Thursday, May 28, 1998
The House met at 10 a.m.
Motion agreed to.
Mr. Chairperson (Gerry McAlpine): Order, please. Will the Committee of Supply please come to order. This morning, this section of the Committee of Supply meeting in Room 254 will resume consideration of the Estimates of the Department of Justice. When the committee last sat, it had been considering item 4.1. Administration and Finance (b) Executive Support (1) Salaries and Employee Benefits, of the Estimates book.
Mr. Chairperson: Before we get into the proceedings, I have two rulings for committee.
On May 25, 1998, I took under advisement a point of order to review Hansard. The point of order was raised by the honourable member for Thompson (Mr. Ashton) regarding the relevancy of the comments made by the honourable Minister of Justice (Mr. Toews) in responding to a question posed by the honourable member for St. Johns (Mr. Mackintosh)
I have now had the opportunity to review Hansard. The honourable member for Thompson did have a point of order. Subrule 70(2) of our rules states that both answers and questions in the Committee of Supply must be strictly relevant to the item under discussion.
I would ask the co-operation of all members to adhere to this rule when answering questions or posing questions in this committee.
On May 25, 1998, I took under advisement a point of order raised by the honourable Minister of Environment (Mr. McCrae).
It concerned words spoken by the honourable member for St. Johns (Mr. Mackintosh). The words were "Of course, the minister is not telling the truth . . . He knows well that that question was never asked nor is it being answered now--or has answered in the past."
I initially ruled that the honourable Minister of Environment did have a point of order, as the phrase "not telling the truth" has been ruled unparliamentary on several occasions. The honourable member for Thompson (Mr. Ashton) then raised a subsequent point of order to clarify the Chairperson's ruling. I then took the matter under advisement to review Hansard.
While Beauchesne does list "not telling the truth" as both an unparliamentary and parliamentary phrase, I would remind all members that Beauchesne Citation 491 states that "No language is, by virtue of any list, acceptable or unacceptable. A word which is parliamentary in one context may cause disorder in another context, and therefore be unparliamentary."
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I would draw to the attention of the committee that the phrase "not telling the truth" has been ruled unparliamentary by several Manitoba Speakers. I would also draw to the attention of the committee that, in 1988, Speaker Rocan ruled that "To allege that a member has not told the truth or has misled the House is perhaps less than courteous. To allege that a member has done so deliberately, intentionally or knowingly is unparliamentary."
In this instance, the words used by the honourable member for St. Johns did contain the suggestion that the honourable Minister of Justice had deliberately, intentionally or knowingly not told the truth. In light of the above referenced rulings, I would again ask the member for St. Johns to withdraw the words.
Mr. Gord Mackintosh (St. Johns): I certainly withdraw, Mr. Chair.
Mr. Chairperson: We thank the honourable member for St. Johns for that.
Mr. Mackintosh: There are a few issues I want to canvass regarding the appointment of judges issue that has been the subject of this committee since it began meeting. I ask the minister whether it has been the practice when other reports from nominating committees have been prepared, that he has met with the Chief Judge to review the list or otherwise discuss the work of the nominating committee. I know, as early as a month or so ago, there was a report from the nominating committee in respect of a judicial appointment to the Provincial Court at The Pas.
Hon. Vic Toews (Minister of Justice and Attorney General): Yes, the practice has been, even before my becoming minister, that the Chief Judge brings the list to the minister, shows the list and certain discussions take place in respect to the list, and on both the occasions that I have been involved in, that in fact has taken place.
Mr. Mackintosh: Can the minister tell the committee whether he had reason to believe there was no bilingual candidate on the list of nominees from the nominating committee relating to the last two appointments?
Mr. Toews: I believe I have answered those questions and I stand by my answers.
Mr. Mackintosh: I do not believe that question has been asked specifically. I wonder if the minister can tell the committee, since he has made much ado about the appointment of a bilingual judge and the need for a bilingual judge which we are not taking issue with, of course, what is the minister going to do now about the appointment of a further bilingual judge in Manitoba?
Mr. Toews: Well, in fact, I have instructed my staff to proceed with a new competition relating to another judge's position. Indeed, I have indicated as much to the Chief Judge as well, and we will be proceeding as quickly as possible on that issue.
Mr. Mackintosh: Can the minister describe the process that will be followed for the appointment of the bilingual judge, given that he, I know, is quite anxious about getting one appointed?
Mr. Toews: Well, the process that will be followed is the process that has been followed in the past. I will be communicating in one way or another with the Chief Judge in a formal way to advise her that the matter is proceeding. As I have indicated, I have already communicated to her in an informal way, but I will be communicating to her in a formal way that that process will be proceeding.
Mr. Mackintosh: Will the minister initiate the process with an Order-in-Council?
Mr. Toews: If that is the way it is done on every occasion in the past, that is the way I will do it again.
Mr. Mackintosh: Does the minister intend to, as well, direct correspondence to the Chief Judge to notify her that it is a bilingual judge that is being sought for this particular appointment?
Mr. Toews: I might just clarify. I do not believe there is an Order-in-Council that is necessary to designate the position. The only Order-in-Council that is necessary, as I understand it, is to designate the community members. So, if there is any confusion in respect of whether or not there needs to be an Order-in-Council for the position, there does not need to be an Order-in-Council for the position, but there does need to be an Order-in-Council for the three community members.
Mr. Mackintosh: I share that interpretation, but I ask is it the minister's intention to as well forward correspondence then to the Chief Judge to advise her that you are requesting, or the appointment is about a bilingual judge?
Mr. Toews: That is perhaps something that may well be advisable to do, and I thank the member for his advice in that respect. I do not know whether it has always been done, but perhaps that is a good suggestion, and I will discuss that issue with my deputy minister.
Mr. Mackintosh: Is the minister then saying that he is going to follow the established process for the appointment of judges when it comes to the appointment of a new bilingual judge?
Mr. Toews: Well, I guess one of the issues that has been raised over the last little while is what in fact is the established process. The legislation itself sets out certain legislative requirements, but does not detail the process. So, to indicate that there is an established process, I am not exactly sure whether there is an established process.
I know that, as a result of the first appointment that I was involved in, and that is the appointment of Mr. Brent Stewart to the court in The Pas, I met with none of the community members and, indeed, would have only had discussions with the Chief Judge. As a result of certain concerns that were raised, I met with community members, and we have been into that discussion in some great detail. I met with the community members and indicated to the community members some of the concerns that I had with respect to the appointment.
