JUDICIAL APPOINTMENTS ADVISORY COMMITTEE
CONTENTS
Tuesday 17 May 1994
Courts of Justice Statute Law Amendment Act, 1993, Bill 136, Mrs Boyd / Loi de 1993 modifiant des lois en ce qui concerne les tribunaux judiciaires, projet de loi 136, Mme Boyd
Criminal Lawyers' Association
William Trudell, vice-president
Judicial Appointments Advisory Committee
Judge Robert Walmsley, chair
Nancy Hansen, member
Rev David McCord, member
Peter Russell, former chair
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Marchese, Rosario (Fort York ND)
Vice-Chair / Vice-Président: Harrington, Margaret H. (Niagara Falls ND)
Akande, Zanana L. (St Andrew-St Patrick ND)
Bisson, Gilles (Cochrane South/-Sud ND)
*Chiarelli, Robert (Ottawa West/-Ouest L)
Curling, Alvin (Scarborough North/-Nord L)
*Haeck, Christel (St Catharines-Brock ND)
*Harnick, Charles (Willowdale PC)
*Malkowski, Gary (York East/-Est ND)
Murphy, Tim (St George-St David L)
*Tilson, David (Dufferin-Peel PC)
*Winninger, David (London South/-Sud ND)
*In attendance / présents
Also taking part / Autres participants et participantes:
Winninger, David, parliamentary assistant to Attorney General
Clerk / Greffière: Bryce, Donna
Staff / Personnel: McNaught, Andrew, research officer, Legislative Research Service
The committee met at 1602 in room 228.
COURTS OF JUSTICE STATUTE LAW AMENDMENT ACT, 1993 / LOI DE 1993 MODIFIANT DES LOIS EN CE QUI CONCERNE LES TRIBUNAUX JUDICIAIRES
Consideration of Bill 136, An Act to amend the Courts of Justice Act and to make related amendments to the Freedom of Information and Protection of Privacy Act and the Justices of the Peace Act / Projet de loi 136, Loi modifiant la Loi sur les tribunaux judiciaires et apportant des modifications corrélatives à la Loi sur l'accès à l'information et la protection de la vie privée et à la Loi sur les juges de paix.
CRIMINAL LAWYERS' ASSOCIATION
The Chair (Mr Rosario Marchese): I call the meeting to order. I'd like to welcome Mr William Trudell from the Criminal Lawyers' Association. Mr Trudell, you have half an hour for your presentation. We try to leave 15 minutes, in which time the caucus members have an opportunity to ask you questions. If you can do that, that would be great.
Mr William Trudell: Thank you, Mr Chairman. We welcome the opportunity to appear before the committee. We were consulted and had some input into the drafting of this legislation and therefore we're very pleased to be asked to come back. It's a personal pleasure. I am one of the vice-presidents of the Criminal Lawyers' Association, which represents over 1,000 members now in the province of Ontario, throughout all the regions.
I won't need half an hour. There are a couple of sections of the bill to which I would like to bring the committee's attention that cause some concern to us. I'd just like to go to them. I may get myself into some difficulty, but I want to speak directly to concerns we have.
Section 43 of the proposed bill talks about how judges become appointed. This is one of the most important aspects of this bill, especially in this province, perhaps even in this country, when there are increased changes in legislation, increased pressures from various representatives of various groups and a tremendous case load in the provincial court, where most of the work is done, really. I'm speaking on behalf of the Criminal Lawyers' Association and I'm not speaking in relation to representation before the Family Court, save and except where it involves young offenders.
We feel, with respect, that clause 43(2)(c) -- "seven persons who are neither judges nor lawyers, appointed by the Attorney General" -- is fraught with some danger, maybe concern. What's the matter with lawyers or judges appointed by the Attorney General? We recognize and respect the need to have judges represent demographic makeup throughout this province. We realize that judges have to represent all interest groups. They are human beings, and they don't check that when they become judges. But it's very important, in my respectful submission, that we don't eliminate people who are skilled and people who have been trained in the profession.
For instance, I respectfully recommend that this section is imbalanced, but if it were to be seven persons appointed by the Attorney General -- why doesn't it just say "seven persons appointed by the Attorney General"? That way, if Madam Justice Bertha Wilson wanted to be appointed to this committee, she'd be eligible, or someone like Ken Dryden, who happens to be a lawyer. The list can go on. People who are lawyers or former judges are excluded from the Attorney General's appointment in that section. We think that tips the balance, unnecessarily, away from making sure that the people who come into the system as judges have both the skills training and represent the broad spectrum this legislation is attempting to promote.
I think the Attorney General's hands are tied by that subsection, and we'd like to see them untied. We're very concerned with ensuring, in these pressure times in the criminal courts, that the judges who are appointed are skilled. We are concerned about what may be implicit in 43(2)(c), which ties the Attorney General's hands.
