Standing Committee on Justice and Human Rights - Nomination of the Honourable Nicholas Kasirer to the Supreme Court of Canada - July 25, 2019
Tab B Questions and Answers
1. Merits of the nominee
Question A
What was it about the nominee that made him stand out in comparison with other candidates on the shortlist?
- Each candidate on the shortlist was outstanding in their own way, as assessed in relation to the qualifications and assessment criteria.
- [To be filled in by the Minister’s office]
Question B
The media has reported that the Prime Minister’s office has been vetting judicial candidates using a political database called Liberalist. Were the nominee and the other candidates on the shortlist subject to this political vetting?
- All decisions throughout the selection process have been based on the qualifications and assessment criteria, including the Prime Minister’s ultimate selection of the Government’s nominee.
- The assessment the Advisory Board provided for each candidate on the shortlist was of fundamental importance to this process.
- The Prime Minister’s decision was also informed by recommendations that Premier Legault and I provided to him.
- Our merit-based appointments process has resulted in the appointment of outstanding jurists to our courts. The Prime Minister’s choice of nominee in this process is no exception.
If pressed:
- Political activity or donations have no impact on a person’s candidacy or selection for a judicial appointment to the Supreme Court or to any superior court. Our government has appointed people that have donated or been involved with parties of all political stripes.
2. Unique Process for Quebec
Question A
Why did the Government establish a different process for appointing Quebec judges?
- As you know, our Government introduced a new Supreme Court of Canada appointments process in 2016, and followed it to appoint Justices Rowe and Martin.
- Robust involvement of the provinces and territories is central to this process. Most notably, the Minister of Justice consults relevant provincial and territorial attorneys general with respect to candidates on the shortlist prepared by the Independent Advisory Board. The advice received is conveyed to the Prime Minister, who carefully considers it in making his decision.
- Unique considerations are at play with respect to the three seats on the Court which must, pursuant to the Supreme Court Act, be filled by Quebec jurists.
- As elaborated by the Supreme Court of Canada in the Reference concerning sections 5 and 6 of the Supreme Court Act, this is aimed at ensuring Quebec’s unique legal traditions are adequately 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.
- In our Government’s view, the appointment process should also reflect these considerations. To this end, we entered into an agreement with the Government of Quebec on how the new process would be adjusted to fill the vacancy created by the departure of Justice Gascon.
- I believe these adjustments are an appropriate reflection of the purposes underlying the Court’s composition as set out in the Supreme Court Act, as interpreted by the Supreme Court itself.
Question B
Q. Did the Prime Minister select the candidate recommended by Premier Legault?
- The Supreme Court Act specifies that judges are appointed by the Governor in Council. It is, in turn, the Prime Minister’s prerogative to make a recommendation to Cabinet on who should be appointed as a Supreme Court justice.
- Responsibility for the decision ultimately rests with the Prime Minister.
- To respect the Prime Minister’s prerogative, the confidentiality of the process, and the reputation of the Supreme Court of Canada, it would be inappropriate for me to make any comments that might disclose the recommendations made to the Prime Minister by Premier Legault or by me.
- I can assure you, however, that the Premier’s views on the shortlisted candidates were of fundamental importance to the Prime Minister in making his decision.
- The agreement our Government entered into with the Government of Quebec provides Quebec with an important role in the process. However, the agreement upholds the requirement that responsibility ultimately rests, as it must, with the Prime Minister.
Question C
Will the appointments process be similarly tailored for other provinces or regions? For example, will the Government be entering into an MOU with Ontario creating an Ontario-specific Advisory Board for Ontario seats?
- Ensuring the robust involvement of provinces and territories in the appointments process has been a fundamental consideration in the process our Government introduced in 2016, and followed in appointing Justices Rowe and Martin.
- Integral to this process is the fact that the Minister of Justice consults relevant provincial and territorial attorneys general with respect to candidates on the shortlist prepared by the Independent Advisory Board. The advice received is conveyed to the Prime Minister, who carefully considers it in making his decision.
- Our Government has proceeded in this manner and intends to do so for all future appointments.
- However, the situation of Quebec is unique. When dealing with seats on the Court that must, pursuant to the Supreme Court Act, be filled by Quebec jurists, our Government believed the process had to be adjusted.
- As elaborated by the Supreme Court of Canada, the constitutional requirement in sections 5 and 6 of the Supreme Court Act 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 modifications to the process specified in the agreement with the Government of Quebec respond to this imperative.
Question D
The arrangement with Quebec seems to imply that it might only be used for filling the vacancy upon Justice Gascon’s retirement. Does the Government intend to negotiate a new arrangement with the Government of Quebec for future vacancies?
