House of Commons Hansard #115 of the 36th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was judges.

Topics

Committees Of The House
Routine Proceedings

10:30 a.m.

The Acting Speaker (Mr. McClelland)

Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

Division No. 190
Routine Proceedings

11:15 a.m.

The Deputy Speaker

I declare the motion carried.

The House resumed from June 3 consideration of Bill C-37, an act to amend the Judges Act and to make consequential amendments to other acts, as reported (without amendment) from the committee; and of Motion No. 1.

Judges Act
Government Orders

11:15 a.m.

Reform

Jason Kenney Calgary Southeast, AB

Mr. Speaker, I am delighted to rise at report stage of Bill C-37 to amend to the Judges Act after having been so rudely interrupted by that NDP procedural motion.

The bill seeks to raise the compensation paid to judges appointed by the federal government over the course of two years by 8.3%. Already federally appointed judges on average are paid approximately $140,000 which is not exactly small change. It is a significant chunk of public revenue.

Let me make it clear at the outset that I and my colleagues in official opposition do not object to paying judges or anybody else who works for the public. We do not expect these people to be disadvantaged in terms of their compensation. We think fair compensation ought to apply to judges as it does to all other members of our public service, people who work for the crown.

What concerns me in the bill is the double standard we are creating for one small group within those who work in the public sector, that group being federal judges. It seems particularly strange to me at a time when frontline workers in the federal government, particularly frontline workers in the federal justice system, people such as frontline members of the Royal Canadian Mounted Police, frontline members of the Correctional Service of Canada, frontline people who enforce our laws, receive little or no pay increases year after year. However, those at the very top of the stratum, those who are already paid far more than most Canadians, would get the biggest increase. Quite frankly the approach taken by the commission which reported and in the legislation seems inequitable, unfair and inappropriate.

The people on the frontline of the justice system like RCMP constables and correctional service officers are people who day after day put their lives on the line for the enforcement of law and order. They are accountable to performance. If they do not perform they can be dismissed. If they make huge errors in judgment they can be dismissed or disciplined. In other words they are accountable.

What about the judges? Are they accountable? No, they are not. They are accountable to no one but themselves. I submit the principle of accountability for compensation ought to apply throughout the public sector just as it does within the private sector.

When my constituents look at some of the judgments made by federal judges at various levels including the Supreme Court of Canada, what they see sometimes astounds them. Other members of my party have made reference to some of the recent shocking court judgments by the people we are now proposing to raise their pay by 8.3%.

For instance, members will have heard recently about the Feeney case. The court ruled that a man who was clearly guilty of first degree murder would be acquitted because a police officer entered his residence without a search warrant, after having knocked on the door and announced himself, to find the perpetrator of this atrocious crime in bed with blood on his person and throughout his trailer from the murder he had just committed. It is unbelievable.

We are now proposing to raise the pay of the judge who made this decision by 8.3%. Not only is he not accountable but we cannot balance his pay with his performance. We have a cast of people who are appointed without public oversight, without parliamentary scrutiny, by the sole discretion of the Governor General in Council, the Prime Minister, and are not accountable even if they make widely outrageous decisions.

What do we say to these people? We say they are not accountable. They make bizarre decisions some of the time. We cannot measure their performance but we will give them an 8.3% pay raise anyway. It is just plain wrong. It shows a completely contorted sense of priorities on the part of the government.

Canadians families are now in the second decade of no after tax increase in their disposable incomes. Frontline workers in the federal government have had no raises for seven years. That we should talk about the best paid people in the country getting an 8.3% pay raise is completely unacceptable.

Yesterday one of my colleagues pointed out that there is a clause in Bill C-37 dealing with survivor benefits, speaking of the spouses of judges. There is a definition of spouse in the act, as there should be. Every federal statute dealing with family benefits requires the term spouse and therefore defines the term.

Recently Madam Justice Rosalie Abella of the Ontario Court of Appeal ruled in the Rosenberg case that the traditional definition of spouse, the definition which exists in Bill C-37 and hundreds of other federal statutes, the definition which is rooted in 1,000 years of common law history and 3,000 years of the Mosaic law tradition, is no longer applicable to all federal statutes including the one we are debating today.

We are proposing to give Madam Justice Abella an 8.3% pay raise after having made a decision contrary to the interest of the government, contrary to the interest of justice, contrary to any kind of public accountability. This justice was appointed without any kind of oversight or scrutiny by the public, by parliament or by elected representatives of the people. She was appointed behind closed doors by bureaucrats in the justice department offering their short list of candidates to the politicians in cabinet to choose one name over another.

We should have a moratorium on pay raises for judges of the federal government until or unless there is some kind of accountability. Once again, compensation must be linked to accountability.

