Round table on Parliament's role in the appointment of judges.

• Author: Marceau, Richard

On May 6, 2003, Richard Marceau introduced a Private Members' Business motion to authorize the Standing Committee on Justice and Human Rights to study the process by which judges are appointed to Courts of Appeal and to the Supreme Court of Canada. The following extracts are taken from debate on this motion.

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Richard Marceau (Bloc Quebecois): There is an old principle in English common law, that justice must not only be done, it must be seen to be done. The purpose of this principle, the very foundation of our justice system, is to maintain the highest possible level of public confidence in the judiciary. The current process of appointing judges, however, is in direct conflict with this principle, and clouds the image of justice.

There are many examples to support this statement. Last summer, the Prime Minister appointed Justice Michel Robert, who had served on the Quebec Court of Appeal since 1995, to the position of Chief Justice for Quebec. This is a very important position, in Quebec's judicial system.

The Minister of Justice and Attorney General announced, on August 8, the appointment of the Marie Deschamps, a judge of the Quebec Court of Appeal, to the Supreme Court of Canada.

These two individuals no doubt, enjoy an enviable legal reputation, which therefore surely justifies their appointment to such important positions. However--since justice must be seen to be done--it is reasonable to wonder, as members--and the general public will not hesitate to make its views known--whether their appointment has anything to do with their commitment to the Liberal Party of Canada or their connections to the latter.

These two examples seem to show or at least clearly suggest politicization of the courts. In today's society, this politicization or this appearance of politicization, even a hint of it, can seriously jeopardize the public's respect for the courts and the judiciary.

If we consider the important role of the courts today, particularly given their greater duties, if only due to appeals related to the Canadian Charter of Rights and Freedoms, or their involvement in the evolution of various social debates such as same-sex marriage, aboriginal claims and the decriminalization of marijuana, we must avoid at all costs any association between the judiciary and the political arm.

These judges, who are not elected, make decisions which have an increasing impact on the creation of public policy in Canada and sometimes go beyond what Parliament might have wished.

This is an argument of some weight in favour of a review and democratization of the process of appointing judges, which unfortunately some will surely criticize. But we must resist and we must hold this debate. It is very likely that the public will agree that the entire matter needs to be looked into.

I am making a solemn appeal to my colleagues across the way. Let them keep their eyes and ears open and especially let them not jump to a conclusion too hastily. I hope that the Parliamentary Secretary to the Minister of Justice with whom I had the opportunity to work on the Standing Committee on Justice and Human Rights, will not take a dogmatic stand and will instead agree to a serious study, as we had in connection with same-sex partners, an issue of equal importance for Canada.

I would like to remind him, and all members of the Liberal Party that Mr. Martin, said the following in his speech to the students of the University of Toronto's prestigious Osgoode Hall:

We should reform the process surrounding government appointments. The unfettered powers of appointment enjoyed by a prime minister are too great ... Such authority must be checked by reasonable scrutiny conducted by Parliament in a transparent fashion ... To avoid paralysis, the ultimate decision over appointments should remain with the government. But a healthy opportunity should be afforded for the qualifications of candidates to be reviewed, by the appropriate standing committee, before final confirmation. At the time he was referring to senior public servants and to ambassadors. None of these senior positions that he would like to subject to parliamentary review, none of these ambassadors or senior officials, will have as much impact on public policy as appeal court judges or judges of the Supreme Court of Canada.

We could go on at great length about the current appointment processes for provincial and territorial superior court judges, for Federal Court judges, or for judges at the Tax Court of Canada, because there are specific criteria that must be filled for these appointments.

The entire process is left to the discretion of the Prime Minister, with input from the Minister of Justice. It is strange that appointments to lower judicial appointments are more structured than appointments to these higher courts, such as the appeal courts and the Supreme Court.

This is a substantive issue that is critical for the old common law principle that I mentioned in my introduction, regarding justice and the appearance of justice. It is up to us as parliamentarians to promote public confidence in our institutions and this mission must include our legal system.

We could quote a number of articles published in newspapers, which clearly show what the public thinks of the current process. In La Presse of June 28, 2002, Yves Boisvert commented on the appointment of Michel Robert in an article entitled "Patronage Appointment".

On June 29, 2002, The Gazette published an editorial under the headline "Who's to Judge". I encourage my hon. colleagues to read these articles. There is also an article published in the National Post on July 2, 2002, admonishing, "Don't politicize courts". Then there was the London Free Press, asking parliamentarians to "Review the Appointments".

We can see from these various editorial policies that the public is worried, that it would like a process that is more transparent, which would assure the people of Quebec and Canada that the nominees to positions as appeal or supreme court judges are not appointed because of their connections to the ruling political party.

I urge all the members of this House, and those from the government party in particular, to allow parliamentarians to examine this question. Give us this opportunity to review the process to ensure that judges are not treated as politicians and that there is an opportunity to consider the appointments.

Paul Macklin (Liberal): The importance of a strong judiciary to Canadian society cannot be overemphasized. There is a growing recognition that stability, human security and the rule of law are necessary for a society which is economically viable and which protects human rights. As the guardians of the rule of law, judges form an important part and a pillar of our social order.

The need for further study of the appointment process for federally appointed judges has not been demonstrated. This process is well known and has served the Canadian public very well. I would like to take this opportunity to examine how the appointments process for federally appointed judges contributes to the maintenance of a strong judiciary by securing judges of the highest calibre.

The federal judicial appointments process has been in place since 1988 and is administered by the Commissioner for Federal Judicial Affairs. The process applies to those interested in submitting their candidacies for appointment to the superior courts, including appointment to the...