House of Commons Hansard #78 of the 39th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was appointments.

Topics

Judges Act
Government Orders

1:25 p.m.

Liberal

Judy Sgro York West, ON

Mr. Speaker, I found it quite interesting to hear the comments from my hon. colleague, in particular, the ones on the issue of the court challenges program. The importance of the program has been discussed a lot in the House and it is sad that we no longer have that program to offer to Canadians.

I want to ask the hon. member specifically about the claims tribunal that would have the authority to make binding decisions where there are specific claims brought forward by first nations and that have been rejected when it comes to the whole issue of negotiation.

Based on the government's analysis of the specific claims workload, it has been estimated that the new tribunal will require the equivalent of 6 full time judges to manage the approximately 40 claims per year. Quite clearly, these are very complex issues that will require judges and individuals to have a lot of knowledge of the cultural challenges facing specific communities in the aboriginal community specifically.

Could the hon. member comment on what he sees as the challenges for these judges and just what he thinks they will need to do to resolve some of the outstanding issues?

Judges Act
Government Orders

1:25 p.m.

Liberal

Shawn Murphy Charlottetown, PE

Mr. Speaker, it is my submission that this is a step in the right direction. The member stated that this was a very complex issue. She is quite right. I do not know whether six or eight judges will be sufficient but I will point out that the judges alone are not the total answer. A whole host of back office resources will be required to operate this tribunal efficiently so that it functions.

Some of the narrative dealing with this act talks about trying to appoint judges who are culturally sensitive to the area and maybe speak the language. Again, that may be a very simple statement, but whether judges are available and meet the minimum qualifications for the Superior Court remains to be seen.

This is a situation that is very much a step in the right direction and I support it, but it probably will not happen overnight.

Judges Act
Government Orders

1:25 p.m.

Liberal

Paul Szabo Mississauga South, ON

Mr. Speaker, the member is quite right. The Government of Canada can pass legislation but if it does not have the resources behind it, then the effectiveness of legislation comes into question.

My question has to do with preparing for tomorrow. It has been laid out by all speakers, I believe, that there has been a trend line that has put greater demands on the judiciary and that it has been a long time since there have been increases. However, we did not see any analysis come out of all of this work about the projections for how many judges will be needed down the road.

What are the criteria? What is the timeline? The member will know that it has taken two years since the government took office before it even brought this bill forward for debate in the House. It does not seem to be a priority to the government and yet we need to ensure the backlog in the courts is dealt with and the land claims, the family law claims, the drug and organized crime cases are dealt with on a timely basis. If they are not, justice is delayed, which the member knows is justice denied.

I wonder if the member knows how we determine the capacity that we will need to meet in the future, what criteria we might want to expect from the government and the Department of Justice to alert us so that we do not get into the same problem in the future and also to ensure that the resources will be available downstream to enforce this legislation.

Judges Act
Government Orders

1:30 p.m.

Liberal

Shawn Murphy Charlottetown, PE

Mr. Speaker, the member raises a good point. I have never seen anything come from the government or the Department of Justice regarding projections into the future as to where we are going or what sorts of caseloads are increasing or decreasing. We have had no analysis as to what we may be looking at five or ten years down the road, whether we are talking about commercial law, family law or criminal law.

I know in certain areas of the country litigation is actually going down, and there is no question about that. The courts are doing a better job of managing their caseloads and are having cases settled at an earlier time. That is probably in the civil end of it. In criminal law, there is more pretrial disclosure. It is not trial by ambush any more. Some good steps have been taken. This has not happened in the last year or two but over the last twenty years.

I have seen no projections as to exactly where we are going nor have I seen projections on what the judicial system may look like five or ten years down the road.

Judges Act
Government Orders

1:30 p.m.

Liberal

Larry Bagnell Yukon, YT

Mr. Speaker, I would like the member to comment on the government's treatment of judges in general. Being a lawyer, I think he has seen some unprecedented actions, which I will comment on later. I know he has a lot of experience in the area of the cutting of judges' wages, the reduction of their powers and the political appointment process of them, all tremendous steps backward.

Judges Act
Government Orders

1:30 p.m.