I think that, in view of the needs of the community and the concerns of the government in respect of the responsibilities that we have to fulfill, whether it is in a strictly legislative or constitutional sense--and in that context, I am speaking about the bilingual capacity of the court--as the member is aware, we are required to have an appropriate level of French language services in this province in our Provincial Court.
But there are broader issues beyond legal and constitutional issues that the community has a very important role in stating. For example, over the last number of years, increasing amounts, or increasing numbers, I should say, of women and minorities have been called to the bar. These groups--women and minorities--have contributed, in my opinion, significantly to the development of our legal system and enhancement of our legal system, and I believe that they should not only be represented in the bar but indeed in our institutions of government, including the courts.
For example, when I first entered law school, it was one of the first years where women comprised about one-half of the law school class. Prior to that, women had not been represented very fully in the matter of being in law school; therefore, there was a real reluctance--or there was a real shortage of women in our legal system. I know over the years I was involved in the Manitoba Bar Association Task Force on Gender Equality looking at how we can enhance, specifically women's position, in our legal profession. So that is, I think, an important responsibility that government has.
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I know that we look for qualified people of all types in our Attorney General's department, and we, I believe, are making genuine efforts to ensure that all groups, not just women, but minorities, are appropriately represented in government. I believe that, as our society becomes more and more multicultural, racially diverse, we also have that kind of responsibility as government to ensure that our bench, our legal system, reflects that diversity, and this is not to say that we give people advantages who are not deserving of them. I do not think anybody is saying that. We want to ensure that people are not at a disadvantage because of who they are, whether their sex or their racial background.
For example, I was very proud that our party was able to elect a very competent person in Charleswood. I know that the issue there was not whether government appoints someone. Government does not appoint people to the position of an MLA. Those people are elected. But I think in the same way that our party chose a very qualified woman among a field of four people, three of them being women, that was a remarkable event and, again, a reflection of what the community wants to see in our Legislature.
We were able to accomplish that through the political system by first of all choosing an appropriate nominee for the Charleswood candidacy, and secondly, the people of Charleswood, then, were faced with I think a very important choice. They were faced--as I understand it, the three candidates there were two female and one male. A female was also the nominee for the Liberal Party and a male for the NDP party. I think people want to have that kind of choice, that our Legislature reflects not just a very narrow view or a narrow sampling of our population, but people want a broader sampling, and I think the Charleswood situation was one of those situations where that, in fact, occurred.
Now, in the same context, then, when we as government are faced with the responsibility, in this particular situation, of appointing people to the bench, we want to ensure that the committee consider nominees that are not simply the traditional people who have always been lawyers in this province. I do not think that I am overstating it by saying that most of them were white and most of them were male. Again, nothing wrong with that, but we have to ensure that whoever controls a particular profession, controls a particular occupation, does not use that power inappropriately. So, from time to time, we have to remind ourselves as government, ourselves as agencies, ourselves as nongovernment agencies that we need to be more inclusive as our country changes.
So one of the issues that arose as a result of The Pas appointment, I specifically received comments that why was it a male that was appointed in that particular situation, and that is a good question. The government chooses the candidate from the list presented, and that list, if it does not appropriately reflect or if it does not reflect a broader number of concerns in terms of issues of sex or race or ethnicity, does put the government into a position that is difficult to justify.
So when I met with the community members, I thought it was appropriate--and this was on the second one that I was involved in. As I indicated on the first one, I had not been involved and discussed with the community members at all. But with the second members, that was specifically something that I chose to raise with the community members that there are issues beyond legal qualification. There are issues beyond legal competence. Certainly, legal qualification, legal competence is very, very important, but there are all types of considerations that government has to take into account in making these appointments. Now this is not spelled out in the legislation.
Mr. Edward Helwer, Acting Chairperson in the Chair
When I look at the manner in which appointments are made to various government boards, again I see the same principles reflected. One can go through list after list after list of names on government boards, and the thing that I am very proud of is the way that our government has chosen very deliberately, not forced by legislation, but chosen deliberately to be inclusive. This is not just an issue of rural-urban, but it is an issue of appropriate gender representation, appropriate racial representation, because many of our citizens who live in northern Manitoba, who may well feel alienated for a number of reasons from the mainstream of society and the mainstream of government, have not always had the opportunities to participate in government to the full extent that they should.
So I know that our government and I especially compliment our Minister of Native and Northern Affairs (Mr. Newman) who, I think, is a real advocate on behalf of not only northern Manitoba but of the various racial backgrounds, especially First Nations people who live in northern Manitoba and who are citizens of Manitoba, and because of various issues, some relating to the Constitution, some relating to geography, find themselves isolated from Manitoba. I think it is incumbent upon us then to draw these people into this mainstream of government. So, again, in the context of boards, whatever boards we talk about, we continuously attempt to ensure that there is appropriate representation.
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Members might say, well, why is it important to have people of various racial backgrounds or different genders on the board so that there is equal gender representation? The way I always review it is why governments started boards in the beginning. If one goes back to the 1940s, the issue there was all of a sudden governments started passing legislation that created tribunals that implemented social policy. Why did governments not simply assign these responsibilities to the courts? I think the answer is fairly clear. The courts have a different role. They have a different task to perform. Their task was not so much the implementation of social policy but indeed the implementation of the law as passed in a more objective way by the Legislature. So when the government or the Legislature created boards like the Labour Relations Board, they did not say, well, we will simply staff this with lawyers or we will simply staff this with judges. What they said is that we want to choose people who are representative of the labour community, and so they said we need to have people who are representative of the interests of business. We need people who are representative of the interests of employees, and then we need a more impartial, I guess, chair to do that.
The result of this, and one can see it not just in labour law, but one can see it in issues of the environment, the Municipal Board, all of these areas, is that people are drawn from different backgrounds. Government has either specifically in its legislation mandated certain types of people to sit on the boards and to be considered for these boards or they have done so through deliberate policy discussions while the appointment process is underway.
So in many respects I see this process here as being analogous. We are simply not choosing judges because they are excellent lawyers. They certainly are excellent lawyers; there are many excellent lawyers. But the broader community issue that needs to be addressed is: are these people also reflective of the values that we hold in our society? In a multicultural, multiracial society, that is a very difficult thing to do. So when we then look for these judges, we ensure that there are community members who understand these broader issues, that they can bring these broader considerations. No one disputes that.
