Justice Committee on Oct. 30th, 2006

[Rob Moore, Conservative, Fundy Royal, NB]

We have not discussed government amendments yet.

[The Chair, Conservative, Art Hanger]

We're not there yet. When we come to it, we will do that very thing.

[Rob Moore, Conservative, Fundy Royal, NB]

Great.

[The Chair, Conservative, Art Hanger]

Shall clause 2 carry?

(Clause 2 agreed to on division)

[The Chair, Conservative, Art Hanger]

Shall clause 3 and clause 4 carry?

(Clauses 3 and 4 agreed to on division)

[The Chair, Conservative, Art Hanger]

BQ-57, Mr. Ménard.

It's page 86 of your handout.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, we are very hopeful about this amendment, which we obviously hope will the support of all of our NDP, government and Liberal colleagues, for the sake of coherence. This goes to the very heart of democratic legitimacy.

As you know, the Bloc Québécois has always maintained that increases in MPs' salaries must be tied to increases in judges' salaries. We've always been extremely concerned that if the bill was adopted, we would find ourselves in the dubious situation where the Prime Minister, who has been democratically elected to office, could be receiving a lower salary than the Chief Justice of the Supreme Court.

I seem to recall the Prime Minister expressing concern about that possibility when he was the spokesperson for a coalition monitoring the actions of elected officials.

If we no longer have any respect for the position we hold, then I think there's a problem in terms of democratic legitimacy.

MPs received a salary increase of 2.4% in 2006. If this amendment is adopted, then members of the judiciary would receive the exact same salary increase.

Quite apart from that, this doesn't mean that we disapprove of the idea of setting up an independent commission. We're looking for options. We understand full well that Parliament cannot set salary conditions and standards for judges. However, I can't understand how one can discount the argument that in a democratic system, it's impossible for the judiciary, however qualified members may be...

We adhere to three rules. Judges must be well paid, because they must give their full attention to their duties. Judges are appointed during good behaviour and are above all political interference. Just because we disagree with a ruling handed down, we cannot remove that judge from office. Finally, judges must, quite obviously, be totally independent, and as such, parliamentarians do not have any contact with them.

Let me reiterate very clearly that the system worked very well between 1999 and 2003. Unfortunately, for the purposes of historical accuracy, I must also point out that in 2003, further to a recommendation by an independent commission that salaries be increased, the Liberals... I don't like to bad mouth the Liberals in the government's presence, because I know they disapprove of that, but Paul Martin was the first to break this rule. He stated that from a political standpoint, the increase proposed by the third Judicial Benefits and Salaries Commission would not be well received by the public.

Therefore, if we don't believe in the work we do...I'm prepared to publicly defend the salary that I earn. When I go to bed at night, I sleep well knowing that I gave my all and represented my constituents well.

Again, what possible explanation can there be for the fact that the Prime Minister, someone who represents 35 million people, has a minority mandate and, if it were up to us, would continue to lead a minority government, could ultimately end up with a salary that is lower than that of the Chief Justice of the Supreme Court?

The Liberals were the ones who got away from this practice which was well established from 1999 to 2003. MPs' salaries were set by legislation and were adjusted based on the salaries paid to judges. MPs earned 75% of the salary of Supreme Court justices. The Prime Minister was paid the same salary as the Chief Justice of the Supreme Court. For political reasons, the Liberals did away with this practice.

Therefore, we believe this proposal is justified. Apart from salary considerations, we support the bill. We have no objections to judges in the Far North being appointed chief justices; we do not oppose the credit-splitting provisions or the proposed changes for judges in Canada's North. Rather, we welcome a certain number of technical provisions. However, with respect to salaries, we feel the bill runs counter to democratic legitimacy.

I hope that all of my colleagues will agree with the proposed amendment. This is an opportunity for the Liberals--and I say this with no animosity whatsoever--to correct the historical mistake made by Paul Martin. Our amendment seeks to restore some balance and some respect for our institutions.

Again, respect for the job of MP is a key element of the Bloc's amendment. I am confident that it will receive the government's endorsement as it would surely help to make this a better piece of legislation.

Mr. Chairman, I know that some demagogues--and I have to believe that none is seated here at this table--might be tempted to say that Bloc Québécois members are merely interested in a salary increase, when in reality, nothing could be further from the truth. The Bloc caucus is quite capable of rising above such matters and of not attaching a lot of importance to worldly possessions. To prove my point, I can tell you that former members of the clergy will soon be joining our ranks. We advocate the principle of democratic legitimacy. In a democracy, true legitimacy rests with parliamentarians and the institution of Parliament.

