Debates of the Senate (Hansard)

1st Session, 39th Parliament,
Volume 143, Issue 57

Wednesday, December 6, 2006
The Honourable Noël A. Kinsella, Speaker

Judges Act

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Meighen, seconded by the Honourable Senator Comeau, for the second reading of Bill C-17, to amend the Judges Act and certain other Acts in relation to courts.

Hon. Mobina S.B. Jaffer: Honourable senators, I want to begin my remarks on Bill C-17 by speaking briefly about the role of judges in society and of Parliament’s role in relation to them.

As Senators Meighen and Grafstein have reminded us, Parliament is called upon by section 100 of the Constitution Act, 1867, to “fix and provide” the salaries, allowances and pensions of judges of the Superior Courts. Judges are the only persons in Canadian society whose compensation is set by Parliament, and section 100 is the only section of the Constitution that mandates the expenditure of money. This reflects the role of the judiciary as a third, equal, branch of government.

The Lang Triennial Commission of 1981 specifically addressed the place of the judiciary in Canada in the following terms:

The Commission believes the position of judge in our society and in our political framework to be unique and vital. A free and independent judiciary is the single greatest guarantee of our constitutional rights and liberties.

Under the Canadian Constitution, the judiciary exercised its authority independently of the executive and the legislature. The Constitution Act itself evidences this intent, by fixing the power to appoint the judges of the superior, district and county courts of the provinces upon the Governor General, and by imposing the duty upon Parliament to fix and provide their salaries, pensions and allowances.

The current McLennan commission report described the legal principles and constitutional imperatives underlying judicial compensation as necessary in order to ensure they “may function fearlessly and impartially in the advancement of government and all litigants appearing before them.”

Honourable senators, this is a very important section. Section 100 does not give us a free hand to choose any level of remuneration we like. Constitutionally, it must “fix and provide” for judges in a way that reflects the constitutional status of the judiciary and the requirement that they be able to devote their full time to their responsibilities and discharge them with absolute independence.

It is also important that we recognize the role judges play in our society because judges cannot speak out for themselves. Because of their position, they are constitutionally prohibited from negotiating any part of their compensation arrangements with the executive or with representatives of Parliament. This is a prohibition that applies to no other class of person in Canada. This obviously imposes upon parliamentarians a duty of good faith toward the judiciary and toward the protection of the interests of Canadian society in their independence. For this reason we have the constitutional requirement of an independent commission process to provide a forum for these matters to be addressed.

Judges are also prohibited from engaging in any other occupation or business: What Parliament “fixes and provides” is what they get. They have no means of supplementing their incomes.

The role of the judiciary is such that we should be seeking the best possible people to place in that office. They must be respected among lawyers as leaders of the legal profession. Of course, it goes without saying that they must also have the respect of all Canadians, as their role is fundamental to our rights and to the functioning of our society.

As someone who has practised in front of judges for over 30 years, I can vouch for their complete commitment to their work. For the most committed, dedicated judges, their work is their vocation. They work long hours in order to serve all Canadians.

When we ask qualified people to devote themselves entirely to the demands of this office, to put the other things aside, to turn their backs on the marketplace and on public life, to live the relatively isolated life of a judge, not only for themselves but also for their families, we take on an obligation to recognize those sacrifices and to treat the judges fairly.

All of us in this chamber understand the rewards and demands of public service, but we are not required to sacrifice everything else; however, judges are. We want the office of judges filled with lawyers who have earned the respect of the members of their profession. Therefore, the notion that judges’ salaries should be based only on the availability of applicants completely misses the point. We want to attract the very best from among people of the highest qualifications.

I want to now turn to what Senator Meighen said when introducing this bill. One of his first remarks was that “a government must publicly respond to the report of the commission within a reasonable period of time.” A little later, he stated that “the Judges Act was amended in 1998 in order to strengthen the current procedures of the commission consistent with the constitutional requirements defined by the Supreme Court of Canada.”

This should not be allowed to pass without comment. The principal way the Judges Act was strengthened, as Senator Meighen suggests, was by adding a time limit for the government’s response. This was because there had been problems in the past with the government responding too slowly to commissions.

