Debates of the Senate (Hansard)

1st Session, 39th Parliament,
Volume 143, Issue 61

Wednesday, December 13, 2006
The Honourable Noël A. Kinsella, Speaker

Judges Act

Bill to Amend—Third Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Nolin, seconded by the Honourable Senator Stratton, for the third 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 rise again to speak on Bill C-17, dealing with judges’ salaries and benefits at third reading.

Let me preface my remarks by saying that I do not intend to repeat what I have already said at second reading. Senator Meighen’s remarks in introducing the bill largely match those made by Minister Toews before us. What I said on that occasion remains applicable. I would not modify one word of what I said.

When I concluded those remarks, I noted that this legislation was both extremely flawed and well overdue. As one of the members of the Quadrennial Commission on Judicial Compensation and Benefits, Earl Cherniak, Q.C., noted before the Standing Senate Committee on National Finance yesterday, it has now been two and a half years since the commission first issued its report. Our judges have been waiting that long for this legislation to reach the final stage of consideration.

It was this rush that caused us to take the extraordinary step of hearing from the commissioner and the Minister of Justice and Attorney General of Canada back to back before immediately moving to clause-by-clause consideration. While I am glad we were able to expedite this long-overdue piece of legislation, I feel through this bill the government may be causing a great deal of damage to the quadrennial process and interfering unfairly with the rights of Parliament. Worst of all, I fear it is furthering an attack on the rights and rules of our judiciary, which other senators have rightly mentioned is a source of pride for all Canadians and respected the world over.

Much has been said about judges over the course of this debate.

Honourable senators, my mother was a probation officer, and as a young child I used to often accompany her to the courts. I observed the robed judges wearing wigs in the courtroom making very stern and tough pronouncements. Later, I would observe them in their chambers with their wigs on the table, compassionately struggling with what the appropriate sentences should be.

Every Asian Ugandan as long as they live will relate that as long as the judiciary was able to function in Uganda, we were able to live in Uganda. We all have the memory of when our Chief Justice Benedicto Kiwanuka stood up to Idi Amin ingrained in our psyche. He never gave in to Idi Amin.

Justice Kiwanuka lost his life. He was forcibly taken directly from his courtroom by Amin’s goons and shoved into the boot of a car. We never saw him again.

In Canada, this great country, we can truly take pride in the independence of our judiciary. Today, they work very long hours due to the increasing number of complicated trials, which involve thousands of documents. They start early to deal with pretrial motions, have a full day in court, and then sometimes have to deal with matters after court hours.

To add to their challenges, they increasingly have to deal with unrepresented claimants, which requires them to undertake the difficult task of being both judge and lawyer in a case.

Only today in The Globe and Mail there is a heading: “Judges told to help lawyerless litigants,” by Kirk Makin. It reads:

The growing flood of litigants appearing in court without a lawyer has reached a point where judges should take special steps to help them, the Canadian Judicial Council said in a “statement of principles” released yesterday.


“The council views the increasing numbers of self-represented persons who appear in court system as a serious matter,” Chief Justice Beverly McLaughlin, chair of the council, said in a commentary.

Honourable senators, in the last few years, we have observed how judges have stood up for what is right.

We have seen it in the Air India case when Justice Josephson took the difficult step of acquitting two people. This was a very courageous act, and he did it because he believed there was not sufficient evidence to convict.

Five years ago, we passed the Anti-terrorism Act, Bill C-36, very quickly. As long as I live, I will remember the words of the then Minister of Justice when she assured us publicly and privately that the legislation was “Charter proof.” We believed her. I believed her. We passed the legislation.

Recently, Justice Rutherford in R. v. Khawaja struck down parts of the definition of terrorist activity, saying that it is:

…not only novel in Canadian criminal law but…constitutes an infringement of certain fundamental freedoms guaranteed in section 2 of the Charter of Rights and Freedoms, including those of religion, thought, belief, opinion, expression and association.