For example, the Law Society or the Bar Association as lawyers have an interest in ensuring that the quality of the judiciary is maintained at a high level. But I would argue that just as importantly, the community has an interest to ensure that the judges that are appointed reflect certain realities in our society, because judges, like politicians, like the ordinary citizen, do not operate in a vacuum. They are all simply a product of many, many influences.
So the member asks, then, am I intending to follow the established process? Well, in The Pas situation, I did not speak to the community members. I view that with some regret now, that I did not speak to the community members, because I think the community members do need at least to know what some of the concerns are of government with respect to some of these issues that I have outlined.
Mr. Chairperson in the Chair
So in the situation of the two most recent appointments, we certainly did take the position that the community members should be aware, because they are appointed by Lieutenant Governor in Council to represent the community and not simply their own interests, but that they are aware of the issues. For that reason I spent a long period of time at a particular meeting with two of these community members. Unfortunately, the third could not attend, and that too is unfortunate, but I did not think it appropriate that we meet with the members individually, and so I chose not to meet with that one person individually. I wanted to send the same message to all three community members.
The member asks: will I follow the established process? Well, unfortunately, the legislation does not, other than outlining a very broad legal framework, outline any specific process with respect to some of these very important issues that I consider government needs to address and that this committee needs to address in its deliberations. Again, ultimately, the decision on the basis of our legislation as to who is put forward is a decision of the entire committee, both the laypersons, the lawyers and the judges alike. So I intend to certainly follow that process that I have established. I am not aware whether the other ministers followed that particular process. I think it is a good one as we move into the new millennium, as we move into a new society that brings many, many of these issues to the forefront. We need to continue to be responsive to the needs of our citizens.
Mr. Mackintosh: Getting back on track here, I am wondering if the minister has had any discussions, or whether his staff has had discussions, with the Francophone legal community in so far as reviewing the procedures for the nomination or the appointment of judges and, in particular, regarding bilingual judges.
Mr. Toews: Well, I know that some of that discussion has taken place, not directly with me, but I know that, for example, in the last panel, there were Francophones on that panel, Mr. Joubert, and I do not know whether Ms. Suche is a Francophone. The name sounds Francophone, but I do not know whether or not she is a Francophone.
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One of the issues that is being considered at this time which my deputy will be raising with me is not only whether there should be community members on this panel who are Francophones, but whether the Law Society and the Bar Association should consider, as they did on the last one, putting a Francophone on the nominating committee. So, again, I appreciate the member's advice. That is certainly something that I will bear in mind when I discuss with my deputy the appropriateness of any correspondence that will be going to the Chief Judge or indeed to any of the other associations that form a legislated part of the nominating process.
Mr. Mackintosh: Does the minister not think it is important, particularly to the Francophone community in Manitoba, that a bilingual judge should be the one best qualified, and the position should be open to all bilingual candidates who meet the statutory qualifications to ensure that the best candidate is selected?
Mr. Toews: Well, in fact, I do agree that the best candidate should get the job, but then the question is always: how does one determine who is the best candidate? Now I imagine if you sat down with the Francophone community and talked to them about who the best candidate would be, I imagine a lot of them--because I have had some discussions in this respect with members of the Francophone community when we met on other issues relating to other reports dealing with French language services in this province--some would say that it is not only the ability to speak French that is important but also the cultural background of these people. That would make them the best candidate.
I am not so sure that I necessarily agree with the fact that in order to be a French-speaking judge or a bilingual judge in this province, one should necessarily be only of a Francophone background, Manitoba Francophone background, because I know that we have many, many qualified people in this province who are not what one would traditionally consider Francophones from Manitoba. My understanding is that the former Chief Justice of this province, Chief Justice Alfred Monnin, was actually of Swiss background but spoke French. So, whether one would consider him Franco-Manitoban in the, I guess, traditional sense of it could be the subject of quite a discussion. Both of his sons, Mr. Justice Monnin, Mich Monnin, and Mr. Justice Marc Monnin, again, are very qualified jurists, excellent judges, and yet they grew up in St. Boniface, the sons of a person who would not be traditionally called a Franco-Manitoban. Again, I would not want to simply exclude someone from that process because they were not Franco-Manitoban. I would want to make sure that the committee looked at all bilingual people.
I know, for example, there was a member of my staff who is on leave presently but does not come from a Franco-Manitoban background. That member of my staff lived in St. Norbert but was not Franco-Manitoban, spoke French fluently, and indeed was often interviewed on French CBC television or radio. Now that kind of a person, in my opinion, should not be excluded by a committee considering a bilingual position because he did not come from a certain racial or cultural background. I know people in my own family are, if not bilingual, almost bilingual, not just only speaking German or another language, but some of them speak French and quite fluently. So, again, if someone coming from, let us say, a Mennonite background who spoke French but was sensitive to issues relating to our Constitution, our cultural and educational guarantees in our Constitution, not only the Charter of Rights in the 1982 Constitution, but our Manitoba Act, 1870, I think that he or she would also be a person whom I would consider the best.
You know, a lawyer might say, well, I would consider someone who could speak French and was trained in a university where he took his training in French, his legal training in French. I do not care what the cultural background is; that is the person I would consider the best for the job. That is why I think we have a number of people on the committee, community members, and not just Francophones, but also some Francophones, I think, should be there, in order to ensure that all of these qualities are considered. Then, as a whole, the group arrives at a consensus as to what members should be forwarded on to the government for its consideration.
Then, again, once the list has been given to the government, there may be other issues as to who is the best candidate. The government may look at the six or seven names submitted or three or whatever the number is, because under the legislation for each position there are three to six permitted, and the government may assign different priorities, different from what even the committee did. So choosing on that list, for example, maybe the committee would have rated somebody No. 6 as opposed to No. 1. I do not believe as a practice they do rate it. They simply send a list in alphabetical order of the names for choice. But let us assume that even amongst themselves there was some kind of a rating system. Well, I do not think it is incumbent upon government then to determine, well, who was rated what and proceed accordingly. Again, government will consider these issues and make its own choice on the basis of the names submitted.
So the member asks do I want the best person on the bench? Absolutely, I want the best person on the bench. How does one achieve and identify who the best person is? That is always contentious. So I think that not just legislative criteria are important, but other criteria, some of the criteria that I went into in some detail here the other day, are also very important. Whether that should be put into the legislation or not is another issue. I do not want to be overly restrictive in any legislated direction. I think ultimately people have to be given a choice and some discretion as to who to recommend.
