two members from the government side. They will narrow the
list down to three suggestions and then the Prime Minister takes it and will make the final decision.
Therefore, the original list is established by the Attorney General in consultation and the final decision from the
remaining three candidates will be done by the Prime Minister.
Given the present atmosphere between the Prime Minister, the Minister of Justice and the Premier of
Newfoundland, do you think the political climate may play a role in the final decision under those circumstances
of a candidate judge from Newfoundland?
Senator Oliver: Not at all.
The Chair: What do Professors Ziegel and Grammond say?
Mr. Ziegel: I would respond from a wider perspective.
I think it was wrong last time for the Liberal government to restrict the advisory committee to the list of names
compiled by the Minister of Justice. I think if there is to be an advisory committee they should have complete
discretion over whom they will interview and recommend.
Limit the recommendations to three candidates if you think that is appropriate. I do not have any quarrel with that.
However, I think the previous process was wrong from the outset. It is like saying to a jury that you may find the
accused guilty of manslaughter or murder, but you cannot acquit him. In the same vein, if you have an advisory
committee, it should have complete discretion over the candidates it wants to consider and how they consider those
candidates. They should not be held by the hand.
The last Minister of Justice's excuse was this ad hoc committee would lack the resources and the background on
which to cull from the list of candidates. I do not accept that. Those resources can readily be made available. We do
not have large numbers of people in Canada who qualify for membership on the Supreme Court of Canada.
I think it is merely an indirect route for the incumbent government to influence the ultimate choice of the candidate.
I think it is wrong in principle.
Senator Baker: What about the Newfoundland question, though? I asked you specifically about the Newfoundland
Mr. Ziegel: With respect, I appreciate the political input, but happily, I am not a politician. Therefore, I do not have
to take political sides on this particular issue.
Mr. Grammond: I agree entirely. I cannot make predictions as to the behaviour of the Prime Minister, but I can only
say that we have no safeguards in the system to prevent such a situation from happening.
Senator Baker: Justice Rothstein answered your question on bilingualism. His answer was short, as you will recall.
He said that he would have to spend more time on those particular subjects, but that he could address them equally
Mr. Grammond: Take the example of a case coming from Quebec. The trial judgment, the judgement of the Court of
Appeal will likely be in French. The factums from each party will likely be in French. These are not translated as a
matter of course. He will have to rely on summaries made by law clerks to understand what this case is all about and to
understand what the parties are saying.
While he may feel comfortable, he may rely on discussions with his colleague, which I respect, but from the
viewpoint of the lawyer who is arguing and from the viewpoint of the party, I do not think that this is satisfactory.
Senator Baker: You will note, madam chair, that this comes from someone who has the experience: The factum law
— memorandums — are in one official language only. That is a very interesting point that I did not consider before.
The Chair: It is indeed.
Senator Joyal: When we debated the amendments to the Criminal Code the issue of the language of the accused was
raised around this table and commented on by some members of this committee. We made recommendations to that
effect in our observations that are attached to the report of the bill.
Senator Baker: Yes, you did that.
The Chair: Professor Grammond, the Senate Rules Committee recently made a report about translation and
interpretation. In this case, it was about the desirability of having a pilot project for simultaneous interpretation into
and from Inuktitut in the Senate. In the report, the committee observed that it is fairly well accepted that in translation
one loses a significant proportion on average. It might have been 25 per cent or more. I prefer to come in at the low end
of the range than to overstate the case.
As Senator Baker has pointed out, you have experience pleading before various courts. I suspect that you may have
come up against interpretation as you have been pleading. Has it been your impression that in fact in interpretation
some proportion of what is important has been lost? This is no slur on interpreters, incidentally; they do wonderful
Mr. Grammond: That is right. The ideal is bilingual. I can cross-examine witnesses in English or French. I can argue
in English or French, although I would prefer French, but that is fine.
I recall an incident with interpreters when an English-speaking lawyer was questioning a French-speaking witness
through the use of translation. One tiny nuance in the language led the lawyer to believe that the witness had said
something that would, in the context of the case, be entirely inappropriate. He jumped at the witness and the witness
said, ``No, I did not say that.'' The lawyer said, ``Yes, you said it.'' This whole incident was created entirely by a glitch
in interpretation. Eventually, we had to play back the tape. I was the only bilingual person in the room and I had to
clarify the meaning of what the witness had said. Eventually, the incident was closed but it took us 10 minutes to figure
out what happened in this trial.