I want to make myself very clear. I appreciate that a judge's job is an important one. Nine individuals in Canada have a responsibility to see that the law evolves. Supreme Court justices have a duty to champion important values.

And that's why--and I'm certain Mr. Comartin will agree with me--the Law Commission of Canada has a role to play. It provides advice, summarizes a number of debates involving values and helps Parliament to gauge public opinion.

Certain people within government--and they will remain nameless--have regularly criticized what they perceive to be judicial activism. For example, when a provision was added to the Canadian Human Rights Act prohibiting discrimination on the grounds of sexual orientation, some people blamed judicial activism.

I have to say, Mr. Chairman, that I was extremely surprised. As you know, I do have some experience. I may not have reached the same venerable age as you, but I do have many years of experience as a member of the House, having first been elected in 1993. I was extremely surprised when the Prime Minister rose in the House to say that the Court Challenges Program was being abolished because it served no purpose, since his government had no intention of ever introducing legislation that was unconstitutional. That's not an argument. There's a direct connection with judges' salaries. When the Supreme Court considers a question, it doesn't just look at whether legislation is constitutional or not. It also looks at how rights must evolve. In some cases, rights were not recognized. I'm thinking here about aboriginal and women's rights, and about sentencing.

I'd like to switch gears briefly, Mr. Chairman, before I wrap up. Consider for a moment the importance of the 2000 ruling in Regina vs. Proulx. I don't know if some of you have had an opportunity to read this decision. In 1995, former Minister Allan Rock had tabled Bill C-41 on sentencing. The proposed legislation had led to some confusion at the appeal court level over interpretation. The constitutionality of the bill was not being called into question and no one was claiming that Bill C-41 sponsored by the Minister was unconstitutional. However, questions were being raised about the scope of the bill. In Regina v. Proulx, the Supreme Court clarified the meaning of the four criteria set out in section 742 of the Criminal Code. As you may recall, these four criteria are as follows: the offence must not be punishable by a minimum term of imprisonment, the offender must not represent a danger to the public, the term of imprisonment imposed must be less than two years, and the sentence must be consistent with section 718 of the Criminal Code, a provision that my colleague Marc Lemay greatly appreciates. So, the Supreme Court may be asked at times to clarify the meaning of the law and in the process, help the law to evolve.

I'll never forget being in the House when the ruling in Egan v. Canada was handed down. The case involved two homosexuals who, as all of us here can appreciate, had lived together for more than 40 years. Mr. Chairman, if I were to ask the members seated here at this table how many of them had been with their spouse for 40 years, I'm fairly certain that the numbers would be quite low.

I've heard that you have a rather robust nature, Mr. Petit.

So, faced with a case involving over 40 years of co-habitation, the Supreme Court of Canada was not willing to rule on the marriage issue. However, it called upon lawmakers to add grounds for discrimination under section 15 of the Charter which concerns equality rights.

In passing, I would also like to say how very important the Court Challenges Program is for equality rights. Just think of how rights have evolved, Mr. Chairman, not only minority language rights, aboriginal rights and rights for homosexuals. Imagine where they would be without the Court Challenges Program.

Basically, I think it shows a lack of respect and consideration for human rights to decide to abolish in one fell swoop the Court Challenges Program. Let me repeat, the Supreme Court does not only rule on constitutionality issues.

Therefore, elected officials embody democratic legitimacy. As I said before, Mr. Chairman, it would truly be one of the great paradoxes of our time as parliamentarians if the bill were adopted. The Chief Justice of the Supreme Court--and the parliamentary secretary can correct me if I'm wrong--will be earning $298,500 a year, whereas the Prime Minister will be earning $295,400. Obviously, I'm not arguing that either person will be earning the minimum wage or experiencing financial hardship, but how are we supposed to explain this to our constituents...?

[The Chair, Conservative, Art Hanger]

Mr. Ménard, please go to your amendment.

[Réal Ménard, Bloc, Hochelaga, QC]

There is a connection to my amendment, Mr. CHairman.

You can't say that it's irrelevant. I'm talking about salaries, and that's precisely the focus of my amendment. Let me explain why there is a connection between the two. Please don't brush me off.

I'm trying to say that if the people seated at this table espouse certain principles, they will have no choice but to vote in favour of this amendment. I can't imagine that government members, or my NDP friends with whom I've waged so many battles, will oppose it. I recall the heated debates over same-sex marriage, sentencing and hate crimes, not to mention all of the social programs, as well as the addition of social condition as an illegal grounds for discrimination under the Canadian Human Rights Act. We still haven't managed to have that included in the legislation.

