Bill C-51 (Historical)

An Act to amend the Judges Act, the Federal Courts Act and other Acts

This enactment amends the Judges Act to implement the federal government’s response to the report of the most recent Judicial Compensation and Benefits Commission regarding salaries and benefits of federally appointed judges. Included is a mechanism to divide judicial annuities upon breakdown of the conjugal relationship.
It permits the expansion of unified family courts by authorizing the payment of salaries for additional judges. As well, it increases the number of salaries authorized for judges of provincial superior courts.
It also makes certain amendments to the Federal Courts Act, notably for the establishment of an independent committee to make recommendations on the compensation of Federal Court prothonotaries.
In addition, it makes a number of technical amendments to various other Acts in relation to courts.

Judges Act

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, in fact, because of the rule of 80 the issue of judicial vacancies does arise in this debate. The fact that Bill C-51 was not copied essentially and Bill C-17 omits to talk about unified family court nominations, the issue of judicial vacancies and the administration of justice, or the delivery of justice, is very pertinent. I thank the member for Ottawa South for his question.

We believe in impartiality with respect to the delivery of justice. We know across the country that there are committees in each province made up usually of chief justices, members of the bar et cetera, who recommend names to an attorney general to make recommendations to cabinet. That is the way it has been and it has served us quite well.

The dog and pony show that the other side would like to see is to have hearings and probably elections for most judges. We stand against that.

Last night our neighbours to the south, who we speak very fondly of despite the rhetoric of the other side, chose wisely a government that rejects its republican principles in general. I do not think we want seep toward republican type principles with respect to the appointments of judges. I will however refrain from talking about specific cases because it would belie what I said before, that we cannot talk about specific cases once elevated to the bench. These people are judges.

What is disturbing is the evidence from the Minister of Justice yesterday, and the parliamentary secretary from Albert County will know, that it is wrong to infiltrate provincial committees across the country that make recommendations regarding judges. That is happening and that is a sad fact.

The infiltration and interference with the independent nomination process is taking place in the country. It is a shame and the parliamentary secretary for justice, as a proud New Brunswicker, should be ashamed of this intrusion into the democratic process.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, Bill C-17, an act to amend the Judges Act and certain other acts in relation to courts, is the bill before us. It is my pleasure to give the opposition response to this bill going to third reading.

The bill deals with judicial salaries and allowances, judicial annuities and other benefits. Bill C-17, to put it in its historical context, is the second government response to the 2003 Judicial Compensation and Benefits Commission. The previous government had introduced Bill C-51 on the same subject. Historical context is very important because the people of Canada can see that action was undertaken by all governments with respect to this stagnant file.

As usual, Bill C-51, the predecessor legislation brought in under a Liberal government, was far more comprehensive and far more meaningful. It proposed a whole bunch of items that dealt with more than just the strict recommendations of the commission. There were a number of court related reforms, including the expansion of the unified family courts across this country.

In my own province of New Brunswick, there is a serious backlog of Family Court cases. Bill C-17 did not deal with this issue. I know the member for Tobique—Mactaquac would be interested to know that there are women waiting in all judicial districts of New Brunswick for dates for hearings before justices of the Family Court to deal with serious issues of child custody and the making of payments for support and maintenance. These are very serious matters. These matters touch everyone in the country. I thought it was important to underline that they hit home; they hit New Brunswick. The paucity of regulations in Bill C-17 as opposed to Bill C-51 just show how the government is not concerned with holistic or wholesome justice reforms, but just piecemeal ones.

Sadly, Bill C-51 did not proceed beyond first reading. It died on the order paper with the dissolution of the last Parliament.

In the reference case, the Supreme Court of Canada also concluded that government delays in responding to the reports of judicial compensation commissions can damage judges’ morale. It could even cast doubt on the independence of the judiciary.

Indeed, the independence of our judiciary is very much at stake in this bill as presented. Many times courts and commissions have established how critical the financial security of judges is, not only for maintaining judicial independence and impartiality, but also for attracting persons most suited by their experience and ability to be excellent candidates for the bench.