Liberal

Shawn Murphy Charlottetown, PE

Mr. Speaker, there is no shortage of lawyers who want to be judges, so we are not at that stage at all.

By and large, my biggest concern is about some of the changes that were made to the Canadian provincial and judicial councils. It is my belief that they are driven by ideology and that it is a step in the wrong direction.

However, having said that, Canada and the people who live here are well-served by the judges we have right across the country. They are, by and large, well-trained, hard-working and they do a good job.

Judges Act
Government Orders

1:30 p.m.

Conservative

Gary Goodyear Cambridge, ON

Mr. Speaker, I appreciate the many comments, including some from that member's colleagues on the other side, about the government's move forward on a number of different programs. It is a great thing for Canadians to see progress on the justice file.

I wonder if the member would comment on the fact that sometimes it takes a little while to research and find qualified individuals who will serve Canadians properly. It has taken a while to get this legislation forward because sometimes it takes time to find good qualified people.

I noticed that an agreement was reached among parties that since this legislation was agreed upon only one speaker would be put up by the Liberal Party and then we could move forward on this initiative. However, I see that a number of members on the opposite side want to get up and speak. That, in itself, is fodder for that party as those members continue to delay things.

I wonder if the member could comment on why the Liberals are delaying this legislation.

Judges Act
Government Orders

1:30 p.m.

Liberal

Shawn Murphy Charlottetown, PE

Mr. Speaker, neither I nor anyone else is delaying this legislation. I wanted to speak to it and I am speaking to it. I am privileged to have been given the opportunity to speak to it. If the member across does not want to speak to the legislation that is his prerogative.

The member talked about it taking a long period of time to find qualified individuals but he is not quite correct in that assertion. The way the system works is that each province has a standing provincial judicial appointments commission. At one time there were appointments from the Canadian Bar Association and other interested groups, such as provincial attorneys general and the federal minister of justice who would bring forward to the minister of justice the names of individuals who were qualified to be a Superior Federal Court judge.

The Conservative government changed that system. There has been a change in the focus of the composition of each provincial judicial council. Different individuals are there now.

This is an ever-evolving process. People who want to apply can apply. Their resume and their application is adjudicated upon reasonably quickly by these councils. There are always names of qualified applicants available for disposal by the Minister of Justice. Therefore, there really is no reason for any type of delay and certainly no reason for having 31 vacancies presently in our Superior Courts right across Canada.

Judges Act
Government Orders

1:35 p.m.

Liberal

Larry Bagnell Yukon, YT

Mr. Speaker, I am sorry for being late. I wanted to be here earlier to speak in this debate but I was attending an emergency meeting about rice prices having gone up three times and that over the next two months people in Burmese refugee camps will be starving unless we come up with a solution. I had to attend that important meeting.

I did want to speak to this bill in support of more judges. More judges are needed in family court, youth court and for the specific claims tribunal, which I will talk to at length when we get to the specific claims tribunal.

As I mentioned in my question to the previous member, there have been all sorts of problems in the treatment of judges, reducing their pay, making the way we choose them more political and reducing their options for sentencing. All of these things happened in this Parliament.

However, because this bill is specifically about increasing the number of judges for the tribunal and for family courts, with which I think everyone agrees, I move that the bill be now passed.

Judges Act
Government Orders

1:35 p.m.

Conservative

The Acting Speaker Andrew Scheer

Does the hon. member have the unanimous consent of the House to propose this motion?

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1:35 p.m.

An. hon. member

Agreed.

No.

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1:35 p.m.

Conservative

Gary Goodyear Cambridge, ON

Mr. Speaker, I have to congratulate the member for attempting to move a motion even though it is not parliamentary procedure to do such a thing.

Judges Act
Government Orders

1:35 p.m.

Conservative

The Acting Speaker Andrew Scheer

I do not want to interrupt the hon. member for Cambridge, but the hon. member does have the ability to finish his speech within his time slot. If he has more to say on the subject, I will allow him to finish and then we will move on to questions and comments afterward.

The hon. member for Yukon.

Judges Act
Government Orders

1:35 p.m.