- In our Government’s view, the arrangement we have agreed to with the Government of Quebec adjusts the appointments process in a way that appropriately reflects the purposes underlying the Court’s composition as set out in the Supreme Court Act, and as interpreted by the Supreme Court.
- In other words, the adjusted process advances the objectives of ensuring Quebec’s unique legal traditions are properly reflected on the Court, and of ensuring the Court’s legitimacy in the eyes of Quebecers.
- Of course, this is the first Quebec vacancy being filled with this process. We will certainly consider the perspectives of Quebecers, of this Committee, of the Independent Advisory Board and of other stakeholders on how the process unfolded.
- I wouldn’t want to speculate any further at this time as to whether any further adjustments might be beneficial.
Question E
When in opposition in 2016, a CAQ member introduced a bill in Quebec’s National Assembly which would establish a process to fill Quebec vacancies on the Supreme Court of Canada. It involved getting the National Assembly to vote on a shortlist of candidates. Is your Government open to such a process for the next Quebec vacancy?
- In our Government’s view, the arrangement we have agreed to with the Government of Quebec adjusts the appointments process in a way that appropriately reflects the purposes underlying the Court’s composition as set out in the Supreme Court Act, and as interpreted by the Supreme Court.
- In other words, the adjusted process advances the objectives of ensuring Quebec’s unique legal traditions are properly reflected on the Court, and of ensuring the Court’s legitimacy in the eyes of Quebecers.
- Of course, this is the first Quebec vacancy being filled with this process. We will certainly consider the perspectives of Quebecers, of this Committee, of the Independent Advisory Board and of other stakeholders on how the process unfolded.
- I wouldn’t want to speculate any further at this time as to whether any further adjustments might be beneficial.
3. The Shortlist
Question A
How many names were on the shortlist?
- [To be filled in by the Minister’s office]
Question B
News reports have suggested various names that may have been on the shortlist. Can you confirm the names on the shortlist?
- Since establishing this new process, the Government has been clear that the shortlist will remain confidential. That was the expectation and undertaking under which candidates applied.
- In striking a careful balance between transparency and confidentiality, the Government decided that the process should respect the privacy of candidates so that as many qualified candidates as possible would apply.
- Consequently, I will not be commenting on the names on the shortlist, and I am confident that all those who have been involved in this process will respect their duty of confidentiality out of respect for the candidates and the integrity of the Supreme Court.
Question C
Was the nominee the candidate you recommended to the Prime Minister?
- I of course cannot answer that question. My advice and discussions with the Prime Minister on this matter are confidential, as are Premier Legault’s.
- To respect the Prime Minister’s prerogative, the confidentiality of the process, and the reputation of the Supreme Court of Canada, it would be inappropriate for me to make any comments that might disclose the recommendations made to the Prime Minister by Premier Legault or by me.
- However, I can say that each of the names on the shortlist would have been a worthy addition to the Court. I am very proud of the exceptional wealth of legal talent that Canada produces.
- As a Quebec jurist, I take special pride in the calibre of individuals from my home province who were considered for this appointment. Quebec has a remarkable legal community that embodies the province’s distinct linguistic, cultural and legal position within Canada. Justice Kasirer is an exemplar of that community. He will be an excellent successor to Justice Gascon, and fine company for the exceptionally strong representation Quebec already has in Chief Justice Wagner and Justice Côté.
Question D
Were there any Indigenous candidates on the shortlist? Any visible minority candidates on the shortlist?
- Since establishing this new process, the Government has been clear that the shortlist will remain confidential. This includes not disclosing attributes or information about the shortlist that might identify those on it.
- As was the case with the past selection processes, the Independent Advisory Board will publish a report following the appointment which will provide a breakdown of the diversity of those who submitted an application.
Question E
How did you and the Prime Minister assess the relative strengths of the candidates on the shortlist?
- Decisions throughout the selection process have been based on the qualifications and assessment criteria, including the Prime Minister’s ultimate decision on the Government’s nominee.
- The assessment the Advisory Board provided for each candidate on the shortlist was of fundamental importance to this process.
- The Prime Minister’s decision was also informed by recommendations that Premier Legault and I provided to him.
- Quebec boasts an outstanding community of talented jurists who embody the linguistic, cultural and legal heritage of the province. I believe that any of the individuals on the shortlist would have served the Court well.
- I am confident that the Prime Minister’s chosen nominee is remarkable both as a jurist and as a person. He will make an excellent Justice of the Supreme Court of Canada, one worthy of the pride of Quebecers and all Canadians.
Question F
Did you share the shortlist with those you consulted? Did you share other information about the candidates with those you consulted?
- The purpose of my consultations on the shortlist was to develop my recommendation to the Prime Minister as to whom the Government’s nominee should be.