There seems to be a general attack on the judiciary presented by the government in its totality of justice bills. When we combine the effects of Bill C-17, which strikes at the heart of judicial independence, with the effects of Bill C-9 on conditional sentences, which is taking away the discretion of judges, and when we even combine it with the process involving the approval of Justice Rothstein to the Supreme Court of Canada, although it met with great success in that instance, it still puts the independence of the judiciary in question. It is as if the government has something in its craw about judges.

The bill completes the picture in striking at the heart of the independent findings of the commission. The report of the commission, and that was the McLennan commission, recommended that federally appointed judges receive a 10.8% salary increase effective April 1, 2004. As we know, Bill C-17 proposes an increase of 7.25% as of the same date, April 1, 2004, so where does the difference come from?

The commission reviewed Canada's economic situation. I was curious to note that the minister pretended as if the commission did not review the economic conditions prevailing in society. He would therefore lead us to infer that the commission irresponsibly would avoid looking at the economic conditions pertaining in this country and still recommend a salary increase.

Of course it looked at our economic conditions, and thanks to the great economic stewardship over the past decade or more of the member for LaSalle—Émard, this country has an enviable economic situation. For the minister to say that this was not considered sufficiently by the commission is in fact wrong. It is wrong in fact and it is wrong in opinion.

Canadians can see through this. They can see that this agenda of law and order also means that judges should do as the government feels they should. They should not be independent. They should be tethered to the purse of the government and its agenda with respect to justice issues.

Instead of simply establishing whether the government had sufficient funds to comply with the salary recommendation of the independent commission, the government believes that consideration also should be given to the other economic and social priorities of the government. It is curious to note that it is not the economic and social priorities of the community, but of the government, for on the same day that the Conservatives received news of a $13.2 billion surplus, they announced cuts of over $1 billion, hurting the most disadvantaged and helpless people in the community.

Does this mean that federal judges' salaries and, most important, their independence, is not a priority for the current government? Clearly Canadians are smart enough to draw that assumption from the government's actions. It is not important that judges be independent, the government says, so it will cut their salaries. It will also find judges whose beliefs the government believes in and put them on the court.

After cutting a billion dollars in social programs on the same day they received the news of the $13 billion-plus surplus, how can the Conservative government argue that it is refusing the conclusions and recommendations of the independent McLennan commission in this context? Is the minority government once again putting its own partisan agenda before the needs and the greater good of Canada? Are the Conservatives once again leaving Canadians behind in favour of their own political agenda?

I am not the only one questioning the government decision to come up with another number for the judges' salaries. The Canadian Superior Court Judges Association is also concerned by the rejection of the independent commission's salary recommendations.

I know that the member for Nepean—Carleton will be very interested in the accountability aspects of the bill. Having sat with that member for Nepean—Carleton in the hearings for Bill C-2 in the legislative committee last spring, I know he is keenly interested in the issues of accountability.

How accountable is it that the recommendation emanating from the independent commission, the independent judges salary commission--and members of the House will know that Bill C-2 is replete with the word independent--was rejected by the government? How accountable is that? I can only echo the concerns of the Canadian Superior Court Judges Association. It seems to me that we would have to go a long way in the history of this country to see political activism from our judiciary.

I echo those concerns. I am troubled by what seems to be the government picking up another salary figure and justifying it by criticizing the independent commission for not having accepted its arguments in the first place. It is as if the Conservatives should have picked Gwyn Morgan or some other Tory contributor to sit on the commission so they could have had the results they wanted. That, in their minds, would have closed the accountability loop.

Once again, this is a narrow approach that we have heard a lot about in recent years from our southern and formerly governing Republican neighbours, who say, “If you're not with us, you're against us”. The government seems to reject the independence of a commission. Those members in fact reject the good judgment of our judges and they are piercing a sword in the very muscle of judicial integrity and independence in this country.

Canada does not work like that. Canadians do not like that kind of play. They like fair play. Bill C-17 is not about being for or against the commission recommendations per se. It is about independence and accountability and the impartiality of our judges.

Judges interact with the citizens of Canada, both victims and criminals, with people in the judicial system. They must be above reproach from any political incursion. They must be independent. They must have integrity. Above all, they must have the respect of all Canadians.

How are we to respect a government that does not respect the fact that people in Canada want their judges to be above politics and not to be besmirched by any cheap political process, which this non-accountability act compliant provision provides?