The next section I would like to refer you to is section 51.5, talking about complaints. Subsection 51.5(3) says, "Without limiting the generality of subsection (2), the criteria must ensure that complaints are excluded from the mediation process in the following circumstances." According to this section, these types of situations can't go to mediation:
"1. There is a significant power imbalance between the complainant and the judge -- "to just stop there, it might be asked, isn't there always a perceived power imbalance, whether it be a male judge or female judge?" -- or there is such a significant disparity between the complainant's and the judge's accounts of the event with which the complaint is concerned that mediation would be unworkable."
As I read this section, even if the complainant agrees to mediation, it may very well be that they can't have mediation if they fall under paragraph 1. What is a significant power imbalance between the complainant and the judge? The fact that someone's a judge and someone else isn't? Is that what this means? I don't think that's what mediation is really all about. Respectfully, I think mediation is bringing two parties together, with someone who is powerful in the middle to say there has to be some give and take if the parties agree.
Paragraph 2: It's really quite sad that we have to say it's where "The complaint involves an allegation of sexual misconduct or an allegation of discrimination or harassment because of a prohibited ground of discrimination or harassment referred to in any provision of the Human Rights Code." In other words, it's where there has been an allegation of sexual harassment against a judge, even if the parties agree that it be -- and I use the word carefully -- of a minor nature, some comment made. Isn't this what we want to mediate? Isn't this how we can put the two parties together, and the parties agree that in this particular case the judge doesn't need to be on the CBC evening news, nor does the complainant need to be on the CBC evening news because he or she -- and I include female judges in that category -- has made an inappropriate comment or there's an allegation of sexual misconduct.
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If mediation can work, if the parties agree, I think what we do here is allow our system to work a little smoother, as opposed to being held up to public scrutiny that is unrestrained. I think we spend more time trying to explain to the public, after the commissions that may have got off the rails -- without mentioning any -- that the system is working and everybody's in there and not making sexual remarks to each other. The criminal courts are busy, and mediation is exactly, in the appropriate circumstances, what we would like to see here in these changing times, where men have to become more sensitive, women have to become more sensitive, and we all have to become more understanding. Mediation may be the way to go.
Third, where "The public interest requires a hearing of the complaint." I am not sure, but perhaps the committee is, who makes that decision and what the public interest is. We have now had a major hearing in this province, and the public interest was served by letting the public know that these things are not happening behind closed doors and that people are open to scrutiny. But where does the public interest require a hearing of a complaint if the complainant says and the judge says, "We'd like to go to mediation and resolve it"? I am worried, with respect, about pressure groups taking over this process.
That's the second section we would like to bring to your attention.
The third one is subsection 44(4). We were very supportive of judges being able to work part-time; for instance, judges who wanted to take maternity leave or whatever. But 44(4) says, "A judge who is serving on a part-time basis under subsection (1) or (2) shall not engage in any other remunerative occupation."
What does that mean? Does that mean a judge can serve in a political organization, if it's not prohibited under some other statute? Does that mean a judge can work at a rape crisis centre? Does that mean judges can volunteer their time to the food bank? What does that mean in terms of the judge's responsibility? What has happened here in this province, or what seems to be the case, is that a judge is a judge is a judge.
The Criminal Lawyers' Association took the position that we wanted to be very careful about a judge's conduct on the bench versus a judge's conduct off the bench. If you have judges working part-time and they can do anything, except if they're getting paid for it, I am concerned about a gap in terms of what judges may be able to do in the community or what they may feel comfortable doing in the community.
Section 51.6 is another section we would really like you to consider having a peek at, subsection 51.6(10). This legislation attempts to strike a balance between keeping the process of judges being accountable open and making sure that judges are not destroyed by publicity in what may turn out to be a frivolous complaint, or indeed that individuals are not destroyed by publicity in what may be a complaint that's resolved by being found to be frivolous or by someone withdrawing it or whatever.
What does "in exceptional circumstances" in subsection 51.6(10) mean? "In exceptional circumstances and in accordance with the criteria established under subsection 51.1(1)" -- and those criteria have to be established -- "the Judicial Council may make an order prohibiting, pending the disposition of a complaint, the publication of information that might identify the judge who is the subject of the complaint."
In our respectful submission, as criminal lawyers, we'd like to see that in all the cases. That's not going to happen in this world, I suppose. But what does "in exceptional circumstances" mean in terms of protecting the public's right to know but, quite frankly, from my point of view on behalf of the Criminal Lawyers' Association, protecting that judge who is the object of an accusation, the object of a hearing before the Judicial Council? If we knew what the exceptional circumstances were -- and I don't think we could legislate every exceptional circumstance, but I'm having some difficulty with those words because I don't know what guidance goes with them.
Section 51.8 is the last one:
"A provincial judge may be removed from office only if,
"(a) a complaint about the judge has made to the Judicial Council; and
"(b) the Judicial Council, after a hearing under section 51.6, recommends to the Attorney General that the judge be removed on the ground that he or she has become incapacitated or disabled from the due execution of his or her office by reason of,
"(i) inability, because of disability, to perform the essential duties of his or her office" etc.
