APPENDIX A —
INTERIM AD HOC COMMITTEE ON THE APPOINTMENT OF SUPREME COURT JUDGES

The May 2004 Report of the House of Commons Justice Committee reflected a broad public consensus on the need for a new process for appointing judges to the Supreme Court of Canada in order to ensure greater transparency and openness in appointments and greater parliamentary and public involvement in the process.

While the objective is lasting reform, present exigencies require the development of an interim process to enable the two present vacancies to be filled in time for the Supreme Court to resume its fall sittings with a full bench on October 4, 2004.

This is not to pre-empt Parliament’s work on longer term reform. The House of Commons Justice Committee has already done important work on this issue, and the experience and insights gained from the interim process will prove invaluable in developing recommendations for more permanent reform. The Justice Committee will be asked to undertake this task when Parliament resumes.

Principles for an Interim Process

  • In order to fill the two existing Supreme Court vacancies, an interim process is required. This will involve striking an ad hoc committee to review the two nominees.

  • The ad hoc committee will review the proposed nominees before the appointments are made.

  • The process will proceed on the understanding that the authority to make Supreme Court appointments is constitutionally vested in the Governor in Council, and accordingly, that the role of the ad hoc committee is advisory.

  • Although it will include parliamentarians, the committee will not be a parliamentary committee. It will therefore be subject to special rules of procedure, set out below, which have been developed specifically for this process.

  • The Minister of Justice will appear before the ad hoc committee in order to:

    1. describe to the committee the scope and nature of the process used to select the nominees; and

    2. present to the committee the information gathered about the professional qualifications and personal suitability of the nominees.

  • The ad hoc committee will consist principally of MPs. It will also include non parliamentary representatives of the Law Society of Upper Canada and Canadian Judicial Council.

  • The hearing of the committee will be as open and transparent as possible, consistent with ensuring the integrity of the process.

  • The ad hoc committee process will need to proceed as quickly as possible. The committee will need to expedite its process and deliberations in order to ensure that the nominees can take their place in time for the resumption of the Supreme Court’s sittings on October 4, 2004.

Rules of Procedure for Interim Ad Hoc Committee

Composition and Logistics

  1. The interim ad hoc committee will be composed as follows:

    • 7 parliamentary members:

      • 3 Government MPs (including Chair)
      • 2 Conservative Party MPs
      • 1 Bloc Québécois MP
      • 1 New Democratic Party MP

    • 2 non-parliamentary members:

      • 1 representative of the Canadian Judicial Council
      • 1 representative of the Law Society of Upper Canada.

  2. The non-parliamentary members will be chosen by their respective organizations.

  3. The committee will be supported by House of Commons staff (as per the process used for the Interim Committee of Parliamentarians on a National Security Committee).

Timing

  1. Given the urgency of filling the existing vacancies, the ad hoc committee hearing will take place on Wednesday, August 25, 2004 and the committee will submit its report to the Prime Minister on the proposed nominees no later than 2:00 p.m. ET, Friday, August 27.

Preparatory Steps

  1. To allow ad hoc committee members to prepare while at the same time preserving confidentiality, committee members will be provided with the names and biographical information of each nominee at 9:00 a.m. ET on Tuesday, August 24, 2004.

  2. Shortly thereafter, the Minister of Justice will publicly release the names of the nominees, together with their biographical information. At that time, the Minister of Justice will also announce the membership of the ad hoc committee and the rules it will follow.

  3. Later that day, the Deputy Minister of Justice and other senior officials will provide committee members with an advance briefing.

Format of hearing

  1. The hearing will open with a presentation of approximately 30 minutes by the Minister of Justice on the two nominees, followed by a first round of 8 minutes of questions per member and a second round of 4 minutes per member. The committee may agree, on motion, to adjust this format. The hearing will conclude with a brief closing statement by the Minister of Justice.

  2. The hearing will be open to the public and televised. However, the committee may agree, on motion, to proceed in camera in order to preserve the integrity of the process (e.g., out of concern for the privacy or dignity of the nominees).

Presentation of Minister of Justice

  1. As one of the objectives of the hearing is to enhance public understanding of and confidence in the Supreme Court of Canada and individual appointees, the Minister of Justice will provide information about the scope and nature of the process used to select the nominees, as well as information relating to their professional qualifications and personal suitability. The Minister will present an overview of these issues, subject to appropriate limits of confidentiality. Members of the committee may seek further elaboration with a view to increasing public awareness, confidence and understanding.

  2. More specifically, the presentation of the Minister of Justice will canvass the following issues:

    • what consultations he undertook;

    • what written information he reviewed; and

    • what additional personal research he conducted.

  3. The Minister of Justice will elaborate on the nominees’ professional capacity and the personal characteristics that informed his recommendations, having specific regard to the following:

    • in relation to professional capacity: intellectual ability, writing skills, open mindedness, decisiveness, diligence, ability to collaborate, awareness of racial, gender and other similar issues, bilingual capacity, specific expertise required for the Court; and

    • in relation to personal characteristics: honesty, integrity, candour, patience, courtesy, tact, humility, fairness and common sense.

  4. Committee members will have an opportunity to ask questions of the Minister in relation to these issues.

  5. No witnesses other than the Minister of Justice will be called for this interim process.

Report of the Ad Hoc Committee

  1. The ad hoc committee will make its views known through a written report. The report will summarize the committee’s considerations and note differing views without attribution. The report will be made public.

  2. The committee will provide its advice on the appointment of the proposed nominees, for the consideration of the Prime Minister, by 2:00 p.m. ET, Friday, August 27, 2004.

  3. The committee may, either at that time or as soon as possible thereafter, also provide advice on the ad hoc committee process itself and its implications for longer-term reform, for consideration by the Justice Committee this Fall.

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