It is all about doing what we can to maintain the highest standard of judicial independence. We cannot jeopardize judicial independence in our system, the system that is from the common law that pertains throughout many countries in the world, and we cannot do it, foremost, to promote a partisan agenda. This is not acceptable.

Having said that, I will say that this bill going to third reading has some good aspects, as Bill C-51 did, aspects that the Canadian people should know about.

On the issues with respect to northern removal, my friend, the member for Yukon, will be interested to know that northern removal as it is defined in the bill has a bit of a negative connotation. It sounds like people are moving from the north and is something like how the member for Fort McMurray—Athabasca wants Maritimers to move out west as part of a migration program from the government. It does not mean that at all.

What it really means is that justice will be done in the northern communities of this country. We often say from sea to sea to sea, and many Canadians who live in the south do not understand the concept of that third sea, but up near that third sea, as the member forYukon will know, serving as he does on the justice committee, delivering justice to the citizens of our great northern territories is often difficult. As such, the northern removal procedures set out in Bill C-51 and now carried through with Bill C-17 will do a great deal to improve the quality of justice in the northern parts of our community.

The supernumerary provisions, the rule of 80 provisions, will allow for a much more flexible system of judicial personnel appointments throughout many of our provinces. It will allow judges who have earned the combination of years of service and age to go to supernumerary status and be available essentially as part time judges to serve the provinces in which they reside.

This may do something to make up for the government's glaring error in not following the script of Bill C-51 in appointing a unified family court, particularly in provinces that do not have a unified family court such as New Brunswick, and we hope it does. On this side, we trust the chief justices of this province to manage their courts properly. We give them the respect they are due and hope that this bill aids them in that process.

I leave members with these thoughts about the application of this act and others with respect to judicial remuneration and judicial vacancies. It is to be hoped that we can move forward in the House in a non-partisan way, realizing that the judiciary should be above all aspects of partisanship. The judiciary, when appointed, should be on a pedestal. The judiciary should be above the concerns that often occur in this place and, above all, the judiciary should be respected by the Canadian public.

The Canadian public wants a judiciary that metes out justice and settles the disputes in our communities that happen from time to time in a way that is beyond reproach. It is to be hoped, with the beginning of new negotiations involving the same commission, that the next government, which I sincerely hope for the sake of all Canadians will not be a government made up of people from that side, will respect the principles of judicial independence and the integrity of our judges and adopt the recommendations when they come forward from the next quadrennial Judicial Compensation and Benefits Commission.

[Vic Toews, Conservative, Minister of Justice and Attorney General of Canada]

moved that Bill C-17, An Act to amend the Judges Act and certain other Acts in relation to courts, be read the third time and passed.

Mr. Speaker, I am pleased to debate the third reading stage of Bill C-17, which is an important piece of legislation.

Entitled, an act to amend the Judges Act and certain other acts in relation to the courts, Bill C-17 proposes to amend the Judges Act to implement the government's response to the report of the 2003 Judicial Compensation and Benefits Commission. The bill also proposes some technical amendments of a court related nature to other federal legislation.

Section 100 of the Constitution requires that Parliament and not the executive alone establish judicial compensation and benefits following full and public consideration and debate. In addition to the protections of section 100, the Supreme Court of Canada has established a constitutional requirement for an independent, objective and effective commission to make non-binding recommendations to government.

The government must publicly respond within a reasonable period of time to the commission report. Any rejection or modification of a commission recommendation must be publicly justified based on a standard of rationality. I will say something about this standard in a few moments.

The Judges Act was amended in 1998 to strengthen the existing commission process in keeping with the constitutional requirements identified by the Supreme Court of Canada. At the federal level, the Judicial Compensation and Benefits Commission is the name of the independent, objective and effective commission that makes recommendations to the government.

The commission convenes every four years to conduct an inquiry into the adequacy of judicial compensation and to deliver a report with its recommendations. The most recent commission completed its work when it delivered its report in May 2004. Sadly, implementation of the commission's recommendations languished under the former government. I will explain.

The commission fulfilled its role by conducting an inquiry and delivering a report with its recommendations. The former government responded to that report and introduced Bill C-51 to implement its response. However, despite an introduction date of May 20, 2005, Bill C-51 never proceeded beyond first reading and died on the order paper when the federal election was called in November 2005.