What does that mean? Does that mean a judge who is physically disabled, because there's no ramp in northern Ontario, can't sit? I don't know what that means. What does "incapacity" or "disability" mean in that section? If it means judges are incompetent and shouldn't be sitting, that's obvious. That's not clear enough, with respect, to protect judges who may suffer from disabilities that we may be able to resolve by way of spending some money.
"(ii) conduct that is incompatible with the due execution of his or her office." What does that mean, "incompatible with the due execution of his or her office"? Does that apply to in court? Does that apply to in the hall? Does that apply to the cocktail party? Does that apply to the judge who is working only part-time and on a six-month leave of absence?
"(iii) failure to perform the duties of his or her office." What does that mean? Doesn't show up? Doesn't show up on time? How many times? What does "failure to perform" mean? Obviously, if a judge is assigned and you can't find them, and you know they're not here at Queen's Park giving submissions to a committee, I suppose.
There are just some areas that we think can be spelled out a little better, but we really quite feel that the bill attempts to strike a balance, and those are the sections we would urge you to look at.
Mr Robert Chiarelli (Ottawa West): Thank you very much for your comments. I would make a suggestion which will create a bit more work for you on this particular issue, but as you're aware, we will be doing clause-by-clause deliberation on this bill in the near future, in which case we're going through section by section. It would make it very much easier for us to try to translate your thoughts into action if you could provide us with suggested amendments, if you haven't already drafted them. Some of your comments were more by way of questions and raising issues, and in some instances, you had some very specific recommendations. Where you can be specific, I would certainly appreciate receiving copies, as I'm sure the rest of the committee members would too, on specific section-by-section amendments you would like to see. There probably would be a better likelihood of some of those changes being effected if you could provide us with concrete suggested amendments.
Mr Trudell: Done. The last thing I said to the executive secretary, Stephanie Mealing, as I left the office is that we're going to have to put something in writing and get it to them before the 30th.
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Mr Chiarelli: The other thing I want to raise has to do with your first comment on section 43 with respect to the composition of the appointments committee. You indicated that it was fraught with danger, in the sense that seven persons who are neither judges nor lawyers would be appointed by the AG.
To read very briefly from the compendium which was put together by the minister and the ministry, it says:
"The Ontario committee is the first to have a non-lawyer majority in Canada. In the United States, most committees have a majority of non-lawyers. Non-lawyers bring new insights which those closely connected to the justice system may not have. For this reason, the bill provides for a majority of public members on the committee."
It would appear to me that there's really a philosophical difference between what you're saying and what the government has put into the legislation. I'd like you to address that philosophical difference. I'm sure what was in the government's mind was the perception, at least on the part of the public, that the justice system is very much a closed shop, and the government's probably trying to open it up somewhat. Perhaps you can expand a little more on what you consider the dangers to be, when you say it's fraught with danger to have seven public members who are not lawyers or judges.
Mr Trudell: Maybe the word "danger" was injudicious, but with respect, I think the government can strike the balance that it's attempting here by not tying the Attorney General's hands to have persons who represent the demographic makeup of the province, which this section is referring to, as far as I understand it. They may be lawyers. What's the matter with lawyers? We're not all criminal lawyers, and we're not all that bad. Some of us can help.
Mr Chiarelli: Probably a lawyer and a politician.
Mr Trudell: Right. There is a perception here that we as lawyers and, with great respect, you as politicians allow the public to have, that there's something the matter with lawyers. Lawyers probably are the ones who drafted this bill. I think there has to be some education out there that the criminal justice system and the family court system are not a closed shop. Every day, people are there solving the problems of the community, and they're real people in there. They're real people coming in with their problems and they're real people dealing with them as judges and defence counsel and crown attorneys and representatives of various parties.
The public feeling that it's a closed shop is a problem in education. With respect, I think this is an overreaction. The government should spend some money saying that it isn't a closed shop. We spend a lot of time in criminal justice, but we don't spend very much time trying to educate the public about what goes on in there, until some MP's son gets charged or some criminal lawyer's daughter gets charged or our neighbour's, and then we understand it. The government is reacting improperly to this, with respect, by acceding to the criticism that we operate in a closed shop. I think everybody in this room knows we don't.
Mr Charles Harnick (Willowdale): The Judicial Appointments Advisory Committee has provided us with a brief, and in dealing with clause 43(2)(c), they say the section should be modified so as not to exclude a person who has studied law but is not a practising lawyer. I gather that your submission goes further than that.