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I remember, and this is perhaps one of my grave, grave concerns that I have with legislation, one of the cases that I was involved in, I spoke to a certain professional person who had at first resisted the coming into force of a certain act because that person believed that the act would be too difficult to administer. When I talked to that person after the act was in force and all these criteria were outlined in the statute, the person said to me, well, the legislation has now made it very easy for me to do my job. I just go down a checklist, check off a couple of things. I have complied with the legislation, and now I have met the requirements of the legislation.
But what the person also indicated is that they no longer had to make a professional opinion. So I thought to myself, well, what are we doing? Are we passing legislation so that robots make decisions? I still think there will always be an element of individuality and uniqueness that legislation should not attempt to address, because in doing so it may be overly restrictive and, in fact, defeat the intended purpose of achieving the best candidate.
So there needs to be a balance, I believe, between what legislators through legislation can accomplish and what a process should accomplish in terms of identifying the best person.
Mr. Mackintosh: Did the minister not make an announcement to the bilingual community of lawyers that he intended to review and revise the procedures for the appointment of a bilingual judge? Would he explain that, and if he agrees he made such an announcement, when did he make that announcement?
Mr. Toews: Well, I know the member is referring to a particular news article. I am not exactly sure what news article it was, but I had a conversation with a number of Franco-Manitoban jurists who expressed certain concerns. Indeed, during the meetings with those people, I did indicate that we are looking at that issue. In fact, that is part of the discussions that will occur in the next number of days with my deputy minister as to how do we more effectively bring the French-speaking community into the process when these decisions are made.
Now, I do not recall making any specific commitments in terms of legislation to that particular group but, again, I would not rule out legislation. I think, as I have indicated earlier, process can be established without legislation that ensures that the diverse interests of Manitobans are met.
I think, for example, the issue of gender equality is always a very sensitive one and how one approaches that. For example, I am not a person who would like to see in any particular situation legislation compelling a certain number of women or a certain number of men, but I think that that is an important consideration that any committee, whether it is in the civil service or indeed in the private sector, needs to consider. They need to ensure that people who have been traditionally excluded from areas of government, areas of industry, are not excluded for reasons that are not relevant to the performance of a particular job, and that is a very difficult job to try to accomplish.
So I view the issue of bilingualism in Manitoba in much the same way. Part of it, though, is complicated in Manitoba because of the constitutional requirements in our province. Both governments and courts, one is allowed to use either French or English, and again the Supreme Court of Canada has ruled in respect of that issue, and I do not want to get into the details of that but, again, that has complicated the issue quite extensively. The other complicating matter is the matter of the Criminal Code, which also guarantees certain types of rights.
So I prefer to move on this issue in an evolutionary manner to ensure that we are inclusive. Again, as I have talked to members of the Francophone community about this issue, I hope that those discussions continue. We want to ensure that their legitimate legal, constitutional, and cultural needs are met as the needs of others in our society are also met. So I do recall having a discussion with this jurists group in my office. I recall there being, oh, perhaps seven or eight people there as well as myself, and, generally speaking, they were quite pleased with the government's position in respect of many things.
One of the things that they, of course, mentioned and I certainly mentioned was that a report that had been done which called for the implementation of certain French language strategies be delayed for five years. Well, Manitoba did not need to delay the implementation over five years because of our unique history, our unique Constitution, our unique cultural situation. We had already proceeded to that point where we felt comfortable overnight, essentially implementing these reforms to the extent that they had already not been implemented.
By and large, most of the things recommended in that particular report had already been implemented. Our only objection to the report was: why do we need to wait five years? The answer to that was that the other provinces were not as far advanced as Manitoba was in respect of that particular issue.
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Mr. Mackintosh: The minister I think wants to avoid this question, and it is a simple one. Did he not announce his intention to the Francophone community, particularly the Francophone lawyers, that even before the issue arose about the meeting with the Chief Judge, he had said that he was looking at a new process for the appointment of a bilingual judge or a revised process?
Mr. Toews: I think we in fact did discuss that, so I am not denying that. In fact, as I have indicated, that will be the subject of a discussion between myself and the deputy minister over the next number of days, certainly within the next week, in terms of making certain--how can I say, not changes, because at this time I am not looking at changing the legislation immediately, but certainly I still want to be mindful of those needs, and there may well be certain changes made as to the representation within the existing legal framework to ensure that Francophone needs are met. So I do believe that I indicated to them that any changes that would be made would involve further discussions with their groups.
Mr. Mackintosh: How could the minister have engaged in discussions like this announce his intention to put in place a more effective method of ensuring bilingual capacity on the bench when then he says, well, he was looking at the list of candidates already prepared by the nominating committee and trying to convert that process after the fact into one which was to appoint a bilingual judge? Either he was intending to put in place even before this nominating committee reported a new process, or--I mean, what is the story? What was he doing?
Mr. Toews: As I recall, I was having a broad-ranging discussion with these particular individuals about French language services in our courts, and that was one of the issues that was raised.
Mr. Mackintosh: Is the minister going to go ahead with a new nominating committee then for a bilingual judge in the next few weeks or few months, or what are his time lines?
Mr. Toews: Oh, if that is the question, because I did not understand the question that was being put to me. I have indicated that within the next few days I will be, I guess, ironing out the details of the process that will be followed especially in respect of ensuring appropriate representation on that board that will look at the appointment of a bilingual judge. But I did not mean to leave the impression, and I hope I did not leave the impression that I was thinking of changing the law in the next few days in order to accomplish that. That is certainly not within my power. But, again, that is why I went into that big, long discussion, a discussion that I thought was very, very relevant to the point that to what extent do you change legislation, because the more you add detail to legislation, the less discretion you leave to, let us say, committee members to exercise their own professional, individual decisions. So that is always the balance that needs to be achieved.
I know that over the last number of months there have been discussions about changing the legislation. The issue though in respect of this particular appointment for a bilingual judge in my opinion will not require a legislative change because we simply do not have the time to change the legislation, to debate new legislation in that respect. I think that what I want to ensure is that the process is crystal clear so that people understand what the process is and to see how much can be accomplished in the context of that process. For example, if the committee came back to me after I had made my government's need for a bilingual judge very clearly known, and the committee said: we just did not find anybody who was suitable to be bilingual, but here is a list of people who are very qualified Manitobans and maybe what you should do is send them to French language training for two or three years.