When Canadians voted for change on January 23 of this year, they voted for a government that was willing to recognize its responsibilities, make the decisions that needed to be made and moved forward with implementing those decisions. This government believes strongly in the principle of judicial independence. One of my priorities upon assuming office of justice minister was to review the commission report. This government recognizes that the integrity of this entire process is dependent in part on timely passage of implementing legislation.

The government is firmly of the view that we had a responsibility to take the time to consider the report and recommendations in light of the mandate and priorities upon which we were elected. However, we undertook our review as quickly as reasonably possible.

This government provided its response to the commission report on May 29, 2006, followed almost immediately by the introduction of Bill C-17 on May 31, 2006. The bill was referred after first reading to the committee on June 20. The Standing Committee on Justice and Human Rights began its consideration of the bill on October 24 and tabled its report in the House on November 1, approving the bill with some minor technical amendments.

I am sure hon. members appreciate the critical importance of completing the final stage of the 2003 quadrennial cycle through the passage of legislation. The credibility, indeed, the legitimacy of this constitutional process requires it, especially since the next quadrennial commission process is due to commence in less than one year.

Bill C-17 proposes to implement virtually all of the commission's recommendations. The exceptions are the commission's recommendation of a 10.8% salary increase and the representational costs proposal. Instead, the government is prepared to support a salary increase of 7.25% and to increase reimbursement of representational costs to 66% from the current level of 50%. The fully developed rationale for these modifications can be found in our government's response.

I know the hon. members have read the government's response, which fully explains the rationale for the modification of the commission's salary recommendations. I, therefore, intend to just briefly summarize our thinking on this important issue.

Before doing so, however, I think it is important to speak to the standard of rationality against which any modification of the commission's recommendations by Parliament will be assessed.

It is necessary to displace some of the misconceptions that are at play in this area and, in particular, suggestions that respect for the constitutional judicial compensation process and for judicial independence, broadly speaking, can only be demonstrated through a verbatim implementation of commission recommendations. That is a clearly wrong interpretation.

To ensure public confidence in the process, I think it is absolutely critical that we have a shared appreciation and understanding of the very balanced guidance that has been provided by the Supreme Court of Canada in the key cases of the P.E.I. judges' reference case and the Bodner decision.

In both decisions, the court has quite rightly acknowledged that allocations of public resources belongs to legislatures and to governments. A careful reading of both cases clearly indicates that governments are fully entitled to reject and modify commission recommendations, provided that a public, rational justification is given which demonstrates overall respect for the commission's process.

I would say here, as we did in the response, that the government is confident that we have fully met this requirement.

The effectiveness of the commission is not measured by whether all of its recommendations are implemented unchanged. It is measured by whether the commission process, its information gathering and analysis, and its report and recommendation played a central role in informing the ultimate determination of judicial compensation.

The commission's work and analysis have been critical in the government's deliberations, which is not critical of but critical in the government's deliberations. Our response respectfully acknowledges the commission's efforts and explains the government's position in relation to the two modifications to the commission's proposal.

In justifying our proposed modification of the salary recommendation, as reflected in Bill C-17, we gave careful consideration to all of the criteria established by the Judges Act and to two of these in particular: first, the prevailing economic conditions in Canada, including the cost of living and the overall economic and financial position of the federal government; and, second, the need to attract outstanding candidates to the judiciary.

With respect to the first of those, we concluded 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. In essence, the government ascribed a different weight than the commission to the importance of this criterion.

In terms of attracting outstanding candidates, we took issue with the weight that the commission placed on certain comparator groups against which the adequacy of judicial salaries should be assessed. The government recognizes that the task of establishing appropriate comparators for judges has been a perennial challenge for past commissions as well as parliamentarians given the unique nature of judicial office.

We acknowledge that the commission carefully and thoroughly considered a range of comparative information, including the incomes of senior public servants, governor in council appointees and private practice lawyers. Our key concern was the fact that the commission appeared to accord disproportionate weight to incomes earned by self-employed lawyers and, in particular, to those practitioners in Canada's eight largest urban centres. In addition, there was an apparent lack of emphasis given to the value of the judicial annuity.