Mr Trudell: Let's use the example, if you don't mind, of Madam Justice Bertha Wilson; let's just decide that next year she has nothing to do. The Attorney General cannot appoint her. It makes no sense, in my respectful submission. Whether or not I agree with Madam Justice Bertha Wilson's views -- we used to work together at Osler, Hoskin 20 years ago -- why should she be excluded from this? Or why should a disabled person be excluded from this? Or why should a black person who happens to be a practising lawyer or a retired lawyer be excluded from this?
If you studied law but aren't practising, is the sin that you get called to the bar? It adds to this feeling that it's a we-they situation, and that's not what it is.
I'm not saying that there shouldn't be public representation of people who aren't lawyers. There's no question about it, because sometimes lawyers can't see the forest for the trees. That's why at the law society, for example, if you go before a panel to be disciplined, you're going to have a lay member there. But on behalf of the Criminal Lawyers' Association, we don't think it's something to be proud of, that this is the first committee in North America or whatever where the balance is not more lawyers than public. I'm not saying that very well.
Mr Harnick: I understand.
Mr Trudell: I don't think that's right. Lawyers are supposed to be problem-solvers, and that's what we do.
The system is changing dramatically in this province. The Martin committee report has just come out, they're talking in Ottawa about the preliminary hearing, we're talking about disclosure -- things are changing on a daily basis. With respect, if you have a majority of non-lawyers, who don't really understand how the system works, I'm concerned about who eventually sits. There should be a balance here, and I think the balance should be shifted in favour of people in the profession.
Mr David Tilson (Dufferin-Peel): The other issue, and this issue has been raised in the House several times, is the fear of political interference; that whatever political persuasion one is and for whatever reason, there would be some political appointments, particularly in the non-legal profession. Do you have any concerns about that issue?
Mr Trudell: I don't think any of us here came down in the last rain. When there are political movements going on and there are sensitive issues -- for instance, we are now trying to hold the flood banks back on the Young Offenders Act because everybody thinks it's terrible. There could be movements in terms of appointments here that reflect political pressures, not so much political parties or memberships, but pressures that are, you knew, as long-lasting as the good weather was on Saturday. That's what we're concerned about.
Two years ago we had a problem in this province with backlog in the provincial court. There's a simple solution to impaired driving situations, for instance: Give restricted licences, and you would find immediately in the criminal justice system all kinds of cases that got resolved. But if right across the board people lose their licences, whether they drive taxis or politicians or whatever, it doesn't make any sense.
What we're concerned about is appointments that reflect powerful special-interest groups at certain times.
Mr Tilson: The other issue -- and I'm sorry I didn't hear the first part of your presentation -- has to do with the transfer of provincial judges to section 96 judges. The saving to the provincial government might be substantial, depending on what happens. There's the issue of services provided, particularly in family law, and whether moneys are going to be available. I appreciate that you're from the Criminal Lawyers' Association and that it may not apply to you, but it's the issue of moneys that are available going into the consolidated revenue fund as opposed to the AG.
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Mr Trudell: Let me say this. I practise exclusively criminal law, but a representative from our association in Sault Ste Marie doesn't just practise criminal law; he practises family and other things. I'm not going to answer this question articulately because I don't have all the answers in terms of section 96 and the transfer, but one of the saddest things in this province is the underfunding of criminal justice.
Let me give you a quick example before you throw me out. I remember calling the courthouse in Collingwood a number of years ago to talk to the crown, and a judge answered the phone. I said, "What are you doing answering the phone?" He said: "What do you mean? I do everything around here." Then I called back 45 minutes later, and I said, "Are you still answering the phone?" The crown hadn't arrived.
Mr Tilson: You don't need to say any more. Thank you.
Mr David Winninger (London South): Thank you for your presentation, and we're looking forward to having a written version as well. You've certainly raised some very interesting points around the language of certain sections of the act. I would point out that some of the issues you raise will remain within the purview of the Judicial Council; they of course will be setting their procedures in connection with the work they will continue to do. But it's certainly helpful to have your views. Thank you for coming.
Mr Trudell: I appreciate it very much. Thank you.
JUDICIAL APPOINTMENTS ADVISORY COMMITTEE
The Chair: Judge Robert Walmsley.
Judge Robert Walmsley: Good afternoon. I have with me some support troops, and I'll ask them to advance to the ramparts. First of all, I want to say how pleased we are to be here this afternoon, Mr Chair, seeing you and the members of the committee and having this opportunity. We have a brief brief, which I'm not going to refer to in any detail. I'm sure you'll be reading it at some stage.
I would like to introduce the people who are here: Nancy Hansen, from Ottawa, a member of our appointments committee; David McCord, also from Ottawa, as it happens, another member; and Professor Peter Russell. Peter Russell was the one who lent his name to the Russell committee, which was the common nomenclature for the appointments committee when it started back in 1988. We're very glad he's able to join us even though he's no longer able to be on the committee.
The order of procedure is this: On page 2 of the brief we have two major points from the committee, and there will be one point from Professor Russell. We have negotiated with the ministry over many months and we have been able to solve a lot of the wording difficulties we had, but we still have two points remaining.