- We anticipated that those consulted would be able to share particular insights into the strength of candidates on the shortlist, based on, for example, knowledge of the candidate’s reputation for integrity within Quebec’s legal community.
- I did share the shortlist with some of those I consulted, such as the Opposition Justice critics and the Chief Justice of Canada [Minister’s office to verify].
- I did/did not [Minister’s office to verify] share the detailed and rigorous analysis of each applicant’s file conducted by the Independent Advisory Board.
4. Confidentiality
Question A
In light of the public release of confidential information regarding candidates for the 2017 appointment process, how can candidates, parliamentarians and Canadians have confidence in the confidentiality of this process?
- The Government has consistently made clear that the disclosure of confidential information regarding candidates for judicial appointment is unacceptable.
- Candidates, Canadians and parliamentarians can be assured that our Government has made concerted efforts to ensure that this does not happen again.
- The current selection process has strict confidentiality measures. The fundamental importance of confidentiality has been strongly emphasized to all those involved in the process.
- The agreement with Quebec explicitly states that the sharing of and consultations on the shortlist are to be conducted in a confidential manner.
Question B
What is the Government doing to address leaks surrounding the 2017 Supreme Court appointment process?
- The Government condemns in the strongest terms the disclosure of confidential information relating to the 2017 Supreme Court appointments process. This was extremely unfair to the individuals involved, and to their families.
- The Privacy Commissioner has stated publicly that he has opened an investigation into this matter. While I cannot comment on an ongoing investigation, I want to state clearly that the departments involved are cooperating fully with the Office of the Privacy Commissioner.
- In the meantime, the Government has made concerted efforts to ensure that such a disclosure does not happen again.
- The current selection process has strict confidentiality measures. The fundamental importance of confidentiality has been strongly emphasized to all those involved in the process.
- The agreement with Quebec explicitly states that the sharing of, and consultations on, the shortlist are to be conducted in a confidential manner.
5. Diversity and Gender
Question A
The Government has emphasized the need for a Supreme Court of Canada that reflects the diversity of Canadians. How was diversity taken into account in the selection process?
- Our Government is deeply committed to increasing the diversity of the judiciary so that it reflects the diversity of Canada.
- For this and all vacancies on the Court, the Advisory Board, the Prime Minister and I take as our starting point the published qualifications and assessment criteria. These criteria include diversity-related considerations. For example:
- the ability to appreciate a diversity of views, perspectives and life experiences, including those relating to groups historically disadvantaged in Canadian society; and
- the institutional goal of ensuring that the members of the Supreme Court are reasonably reflective of the diversity of Canadian society.
- The choice of nominee involved weighing various factors and deciding who, among a group of outstanding candidates, was the best fit given the Supreme Court’s needs at this time.
- Canada boasts a remarkable complement of outstanding jurists of a variety of backgrounds, including an increasing number of visible minorities and Indigenous Canadians. I encourage qualified candidates from all backgrounds and communities to apply when the next vacancy arises on the Court.
- I also note that our Government’s commitment to a diverse judiciary extends to all federal judicial appointments. Our superior courts appointments process demonstrates our commitment to ensuring that our judiciary reflects the rich diversity of Canadian Society.
Question B
In what way does the nominee’s appointment advance the Government’s diversity goals?
- The manner in which we advance our diversity objective is first and foremost by establishing an open and transparent process that clearly lays out the criteria that will guide the decision-making process. The published qualifications and assessment criteria enshrine the importance of diversity by requiring that candidates are assessed with diversity in mind.
- The nominee was selected through a process that carefully considered all the assessment criteria, including those related to diversity. The difficult decision we made involved weighing various factors and deciding who, among a group of outstanding candidates, was the best fit for the Supreme Court’s needs at this time.
Question C
Why did the Government not take this opportunity to appoint the first Indigenous justice to the Supreme Court of Canada?
- For this and all vacancies on the Court, the starting point is the published qualifications and assessment criteria.
- The choice of nominee involved weighing various factors and deciding who, among a group of outstanding candidates, was the best fit given the Supreme Court’s needs at this time.
- On the basis of this rigorous assessment, the nominee stood out, and I have no doubt he will be a valuable addition to the Supreme Court.
- At the same time, achieving greater diversity on the Court, including through the appointment of an Indigenous justice, remains a priority. I agree that the Court would be enriched with an Indigenous justice on its bench and I encourage qualified candidates from all backgrounds and communities to apply when the next vacancy arises on the Court.
Question D
By choosing a man, you have lost an historic opportunity to have a majority of female members on the Supreme Court. What were the deciding factors that led to this decision?
- Our Government is committed to gender equality. The Supreme Court boasts four exceptional female jurists.
- The terms of reference for the Advisory Board specify our Government’s “intent to achieve a gender-balanced Supreme Court of Canada”. This is and will continue to be our objective.