Well, if that kind of thing occurred, I know what the member for St. Johns would say. He would say, well, you know, you wanted a bilingual judge and did not tell the committee how to do it. What you have got to do now is send one of those people on a two-to-three-year training course to do French language training. Again, and I am being a little facetious here, but I am just trying to make the point that there are legitimate needs that the government has in terms of meeting its constitutional and legal responsibilities. Frankly, if the committee then came back with a solution that was not a practical one, I would have to say to my cabinet colleagues: well, do we either send the person on a three-year language training course, or do we ignore the committee's recommendations and start a new process?
Again, that is not spelled out in the legislation, so I think that in working very closely on this particular issue with the Franco-Manitoban representatives--and I am not speaking specifically of the society, but Franco-Manitobans generally or bilingual people generally--maybe this can be worked out.
But I am thinking of broader issues. For example, let us say in the future there is a pressing need in our community to have more culturally appropriate members of the judiciary, especially--and I am talking in the First Nations context, and these are recommendations that were made to us by Justice Hamilton and Judge Murray Sinclair. Now, I know that our government in northern communities specifically seeks out First Nations people. We do not make any apologies about that; there is the northern magistrates program where we have just hired a magistrate. We specifically hired a First Nations person, and does the legislation authorize it? I do not know. Does the legislation prohibit it? I do not think so because of, again, a legitimate government concern that needs to be addressed, and we are addressing it.
So do we need legislative changes then to spell out all of these issues. Is the person First Nations? Is the person female? Is the person bilingual? Does the person come from another group that perhaps has been underrepresented in our government or in our courts or in our other agencies? I am concerned about outlining that in legislation.
One of the other ways, I think, of doing it is through various protocols and entering into protocols with members of various communities and saying that where we are specifically looking for a person to fill a certain cultural need that is in addition to the legal requirements, how do we go about identifying such a person? I know that people on the outside of any cultural or ethnic group often look at that cultural or ethnic group as being one bloc or a monolith, and we know that that is not correct.
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For example, in my own cultural background, being a Mennonite, in Canada I understand that there are approximately 26 different sects of Mennonites. Now, to the outsider looking at a person who is a Mennonite, they say, well, a Mennonite is a Mennonite. Well, that is not quite so. Some would argue about whether you should have organs in churches or whether you should stick with pianos or whether you should have a pulpit in the church. Some say you should not have a pulpit in the church, and some insist that there be no carpeting in the church, and some have other views on more substantive issues. For example, some Mennonites would be allowed to smoke and drink; others would not.
All I am saying--and the member for Transcona (Mr. Reid) is indicating what is the relevance. The relevance is it is not always that easy to look at a cultural group and say, well, we will just put somebody on the committee who has the same last name as that cultural group, and that will satisfy them because, well, that is where that person is from. It is much more difficult, I think, and needs to be treated in a much more sensitive fashion than that.
So am I interested in working with the Franco-Manitoban citizens in ensuring that their legitimate needs in Manitoba are met? Yes, I am. Am I committed to any particular process that cannot change? No, but I think that that process does require ongoing consultation with them and with other groups; for example, women's groups. Women's groups might say simply to appoint a Francophone male does not answer our concerns, so we need to involve a number of groups in these discussions to ensure that we, in fact, are sensitive to that.
The overriding point that I want to make is that ultimately it is cabinet, then, who makes its choice among the candidates presented, and, again, we review all of the issues to ensure that an appropriate person is appointed. I do not necessarily believe that legislation is always the best answer. In some cases, I think that it is not the best answer, but I do believe that a clear process is important.
That was one of the things that was pointed out in an editorial in the Winnipeg Free Press that I found very, very interesting, where it talked about how does government meet its legitimate concerns when legislation does not spell that out, and nor should legislation always spell that out. I found that particular editorial very instructive, and, certainly, it has influenced my thinking in terms of whether we need, absolutely, legislative change or whether this can be done in a procedural way with the substantive input of those groups who may well be affected.
One of the points that was raised as well, look, you are always talking here about bilingual judges or Francophone judges. These judges will also give judgment in cases where there are non-Francophones. I mean, we do not simply say, oh, well, this is a Francophone person, therefore only Francophones appear in front of him or her. That is clearly not the way it is. I think there are some real exciting challenges coming up in the next little while, which I had an opportunity to discuss with these French-Canadian jurists, these Franco-Manitoban jurists, about how we more effectively focus French language services in the courts to ensure that not just the dry legalism of the Constitution or various statutes is met but the spirit of these statutes are met.
What I found in speaking to them is really how flexible and how practical these people were, that they wanted real, practical solutions. They simply were not interested in just applying the letter of the law and allowing that to then dictate the way services are provided. Services should be provided to the people so that a specific need is met. I think these members of the Franco-Manitoban community recognize that, so I look forward to working with them in respect of any particular issues that they may want to raise.
Mr. Mackintosh: Mr. Chair, it is our view that there have to be changes to the way that judges are appointed in this province. Indeed we espoused that in the last election campaign, and that we believe the change to the appointment process is necessary through legislative change as well as procedural change. Now, I understand the minister had drafted amendments to The Provincial Court Act in respect of the appointment process, and I am wondering why the minister is not proceeding with those amendments now. We, as an opposition, certainly would be open to prioritizing consideration of any such legislation, I am relatively confident in saying.
Mr. Toews: I think that is very, very helpful coming from the member. What I did not want is that legislation then to become a political football, as being seen as somehow punishing one group or another, or casting aspirations on one group or another because there are large, large issues. One of the things that I believe is very important that we need to discuss, and it is not a simple amendment and that is what is giving me some difficulty, is how do we have people, the general public, have a more substantive input into how judges are appointed.
I just want to leave it at that issue for now, because I do not want to get into some of the other issues that have been raised in the last little while, issues relating to accountability or elections or terms. I mean these are not issues that I have ever specifically said I support, but I think that those are all worth discussing. I do not think that our act needs those types of changes without very, very thorough examination of the implications of that.
But one of the things that I think needs to be done is in the appointment process. Is this not a remarkable opportunity for having ordinary citizens come before a panel of people and saying that these are our concerns with the justice system? When you as a panel are going to seek a judicial candidate, these are the kinds of things we want you to look at. So, in effect, what would be happening is not just the Minister of Justice meeting with community representatives and saying that the broader legitimate concerns of government, including its citizens, involve this, this or that. No. But could you imagine a situation where we have all the members of that nominating committee, all seven of them, sitting there before they enter into their deliberations about who should be appointed, hearing from the ordinary citizen about what their concerns are, what their beliefs are, how the system could be improved?
