Standing Committee on Justice and Human Rights - Nomination of the Honourable Nicholas Kasirer to the Supreme Court of Canada - July 25, 2019

Tab A Minister's Opening Remarks

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Minister’s Remarks to the House of Commons Standing Committee on Justice and Human Rights

July 25, 2019

Introduction

I would like to thank the Chair for convening this special meeting of the Committee as well as all members for being here today. I greatly appreciate your presence and your engagement in this important aspect of the Supreme Court of Canada selection process.

This is the third iteration of our Government’s reformed process for appointing Justices of the Supreme Court of Canada. The modifications that we introduced in 2016 are designed to ensure greater openness, transparency and accountability in the appointments process. The Government is also committed to achieving a gender-balanced Supreme Court that reflects the diversity of members of Canadian society, and to ensuring that new appointees are functionally bilingual.

Many of you here today are seasoned participants, having been part of the 2016 and 2017 processes that resulted in the appointments, respectively, of Justices Rowe and Martin. They are both exceptional additions to the Court.

As you may imagine, I followed these processes as they unfolded with great interest and attention. It is a tremendous honour for me to now have the privilege to participate in a more direct manner in this process, to fill the vacancy arising from Justice Gascon’s impending retirement on September 15, 2019.

I have the pleasure of accompanying the Right Honourable Kim Campbell who joins us via video-conference from Vancouver today. In her capacity as the Chairperson of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments, Ms. Campbell has also served as the Chairperson of the current Advisory Board that was adapted to ensure the appointment of a judge properly grounded in the Quebec legal experience and tradition. Ms. Campbell’s extensive experience with the selection process has been an invaluable resource in this process as well. We are very grateful for her continued dedication to serving Canadians in this role.

In a few moments I will turn things over to Ms. Campbell to describe the specific work the Advisory Board undertook in order to produce the shortlist of candidates for the Prime Minister’s consideration. Before doing so, however, I would like to briefly outline the unique aspects of the current process to fill this Quebec seat on the Court.

Unique Aspects of Quebec Process

The Supreme Court Act reserves three seats on the Court to be filled by Quebec jurists. Pursuant to sections 5 and 6 of the Act, qualified candidates are current judges of the Court of Appeal of Quebec or the Superior Court of Quebec or current members of the Quebec bar of at least 10 years standing.

As elaborated by the Supreme Court of Canada in the Reference concerning sections 5 and 6 of the Supreme Court Act, this requirement is aimed at ensuring Quebec’s unique legal traditions are properly reflected on the Court. Not only does this allow the Court to deal with civil law cases, but also ensures the Court’s legitimacy in the eyes of Quebecers.

The published qualifications and assessment criteria confirm that “deep knowledge of the civil law tradition is essential for all candidates to the three Quebec seats.”

On May 15, 2019, the Prime Minister announced a Memorandum of Understanding between our Government and the Government of Quebec, setting out the process to be followed to fill the vacancy on the Court upon Justice Gascon’s retirement. Like the process for non-Quebec seats, its key feature is the independent and non-partisan Advisory Board, which is tasked with assessing candidates and producing a shortlist of three to five names for the Prime Minister.

Some adjustments to the composition of the Advisory Board were made to ensure it is grounded in the reality and experience of Quebec and the civil law tradition.

The membership includes the Chair, Ms. Campbell, and one other member nominated by me as federal Minister of Justice. The other six members are selected to ensure a close connection with Quebec and the civil law. They are:

The selected members, all of whom are functionally bilingual, represent a distinguished set of individuals who have undertaken their important responsibilities with great care and dedication. I would like to thank them, on behalf of the Prime Minister and our Government, for their exceptional service throughout this process.

The core mandate of the Advisory Board is to assess candidates against the published assessment criteria and to submit to the Prime Minister the names of three to five qualified and functionally bilingual candidates.

In accordance with the agreement with Quebec, once the Advisory Board completed the shortlist, I shared it with the Quebec Minister of Justice. We then each undertook our own confidential consultations on the shortlist. My consultations included the Chief Justice of Canada, various Cabinet colleagues, opposition Justice Critics, as well as members of this Committee and the Senate Standing Committee on Legal and Constitutional Affairs.