Honourable senators, yesterday, and a few months ago before that, Justice O’Connor returned Maher Arar’s life to him by standing up for what was right. He stood up for a lone man and declared that Maher Arar was not a terrorist. Justice O’Connor not only assisted Arar, but a whole community was given hope that in our great country no one is above the law.

Honourable senators, I want to now turn to some of the issues that were raised at second reading. As I said before, I do not believe many of these issues have been addressed and, indeed, the committee members raised a number of new issues in their observations.

One issue I want to put on the record, because I think it is a very important point for many of us here, is the issue that Honourable Senator Grafstein raised at second reading concerning a potential of conflict of interest in the quadrennial commission process. Mr. Cherniak, who had been appointed as the nominee of the judges, was asked the following in committee by Senator Murray — who I quote only in part for the sake of time. Senator Murray asked:

What would we lose if we changed the membership to exclude a representative of the judiciary?

Mr. Cherniak responded:

I am not a judge. I have never been a judge, and I do not expect I ever will be a judge, and I have no aspiration to be a judge. I reject the suggestion that I was a representative of the judiciary on the commission. I was the nominee of the judiciary. They have to nominate someone. That is the way the statute reads.

He went on to say:

The commission is formed by a nominee of the government, a nominee of the judiciary and, to secure the independence of the commission, those two nominees chose the chair. I can assure you that all three members of the commission took the view that they were in no way the representative of the body that nominated them.

Honourable senators, I am satisfied that the spirit of impartiality is being respected in the quadrennial process.

As to another matter that I raised when I spoke earlier on second reading, as to revisiting the decision made by the former government on the salary, Mr. Cherniak’s remarks on the process accord entirely with my own assessment. He says:

I do not think this government can legitimately do what it has done: that is, to revisit the recommendations of the commission two years after the fact and long after the government of the day had already responded.

Honourable senators, the Judges Act clearly states that the government has six months to respond to the report of the quadrennial commission. The limit was respected by the previous government, which accepted the main recommendation of the committee on judicial compensation.

Upon coming to power, the new government said that it would re-examine this response, and ultimately rejected the main recommendation, returning to the original position that is expressed in this bill.

The Justice Minister clearly wishes to avoid the subject altogether. Yesterday, he said:

Is our government functus because another government made a decision? I prefer not to get into that legal entanglement.

Well, of course he does not. He is wrong.

In response to the question from Senator Cowan on this topic, the minister said:

The government is required to look at all the facts available to it. I believe there is nothing preventing the government from looking retroactively at what the commission has determined and having the benefit of that insight that has occurred as a result of the passage of time.

With all respect to the minister, it is the Judges Act that prevents them from looking retroactively at what the commission has determined. The timelines are clear. His suggestion that the government should benefit from the insight gained through the passage of time is especially difficult to reconcile with the spirit of the law. These time limits were meant to ensure that the recommendations of the commission were addressed in a timely manner. When the government says it needs the benefit of over two years of 20/20 hindsight to properly assess the report, it risks causing real damage to the quadrennial process. We now have to wonder how the next quadrennial commission will operate, considering it will be starting its work so shortly after action on the previous commission was implemented.

The minister then intimates that it really does not matter, because the government’s position is just a recommendation to Parliament. The minister says elsewhere that his government invited the committee in the other place to make a recommendation. He says that they did not do so because they simply could not agree for one reason or another. He further goes on to say that he does not remember all of the details of the fight. Let me respectfully remind Minister Toews, and this chamber, that there was no fight. When an attempt was made to restore the commission’s salary recommendation, the government member chairing the committee simply ruled the motion out of order.

Despite Minister Toews’ repetition of the proposition that it is up to Parliament to fix the salary of the judges, he knows that his government has effectively tied Parliament’s hands by refusing to commit to a Royal Recommendation should Parliament differ with the government’s position.