The first one is 4(a), set out in "Specific Requests for Revisions." I'm going to ask Nancy Hansen, and then after that David McCord, to elaborate on why we're making this recommendation. After that, I understand that Professor Russell would like to speak to you on an old favourite section, clause 43(2)(c), in other words, the seven members appointed by the Attorney General.
Finally, I have a modest comment to make on the definition of who is a lawyer. Without further ado, I call on Nancy. Would you start off, please?
Ms Nancy Hansen: Thanks very much for having me here today. I'm one of those individuals who teaches law and isn't a lawyer.
First of all, I'd like to speak on the fact that because of the importance of this committee -- it's been held up for reflection on both the federal level and various provincial levels across the country -- it's important that this committee remain as far from the political process as possible. Our autonomy is what gives us viability in the public's eye, and public perception, as far as this committee is concerned, is paramount. Given the importance of the judiciary, given the impact of the judiciary on this province, we have to be as far from the political process as possible, irrespective of policies dealing with other committees. Our situation is unique.
Boy, I'm speaking faster than I thought I would.
As I said, the importance of public perception is paramount. If we are to ensure that the judiciary is as free from politics as it can possibly be, our position has to remain unique, irrespective of the process in other committees this government has. That's all I have to say.
Rev David McCord: Our point has to do very specifically with 43(4), the appointment of the chair. We made a decision to accept the invitation of the committee because we were unanimous and felt very strongly that the wording we had recommended, that there be a preceding consultation with the members of the committee before a chair was named, is extremely important for the functioning well of this kind of committee.
We've heard about public perception, and I would just like to share something. I'm one of the representatives from the community who happens to know something about the criminal justice system and not legally trained. But there is a very strong perception that the patronage system of the past is like the hydra. It keeps coming up in different forms. There is a fear in the community that the new system will inevitably succumb to the kinds of pressures that are inevitably there. We all know we don't live in a perfect world but that the world of political rewards, the world of personal ambition, the world of payoffs and of getting kicked upstairs, I can assure you, is alive and well, and it's something that we, as members of this committee, have been struggling with.
So there's a professional cynicism. I spoke to many of the lawyers in discreet inquiries, and I was amazed at the number of lawyers -- and we've just heard from a criminal lawyer. I was amazed to hear from criminal lawyers and other lawyers that their biggest fear was that this would simply become another mask for the same old thing. I had discussions with students in their final year at the University of Ottawa on two occasions. Interestingly, of all the things they could have discussed, that was the question that was raised. I do think there's some substance to that public perception and that fear, both within the profession and without.
My point is that we are still at a fragile, experimental stage. We haven't got a long history and we're still sort of forging along with a committee where you have seven people who do not come from that professional tradition mixed with people from the community. Here's the key point in the appointing of the chair: There has to be consultation with the members of that committee to choose the person who can handle the kinds of conflicts that committee inevitably has. We've only been in existence since December 1988, and it takes a certain kind of leadership, a certain quality of trust on the part of both the legal representatives and the community to enable that committee to function without having divisions along very undesirable lines.
Our plea is unanimous. Even if it means breaking precedents in terms of how you have set up other committees, I think Nancy's point was very well taken, that there's something very unique about the dynamics of this committee that you have to consider. Up to now, we have had three attorneys general with whom the committee has had -- how can I put it? -- an open-door policy.
We're preparing legislation for the future, and who's to say that is going to continue beyond now? That's why our plea is that at least there be some consultation so that there will be some accountability, moving back and forth, as to how we can best choose the fairminded consensus builder, without which I don't believe that committee is going to function very well, or else it will move into a much more politically divisive kind of committee than it has been.
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As we're looking to the future, I hope we can avoid the seeds, as was said yesterday, of much mischief being introduced into what I think is a very exciting experiment. As a matter of fact, I think it's a very important historic event that is being looked at. It's going to make legal history in Ontario certainly, and in Canada, but it's also being looked at from well beyond the Canadian borders. Professor Russell and I have had opportunity to meet the leadership from South Africa, an emerging democracy, wanting to see what it was that we had in place here in Ontario.
I think the time is opportune to look at the rewording of that which will keep the perception that this is a system that is as far as possible away from the perception and the reality of political manipulation.
Mr Peter Russell: I would like to congratulate the members of the Legislative Assembly and the government for getting this project to the legislative stage. In doing that, I'd like to pay tribute to the person who really is the author of this general reform of our judicial system in Ontario. He's ill today and hospitalized. That's the former Attorney General, Mr Ian Scott. I left word at the hospital that this was on today and that I would say on his behalf how indebted I am, as a citizen of Ontario, and my fellow citizens are to his initiative. It's been an initiative that, in my sense of things, has been received well by all the parties in the Legislature.