We in the opposition have called for the establishment of a parliamentary committee to review and comment on judicial nominees by the federal government. At least then we could have some kind of screening process to make sure that irresponsible, ideologically driven, radical judges like Rosalie Abella do not find their way on to the bench. If people like Rosalie Abella want to legislate their political agenda I suggest they run for public office as has everyone in this place and not sit on the bench where they think they can unilaterally impose their political agenda, peculiar as it may be, on the rest of Canadians.

The time has come for us to review the entire process of appointments of judges and the enormous undemocratic power which our courts exercise. Until we have done that we cannot and should not offer them a reward in terms of a 8.3% pay increase until they are finally accountable for the decisions they make.

Judges Act
Government Orders

11:25 a.m.

The Acting Speaker (Mr. McClelland)

Before we continue the debate I would like to put on the record of the House the fact that it is quite permissible to speak in general terms about the judiciary. However it is not appropriate to speak about a specific judge or to impugn motive directed to a specific judge. That is not appropriate. It is appropriate to question the judiciary in general terms but not specific judges.

Judges Act
Government Orders

11:25 a.m.

Reform

Howard Hilstrom Selkirk—Interlake, MB

Mr. Speaker, thank you for those word of wisdom in guiding the House along a proper path of decorum and wise speech.

It is a pleasure today to speak to Bill C-37. When I rose to speak to the bill on March 30 I suggested several areas of the bill that should be considered for amendment to ensure its stated intent could be achieved. I rise today to emphasize to members of the House the need for such changes.

Many of Canada's judges may well deserve a reasonable raise of certainly no more than 2% which is what lower paid employees are getting in the public service. By way of general comment, 2% on $20,000 is much less than 2% on $140,000. The lowest and the most needy in society are getting a much lower dollar to take home and buy the basic necessities of life than the higher paid in society.

Low salaries are typical of the justice sector in general, especially in the area of law enforcement. I understand a new mechanism for determining salaries of Canada's judges is needed. As one of my hon. colleague's pointed out earlier, the bill will increase the salaries of judges by 8.3% over two years. Most Canadians would agree this is an unreasonable proposition, especially when we consider judges' salaries in comparison to those of other members of the law enforcement community.

The lowest paid in this public sector still suffer financial hardship due to the broken promise of the government for a resolution, for example, of the pay equity issue. Here again we are dealing with people making in the neighbourhood of $20,000 to $28,000 a year.

I also speak specifically about Canada's national police force, the Royal Canadian Mounted Police. Along with that group, I suppose, one could include crown attorneys, clerks and paralegals.

RCMP officers put their lives on the line pretty well every day, but have only received their first small raise since approximately 1991. Police officers make headlines by saving lives.

The House knows how Canada's judges have taken over parliament's role in changing, through interpretation, legislation. The current issue that is of great concern is the change in the definition of spouse. The Rosenberg case, which was referred to previously, has taken it out of the hands of parliament, which should rightfully deal with an issue as major as determining the definition of the word spouse. I would like to think that at some point, possibly in the fall, we will be back debating that particular issue on behalf of Canadians to come up with a resolution out of this House as opposed to the courts doing it.

I would like hon. members of the House to consider how a rank and file RCMP officer will feel when this bill is passed. Officers work every day in dangerous circumstances. Many of our judges seem to be out of touch with the current standards of the average citizen in our community.

I recently brought a petition to the House in reference to the Giles case in Manitoba. One of the primary statements that I made in regard to that petition was that judges have to reflect the standards, the morals and the current beliefs of a society. Otherwise, what are they doing on the bench?

This brings me to another point with regard to Bill C-37. It seeks to establish an independent mechanism for salary determination in order to maintain the independence of the judiciary. There are two problems with this. I agree in part with the intention of this because we certainly want judges to be independent. However, they also have to be accountable and, as I said, reflect the society they are judging.

Canada's judges should certainly not fear salary cuts if they render decisions against the government. However, the commission to be established under this legislation cannot hope to provide that independence. I believe that the appointment process of one representative by the judges, one by the government and one by both to make up the tribunal does not lend itself to that independence.

The government must move to prevent patronage appointments in the case of government appointments, which are undoubtedly going to occur under this legislation. While it may be agreed that the judiciary should be independent of the government, this should not mean that judges are unaccountable.

I know that hon. members opposite can mention the systems in place for judicial review. I realize that many feel that appeal courts provide all of the accountability necessary in our judicial system because they provide a mechanism whereby bad decisions can sometimes be reversed.

However, this does little to address the deeper problem, which is judges who make decisions that are offensive to their community standards. In that case there is no mechanism for any accountability back to these members of our society. It is here that the question of judicial accountability becomes tricky. Judges should, as we have already agreed, be independent of parliament, which might otherwise manipulate their decisions for political purposes.