Parliament’s authority is even further usurped by the fact that the Justice Minister has chosen to attach unrelated amendments to other acts to this bill. As our committee points out, this is a clear attempt to tie the hands of parliamentarians, presenting technical amendments with these long overdue changes to the Judges Act and forcing us to accept the whole package. Were it not for time constraints, I might be persuaded to support Senator Joyal’s suggestion of splitting this bill into its component parts. However, we learned during the debate on the animal cruelty bill in a previous session that this is a very complicated process, and time simply will not allow it.

As a final point, I am very troubled by the way the justice ministers in our country have started to muse about our judiciary. Yesterday, in committee, the minister was asked about his attitude and some of his statements regarding the judiciary. He responded by saying that he was not the only one, and he gave the example of the Minister of Justice in my province of British Columbia.

The Minister of Justice in my province had commented on the working day of judges. Minister Oppal of B.C. had asked why trials start at 10 a.m. and not at 9 a.m. I know Mr. Oppal; I know Minister Oppal knows the answer to that question as well as I do. His government has cut back court staffing and sheriff services. His government has failed to provide pre-trial holding facilities in downtown Vancouver. Prisoners, who must be present at their own trials, must be brought in from the Fraser Valley every morning, and they seldom arrive in time. Judges cannot start trials earlier than 10 a.m. in Vancouver because government cutbacks have made it impossible for them to do so.

I should also point out that I know, and I know Minister Oppal knows, that notwithstanding these difficulties, superior court judges start their working days early and are often in their courtrooms by 9 a.m. on motions and other civil matters. Minister Oppal also knows that judges’ sitting time is only a fraction of their working time. Every week, dozens of considered written decisions are posted on the court website. They do not come out of thin air, and they are not prepared while judges are sitting in court. Judges spend many evenings and weekends at work.

It is unfortunate that Minister Toews seems to take some comfort in this unfortunate incident, but it is not surprising. I will make one more observation that sums up Minister Toews’ attitude, and that of this government toward our judiciary. In answer to a question from Senator Cowan, Mr. Toews said this:

I think despite the fact that the Supreme Court of Canada outlined this process for the commission to make these determinations, it must be remembered that this was a process that has been somehow constitutionally grafted into our Constitution. It does not appear anywhere in the same way that section 100 does in the Constitution Act, 1867. Section 100 of that Act clearly indicates constitutionally that it is the responsibility of Parliament to set that compensation so we have to then meld the constitution doctrine imported into this whole process by the court in the Prince Edward Island Judges’ Reference Case and as defined in the Bodner v. Alberta decision.

The process was not “somehow constitutionally grafted” into our constitution. Honourable senators, the issue of the responsibilities of legislatures was submitted to the courts in those cases. The courts were simply doing what they were constitutionally obliged to do in interpreting those responsibilities.

As I said in my remarks at second reading, section 100 imposes a responsibility upon Parliament to fix judicial remuneration —

The Hon. the Speaker: The honourable senator’s time has been exhausted.

Senator Jaffer: May I have two minutes?

Hon. Senators: Agreed.

Senator Jaffer: — at a level which appropriately reflects the crucial place of the courts in our democratic system. Section 100 is not an unfettered prerogative. That is all the courts have said.

I am very reluctantly agreeing to support this bill. We, of course, cannot change the percentage increase in this house as it is not within our powers.

Honourable senators, today, in my presentation, I would be remiss if I did not acknowledge another great jurist, former Supreme Court Justice Thomas Dohm. When I first came to this country as a refugee, in my first month I was flatly refused by the Law Society of British Columbia when I asked them to assess my credentials as a lawyer. I was very fortunate, at that time in 1974, that a great jurist, Tom Dohm, came to my aid. I have been working for him for the last 30 years. Honourable senators, I am here with you today because of the work of that great jurist, Tom Dohm, who took on the law society in my province. Judges truly work for all Canadians; Canadians from all walks of life. We Canadians should be very proud of them.

Therefore for me, this is not a happy day. The process for fixing judicial remuneration has not been respected by this government. However, we must nevertheless support the immediate passage of this bill because we recognize that even more harm can come from any further delay.