As parliamentarians, we have a responsibility. When we run for office, we know that we have some democratic legitimacy, something that judges do not have. Of course they do wield a certain amount of authority and the public does hold them in some esteem. Their mission is to help the law evolve. However, they do not have the same democratic legitimacy as we do.

The temptation is great, Mr. Chairman, to bring up the Gomery Report, which as you know, prompted us to clean up our institutions. I will refrain from doing so, in order not to be ruled out of order. Moreover, I wouldn't want to dredge up any bad memories for the Liberals. However, the fact remains that democratic legitimacy...

[Dominic LeBlanc, Liberal, Beauséjour, NB]

But you lost some seats in that election.

[Réal Ménard, Bloc, Hochelaga, QC]

There's nothing more important that democratic legitimacy, Mr. Chairman.

Summing up, I'd like to issue a solemn appeal unlike any other I've made in the House, and call upon the parliamentary secretary to support my amendment and upon government members to do likewise. We must heal the rift that Paul Martin unfortunately caused by breaking the existing connection for, I have to say, purely partisan reasons. There is a time for courage, Mr. Chairman, the same kind of courage that parliamentarians have shown in the past.

A colleague of mine, Martin Cauchon, was once a very good Justice Minister in many respects, leaving aside the Young Offenders Act which is one of the minister's less noteworthy accomplishments. Aside from that, he was a pretty good Justice Minister. Martin Cauchon pointed out to me that all governments that proceeded to slash budgets were re-elected, including the government of the amazing Lucien Bouchard that governed under difficult conditions. All of these governments were re-elected, with one exception, namely that of former Nova Scotia Premier Savage. The latter's son is now a member of the Liberal caucus. All of these premiers governed with a certain vision in mind, they cut budgets and still managed to get re-elected, with the exception of the former premier of Nova Scotia.

I'll stop there, Mr. Chairman, unless of course you want me to continue. But I think people have understood the gist of my amendment.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard. Somewhere in that dissertation there was relevance, I know.

Mr. Bagnell is next.

[Larry Bagnell, Liberal, Yukon, YT]

In that I've fought this whole issue on the independence of the judiciary and the integrity of the commission's report, I couldn't vote for this alteration of the commission's report.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you.

Is there further discussion?

Shall the amendment carry?

[Réal Ménard, Bloc, Hochelaga, QC]

Yes, the amendment is agreed to. I request a recorded division.

[The Chair, Conservative, Art Hanger]

We'll have a recorded vote.

(Amendment negatived: nays 9; yeas 2)

[The Chair, Conservative, Art Hanger]

There are no amendments on clauses 5 to 8.

(Clauses 5 to 8 agreed to on division)

(On clause 9)

[The Chair, Conservative, Art Hanger]

On page 87, government motion number one, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thanks, Mr. Chair.

There are nine, or six, government amendments. They're all of a very technical nature, and we have an expert here to speak to each one of them.

[The Chair, Conservative, Art Hanger]

Mr. Moore, we'll take them one at a time, as they appear on the schedule.

[Rob Moore, Conservative, Fundy Royal, NB]

Sure. For G-1, Karen Cuddy will speak to it.

[Karen Cuddy, Counsel, Judicial Affairs Unit, Department of Justice]

Good afternoon. The first three sets of motions pertain to clause 9, which is the removal allowance. There's an existing entitlement for the judiciary to have assistance relocating to another part of Canada. In particular, territorial Supreme Court judges and the Federal Court, Tax Court, and Supreme Court of Canada judges have this assistance.

The purpose of the clause is to extend their entitlement to allow them to relocate within the two years prior to retirement. The technical amendment being made in the first motion is to clarify the wording. At present, it suggests the removal allowance is paid to a judge during the two-year period when instead it was intended to be to a judge who moves during the two-year period. That's the first amendment.

The second part of this motion is to remove some duplication that appears in the wording of paragraph 40(1)(e), and both of these motions would also ensure consistency between the English and French versions.

The third part of this motion would remove subclause 9(3). This is the regulation-making authority. Looking at it more carefully, we've been advised there is sufficient regulation-making authority currently and there's no need for this amendment. So this subclause would be removed.

[The Chair, Conservative, Art Hanger]

Discussion? Shall the amendment carry?

(Amendment agreed to on division)

(Clause 9 as amended agreed to on division)

[The Chair, Conservative, Art Hanger]

There are no amendments on clauses 10 to 14.

(Clauses 10 to 14 inclusive agreed to on division)

(On clause 15)

[The Chair, Conservative, Art Hanger]

Government motion number two is on page 89 of your handout.

Mr. Moore.