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

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Tab D Key Background Documents - 2016 and 2017 Processes

Summary of Justice Committee Hearing on the Nomination of Justice Rowe
15:30 – 17:00 on October 24, 2016

• The hearing commenced with opening remarks from the Minister of Justice and the Chair of the Independent Advisory Board, the Right Honourable Kim Campbell.
• The Minister began by outlining the key principles underlying the design of the process: openness, transparency, accountability, and a commitment to gender-balance, diversity and bilingualism. These values resulted in the first open application process for the Supreme Court. Qualified candidates from anywhere in the country were invited to apply. Given that the process was to fill the vacancy arising from Justice Cromwell’s retirement from the Court, the PM instructed the Advisory Board to include candidates from Atlantic Canada on the shortlist.
• Ms. Campbell then described in detail the steps taken by the Advisory Board to proactively solicit applicants and assess candidates. She advised that, of the 31 applicants, 10 candidates were interviewed, ultimately resulting in a shortlist of 5 names. Ms. Campbell noted that the timing of the process was tricky, with August not being an optimal month. She also identified further outreach to encourage applicants as an important challenge for future processes.
• The Minister concluded her opening statement with a description of Justice Rowe’s qualifications and the reasons why he was chosen as the Government’s nominee.
• The question and answer period began at 16:00 and lasted approximately one hour. Many of the questions were directed at Ms. Campbell. Committee members canvassed a range of topics, including the following:
  • Involvement of parliamentarians – Conservative and NDP members questioned the role of parliamentarians in the new process, seeking greater involvement in the creation of the shortlist and selection of the nominee, greater consultation of all Justice Committee members on the shortlist, and more meaningful engagement in the Q&A session with the nominee. The Minister emphasized the important consultations and engagement of parliamentarians that are built into the process, while noting that the independent and non-partisan Advisory Board constitutes the heart of the new process.
  • Refinements to the process – several members asked about modifications the Chair would recommend to the process. Ms. Campbell noted that more time for the process would be good (ideally not in August or at Christmas), and would allow for more outreach, especially to under-represented groups. She also suggested the questionnaire for applicants could be more succinct.
  • Diversity and gender – Committee members asked how the process supported diversity and how many applicants were women. Ms. Campbell explained that the Advisory Board looked not only at whether candidates could “check off” a box for diversity, but also what each candidate’s experiences could contribute to the discussion. She stated that just under half of the applicants were women.
  • Functional bilingualism – Ms. Campbell noted that most of the candidates had some French, although not all achieved the level of functional bilingualism. She observed there was a growing interest in learning French.
  • Qualifications and merit criteria – In response to questions, Ms. Campbell explained that they looked at all of the published criteria, and also attempted to discern the humanity of the candidate through references and interviews. In terms of the requirement to include Atlantic Canadians on the shortlist, Ms. Campbell advised that the region sent outstanding candidates.

Summary of IAB Report dated November 25, 2016

The Independent Advisory Board for Supreme Court of Canada Judicial Appointments (IAB) submitted its report on the 2016 process to the Prime Minister on November 25, 2016. In accordance with the IAB’s Terms of Reference, the report contains information on the carrying out of its mandate, the costs relating to the IAB’s activities, and the statistics relating to the applications received. It also contains some recommendations for improvements to the process. Highlights of these matters are summarized below.

Process

The IAB proceeded by way of in-person meetings and conference calls. It met with the Chief Justice of Canada to obtain her views on the needs of the Court and reached out to a range of legal and judicial organizations to encourage applications from qualified candidates. Where such organizations suggested candidates, the IAB wrote directly to these individuals asking them to consider applying. The IAB interviewed ten candidates, whose functional bilingualism was assessed by the Office of the Commissioner for Federal Judicial Affairs (FJA). The shortlist of five candidates provided to the Prime Minister was unranked and included a short synopsis of each candidate’s merits and results of their functional bilingualism assessment.

Costs

The IAB estimates that the process cost approximately $215,000. This includes $92,772.74 for travel expenditures and per diems for IAB members and $10,000 for shortlisted candidates’ travel costs to attend interviews. The remaining costs were incurred by the FJA for supplementary salaries, professional services, translation, IT, telecommunications and supplies.

Statistics

Thirty-one applications were received by the IAB. The pool of applicants was relatively diverse: 13 women; 7 francophone; 12 “Ethnic/Cultural or Other”; 3 visible minority; 4 indigenous; 2 disabilities; 2 LGBTQ2. Note that some candidates may have self-identified against more than one characteristic. The Canada-wide scope of the application process was successful in garnering applicants from beyond Atlantic Canada: in fact, the applicants hailed from eight provinces. Fourteen applicants were from Atlantic Canada, although none from Prince Edward Island. Eleven were from Ontario; 3 from Quebec; and 1 from each of Manitoba, Saskatchewan and British Columbia. There were no applicants from Alberta or from the territories.