If pressed:
- On a court of 9 members, a 50-50 split is not possible. But I am confident that the day is not far off when women will outnumber men on the Court. This will change with the Court’s composition at any given time, but I expect overall gender balance will continue.
6. Functional Bilingualism
Question A
Why doesn’t the Government enshrine the bilingualism requirement in legislation?
- The Government made a firm commitment to appoint individuals to the Supreme Court who are functionally bilingual, and we have delivered on that commitment.
- The Supreme Court Act sets out the eligibility requirements for appointment. Provided candidates meet those requirements, the Government can consider a range of factors in determining whom to appoint to the Court at any given time.
- We have said, and we have demonstrated, that functional bilingualism is an essential consideration for our Government. This commitment is a statement of who we are and what we believe is important to Canadians.
- As with other high-level national public offices in Canada, those who aspire to sit on the Supreme Court know that functional bilingualism is a norm they will be expected to meet.
If pressed:
- The composition of the Supreme Court, including the eligibility requirements for appointment, are, in the opinion of the Court itself, constitutionally-entrenched and thus beyond the reach of legislative measures enacted by Parliament, acting alone.
- However, entrenching norms and values in statute is not the only way to promote them.
- We believe it is better to focus on moving the yardsticks in practice.
7. Caretaker convention
Question A
Justice Gascon’s retirement date is September 15. Isn’t this after the dropping of the writ and dissolution of Parliament, and hence during the caretaker period? If so, isn’t it inappropriate for the Government to make such an important appointment during a period in which it should be exercising restraint?
- While the appointment would take effect on September 15, the Government intends to make the appointment decision well in advance of the dissolution of Parliament, and therefore well before the caretaker period commences.
- As with previous processes, parliamentarians of all parties continue to have an important role to play in the process. This includes: being consulted by me on the shortlist; participating in today’s hearing; and participating in the question and answer period with the nominee.
- Moving forward in the way we propose will ensure the Court is able to sit with a full complement at the outset of its fall sitting. By contrast, failing to act this spring would leave the Court short a member for an extended period, with the Court having only two of its three requisite members from Quebec.
8. Timing of process
Question A
Why is the Government rushing this appointment process? The Independent Advisory Board has previously commented on the challenges that arise with tight timeframes, yet the time allotted for their assessment was significantly shorter than in the 2017 process.
- The Government is satisfied that the timelines have allowed sufficient time for each stage of the process, including the rigorous assessment process carried out by the Independent Advisory Board resulting in its shortlist of candidates.
- It is the Government’s responsibility to ensure that the Supreme Court of Canada has a full complement of justices. This includes the requirement for three of the Court’s judges to come from Quebec.
- I also note that, while there was again a deep pool of outstanding jurists to draw from, the process is more straightforward when it involves a single province – in this case, Quebec. The 2016 and 2017 processes involved multiple jurisdictions and a wider geographic scope.
- Moving forward as we have will ensure the Court is able to sit with a full complement at the outset of its fall sitting. By contrast, failing to act this spring would leave the Court short a member for an extended period, with the Court having only two of its three requisite members from Quebec.
Question B
When Justice Gascon announced his intention to retire, Chief Justice Wagner called for the “prompt appointment” of a new justice to replace him. Was the Chief Justice involved in the design of this process, including the applicable timeframes?
- The views of the Chief Justice are always an important consideration when the Government is moving to fill a vacancy on the Court. The Chief Justice provides valuable input, including in terms of the particular needs of the Court, such as required areas of expertise.
- The Government understands the Chief Justice’s desire for a prompt appointment. It is our responsibility to ensure that the Supreme Court of Canada has a full complement of justices.
- However, decisions with respect to the design and timing of the process ultimately rest with the Government.
9. Process (General)
Question A
In its February 2017 Report on the new process, this Committee recommended that the question and answer session with the nominee be a committee hearing where parliamentary privilege would apply, so that both members and the nominee would be protected by this privilege in their exchanges. Why has the Government again ignored this recommendation?
- The purpose of this session is for Committee members to hear from and hold the Government to account for the manner in which it has carried out the selection process leading to the nomination of Justice Kasirer.
- It is therefore appropriate that it be subject to parliamentary privilege in the usual course.
- With respect to the question and answer session, the purpose is quite different. As this Committee noted in its February 2017 Report, the question and answer session aims to allow parliamentarians and Canadians at large to become better acquainted with the nominee.
- In the Government’s view, this purpose is most effectively advanced by holding the question and answer session as a public meeting in a somewhat less formal setting.
- While we carefully considered the Committee’s views, we have decided – in light of the success of the moderated question and answer sessions with Justice Rowe and Justice Martin – to continue with the same format for this process.
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