I understand that Quebec’s Justice Minister proceeded with her own consultations, including with the Chief Justice of Quebec, before providing the results of these consultations to the Premier of Quebec. Upon the conclusion of the consultation period, the Premier and I conveyed our respective recommendations on the shortlist to the Prime Minister to inform his choice of nominee. I will outline the merits of the nominee and how he meets the qualifications and assessment criteria later in my remarks.

Confidentiality of the Process

Before turning the floor to Ms. Campbell, I would like to speak briefly about the importance of confidentiality in this process, given the concerns that have rightly been raised about improper disclosures surrounding the 2017 selection process.

The disclosure of confidential information regarding candidates for judicial appointment is unacceptable and the Government has made concerted efforts to ensure this does not happen again.

This process has implemented strict confidentiality measures throughout. The Terms of Reference for the Advisory Board contain provisions specifically designed to ensure that the privacy interests of all candidates are respected. This includes a requirement that Advisory Board members sign a confidentiality agreement prior to their appointment.

In addition, the agreement with Quebec explicitly states that the sharing of and consultations on the shortlist are to be conducted in a confidential manner.

Next Steps

In terms of next steps in the process, in addition to the Advisory Board’s critical contribution in developing the shortlist, today’s hearing is another important element. It provides an opportunity for you as parliamentarians to hear from and question the Government regarding the selection process and our choice of nominee.

And parliamentarians—and Canadians more broadly—will again have the opportunity to become acquainted with the nominee himself through the question-and-answer session that has been scheduled for this afternoon.

Having provided this context, I would now look to Ms. Campbell to describe the work the Advisory Board undertook in fulfilling its mandate.

[Ms. Campbell...]

Observations on Nominee

Thank you very much, Ms. Campbell.

Let me now turn to the merits of the nominee. Justice Kasirer was admitted to the Barreau du Quebec, in 1987, after having obtained a Bachelor of Arts (Hons.), joint major in economics and political science in 1981 from the University of Toronto, and both a Bachelor of Civil Law and Common Law from McGill in 1985. He did post-graduate work at the University of Paris, where he obtained a “Diplôme d’études approfondies en droit international public”, in 1986.

Following his admission to the Barreau, Justice Kasirer clerked for the Honourable Jean Beetz at the Supreme Court of Canada. He served as Professor at his alma matter, McGill University, from 1989 to 2009, and was Dean of the Faculty at McGill from 2003 to 2009, when he was appointed to the Quebec Court of Appeal. Prior to his career at McGill, from 1996 to 2003, he was Director of the Quebec Research Centre for Private and Comparative Law at McGill University, as well as a part-time instructor at le Barreau, and a guest Professor at the University of Paris.

Justice Kasirer has written or contributed to almost two dozen books and made scores of contributions to legal publications primarily focusing on the law of obligations, property law, family law, and wills and estates law in both civil and common law. Justice Kasirer has also had a number of pro bono functions over the course of his career as both an academic and a judge, including as President of the Canadian Foundation of Legal Research and on the board for a number of legal periodicals. …

[TO BE FILLED IN BY THE MINISTER’S OFFICE]

Conclusion

I would like to conclude by reiterating my sincere thanks, on behalf of the Government, to Ms. Campbell, each member of the Advisory Committee, each person who was consulted, and each candidate who applied in this process. You have helped to ensure the strength of one of Canada’s most treasured institutions—a Supreme Court that is respected and admired throughout the world. We are very grateful for your contribution.

I would also like to thank the Commissioner for Federal Judicial Affairs and his staff, who have provided exceptional and professional administrative support throughout this process.

Finally, to my colleagues in Parliament—thank you for helping to ensure that values of democracy, transparency and accountability are central in the selection of judges to our highest court. Securing a role for Parliament in appointments to the Supreme Court has been a work in progress for more than twenty years. I believe that it is a crucial role, and the 42nd Parliament can be proud of having moved the yardsticks toward consultation and inclusivity.

With its ongoing support for the central values of transparency, inclusiveness and accountability, the Supreme Court of Canada selection process will continue to reinforce Canadians’ confidence in this fundamental institution, as will the appointment of exceptional jurists who reflect our country’s diversity, bilingual and bijural character.

Thank you.