I remember, when Mr Scott introduced this pilot project and introduced me to the Legislative Assembly in December 1988, the members of the opposition party rising and approving the general idea, and I thought that was the right way to go. This system must have support from all sides of the Legislature, all parties in the province. After Mr Scott left the scene, I felt this system had the full support and cooperation of his two successors from another party who were, it seemed to me, equally committed to it.
It's somewhat in that spirit that I speak to a small modification you might consider to clause 43(2)(c), where it says the committee is to be composed of "seven persons who are neither judges nor lawyers, appointed by the Attorney General." Our committee, the Judicial Appointments Advisory Committee, recommended in its own recommendations in its final report, recommendation 5, that the words "in consultation with opposition leaders" be added after the words "Attorney General;" that is, "by the Attorney General in consultation with opposition leaders."
The thought there reflects very much what I have just said, that the composition of the committee, particularly when it's at the discretion of the Attorney General, should be not seen to be and not perceived to be partisan and strictly a matter of people who support the government party. My experience with the three previous attorneys general is that they were quite balanced and fair and not partisan in selecting people, but you today are preparing legislation for decades to come. We can't always be sure that attorneys general in the future will have the kind of judgement and fairness that Ms Boyd, Mr Hampton and Mr Scott have exhibited in discharging their responsibilities in appointing people to this committee. You have to legislate in a longer time frame.
I think this is a very soft modification. "Consultation" doesn't mean the opposition leaders would veto or nominate, but it does put a constraint on an Attorney General who, unlike the ones who have exercised responsibilities up to now, might load the committee with people who were obviously partisan and really reduce the credibility of the committee to perform its function.
It seems to me that the one argument against what is being suggested here, and it's something that's been put to me by my academic colleagues, is that if you consult the opposition leaders, they will feel obliged to put in representatives of their party, so that the committee becomes structured in a very partisan way -- that the government appoints, I don't know, three of its supporters and the opposition a couple each of its -- so the people come to the committee feeling they're representing a particular political party. I don't think that's a realistic fear.
I think the larger fear is that in the future some less principled Attorney General than we've enjoyed to date would not be inhibited from packing the committee, if you like, with members of the party. I'm particularly worried about that if we return to a period of politics, which we've departed from, of what we call one-party domination. We haven't had that in Ontario, I don't have to remind you members of this Legislature, for some time. But we did have for a very long period one-party domination of the Legislature in Ontario, and that could lead to an overloading in one partisan direction.
I urge you to consider the Judicial Appointments Advisory Committee recommendation 5 and add the words "in consultation with opposition leaders" to clause 43(2)(c).
Judge Walmsley: The point I wish to make, which is referred to on page 2 of the brief, is a rather minor point, but I think it should be looked at. It's the wording which occurs twice in the legislation, both in clause 43(2)(c) and paragraph 43(6)3, and that's the word "lawyer."
I appreciate that it may not be the wish of this committee or of this Legislature to have too many representatives of the establishment legal community on this committee, but by the same token, there are many people who are knowledgeable in matters of law who are not lawyers who could be considered to be eligible for this committee. I think of somebody such as a law professor who has studied in the area of judicial administration, somebody of that nature. As a matter of fact, Nancy Hansen, sitting beside me, has finished a number of studies in law, and it's possible that she might be considered to be so closely connected with the law that she wouldn't be eligible under the rubric "neither judges nor lawyers." By the same token, neither is she eligible under the legal appointment section, which provides for appointees by the Canadian bar, the law society and the County and District Law Presidents' Association.
We're suggesting some such wording as including the words "who are neither judges nor practising lawyers," to give a little more scope to getting that type of person on the committee, or at least not excluding them. I think this clause, in its present form, could possibility exclude a category of people with interest in the law who might be excluded under both clause (c) and I think (b).
As to specific wording, I don't know whether you need anything further from us on that issue.
With respect to designation of a chair, the simple wording "after consultation with the committee" would suffice. Peter, you suggested your own wording: "consultation with the opposition leaders."
Mr Russell: I was just taking it from our committee's previous recommendations. It could be "after consultation." I said "in," but "after consultation with the opposition."
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Judge Walmsley: It's our view that "consultation" does not imply domination. It's simply another way of showing that all constituencies are more or less independent of government. If you look at the composition of the committee, you will see that there are three law organizations, there is the Judicial Council, there are the judges represented, and then the community coming in with the majority. If those seven members are arrived at by discussing with other members of the Legislature, then again we have a much broader constituency with an interest in seeing that this committee is properly constituted.
I don't think we have anything further to add, but we certainly would be very glad to answer questions.
Mr Harnick: Your Honour, you heard the presentation made by Mr Trudell, who disagreed with the idea that there had to be seven persons neither judges nor lawyers. He felt this was very constraining wording as far as the Attorney General was concerned. What he suggested was "seven persons appointed by the Attorney General," so that the Attorney General could choose lawyers, retired judges -- he gave certain examples. I wonder if I can get your comment about the position he was taking.