The judges should not be totally independent of the communities and the people they serve. Judges who render decisions in keeping with Canada's laws and who use the flexibility provided them under these laws to render sentences in keeping with the expectations of their communities should be recognized for doing so.

Local communities should have greater opportunity to give direct feedback to judges' associations outside of the courtroom. If we cannot move to a system whereby judges are elected by the people for fixed terms of office, we can at least give communities a voice in the process.

This legislation should be amended to allow for the input of victims groups and community leaders in the salary determination process for individual judges. The judges would receive this feedback on a yearly basis which would help to ensure that they reflect the values and standards of the public they serve. The point is that there would be more immediate feedback in the instance of an extremely lenient sentence being given to a child molester or a probationary sentence being given to someone convicted of manslaughter. The judges would find out right away that a large segment of society is against that kind of sentencing.

The fact that judges actually are public servants should not be lost on the House or on the judges themselves. It seems that the concept that they are public servants is a missing ingredient in our society today.

When I consider the legislative action which has been taken and, in particular, the bill which we are debating today, something becomes obvious. The government is not reflecting community values, standards and current thinking on appropriate compensation for public servants, the judges, who are the subject of this bill.

I would like to comment on Motion No. 1 and the rationale behind the motion. Clause 5 pertains to the increase in judges' salaries which will be 4.1%, retroactive to April 1, 1997. No one is getting an increase retroactive to April 1, 1997 and the judges should not be getting one either.

Judges Act
Government Orders

11:35 a.m.

Liberal

Shaughnessy Cohen Windsor—St. Clair, ON

Mr. Speaker, as chair of the Standing Committee on Justice and Human Rights, I want to comment specifically on Motion No. 2, which is the motion that is before the House at this time. This motion would—

Judges Act
Government Orders

11:35 a.m.

Reform

Jack Ramsay Crowfoot, AB

Motion No. 1.

Judges Act
Government Orders

11:35 a.m.

The Acting Speaker (Mr. McClelland)

With respect, there must be a way the hon. member would be able to work her comments into Motion No. 1.

Judges Act
Government Orders

11:35 a.m.

Liberal

Shaughnessy Cohen Windsor—St. Clair, ON

Mr. Speaker, with respect to Motion No. 1, members have been talking specifically about the salary increases. However, I think it is important for us to acknowledge and to realize that, in general, while the bill focuses in part on salaries, it focuses on other things too. That seems to have escaped the attention of all of the opposition parties.

In particular, attention should be given to the initiative to create unified family courts. I see that the hon. member for London West is in the House. She will know, because she practised law before the courts in London, that the unified family court, an experiment which began in the city of London, Ontario, has been a very great boon to that community. It has allowed the justice system to become streamlined in an area that is crucial to family life and to the good operation of a community.

When these disputes come before a court, it is important that we create a system that allows them to be dealt with as efficiently as possible.

I want to comment on the mood of this debate, particularly with respect to the comments that have been made about specific members of the judiciary and the judiciary in general. When I hear comments like “judges should be independent of parliament but not of their communities” I think that sounds good. Judges live in communities. They should be in touch with their communities. That is good. That is why the government has created committees composed of members of communities who are not all judges but lay people as well. These committees vet applications for judicial positions and pass judgment on applicants before they come to the minister's attention.

I think of the implications of the statement that judges should be independent of parliament but not of their communities. The hon. member seems to be saying that if a community group or people in the community do not like a judgment, even though that judgment is correct in law, then somehow they can yank the chain to bring the judge to attention and to account.

I heard a member from Calgary suggest, with respect to the Rosenberg decision, that a particular judge was promoting her own political goals and views. These are very serious allegations to be made about a group of people, or even about specific people, who are themselves public servants and not in a position to defend themselves. Before we use our privileges in the House to speak publicly, freely and without any repercussions, I would suggest that we be very careful.

When we look at other countries such as Cuba, or countries where we have concerns about the absence of democratic rights, we look for certain characteristics when we test them for their beliefs in democratic principles. We look for a free parliamentary assembly where people are elected and more than one party can run. We look for privileges for parliamentarians so they can speak freely. We also look for an independent judiciary. A sign of democracy is having systems in place which allow the judiciary to operate independently and not worry about whether their salaries will be paid or about whether they will be yanked back or punished by a community group with a particular agenda if they make a correct decision in law in relation to the constitution.

Reformers are playing with a very serious concept here. Judicial independence is more important than almost any other principle of democracy. It is certainly as important as our right to speak freely in this House, and I would suggest that members opposite be very careful about how they use or abuse that privilege.