As the response elaborates, the government believes that the commission's salary recommendation of 10.8% overshoots the mark in defining the level of salary increase necessary to ensure outstanding candidates for the judiciary.

The government is proposing a modified judicial salary proposal for puisne judges of $232,300, or 7.25%, effective April 1, 2004, with statutory indexing to continue effective April 1 in each of the following years, with proportionate adjustments for chief justices and justices of the Supreme Court of Canada.

The one other proposed modification relates to the commission's recommendation that the judiciary be entitled to an increased level of reimbursements for costs incurred through the judges' participation before the commission. It recommended increases from 50% to 66% for legal fees and from 50% to 100% for disbursement costs.

I note, as a matter of information, that disbursement costs in relation to the commission include, not just photocopying and courier services, but in particular, the cost of substantial contracts for the retention of expert compensation consultants and related matters.

In our view, reimbursement at 100% of disbursement costs would provide little or no financial incentive for the judiciary to incur costs prudently. Accordingly, Bill C-17 would increase the current level of reimbursement for both legal fees and disbursements from the current 50% to 66%.

Our response also underscores that it will be parliamentarians, not this government, to decide which proposal to implement, be it that of the commission, the government or, indeed, a third proposal entirely.

Bill C-17 was carefully reviewed by the justice committee. The justice committee heard directly from the commissioners of the Judicial Compensation and Benefits Commission. Representatives of the Canadian Bar Association also appeared before the committee, as did Professor Garant, to shed light on this constitutional process from the academic perspective.

Ultimately, the justice committee approved Bill C-17 with some minor technical amendments. Despite an express invitation by the parliamentary secretary that any recommendation by the committee to amend the salary proposal would be seriously considered by the government, the committee did not include such a recommendation in its report but rather approved the bill on division.

Accordingly, the time for this House to vote on the bill is drawing near. I would like, however, to ensure that the House is aware that Bill C-17 also implements a number of other important compensation amendments. These amendments concern such matters as retirement eligibility, eligibility for supernumerary office and other minor changes to allowances.

Bill C-17 also includes a long overdue proposal aimed at levelling the playing field for partners of judges in the difficult circumstances of relationship breakdown by facilitating the equitable sharing of the judicial annuity. The judicial annuity is currently the only federal pension that is not subject to such a division despite the fact that the judicial annuity represents a very significant family asset.

The proposed annuity amendments essentially mirror the provisions of the federal Pension Benefits Division Act. Like that act, these provisions uphold the overarching principles of good pension division policy allowing couples to achieve a clean break, certainty and portability.

These provisions are also consistent with both the objectives of probative retirement planning and the constitutional requirement of financial security as part of the guarantees of judicial independence. While on its face, extremely complicated, the policy objective of this mechanism is very simple. It is to address a long outstanding equity issue in support of families undergoing breakdown of the spousal relationship.

I will wrap up and hand Bill C-17 over to the House for debate. I invite all parliamentarians to carefully discharge their important responsibility in light of the governing constitutional and statutory principles. In doing so, the members of the House will help ensure that Canada continues to have a judiciary whose independence, impartiality, commitment and overall excellence not only inspires the confidence of the Canadian public but is envied around the world.

[Robert Leurer, Member, Judicial Compensation and Benefits Committee, Canadian Bar Association]

Thank you, Tamra.

Let me begin by indicating that the CBA recognizes that the role of this committee puts politicians in the unfamiliar position of leaving political considerations at the door. You must, because public confidence in the justice system is at stake. Canadians should not be left with the impression either that judges are beholden to their boss, who decides their salary, or that judges are predisposed against government because of a salary dispute.

Depoliticizing judicial compensation isn't simply an ideal; it is a constitutional requirement. Every person in Canada involved in the justice system must receive a hearing by a judge who is fair and impartial, and as importantly, who is seen to be so. This principle is a cornerstone of our democracy.

Judicial compensation is one of three pillars on which judicial independence is based, the other two being security of tenure and control over court administration. When this committee reviews the bill before it, the CBA believes it should do so with an eye to whether the government has respected the raison d'être for the commissions: preserving judicial independence and depoliticizing the process for determining judicial compensation. In the CBA's view, the government's response to the commission's report—the foundation for the bill—does not do so.