At the Supreme Court level you would not have the opportunity to correct that kind of mistake. It is quite
important that judges be able to understand. Bear in mind that I am speaking about passive bilingualism. Supreme
Court judges do not need to be able to write in French and they do not need to be able to speak French very
eloquently, but they have to be able to understand what lawyers tell them in the language of their choice and they have
to be able to read French.
The Chair: I am sorry to take the committee's time again. Senator Milne has been waiting patiently.
Senator Milne: I will try to be extremely brief because the bells are ringing. Earlier today we heard before us the
Minister of Justice and Attorney General for the Province of New Brunswick. He was hoping that out of this pool of
judges that this bill creates he will get three judges. He is hoping that they will all be qualified family court judges. He is
hoping that they will all be bilingual and that one of them may be trilingual or quadrilingual speaking the two
aboriginal tongues in New Brunswick. What do you think his chances are?
Mr. Ziegel: I have absolutely no competence in the area so I see no benefit in trying to speculate on the answer.
Mr. Grammond: I can only add that one of my friends is a lawyer. He speaks English, French, Cree and Spanish.
Senator Milne: That will not do him well in New Brunswick.
Mr. Grammond: He might be good for Quebec.
Senator Milne: They need Mi'kmaq.
Mr. Ziegel: Of course, if we have appropriate legislation, it might lead to all kinds of innovations and
encouragement of people to come forward when they finally appreciate that appointments will be made on a merit
basis and not on any other basis.
Senator Joyal: Professor Ziegel, I have the Court of Justice Act of Ontario, section 43, that deals essentially with the
judicial appointments advisory committee. It covers one page. It would be easy to take the inspiration of the Ontario
system and apply it to the federal context. My question is on the composition of the committee.
In Ontario, the committee is composed of two provincial judges; three lawyers from the law society, the Canadian
Bar Association and the Court and District Law Association; seven persons who are neither judges nor lawyers; and a
member of the judicial council. The total number of persons on the committee on the basis of their position in the
judicial system — two judges, three lawyers and one member of the judicial council — is six. The remaining seven are
neither judges nor lawyers. The Attorney General still controls the majority of those who are appointed to the
committee for three years.
In the Constitutional Reform Act of the U.K. the composition of their appointment commission is much more
balanced in terms of who has the influential determining vote on the committee. Would you recommend that we accept
the Ontario model on the basis that it was established in 1994 and has operated well, or would you suggest that we take
the model of the U.K.'s CRA, in which the majority on the committee are not in the hands of the Attorney General?
Mr. Ziegel: There is a further refinement you need to add. Under the British system, a majority of the commissions
are also non-lawyers.
Senator Joyal: Absolutely.
Mr. Ziegel: The British deliberately chose to have a slightly greater number of lay persons than lawyers on the
commissions because of the concern that had been expressed that judges did not adequately represent the diversity of
the British population, either socially or racially.
That was a deliberate choice, and they also felt that modern judges needed to be more than just legal technicians.
They needed a range of values and judgments that were important for the administration of modern justice.
In terms of the Ontario position, theoretically, you may be right that it may be possible for the Ontario Attorney
General to influence the choice of the lay members, but I have not heard it suggested that he or she has exercised the
power this way up to now. However, if you had some concerns as to who would select the lay members of the advisory
council, I think one could easily address that by vesting that power in some third party, perhaps even in a council.
I view that as a subsidiary question. It is a relevant question, because you are quite right, in the hands of a biased
Minister of Justice, the power could be abused. That is an issue that could be addressed once you have decided you
want to have a significant lay input in the constitution of your judicial advisory committee.
Mr. Grammond: As I mentioned earlier, the composition of the committees is quite important. I would go for the
U.K. model. I might add that some details about that are in the paper that was prepared.
The Chair: Which we will circulate to all members of the committee.
Thank you both very much. Once again, it was an extremely interesting meeting and we are very grateful to both of
you for your time and your expertise.