The time limits are clear. Section 26(7) of the act states:

The Minister of Justice shall respond to a report of the Commission within six months after receiving it.

This is not “within a reasonable time,” as Senator Meighen suggested. It is a mandatory six months from the time the report is received. The McLennan commission reported on time and the Minister of Justice of the day responded by accepting the principal recommendation of the report, the 10.8 per cent salary increase.

That was the opportunity the Government of Canada had to address the report. There is absolutely no legal basis for the new Minister of Justice to behave as if the report had not been received by his office. This is a completely irregular reading of the statute, one that goes against the very strengthening, by means of effective time limits, that Senator Meighen spoke about.

This government believes, to quote the Honourable Senator Meighen, that “it had a responsibility to take the time to consider the report and recommendations in light of the mandate and priorities upon which it had been elected.” With the greatest respect, this government had no such right and the act provides no such opportunity. The statute is clear and the time limit for the response had long passed before this minister took office. However, this is not the only way the government has failed to respect the process.

Senator Meighen states that Bill C-17 proposes to implement virtually all of the commission’s recommendations, the exception being the commission’s recommendation for a 10.8 per cent salary increase. However, the salary increase is the principal recommendation of the commission, and it was the main focus of the report. The other matters are largely of a housekeeping nature. The government has in fact rejected most of the commission’s work.

The government finally decided on a 7.25 per cent increase. The government states that it arrived at this figure by giving careful consideration to all four criteria established by the Judges Act and to two of them in particular — the prevailing economic conditions in Canada and the need to attract outstanding candidates to the judiciary.

This is very interesting. If one turns to the report of the commission, one can find a summary of the submissions by the government and the judiciary. There, we can see that an increase of 7.25 per cent was in fact the original proposal of the government; it was an opening offer. This is to say that what this government calls “careful consideration” of the commission’s recommendations has led it to conclude that its original position was correct and that the work of the commission, which Senator Meighen has told us was very careful and thorough, was, in respect of its principal recommendation, a complete waste of time.

How does making a submission to the commission, awaiting its recommendations and then saying, “Thanks, but we prefer our opening position,” respect the process? Could the process be accorded less respect?

The senator also alluded to the very balanced guidance that has been provided by the Supreme Court in the P.E.I. Judges Reference and in the Bodnar decision. He went on to say:

In both decisions, the court has quite rightly acknowledged that allocation of public resources belongs to the legislatures and to governments.

Careful reading of these cases also indicates that governments are fully entitled to reject and modify commission recommendations provided that a public, rational justification is given, one that demonstrates overall respect for the commission process.

With the utmost respect to Senator Meighen, the context of the Bodnar decision must also be understood. Following the P.E.I. Reference, provincial governments were obliged to set up commissions similar to the quadrennial commission for the judges of the provincial courts. The first experiences with these new commissions were not happy. In four of the ten provinces, litigation resulted. When the cases came before the Supreme Court, Madam Justice McLachlin observed that the guidance given by the P.E.I. Reference, which was meant to depoliticize the process, had been frustrated in practice.

The Supreme Court then added a third stage of consideration to the two-step analysis set down in the P.E.I. Reference. This new test is as follows: First, has the government articulated a legitimate reason for departing from the commission’s recommendations? Second, do the government’s reasons rely upon a reasonable factual foundation? Third, viewed globally, has the commission process been respected and have the purposes of the commission process been respected and have the purposes of the commission — preserving judicial independence and depoliticizing the setting of judicial remuneration — been achieved?

The Chief Justice went on to note that “a bald expression of disagreement with the recommendation of the commission, or a mere assertion that judges’ current salaries are ‘adequate’ would be insufficient.”

Looking at what this government has done, how can we say that the goal of depoliticization has been achieved? The judges have seen the government’s position relative to the current commission change to their disadvantage as a result of politics. How does that honour the strengthened process that Senator Meighen spoke of?