However, there has been an inordinate delay in implementing the commission report. The CBA cautioned against any delay in the last Parliament, when it considered Bill C-51, saying that delay undermines the commission's effectiveness and consequently, judicial independence. Therefore, we recommend that the bill be amended without delay to reflect the commission's recommendations.

If it is not possible to make these amendments in a timely way, then Bill C-17 should be passed, to avoid more harm to judicial independence. If the latter course is taken, the CBA urges that the committee take the opportunity to comment on the deficiencies in the government's response. This is particularly important given that the next commission is following shortly, to which the government will also need to respond.

I'd now like to turn to the detail of the government response.

As the members of the committee will be aware, the government has refused to implement the salary recommendations of the commission. The government has expressed two reasons for not doing so. First, it concluded that the commission did not give sufficient consideration to the criterion in subsection 26(1.1) of the Judges Act relating to prevailing economic conditions in Canada. Second, it disagreed with the comparator groups chosen by the 2003 commission. In this aspect of its response, the CBA believes that the government has articulated a legitimate reason for departing from the commission's recommendation and a reasonable factual foundation for its decisions.

The CBA's concerns, therefore, are limited to the first of the two reasons given by the government. The unfortunate fact is that while the government has articulated two reasons for the government's salary recommendation, it has failed to articulate the degree to which each influenced its overall recommendation. The inference from the ordering of the considerations is that the first was dominant. Our concern is that this reason, then, permeates the entire response.

Constitutionally, the government must articulate reasons for departing from the recommendations made by a commission. The constitutional requirement to give reasons is illuminated by three further principles, two of which I want to briefly touch on.

First, the government must give rational reasons for departing from commission recommendations; this has also been described as the need to give legitimate reasons. In the words of the Supreme Court of Canada, reasons must be based on facts and sound reasoning, and bald expressions of rejection and disapproval are inadequate.

Second, reasons given by a government to reject a commission recommendation must have a reasonable factual base.

[Vic Toews, Conservative, Provencher, MB]

Thank you.

Members of the committee, I have the honour of appearing before you today as you begin your consideration of Bill C-17. This important piece of legislation proposes to amend the Judges Act to implement the government's response to the report of the 2003 Judicial Compensation and Benefits Commission.

As committee members are well aware, the establishment of judicial compensation is governed by constitutional principles designed to ensure public confidence in the independence and impartiality of the judiciary. At the federal level, section 100 of the Constitution Act requires that Parliament, and not the executive alone, establish judicial compensation and benefits following full and public consideration and debate.

In addition to the protections of section 100, the Supreme Court of Canada has established a constitutional requirement for an independent, objective, and effective commission that makes non-binding recommendations to government. The government must respond publicly within a reasonable period of time.

As the committee is also well aware, any rejection or modification of a commission recommendation must be publicly justified, based on a standard of rationality. I will say something about this standard in a few moments.

The 2003 Judicial Compensation and Benefits Commission, commonly referred to as the quadrennial commission, delivered its report on May 31, 2004. The former government responded in November 2004 and introduced Bill C-51 in May 2005. However, despite the requirement for the government to act expeditiously, Bill C-51 was never taken beyond introduction and first reading. It died on the order paper in November 2005.

Upon assuming office in February 2006, we made it a priority to review the commission recommendations in light of the constitutional principles and statutory criteria that govern the process. We made this a serious priority precisely because this government is fully committed to the important constitutional principles that govern the establishment of judicial compensation. We recognize that the integrity of this entire process is dependent in part on timely passage of implementing legislation.

The government is firmly of the view that we had a responsibility to take the time to consider the report and recommendations in light of the mandate and priorities upon which we had been elected. However, we did undertake our review as quickly as reasonably possible. This government provided its response to the commission report on May 29 of this year, followed almost immediately by the introduction of Bill C-17 on May 31. The bill was referred after first reading to this committee on June 20.

Mr. Chair and honourable members, I know that you appreciate the critical importance of completing the final stage of the 2003 quadrennial cycle through the passage of legislation. The credibility, indeed the legitimacy, of this constitutional process requires it, especially since the next quadrennial commission process is due to commence in less than one year. I would therefore like to commend and thank the committee for according this bill priority in order to complete this process in a timely way.