Judge Walmsley: We haven't had any difficulty in the practical operation of the committee by having a majority of non-legally trained persons. Our feeling is that that's the heart of the committee and that's the heart of this recommendation, that it is separated out from the profession. Not only do we have to maintain a distance from the executive of the Legislature -- I suppose I should say more specifically "the executive" -- but we also have to maintain a distance from the profession so that it doesn't appear to be self-perpetuating in the appointment of its members to the bench. I don't have as much difficulty as Mr Trudell had about leaving that in the hands of the Attorney General.
We have operated from the outset, since 1988, except for one brief period, with a majority of laypeople. It's not the mix of legal and lay that is the problem, it's getting the right persons from both groups on the committee, persons who are prepared to accommodate, to reach consensus. That's the heart of our committee work. We practically never make a decision unless there's a consensus or unanimity.
Mr Harnick: Professor Russell, maybe you can help me. How many members has the committee traditionally had since 1988, and what has been the balance of laypeople and legally trained people?
Mr Russell: I'm not going to be able to recall the exact numbers.
Mr Harnick: Roughly.
Mr Russell: People would have to leave the committee for health or other business or work reasons, and sometimes there were vacancies. We started definitely with a lay majority. David and Bob were old originals, so I'm referring to them. I think it was six and five? Yes, it was. In any event, it's in our first preliminary report, which is tabled in this House. Then we expanded the committee and maintained the lay majority. But then some of the unscheduled departures from the committee would be laypeople, so for a period we were probably at least in balance, and maybe for a month or two it could be that there was actually a legal majority. I'm not sure of that. But there was never an intention to deviate from the lay majority. If it occurred at all, it was the accident of vacancies and a delay in filling.
I'd just like to bring one factor into your deliberations which I think has a bearing on this; that is, that the process of consultation the committee goes through in assessing candidates involves contacts with many lawyers and many judges. In other words, in assessing the professional reputation and competence of candidates, it isn't only the lawyers on the committee whom we rely on to know about them, because in this huge province your legal members aren't going to know about 99% of the candidates. It's contacting; you make a lot of contacts. The laypeople participate in that, as consulting the bar and bench.
It's terribly important to get a broad reading of these candidates' ability from those in the profession, bar and bench, who are acquainted with them. That's where I think the point of making sure you're getting knowledgeable lawyers' advice is crucial. But it doesn't depend on there being a law majority on the committee.
Mr Harnick: I appreciate that, because it helps reconcile the differences between your brief and Mr Trudell's brief. That's very helpful to us.
Ms Christel Haeck (St Catharines-Brock): In the current makeup of the lay members, do the majority of them have some understanding of the law? They're not like me, who happens to be a librarian and only cursorily, occasionally, goes through the Criminal Code or some other legal document?
Ms Nancy Hansen: May I speak to that? I have extensive legal knowledge. There is no LLB anywhere near my name. I have a degree in criminology, a degree in legal studies, and an MA in law and social policy in Canadian studies. Each of us who is a member of the advisory council from the community brings specific knowledge of certain areas that have legal bearing. We don't represent any particular constituency as members of the committee, but we do bring life experience, we do bring a very great deal of legal knowledge with us, although we are not lawyers per se. So we do have legal knowledge and understanding.
Judge Walmsley: Did the members receive a copy of the list of the committee members in their briefs?
Ms Haeck: We may have. I just haven't managed to finger it in the last few minutes.
Judge Walmsley: That does illustrate the diverse backgrounds of the committee members. One is a race relations officer at Western University, another is a first nations representative whose work takes her into contact with the courts, and on it goes.
Ms Haeck: In other boards I've sat on myself, not all the members end up being replaced at the same time. There's usually a staggering of appointments. So to some degree, the concern you've raised about the fabric of the committee being changed by, say, one AG putting all patronage appointments in there and shifting the majority in one particular way probably wouldn't happen that quickly. At least that would be my reading of that, but what's your response to that?
Judge Walmsley: I think the provisions of section 43 providing for staggered appointments go a long way to answering that. I think the detail of that will ensure that there's always a continuity of older members as new members come aboard. We haven't had too much concern about that prospect, though interestingly enough we are in the position of trying to decide what we should be doing in this transitional period: Do members want to continue? How do we negotiate that with government? This is going to start from square one, and we're hoping we will be able to negotiate with the law people and the judges and so on so that there's change but there's also stability.
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Rev Mr McCord: Could I answer the first question, at least provide a partial answer? There are many people who may know the law, but there are many citizens who know the effects of the law. That, I think, is a key point that needs to be made. There are many of us who have experience in the criminal justice system. It's a vast system, and it's not only what's happening on the bench that needs to count. We need people who are going to come to the bench who are conscious of the power that the community is giving them. That's a critical point.
Ms Haeck: Coming from St Catharines, there are a lot of people who would agree with your comment.