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It could be a wide-ranging discussion. Here are some of the concerns I had because it would be the Chief Judge sitting there as a chair, and the Chief Judge might have some real reluctance to be involved in that kind of a discussion. So it might just be one-way discussion in terms of the citizens expressing their view to the members of the committee, but would not that be a wonderful way of ensuring that members of the committee and the legal community in general know about the views of the citizens and the concerns, one of the ways of keeping in touch?
I might indicate that we have that kind of a scenario, which I think has a lot of merit. The other one is sort of a screening process of individual candidates by politicians.
I have some concern about that because, for example, one of the reasons why our Provincial Court Act emphasizes confidentiality is if a person chooses to apply, there are all kinds of implications for that person's business. Whether they are a lawyer or whether they are in government or whether they are in a private corporation, many good candidates would not want necessarily to put themselves forward to be grilled by citizens, because they may feel a reluctance to announce publicly to their partners that they are interested in leaving the practice of law. That could have some serious ramifications if they were not successful. It has serious ramifications in their relationship with their partners, in their relationship with their clients. The clients might say, what is wrong with us? Why does this person not want to work with us anymore? So those are part of the broader issues and considerations that need to be done.
So while the member indicates that he would be supportive of changes where the public has a greater input, I want to say I wholeheartedly agree. If anything, that has been the main thrust of any of my comments over the last little while. I know that the judges in many respects are being responsive. They are looking at changes within their own institution, but often it is difficult, and I know this from government itself, if one simply looks at change from within the institution.
Sometimes it is important to bring people from outside the institution to examine what is being done. For that reason, members of the opposition and indeed governments agree often to bring in somebody from the outside to give a particular opinion or to provide legal advice or to analyze a certain system. I think nowhere is that more important than in our democratic system itself that citizens simply should not have the right to vote once every four or five years. It is very important. We remain accountable that way. We remain responsive to our citizens that way. But there are other ways of having citizens participate in the running of the daily affairs of government. It was for that reason that our Legislature--almost unique in Canada and I think it is unique in Canada--between second and third readings, we have public hearings on legislation. Every piece of legislation goes to a public hearing. I am not aware of any other province or, indeed, whether the federal government has that kind of situation.
Again, I think it has been of tremendous benefit for me as a minister to sit, after we have thrashed out legislation in caucus or in cabinet or with my staff, to hear the ordinary citizen come by between second and third readings and say: you made a mistake; you did not consider this. So citizen input, I think, is absolutely essential and needs to be enhanced in many areas of government.
The nominating committee was, in fact, an attempt under The Provincial Court Act to bring in more citizen participation. I think to some extent that is successful; I think though that we can do better. So the changes that perhaps need to be made are not in any way to impugn the integrity of the existing system, because I think there are some very good points about the existing system, but there are definitely certain shortcomings.
One of the shortcomings is: how does the ordinary voice of the citizen on the street, who has a legitimate concern and yet has not been fortunate enough to be one of the members of this nominating committee, get to express his or her opinion? I know that many of these citizens write me. They let me know through petitions, through letters, through e-mail, about how they see their participation in the legal system and how the nomination of judges should occur.
Now, just before I close off the answer to this question, right at about the time we were discussing this issue of whether the present legislative process under The Provincial Court Act meets some of these citizen concerns, I note that the Reform Party brought out a document that addresses a number of issues.
One of the issues that it does address is the issue of the responsiveness of the courts to citizens generally, and there were certain recommendations made. Again, I do not necessarily agree with the statements there, but I think the discussion is an important one to have, that our institutions, including our legal system, needs to evolve along with our society. So that document done by the Reform Party is an important contribution to that discussion. Members may not agree with the solutions proposed, but the discussion is important.
I mean, that is why we have opposition members in the Legislature. I do not necessarily agree with what the opposition says, but, again, here I heard today the member for St Johns (Mr. Mackintosh) saying he agrees that there should be greater citizen participation in the judicial nominating process, and that is something I certainly have a great deal of sympathy with. The question is how do we fashion that vehicle? How do we ensure that citizen participation occurs without undermining the independence of the judiciary? That to me is important.
Responsiveness does not mean destroying the integrity of the court system. One can still be independent and responsive. So, since 1981, we have had the Charter of Rights. It has fundamentally changed our legal system. It has fundamentally changed our political system. We are no longer living in a parliamentary democracy. We are living in a constitutional democracy which has involved a massive shift of power from elected people to appointed people, and when that occurred, I do not think everybody foresaw all of the possible consequences. So no one, including politicians, should feel ashamed of saying, you know, we might not have done everything right back in 1981 or 1982. So we need to continually analyze our institutions, the constitutional documents that they are based on, and, indeed, the legislation that flows out of our constitutional documents.
So I thank the member for his comments, and I certainly will bear that in mind. Indeed, there may well be something that we can do. Again, I cannot make any promises for this legislative session, but I am glad to hear that the member for St. Johns (Mr. Mackintosh) is supportive of the idea that we enhance citizen participation, in the nomination process at least.
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Mr. Mackintosh: Of course, it is no surprise to the minister. I mean, it has been our position for some time. Indeed, I was just on public radio recently. I kind of suspect that might have triggered some of the statements by the minister lately, but statements that were not made in the context of pointing fingers but rather in the context of a need to better democratize and have a representative judiciary.
I ask the minister, rather than simply musing about the appointment of judges, why will he not bring in his proposals, especially when he has draft legislation. What is stopping him from bringing the legislation into the Assembly, or, alternatively, would he share the draft legislation with the opposition?
Mr. Toews: Well, I can only honestly say that there are a number of issues that need to be addressed before that legislation is in a position that can be brought forward. Initially, my thoughts were that we simply change The Provincial Court Act as a result of the Supreme Court of Canada decision in the judge's case. I never know what the name of it is, but it is the judge's case regarding the payment of money to judges and the establishment of the committees to determine the appropriate salary ranges for judges. So I think everybody knows the case I am talking about.