Liberal

Larry Bagnell Yukon, YT

Mr. Speaker, I hope you will allow that member to have the first question.

I would like to talk about the treatment of judges in general in Parliament, which has been totally unfair. I will go into the specifics of the bill and talk about a number of items that I support, but I have some questions about its implementation.

First, as people know, the last Parliament judges were afforded a pay raise. The final signatures had not come through. As part of a very unfair and backward treatment of judges, that pay raise was denied by the government and was not allowed to go forward.

The next item was the change in the selection of judges. In our system the fundamental basis of our democratic system is the general separation of the judiciary, the executive branch and Parliament. The people are convinced there is a good separation and that there is a good process for the recommendation of judges. The executive branch still has the authority and approves the actual judges. However, the judicial councils, which have various expertise from the various groups on them, had suggested that they should make recommendations to the government, although the government could still decide who it wanted.

The minister added another government member to that body, which was a horrendous change. Now there is a majority of government members on that selection committee. Not only does the minister get to make the final decision, but he also gets to have a majority of people appointed on the committee that makes the recommendations to him. What faith will people have that the judges appointed are independent? This has already led to some very questionable appointments, which I might get to later.

I also want to comment on a third backward step in treating our judiciary. The government has taken away the discretion of judges in a number of the bills brought before Parliament. Judges have a lifetime of expertise. The judges see all the evidence, hear all the cases and sit through the entire procedure. They have research and all the precedents to make the most reasonable decisions on the punishment someone should receive and the type of remediation so society will be as safe as possible and the person is least likely to reoffend.

People are different and different punishment and rehabilitation would apply. However, unfortunately, we have been presented with a number of bills that would reduce the discretion of judges, and not to increase the maximum penalties, which people might want, to deal with offenders, which could make them more safe.

A perfect example was Bill C-23, which would have reduced a whole number of relatively successful remedies. To a large extent, the criminal justice system has failed for the last thousand years. Huge numbers of criminals who go to prison come out and reoffend.

A number of community type justices, as the chief police of Ottawa can tell us, have a much better success rate than what has been done traditionally. Up to only 30% or 40% of youth going through those types of rehabilitation are likely to reoffend, as opposed to 50%, 60% or 70% under the traditional system.

We had an innovative, successful type of approach in some cases and we had a bill that would take away from the judges their ability to use that type of tool. Fortunately the opposition parties fixed that bill and reinstated those successful remedies in a vast majority of cases.

I want to compliment the minister on looking at a point related to judge. It was related to the chief justices in the three territories. By an anomaly of the system, back in history there was a reason, because of function, to separate the title of the chief justices of the territories. I believe they were called head judges. Now the judicial councils and everyone who deals with judges understand that their roles are identical to chief justices in the provinces and therefore the names should change.

I appreciate the minister looking into that for the last six months or so. Hopefully he will soon provide me a written outline of what the exact issue is, if there is still an issue, or if the government could make that change. I know there were some thoughts that it might be different responsibilities, but the Judicial Council basically has said that they are identical.

The last point in the whole area of the background for the bill is related to the lack of analysis done and the unpreparedness of the justice system for the huge agenda. As I think everyone in Parliament knows, there has been a massive agenda on justice. There have been more bills through the justice committee than probably all the other committees put together, which is fine if work needs to be done there. However, an analysis of the repercussions has to been if those bills are to become law. What effect will they have on government? What effect will they have on prisons? What effect will they have on the budgets of the provincial and territorial governments? On the bill before us, what effect will it have on judges?

Time and time again in committee we asked about the analyses and about the preparation that had been done. It was very limited, if any. No planning had been done on the effects on an already overcrowded jail system. More important, on the resources in that jail system, the teachers, the anger managers, all the supports that go with the jail system and the parole system, no analysis had been done on the extra cost to the provincial governments or who would pay for them. No analysis had been done on the extra procedures that police may have had to undertake or whether it would take more time for them to go through these procedures and therefore more time in the courts.