I have a point to Mr Winninger. The panel here has suggested that people who are non-lawyers but who may have some legal training should be considered. In looking at Bill 136 and the preamble, I don't see a definition of "lawyer." Frequently they have a sort of glossary in the preamble to define terms, but I don't see this here. What is the definition of "lawyer" under any of these other acts listed here? That may answer the concern of the panel.
Mr Winninger: Presumably, to be a lawyer in Ontario, you need to be called to the bar of the Law Society of Upper Canada. That's what distinguishes you from a layperson. In the wording of clause 43(2)(c), I don't see any disqualification based on legal training, simply that the appointee not be a judge nor a lawyer.
I thank the committee for attending today. I asked specifically that you be contacted to present. Collectively, you're vested with the very significant responsibility of appointing our provincial judiciary, and your views are very important.
I have one quick question of clarification for Judge Walmsley. You mentioned that you felt that non-practising lawyers should be qualified under section 43 to serve as the lay appointments, if you will. I'm just wondering if you could refine a little your view of what a non-practising lawyer is. We have, as has been observed earlier, some non-practising lawyers around the table here who now practise politics. If, for example, a lawyer still has an interest in a law firm of a financial nature, would that disqualify him or her?
Judge Walmsley: Perhaps I could help by referring back to our original submission to the ministry. We originally proposed this wording, "seven persons who are neither judges nor members of the bar of one of the provinces or territories of Canada, recommended by the Attorney General for appointment by an all-party parliamentary committee." That was our original formulation, and that of course took into account my particular objection and also that of Professor Russell. I would think that would be workable. In other words, if you're a member of the bar, that's the law society, and presumably if you're going to pay money to belong to the bar, you're going to want to work for it. You couldn't then come in under the Attorney General's group.
Mr Winninger: In the case of a retired lawyer who's no longer practising law in the conventional sense, who is no longer a member of the bar because he or she doesn't pay the annual fees for that privilege, but still may have some financial interest in a law firm, would that, in your view, disqualify such a person?
Judge Walmsley: I'd have to think about whether that ties him or her too closely to the practising profession. But if they weren't having a financial connection, there's no reason why he or she couldn't be appointed.
Mr Chiarelli: First of all, I think the best endorsement for continuing and improving the mandate of the committee is the very nature of your submission here today. It really speaks well for the committee and the process, and I certainly appreciate that.
I have a couple of very brief points. Professor Russell indicated that the word "consult" is a very soft word. I tend to agree with him. In looking at your recommendation vis-à-vis appointment of a chair, I wonder if there's something that could be a little stronger than just the consultation, for example a criterion of having served on the committee for one or two years, something that would be a little stronger than consultation, because we know what consultation can become. We've seen, from time to time, that it can mean absolutely nothing. I would like somebody to comment about whether or not you have any suggestions which, if they were acceptable, might be a bit stronger.
Rev Mr McCord: If I may, it seems to me that to put in that the person has been there for x number of years is not really to meet the need that we have felt as members of the committee. There are all kinds of dynamics that go around that table, and it's not along the lines, necessarily, of the lawyers and the non-lawyers. That's a very important point also for you to reflect on. It's the need to capture the trust of the members around that committee. We get to know each other pretty well, although we don't socialize, unfortunately, nearly as much as I would have liked to build that confidence and mutual respect around the table. I think that's the key issue and I think the Attorney General needs to be aware of something of the recent history.
There are interesting dynamics that take place when you have very strong-willed people, very strong-minded and very capable people around the table. I would think it would be a major blunder to have a person appointed as chair who did not carry the respect and the confidence of the other members of the committee. There's a dynamic there. I wish were simpler, but it's to get at that more intangible element.
Mr Chiarelli: When you talk in terms of a non-practising lawyer being included in the seven public members, would you also include in that a retired judge as being eligible, a judge who has no responsibility?
Judge Walmsley: I was going to say something rude, that once they get to the age of retirement they're probably over the hill. But I'm at the age of retirement, so I withdraw the remark.
To be quite frank with you, sir, we haven't thought of that particular issue. It might well be that somebody with many years of service and with much knowledge of the law and of the dynamics might be very useful. I certainly wouldn't exclude it.
Rev Mr McCord: There is one other thing I feel very strongly about, as a member of the community and representing those of us who have served from the community on this committee. It's fascinating to me to listen to the line of questioning, which tends to assume that the people who can best serve the people of Ontario are those who have had legal training, whether they be retired or not. I think it would do a great disservice to the people of Ontario to have as the other seven all people who have some connection to the law but who don't have other connections back to the community.
Judge Walmsley: You see, the dynamics of the committee are showing right here. As chair, no doubt we'll reach a consensus before the end of the day.
The Chair: We found your interventions very useful and we thank you all for coming today.
Judge Walmsley: It's been our pleasure.
The Chair: This committee is adjourned until Monday, May 30.
The committee adjourned at 1710.