I had occasion to go through that decision at some length; I know I raised it here earlier. When one looks at the majority judgment of Chief Justice Lamer--and I read it in great detail a few weeks ago--there is not just the theme that is running through the judgment of the independence of the judiciary, but there is the general theme of separation of powers, that is, the independence of the executive from the judiciary. Those are two separate, constitutionally mandated organisms in our parliamentary democracy--or our constitutional democracy now. So my first concern, of course, when the Supreme Court of Canada decision came out, is not just the issue of paying judges. That is, in many respects, a secondary issue, and that is what the Chief Justice says over and over again. This is not just simply an issue of paying judges. This is to ensure that the separation of powers remains intact.
This decision reflects, I think, the thinking of many American jurists where the Congress passed certain laws in the last little while that required, and this is a federal law, state officials to enforce it. The U.S. Supreme Court said that this is destructive of the separation of powers between the federal legislative bodies and the state legislative bodies. Not only that, it was destructive of the powers of the President. What they said is that, when one is unclear in who is doing what, what branch of government is doing what, it leads to confusion in the minds of the citizens, and it leads to the undermining of constitutional government.
I think that, if one reads Chief Justice Lamer's decision, even if one does not agree with the result--and certainly Justice La Forest did not agree that it was an appropriate result--for myself, the importance of that decision is how we need to keep the executive and the judiciary separate. So it was not completely unrelated that I had a discussion with my staff when I found out that in respect of a civil service appointment within government a judge had sat on that civil service appointment committee, and that concerned me tremendously, because, even though the person that was being hired by government would work in the courts, what concerned me is that the judge was, in fact, exercising an executive or at least a civil service function. It could, therefore, mean that he might be compromising his or her judicial function.
That certainly was not the case that they were, but, again, the perception that occurs, I think, is one that needs to be avoided, and so we have the same question arising then in the context of The Provincial Court Act. I think there is a role for the judiciary in that nominating process. Whether it is in the present role or not, I do not know, and I am not suggesting that there is anything improper or unconstitutional about it. But the Supreme Court of Canada has been very clear that the executive and the judicial need to remain separate, and so here we are passing legislation that then ties the two together.
We have heard members opposite saying that my actions, in one way or another, have compromised judicial independence when, in fact, the issue has got nothing to do with judicial independence, because the Chief Judge was not acting as a judge, but was, in fact, acting as a member of a nominating committee, nothing to do with judicial independence. So one can see how in this particular situation confusion arises as to the role of the judge and the role of the executive, and I am wondering whether it is fair to the judiciary to put them into that kind of position.
I know that very recently--and this is probably something we can get into a little later, but a very, very important point--the Chief Justice of Canada has stated that members of the judiciary, the federal judiciary, because he essentially controls the federal judiciary, should not participate on any more commissions or fact-finding commissions. Why did the Chief Judge say that judges, sitting judges, will no longer be allowed to participate in that kind of activity? I think it flows right out the Supreme Court of Canada decision that there has to be a separation of the executive and the judiciary.
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Even when we talk about inquiries--and I know we had the Hughes Inquiry here, for example. Now Ted Hughes is a retired justice, but whenever someone wants to say, well, this is what should be done because it is Mr. Justice Hughes who said it, they rely on the integrity of the office that he formerly occupied as a judge, and I think that is a very dangerous thing to do. We respect Mr. Hughes because of who he is as a person, but we should not bring in the judicial aspect of him, because I think then again in the minds of people that it becomes confusing: well, a judge told you to do this, and why are you not doing it? When in fact he was not appointed in any judicial capacity in the sense of being a judge of a superior court or an inferior court, but in fact he was appointed because he had certain expertise. So there is always that danger.
I know that our government is no stranger to that practice of appointing sitting judges. We have seen it in the context of the Aboriginal Justice Inquiry where Mr. Justice Hamilton was appointed and Judge Murray Sinclair was appointed. Again, according to this decision of the Chief Justice, Justice Hamilton would not be allowed to do that today because of these concerns. I think they arose out of certain incidents that occurred in Ontario, specifically relating to the blood inquiry, the Krever inquiry, and so one can see just in that kind of situation how confusing it was.
But let us take another example that needs to be pointed out in order to get right back to the question that the member asked about what changes you want to see done in order to enhance citizen participation. Well, when this government appointed Mr. Justice Schulman, he made a number of recommendations, recommendations that were, within months, accepted and indeed, to some extent, implemented, in very short order. Now, again, it was not Commissioner Schulman that it was referred to. In fact, it was Mr. Justice Schulman's report, and Mr. Justice Schulman made certain recommendations, very good recommendations I believe. But some of the recommendations that government accepted and attempted to implement, other judges then said no, that is not an appropriate thing to do and we do not agree to that implementation. Those judges of course had that right to say that because of their prominence in running the court.
So here we are put into an embarrassing position of a judge recommending something, we agreeing with it, and other judges rejecting it. What that does then, especially when it affects two different levels of judges, you have judges, perhaps in the minds of citizens, pointing fingers at each other and saying this should be done, and another judge said, no, this should be done, and the government caught in the middle of that recommendation. So I think the direction of the Chief Justice is a good one. I think because it deals only with federal judges, we now have to look on a provincial level to say is what is occurring here also a difficulty. Does it create the same kinds of difficulties that the Chief Justice identified and therefore said that sitting judges should no longer do that kind of activity?
And I understand where he is coming from, given the Krever report, given his judgment in the case involving the payment of provincial judges and the establishment of commissions. So, I find that the further and further I get into this, it is not that I, in any way, want to abandon the principle of citizen participation in the enhanced democratization of the nomination process. I think that is an important goal. But there is also a very legitimate role for the courts in that role. How does one enhance citizen participation without undermining what every citizen also holds dearly, the issue of the right to get a fair trial? Because that is what I am concerned about. I want everybody who comes into the courts to have a fair trial.
So it is not simply then a matter of removing all the judges from the nominating process, but are there other ways of doing it. For example, one of the suggestions that was made to me in my discussions was, well, why do you not simply have citizens and the Law Society and the Bar Association on a committee. Have some kind of an independent chair, but that independent chair should not be a judge. Some other well-recognized person, you know, who the community in general would accept as saying this person is accepted, is respected. Very, very important. Then once that nominating committee goes through its process, and that process then, as I have said earlier, could involve citizen participation even before the screening of applicants by the making of submissions. Once a list of names or group of names has been identified, well, then, why could the judges at that point not be brought into it in terms of some of the legitimate concerns that they might have? So they might review a list and say, well, we are accepting of that, but we have this and this concern about this and that individual. Then that in fact--they would not be able to veto a name but their input again--or indeed the Chief Judge might say I have a concern about the fact that none of these names include a bilingual person or none of them include a woman or none of them include a visible minority or a First Nations person.