Recommendations for improvements

The IAB identifies four areas where the process could be improved in the future. These are:

• Timing of the process – the IAB advised that holding the process over the summer months was very challenging in light of vacation plans.
• Timeframe for applications and assessment – the IAB noted the relatively tight timeframe for applications to be submitted (the process was announced on August 2, 2016, and the deadline to apply was August 24, 2016). The assessment period was correspondingly tight.
• Additional outreach – with a longer timeframe, the IAB would encourage additional outreach activities to target an even greater range of potential candidates.
• Format of the application materials/forms – the IAB recommends that the application format and requirements be further studied to provide a straightforward format and effective basis for evaluation.

Summary of Justice Committee Report dated February 22, 2017

The Standing Committee on Justice and Human Rights (Justice Committee) tabled its report entitled “The New Process for Judicial Appointments to the Supreme Court of Canada” in the House of Commons on February 22, 2017.

The unanimous Justice Committee report is overall very positive in tone and supports the key elements of the Government’s new appointments process that was used to appoint Justice Rowe. It makes seven recommendations, listed in full at page 11 of the Report. In summary the recommendations are:

Recommendation 1 - that the Independent Advisory Board (IAB) be made permanent with the majority of members being appointed by non-governmental legal organizations and including non-lawyer members (as was the case for the Rowe process).  It is noteworthy that the Committee states that what made the IAB a success “was the fact that members of the Board were qualified and all of them were non-partisan appointees.” There is no suggestion that Parliamentarians should be represented on the IAB.

Recommendation 2 - that IAB members be selected taking diversity into account.

Recommendation 3 - that all members of the Justice Committee who sign non-disclosure agreements be consulted on the shortlist and that they receive all advisory board materials on the shortlisted candidates. Three Committee members were consulted in the Rowe process.

Recommendation 4 - that the Q&A session with the Government’s nominee be held at a televised meeting of the Justice Committee, to which Parliamentary privilege applies. Additional Parliamentarians may be invited to participate. The report confirms that the purpose of the session is to become acquainted with the nominee, not to vote on the nomination.

Recommendation 5 - that the qualifications and assessment criteria “include a statement regarding the importance of maintaining representation from each region of Canada in historically proportionate numbers”.  The Committee states that, while it “considers diversity on the Bench an important issue, it does not think that this diversity should occur at the expense of regional representation on the Bench.” The Committee characterizes the Rowe process as a departure from the convention, even though the appointment was ultimately made from the region of the vacancy.

Recommendation 6 - that a period of at least 90 days be allocated for applications for a vacancy. The Committee indicates that this duration would “allow sufficient time for the Advisory Board to seek out applications from across the country.”

Recommendation 7 - that the Minister of Justice and IAB Chair continue to appear before the Justice Committee to explain the process and the choice of nominee.

Summary of Justice Committee Hearing on the Nomination of Justice Martin
15:30 – 16:30 on December 4, 2017