Therefore, it is surprising that if there were these new types of increases in the justice system, that there would not be a need for more judges to deal with these situations, especially in the sense where it becomes harder to get a rehabilitative sentence and someone has to face a sentence that could be far longer and more severe than actually a natural justice would suggest. Therefore, it may not even stand up to a constitutional challenge. However, because of these limited stiffer sentences, then more defendants would have to go to court. They would not have the other options where they could make a deal, where they could get rehabilitation, which would make them less dangerous to society. Therefore, this would increase the number of people in the system, the court time and the number of court cases, and therefore the need for judges.

We may get this bill through and have to do another bill right away. We are so far behind because there has not been any analysis done in this area. I hope the government has listened to this and does an analysis of the whole system and the ramifications of the many bills that we have passed in Parliament and the impact they would have on the rest of the justice system.

With regard to this bill, as I said earlier, it involves increasing the number of judges by 20 judges, of who 6 equivalent full time judges would be for the specific claims process, which I will comment on a bit later.

These additional judges would deal with the increasing backlogs in the superior court system in six particular areas of the country, including Nunavut and New Brunswick. About four or five other jurisdictions have outlined their backlogs, especially in family court and youth related matters.

When cases come forward related to child custody cases or different types of family court cases, they have to be dealt with quickly. They usually involve serious issues, such as the conditions under which a child might live, or the parent with whom the child might live and there has been a crisis, as can be seen lately.

Ontario, Quebec, Newfoundland and Labrador and Nova Scotia are other areas where there have been delays. Nunavut, in particular, has problem providing justices to their far-flung aboriginal communities. As we know, it is very difficult to get anywhere in Nunavut. On a per capita basis, we certainly need a good number of judges. New Brunswick has had problems recently about the appointment of unilingual judges who replace bilingual judges when they retire. They are unable to carry the same workload or cover the same number of people with whom they need to deal.

As of January 24, there are currently 31 judicial vacancies that the Minister of Justice and Attorney General of Canada is responsible for filling. Even by filling the existing vacancies, the minister could appoint more judges than this entire bill would allow. The largest number of vacancies is in British Columbia between the provincial Court of Appeal of and the provincial Supreme Court.

We support the increase in the number of judges and we strongly support any appropriate amendments made by the committee related to the specific claims tribunals, which we worked on when we were in government. These are much needed changes, although there are questions about exactly how that and the appointments would work, et cetera. I will talk about that in a moment.

Yet, unfortunately, the government continues to put forward measures that are unsuitable and insufficient. Even though I agree that Bill C-31 should pass and that we need to increase the number of judges, I do not approve of the implementation of this bill. Perhaps this is because I worked so much in the field and saw first hand that there are not enough judges, especially in New Brunswick, as I said earlier.

Just before I get on to the specific claims tribunals, I want to talk about what the government was questioned on previously relating to the bill. I hope that there is a plan in place and that it is related to the regional distribution of the judges.

There are some very distinct challenges in New Brunswick, Nunavut, Quebec and Ontario related to language as well as getting judges out to difficult locations. I wonder if the government has indeed, based on questions from the opposition, come up with a plan for that type of distribution.

Just so that there is no misunderstanding, I want to say once again how hard-working, experienced, thoughtful and independent the judges are and we certainly appreciate them.

In relation to the specific claims tribunal, how is the government going to ensure that the judges are fully knowledgeable about aboriginal affairs? The aboriginal people want to ensure that they certainly have a full and fair hearing. What is a little worrisome is that there is no way for appeals. There are very few things in our society where there is not a possibility of appeal.

I am very supportive of items in the bill, but I am not so happy with the way judges have been treated throughout this Parliament in other ways.

Judges Act
Government Orders

1:55 p.m.

Conservative

Gary Goodyear Cambridge, ON

Mr. Speaker, we appreciate the member's support for the government's agenda, particularly on the crime initiatives and the jurisdiction of justice.

I have listened all morning to a number of members opposite. They continually say that they support the bill and that the government maybe should move a little faster on it. I want to thank the members for their support, but my question actually leads to what happened a few minutes ago.

I asked if there was consensus that only one speaker by the Liberals would be put up and we could move on with this issue. They have put up a number of speakers and when the member himself put forward a motion to have the bill now passed, members from his own party ran out and said no. Is this a flip-flop or just a lack of communication on the part of the opposition?