Turning to Bill C-17 itself, as you know, the government has accepted virtually all of the commission's recommendations. The key exception relates to the percentage of salary increase. Mr. Chairman, I know that committee members have read the government's response, which fully explains the rationale for the modification of the commission's salary recommendations. I therefore intend to just briefly summarize our thinking on this important issue.

Before doing so, however, I think it's important to speak to the standard of rationality against which any modification of the commission's recommendations by Parliament will be assessed. It is necessary to displace some of the misconceptions that are at play in this area, and in particular suggestions that respect for the constitutional judicial compensation process and for judicial independence, broadly speaking, can only be demonstrated through verbatim implementation of commission recommendations.

To ensure public confidence in the process, I think it is absolutely critical that we have a shared appreciation and understanding of the very balanced guidance that has been provided by the Supreme Court of Canada in the following key cases: the P.E.I. judges' reference case and the Bodner case. In both decisions, the court has quite rightly acknowledged that allocation of public resources belongs to legislatures and to governments. A careful reading of both cases clearly indicates that governments are fully entitled to reject and modify commission recommendations, provided that a public, rational justification is given that demonstrates overall respect for the commission process.

Mr. Chair, I say it here, as we did in the response: the government is confident that we have fully met this requirement. The effectiveness of the commission is not measured by whether all of its recommendations are implemented unchanged; it is measured by whether the commission process, its information gathering and analysis, and its report and recommendations played the central role in informing the ultimate determination of judicial compensation.

The commission's work and analysis have been critical in the government's deliberations. Our response respectfully acknowledges the commission's efforts and explains the government's position in relation to the two modifications to the commission's proposals. Our response also underscores that it will be for this committee to consider the commission report, and ideally, to also hear directly from the commissioners.

I congratulate you for having decided to do that today. It will be for parliamentarians, not the government, to decide which proposal to implement, be it that of the commission, the government, or indeed a third proposal entirely.

In justifying our proposed modification of the salary recommendations, as reflected in Bill C-17, we gave careful consideration to all of the criteria established by the Judges Act, and to two of these in particular: one, the prevailing economic conditions in Canada, including the cost of living and the overall economic and financial position of the federal government; and two, the need to attract outstanding candidates to the judiciary.

With respect to the first of these, we concluded 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. In essence, the government ascribed a different weight than the commission to the importance of this criterion.

In terms of attracting outstanding candidates, we took issue with the weight that the commission placed on certain comparator fact groups against which the adequacy of judicial salaries should be assessed. The government recognizes that the task of establishing appropriate comparators for judges has been a perennial challenge for past commissions as well as parliamentarians, given the unique nature of judicial office. We acknowledge that the commission carefully and thoroughly considered a range of comparative information, including senior public servants, Governor in Council appointments, and private practice lawyers' incomes.

Our key concern was the fact that the commission appeared to accord disproportionate weight to incomes earned by self-employed lawyers, and in particular to those practitioners in Canada's eight largest urban centres. In addition, there was an apparent lack of emphasis given to the value of the judicial annuity.

As the response elaborates, the government believes the commission's salary recommendation of 10.8% overshoots the mark in defining the level of salary increase necessary to ensure outstanding candidates for the judiciary. The government is proposing a modified judicial salary proposal for puisne judges of $232,300, or 7.25%, effective April 1, 2004, with statutory indexing to continue April 1 in each of the following years, with proportionate adjustments for chief justices and justices of the Supreme Court of Canada.

The one other proposed modification relates to the commission's recommendation that the judiciary be entitled to increase the level of reimbursement for costs incurred through the judges' participation before the commission. It recommended increases from 50% to 66% for legal fees and from 50% to 100% for disbursement costs.

As a matter of information, I note that disbursement costs in relation to the commission include not just photocopying and courier services, but in particular the cost of substantial contracts for the retention of expert compensation consultants and related matters. In our view, reimbursement at 100% of disbursement costs would provide little or no financial incentive for the judiciary to incur costs prudently. Accordingly, Bill C-17 would increase the current level of reimbursement for both legal fees and disbursement from the current 50% to 66%.