When we actually look at the reasons given for rejecting the commission’s recommendation, one again sees a complete lack of respect for the process. The government feels that “the commission did not pay sufficient heed to the need to balance judicial compensation proposals within the overall context of economic pressures, fiscal priorities and competing demands on the public purse.” With respect, this seriously misstates the responsibilities of the commission.

Section 26(1.1.)(a) of the Judges Act obliges it to consider:

The prevailing economic conditions in Canada, including the cost of living and the overall economic and current financial position of federal government.

This provision obviously addresses what the government can afford to pay.

The commission’s observation was as follows:

We interpret this direction as obliging us to consider whether the state of economic affairs in Canada would or should inhibit or restrain us from making the recommendations we otherwise would consider appropriate. An economy providing large surpluses, lower taxes, etc. should not influence a commission to make recommendations that would be overly generous or spendthrift. The consideration to be applied is whether economic conditions dictate restraint from expenditures out of the public purse.

While this consideration may well impose difficulties for future commissions, we conclude that the economic condition in Canada does not restrain this Commission from arriving at the compensation recommendations we believe are appropriate.

The several sources supporting this conclusion are set out at pages 10 and 11 of the report. Against this, the government apparently suggests that the obligation of the commission is to anticipate the government’s spending priorities and to give effect to them. This reasoning is deeply flawed. So, too, is the second objection, that the commission accorded “a disproportionate weight to the incomes earned by self-employed lawyers and, in particular, to those practitioners in Canada’s eight largest urban centres.”

This was the subject of detailed consideration by the commission, which was specifically critical of the data submitted by the government. In the circumstances, the government’s response is exactly the sort of “bald statement of disagreement” the Chief Justice identified in Bodnar as an insufficient or inadequate response.

The government says it was not satisfied that the appropriate weight had been given to judicial annuity. This was, however, addressed by the commission in some detail, and it was again critical of the state of the data, including the data tendered by the government. This is another completely unsupported statement of disagreement.

It must be said that the government’s position that it can — almost two years later, on the basis of vaguely stated misgivings — undo the work of a commission before which it had every opportunity to make its case violates the most basic norms of fairness.

The report was based on the conditions at the time it was presented, a point made by Mr. McLennan when he appeared before the committee in the other place. For the government now to take the position that it has, based on its view of current circumstances, completely negates the purpose of a periodic review and again shows its utter disregard for fairness and due process.

Lastly, honourable senators, Honourable Senator Meighen’s observation that it was up to Parliament and not the executive alone to decide on judicial compensation is again misleading —

The Hon. the Speaker pro tempore: I am sorry to interrupt, but I must advise that the honourable senator’s time has expired. Is she asking for more time?

Senator Jaffer: May I have two minutes?

Hon. Gerald J. Comeau (Deputy Leader of the Government): Two minutes.

Senator Jaffer: Thank you.

I was saying that Honourable Senator Meighen’s observation that it was up to Parliament and not the executive alone to decide on judicial compensation is again misleading, given the government’s refusal to commit to a Royal Recommendation, should Parliament have expressed a will to raise the amounts proposed by the government. Before the House of Commons Justice Committee, a motion to restore the commission’s salary recommendations was ruled out of order. Parliament’s hands were completely tied by this manoeuvre.

Honourable senators, I fear we are faced with a bill based on a reasoning that is, on the one hand, deeply flawed and, on the other hand, extremely overdue. We have a responsibility to give this bill careful consideration, but we also have a responsibility not to further delay. On that note, I hope we can refer this matter quickly to committee and look at many of these issues more closely.

Hon. Jerahmiel S. Grafstein: I have a question.

The Hon. the Speaker pro tempore: Senator Grafstein has a question, but there is only one minute left in Senator Jaffer’s time. Will Senator Jaffer accept questions?

Senator Jaffer: Yes.

Senator Grafstein: I was out of the chamber, and I hope I did not mishear the honourable senator. The constitutionality of Parliament to deal with the measure of judicial compensation under sections 99 and 100 of the Constitution is clear. Is that so?

Senator Jaffer: I think that is something that the committee will have to look at.