• As with the 2016 hearing, the meeting commenced with opening remarks from the Minister of Justice and the Chair of the Independent Advisory Board, the Right Honourable Kim Campbell.
• At the outset the Minister commented on several aspects of the Justice Committee’s report on the 2016 process, including the Committee’s endorsement of the Independent Advisory Board. She also acknowledged the Committee’s emphasis on the importance of regional representation on the Supreme Court, which was reflected in the Government’s decision to limit applications in the 2017 process to qualified candidates from western and northern Canada. She went on to explain the two-stage process that was underway to identify the ninth justice of the Court and then the new Chief Justice.
• Ms. Campbell described the advantages of undertaking the process for a second time, which created some efficiencies. The Advisory Board followed essentially the same steps as in 2016. Ms. Campbell also noted the remarkable number of jurists in western Canada who spoke French.
• The Minister concluded her opening statement with a description of Justice Martin’s qualifications and the reasons why she was chosen as the Government’s nominee.
• The question and answer period began at 16:00 and lasted approximately 35 minutes. The tone of the questioning was quite cordial. Most of the questions were directed at Ms. Campbell, with Committee members curious to understand how the Advisory Board’s assessment process followed or differed from that in 2016. The topics raised included the following:
  • Number of applicants and names on the shortlist – a Conservative member noted that there were only 3 names on the shortlist as opposed to the 5 in the 2016 process. Ms. Campbell explained that, out of the 14 applicants, these candidates were “head and shoulders” above the others. She also acknowledged the considerable work that takes place after the shortlist is provided to the PM. In response to a question about the smaller number of applicants, Ms. Campbell pointed to the regional limits and also the fact that candidates would have be prepared to move to Ottawa from the west.
  • Involvement of parliamentarians – an NDP member asked why the Government had not adopted the Committee’s recommendation to hold the Q&A session with the nominee in the context of a parliamentary committee to ensure the application of parliamentary privilege. The Minister emphasized the importance of the session being accessible to the public, and also noted the expanded timeframe for questions.
  • Bob Rae’s criticism of the open application process – Mr. Rae’s preference for the “tap on the shoulder” approach to appointments was raised. Ms. Campbell noted that some people who apply would not necessarily receive a tap.
  • Timelines for the process – Ms. Campbell noted that the longer timeframe for this process made it easier for applicants to complete the questionnaire. She would have liked a little more time for the process.
  • Diversity and gender – Ms. Campbell stated that diversity is a centrepiece of the Advisory Board’s assessments. She also expressed confidence that there would soon be an Indigenous justice on the Court. She emphasized again the importance of outreach to under-represented communities. She advised that six of the 14 applicants were women. There was interest in how Justice Martin’s diverse experience contributed to her qualifications.

Summary of IAB Report dated January 17, 2018

The Independent Advisory Board for Supreme Court of Canada Judicial Appointments (“IAB”) submitted its report on the 2017 process to the Prime Minister on January 17, 2018. In accordance with the IAB’s Terms of Reference, the report contains information on the carrying out of its mandate, the costs relating to the IAB’s activities, and the statistics relating to the applications received. It also contains some recommendations for improvements to the process. Highlights of these matters are summarized below.

The application review process

• The IAB advises that the 2017 process was conducted largely along the same lines as that followed in 2016.
• All applications were first reviewed by individual IAB members. Outreach was also made to the same broad range of organizations contacted in the 2016 process.
• Before convening as a group to discuss the applications, the IAB met with the outgoing Chief Justice of Canada to hear her views on the needs of the Court.
• The IAB then determined which applicants would be called for an interview.  Given the important input provided by references in the 2016 process, a greater number of references were contacted this time.
• Eight candidates participated in interviews, at which time a set series of questions was posed.
• The interview was immediately followed by a second language proficiency assessment conducted by FJA language experts. The assessment was one hour in length and was divided into three segments designed to test the reading comprehension, oral comprehension and oral conversation abilities of each candidate. A minimum score of 3 out of 5 on each part was required for candidates to meet the functionally bilingual criteria.
• The report confirms that the Prime Minister made his appointment from the list of three candidates provided on the shortlist.

Demographic statistics

• The IAB received 14 applications, 11 of which were representative of Canada’s four Western provinces. The report does not expressly confirm that the remaining applications were from Northern Canada, although this is the other region from which candidates were eligible to apply.
• A breakdown on the basis of diversity indicates that 6 of the applicants were women and 8 were men. Twelve applicants were Anglophones and 2 were Francophones. Three candidates self-identified as Indigenous. No candidates self-identified as ethnic/cultural, visible minority, disabilities or LGBTQ2.

Costs

• The report estimates the costs of the process will be approximately $225,000, which relates primarily to travel expenditures and per diems for IAB members, as well as administrative support costs.

Recommendations for improvements to the process

• Timeframes: The IAB recommends maintaining a minimum of 9 weeks for the application period, as was provided in this process. The IAB notes that the time for it to complete its work, that is the time between the closing of the applications dates (September 15) and the submission of its shortlist to the Prime Minister (October 23), was relatively short. It cautions that it would be difficult for the IAB to complete its work in anything less than 5 weeks should a future process elicit a greater number of applications.
• IAB deliberations: The IAB strongly recommends that consultation with the Chief Justice always be held early in the process. The IAB also recommends as a best practice revising and updating the evaluation templates, making reference calls, and conducting interviews with the candidates.
• Dedicated funding: The IAB expressed its gratitude to the FJA for their work to support the process. The IAB notes that the process will likely require dedicated ongoing funding.
• Publication of the nominee’s application form: Candidates’ feedback on the application form indicated that they fully and candidly answered all questions, including details about their personal lives. Candidates expressed concern about the need for these details to be made public should they be chosen as the Prime Minister’s nominee. The IAB recommends that attention be given to this requirement in case it may discourage potential candidates from applying.

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