Mr. Chairman, Bill C-17 also implements a number of other compensation amendments, relating to eligibility for retirement and supernumerary office, and other minor changes to allowances.

Bill C-17 also includes a long overdue proposal aimed at leveling the playing field for partners of judges in the difficult circumstances of relationship breakdown, by facilitating the equitable sharing of the judicial annuity. The judicial annuity is currently the only federal pension that is not subject to such a division, despite the fact that the judicial annuity represents a very significant family asset. The proposed annuity amendments essentially mirror the provisions of the federal Pension Benefits Division Act. Like the Pension Benefits Division Act, these provisions uphold overarching principles of good pension division policy, allowing couples to achieve a clean break, with certainty and portability.

These provisions are also consistent with both the objectives of probative retirement planning and the constitutional requirement of financial security, as part of the guarantees of judicial independence. While on its face it is extremely complicated, the policy objective of this mechanism is very simple: to address a long outstanding equity issue in support of families undergoing the breakdown of the spousal relationship.

Honourable members, I will wrap up here and hand Bill C-17 over to you for your deliberations and decision. I invite you and all parliamentarians to carefully discharge your important responsibilities, in light of the governing constitutional and statutory principles. In doing so, you will help ensure that Canada continues to have a judiciary whose independence, impartiality, commitment, and overall excellence not only inspires the confidence of the Canadian public, but is envied around the world.

Thank you very much, Mr. Chair, for your attention.

I would be pleased to answer any questions that you or committee members may have.

Business of the House

[Tony Valeri, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, I see the hon. member across the way is displaying his charm once more.

I also think the hon. member understands clearly that the call for the election and, ultimately, if there is an election caused, it will be the opposition members who will have to take responsibility since they will be voting to dissolve Parliament and we will be voting to sustain Parliament in order to continue the work that I will now lay out.

This afternoon we will continue with the opposition motion.

On Friday we will call consideration of the Senate amendments to Bill C-37, the do not call bill; report stage and third reading of Bill S-36 respecting rough diamonds; report stage and third reading of Bill C-63, respecting the Canada Elections Act; and second reading of Bill C-44, the transport legislation.

We will return to this work on Monday, adding to the list the reference before second reading of Bill C-76, the citizenship and adoption bill; and second reading of Bill C-75, the public health agency legislation.

Tuesday and Thursday of next week shall be allotted days. There are some three dozen bills before the House or in committee on which the House I am sure will want to make progress in the next period of time. They will include the bill introduced yesterday to implement the 2005 tax cuts announced on November 14; Bill C-68, the Pacific gateway bill; Bill C-67, the surplus legislation; Bill C-61, the marine bill; Bill C-72, the DNA legislation; Bill C-46, the correctional services bill; Bill C-77, the citizenship prohibitions bill; Bill C-60, the copyright legislation; Bill C-73, the Telecom bill; Bill C-60 respecting drug impaired driving; Bill C-19, the competition legislation; Bill C-50 respecting cruelty to animals; Bill C-51, the judges legislation; Bill C-52, the fisheries bill; Bill C-59 respecting Investment Canada; Bills C-64 and C-65 amending the Criminal Code.

In addition, there are the supplementary estimates introduced in October that provide spending authority for a wide variety of services to the Canadian public and we the government would certainly like to see this passed.

Justice

[Keith Martin, Liberal, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, there have been some serious misrepresentations in the House by the opposition against the government position on some very important judicial matters and in particular the protection of children. It is time to set the record straight.

In protecting children, our government has enacted some of the toughest laws in the world against the exploitation of children, against child pornography and against Internet luring.

Bill C-2, which received royal assent on July 20, criminalizes the sexual exploitation of children, particularly between the ages of 14 and 17. It looks at the age difference. It looks at the age of the young person and the nature of the relationship and whether there is any exploitation.

In reality, the age of consent is actually 18 years of age in our country. We will not criminalize the sexual relations that occur between young people. We have also enacted Bill C-27 and Bill C-51, which go further in supporting and protecting our children.

Judges Act

[Irwin Cotler, Liberal, Minister of Justice and Attorney General of Canada]

moved for leave to introduce Bill C-51, an act to amend the Judges Act, the Federal Courts Act and other Acts.

(Motions deemed adopted, bill read the first time and printed)