I mean, that might be a legitimate concern for the judge to raise, given their particular needs. For example, I referenced earlier the magistrates' position in northern Manitoba where we hired a First Nations person; absolutely essential, I think, in order to implement some of the recommendations of the AJI that that occur. Yet if we had a nominating committee totally independent of government and they chose not to have that kind of a person, we might be desiring to implement certain social policy but would be unable to do so given that that person does not fit the needs of a particular community.
So those are some of the issues that need to be struggled with, discussed. Maybe it should not be brought forward as a piece of legislation at this time. Maybe it should be brought forward as some kind of a white paper for discussion, so that the communities and people have an opportunity to consider alternatives, ideas, indeed so that even the judges can participate in that discussion in an appropriate way, because I think the judges have a very real concern.
I noted from the Chief Justice's annual report, he stated that elections might merely substitute popularity for competence, I believe were the words. Now, that is an interesting discussion, just that phrase in itself, because I sort of read that, and I said, well, you know, I was elected democratically, and others in this Legislature, 56 others, were elected democratically. I believe the majority of those elected believe that they were elected for reasons of competence. I certainly know our newest member, the member for Charleswood (Mrs. Driedger), was elected for that reason. Even as much as I might disagree with members of the opposition, I believe that they believe they were elected not just because they are good people and popular in their community but that they are also competent and that they have something to contribute; in some cases less than others, but that is a political difference.
That is why I saw that document by the Chief Justice as a very progressive document. I think it is a very, very positive step that the Chief Justice issued that kind of report, because he asked all the questions right at the beginning of that report. What does a judge do? What is judicial independence? These are very, very important questions for the justice to be asking and answering as part of a greater discussion.
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So the member says, well, why do you not simply bring forward some legislation? I think it might not be a bad idea to reflect very carefully, given what the Chief Justice has said about how this kind of thing should occur.
I want to indicate that I know the member for St. Johns (Mr. Mackintosh) indicates that he should receive some of the credit for some of these ideas. I do not know, maybe through the process of osmosis I may have acquired some of those ideas. I do not recall him speaking publicly on public radio about this issue, but I know that I have talked to my colleague John Havelock, the Attorney General of Alberta, as early as last year about this whole issue, about the courts and how judges are appointed and that issue.
He is embarking upon what I think is a very, very productive inquiry. It involves not simply members of government discussing a bill in the Legislature, but it is bringing in community members for that discussion, not just community members but indeed members of the judiciary and members of the bar, members of the Law Society. It is a long, extensive list of people who will participate in trying to answer some of those very, very fundamental questions, questions that the Chief Justice raised in his annual report. I am looking forward, indeed, to participating in that, when there is a public forum in that next year, early next year. So I look forward to that.
I know that many members or many attorneys general have also raised that particular issue. When I discussed this issue with the attorney general of Alberta last year, I had also discussed it with Mr. Charles Harnick, the attorney general of Ontario, and Mitch Murphy, the attorney general of P.E.I., as well as the attorney general of the Yukon, Lois Moorcroft, who again raises very similar issues, and certainly not a member of the same political party that I am in, but the issue raised was identical. So the entire theme back in December of our meeting of all the attorneys general is how do we restore public confidence in the justice system.
I know federal Justice Minister Anne McLellan brought forward certain statistics that indicated what people thought about the justice system. I can tell you at the top of the list in terms of confidence were the confidence that people had in their police forces, absolutely right across the country, not just the RCMP. We always think about the RCMP, and say you know there is that image of this federal police force that is a wonderful police force, and we all know it is. Well known, I think there are about 350 Hollywood movies made involving RCMP officers, but the municipal police forces did essentially as well as the RCMP. So we know that was at the top of the list.
I can tell you what was right at the bottom of the list and before anybody starts guessing, I will tell you it was the Young Offenders Act as one of the instruments or pieces of legislation or components of the justice system that caused people to have a lack of faith in our justice system. The approval rate of the Young Offenders Act was at about 12 percent in the western provinces, quite an astounding figure when you realize people simply have no faith in that legislation and that legislation then undermines the people's faith in the entire justice system.
So we have to move proactively as our government has encouraged Anne McLellan to do to change the Young Offenders Act, not simply to be punitive but also to ensure that there are community-based solutions to very, very serious problems.
The other point, of course, is as the federal government continues to do this and send more programs to the provinces, they continue to cut the funding and that is very, very unfortunate. On the one hand they talk about being committed to ideas of community justice, On the other hand they continue to cut programming and they are no longer the equal partner that Confederation envisaged the provinces and the federal government to be. They, in fact, tell us that they are the senior level of government and they will do what is best for Canada, even though that involves telling constitutionally independent provinces what to do in their own area of jurisdiction, and that is very, very unfortunate.
I do have some measure of faith in this federal justice minister, Anne McLellan. I believe she is listening, but I believe there are many in her caucus who are not listening to the people of Canada. I believe we need to encourage Anne McLellan to move in the direction, both legislatively and fiscally, that I believe that she thinks she should be going in. I believe that she thinks she should be an equal partner, that we should be equal partners, that it should not be unilateral federalism, but that there should be co-operative federalism. That is an impression that I have received in talking to her. I think that she, however, needs more encouragement from the provinces to continue moving in that direction.
I know that there were a number of other things that I wanted to discuss on this particular issue in relating to how we bring more citizen participation into this important process. Again, having reviewed some of the drafts of legislation that I have seen, comments that have been made, I have come to the conclusion that it would almost be presumptuous of me to suggest this is the direction that the Legislature should move in. I am encouraged by the discussions or the paper that the Chief Justice put out as a very, very positive step, that we need to think about different points of view, the citizens who elected us, we as politicians who serve those people in the Legislature every day, and the judges who form an important component of our entire constitutional framework.
So I think, with those few thoughts then, I would leave myself open for another question.
Mr. Mackintosh: How many vacancies are currently on the Provincial Court once the current two appointments are made?
Mr. Toews: Well, that is an interesting question as to how many vacancies there are.
Mr. Chairperson: Order, please. The time being 12 noon, I am interrupting the proceedings. The Committee of Supply will resume sitting this afternoon following the conclusion of Routine Proceedings.