OTTAWA, CANADA

REPORT OF THE INTERIM AD HOC COMMITTEE ON THE APPOINTMENT OF SUPREME COURT JUDGES

Derek Lee, M.P. Chair

August 2004

The Interim Ad Hoc Committee on the Appointment of Supreme Court Judges (“the Committee”) was created for the purpose of reviewing the candidacy of the persons — Madam Justice Rosalie Abella and Madam Justice Louise Charron — recommended for appointment to the Supreme Court of Canada. The Committee was put in place on the understanding of the House Leaders of all parties that it was an interim body to complete a review so that two vacancies on the Supreme Court could be filled before the Supreme Court begins its sittings on 4 October 2004. The Committee recognizes that the authority to make Supreme Court appointments is constitutionally vested in the Governor in Council. Accordingly, the role of the Committee was purely an advisory one.

The majority of the Committee’s members were elected Members of Parliament, consisting of three members of the Liberal Party of Canada, two members of the Conservative Party of Canada, one member of the Bloc Québécois, and one member of the New Democratic Party. In accordance with the written understanding of the political parties, the Committee also included a representative of the Canadian Judicial Council and a representative of the Law Society of Upper Canada. The Committee was subject to special rules of procedure, which were agreed upon by all the parties represented in Parliament. Those parties had also agreed that the hearing of the Committee was to be as open and transparent as possible, while ensuring the integrity of the process. This written understanding is attached as Appendix A to this report.

On 24 August 2004, the Committee members were provided with the names of the two nominees, along with short biographical notes. The Committee then met in camera to be briefed by officials of the Department of Justice and to discuss its means of proceeding. On 25 August 2004, the Committee had before it in public session the Minister of Justice. In his presentation to the Committee, the Minister described the scope and nature of the process used to select the nominees, with particular emphasis upon the consultations he undertook in selecting the two nominees. The Minister also elaborated on the nominees’ professional capacity and their personal characteristics that made them suitable candidates for the Supreme Court of Canada. This included highlighting some of their decisions as members of the Ontario Court of Appeal. The Minister was then questioned by the members of the Committee. Following this public session, the Committee then proceeded to discuss its report in an in camera meeting.

The Committee advises the Prime Minister that it is satisfied that the two nominees as presented to it — Madam Justice Rosalie Abella and Madam Justice Louise Charron — are eminently qualified for appointment to the Supreme Court of Canada.

In accordance with its mandate, the Committee proceeded to a discussion of this ad hoc committee process. This proceeded in the absence of its two extra-parliamentary members at their request. Those members felt that such a discussion was beyond the purview of their mandates and they withdrew from the Committee deliberations at this stage. The Committee wishes to make it clear that this discussion on the subject of process is no reflection upon, and should not derogate in any way from, the qualifications of the two nominees to the Court.

The Committee notes what it believes are positive outcomes of its work. The holding of a public hearing with the Minister of Justice served to increase public awareness and generate public discussion. Public knowledge of the Supreme Court of Canada and how its members are appointed was increased. The work of the Committee did, in a measured way, move the Supreme Court appointments process towards transparency and manifested a role for the House of Commons not previously undertaken.

The Committee also noted some shortcomings to the process under which it operated. In the current circumstances there was a practical need to fill vacancies during a dissolution and prior to recall of the House. One difficulty was the lack of time the Committee was afforded to do its work. Members of the Committee were informed of the identity of the two nominees only one day before they were asked to question the Minister of Justice about those nominees. This did not leave adequate time to properly research the backgrounds of the nominees and then formulate questions for the Minister.

The second shortcoming the Committee noted was the lack of information it was afforded about the nominees. The day before the public hearing, the Committee members were provided with a short biographical note on the nominees and a background briefing on the process by which they were selected. No other information on the nominees was provided until the day of the public hearing when a statistical profile of the nominees` judgments was supplied. Again, as with the issue of inadequate time, the lack of information about the nominees hampered the Committee’s efforts to adequately question the Minister about them.

Some Committee members regretted that the interim process adopted did not provide for a short list of candidates. The presentation of two nominees to fill two vacancies did not allow for the Committee to assess the qualifications of the two nominees in comparison to those of other candidates. Some members of the Committee believe that a future committee should be able to work with a short list of other eminently qualified persons that is larger than the number of vacancies to be filled.

In May 2004, the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness (the “Justice Committee”) released its report entitled Improving the Supreme Court of Canada Appointments Process. This report was the result of a study undertaken by the Justice Committee on the issue of judicial appointments in general and, more specifically, on how best to implement prior review of appointments of Supreme Court of Canada judges. Attached to the majority report were dissenting opinions from each of the opposition parties in the House. The Committee requests that the Government of Canada furnish a written response to the Justice Committee report, including each of the dissenting opinions, by the end of October 2004. As referred to in the understanding which created the Committee, it is hoped that the Justice Committee will take up this issue in the new Parliament, will note the report of this Committee, and will succeed in designing, in collaboration with the Governor in Council, a permanent Supreme Court of Canada appointment procedure.