We must keep in mind that whether we are in opposition or in government, parliamentarians are part of the justice system. We make the laws. We are every bit as much a part of the justice system as judges, police officers, victims, criminals and litigants in civil law suits.

It is incumbent on us when we are debating these principles to keep the level of debate at a point where we ourselves are not undermining the institutions that we value. The institution of the independent judiciary is so fundamental to our democracy that it should be protected. It should be nurtured. It should not be attacked in an irresponsible and ill-informed manner. I would suggest that that is what we are hearing today.

Judges cannot respond because it is not appropriate for them to respond. It is not appropriate for them to respond because of their position. That makes them sitting ducks for people who are promoting an agenda of fear and intolerance so that they can then use that to further their political agenda.

We have to be very careful to preserve these precious rights. We have to be very careful to make sure that our judiciary is respected and is taken care of so that they can continue to do the fine job that they are doing.

For those reasons, I will be opposing Motion No. 1 and voting against it. I am very happy to be able to support Bill C-37. I just wish we could hear some more about the good things that that bill is doing, including the unified family court.

Business Of The House
Government Orders

11:45 a.m.

Liberal

Marlene Catterall Ottawa West—Nepean, ON

Mr. Speaker, I rise on a point of order. I believe you will find consent for the following motion:

That if a recorded division is requested at the conclusion of any debate on any government legislation during Government Orders this day, it shall be deemed deferred to Tuesday, June 9, 1998 at the conclusion of Government Orders.

Business Of The House
Government Orders

11:45 a.m.

The Acting Speaker (Mr. McClelland)

The House has heard the motion put forward by the deputy whip of the government. Is it the pleasure of the House to adopt the motion?

Business Of The House
Government Orders

11:45 a.m.

Some hon. members

Agreed.

(Motion agreed to)

The House resumed consideration of Bill C-37, an act to amend the Judges Act and to make consequential amendments to other Acts, as reported (without amendment) from the committee; and of Motion No. 1.

Judges Act
Government Orders

June 4th, 1998 / 11:45 a.m.

Bloc

Richard Marceau Charlesbourg, QC

Mr. Speaker, it is with pleasure that I listened to the remarks of my hon. colleague and friend from Windsor—St. Clair, who said we ought not to focus exclusively on salary as there are other elements to consider and discuss.

Fine, but at the same time, these other elements should not overshadow the judges' salaries issue. We can talk all we want about principles, judicial independence, separation of powers, Montesquieu and what not, but the fact remains that the bill as it stands contains a very important clause on salary.

My hon. colleague and friend from Berthier—Montcalm moved a motion, that is Motion No. 1 now before us, that would amend Bill C-37 by deleting clause 5.

Clearly, clause 5 does not make sense. It makes no sense at all. What difference would it make if there were no clause 5? Judges' salaries have already been raised by 2.08% on April 1, 1997, and by another 2.08% on April 1, 1998. This has already occurred without Bill C-37.

Now the government has decided to give them more, as if 4% and a bit, when the compound rate is taken into account, were not enough. The bill gives them a 4.1% increase retroactive to April 1, 1997—that will fill their wallets—and another 4.1% retroactive to April 1, 1998, for a total salary increase, with the compound rate taken into account—and this will blow your socks off—of over 13%.

While provincial transfer payments are being cut and unemployed workers are facing ruin—with a $19 billion surplus in the EI fund—, while the government plans to cut payments to the provinces by $130 billion between now and 2003, while the health transfer is being cut and the number of hospital beds is dropping throughout Canada, the government wants to give judges a 13% increase.

We are not saying that judges do not deserve it, we are not saying that judges do not do their work well. We think they do. We are not saying that their work is not important; on the contrary, as a lawyer and legal expert myself, I feel that the work that judges do is vital in a society based on the rule of law.

The problem is that, as a society, we cannot afford this increase. We simply cannot afford it. It is a question of choices and priorities. It goes even further; it is a question of the kind of society we want to have.

We in the Bloc Quebecois believe that any government's priority must be to help the most disadvantaged, those who are ill, elderly, unable to look after themselves, or need a salary or a decent minimum income in order to live in our modern society.

The government can always claim that it will not be able to attract quality candidates without an increase, but as far as I know, and I know the legal community well, there are waiting lists for judgeships. The fact that the increase will be only 4% and not 13% will not prevent anyone from applying, far from it. There are waiting lists because the office of judge is prestigious and important. There is more than the salary involved.

Once again, this government is showing poor judgement and deciding to give money to those it will appoint later on—because, let there be no mistake about it, these are political appointments, judges are not elected—rather than giving it to the men, women and children in our society most in need of government assistance.

It is with great enthusiasm that I support the motion moved by my colleague and friend, the member for Berthier—Montcalm, because the Bloc Quebecois is working for those who need it, not for the privileged few.