Bill C-37 (Historical)

Claim Settlements (Alberta and Saskatchewan) Implementation Act

An Act to facilitate the implementation of those provisions of first nations' claim settlements in the Provinces of Alberta and Saskatchewan that relate to the creation of reserves or the addition of land to existing reserves, and to make related amendments to the Manitoba Claim Settlements Implementation Act and the Saskatchewan Treaty Land Entitlement Act

Claim Settlements (Alberta and Saskatchewan) Implementation Act

[Lynn Myers, Liberal, Parliamentary Secretary to the Solicitor General of Canada]

Mr. Speaker, I listened with great interest to the member opposite. It is fair to say that he made some very excellent points with respect to Bill C-37. I want to congratulate him for that.

I also want to congratulate the Minister of Indian Affairs and Northern Development. Under his steady hand and leadership, he has been able to bring this bill forward and make the kind of inroads and efforts that are required in this all important area.

This is a very important area that deals exclusively with reserve land proposals that arise under claim settlements, either existing or in the future both in the provinces of Alberta and Saskatchewan. As such, it is very important not only in those two provinces, but it sets the right tone across Canada. The minister and the government need to be congratulated because it underscores our commitment to do the right things in this very important area.

As the opposition is saying right now to the minister that he did a good job, I too want to add to that. I think it is excellent and really well worth noting.

What would the member opposite scope out as being the most important aspect of the bill? He referenced his own province and other areas in the west. If we listened closely to what the member said, it was very wise. Could he expound a little further on that and give us more insight? Especially given the fact that he is from Manitoba and knows some of these things, it would be insightful for us to hear a little more from the member for Winnipeg Centre.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, as the NDP caucus critic for aboriginal affairs, I am pleased to join the debate regarding Bill C-37.

We welcome any measure that will speed up the implementation process of the many outstanding claims and treaty land negotiations that are under way. We recognize that in both the provinces of Alberta and Saskatchewan there is an enormous backlog and an enormous level of frustration on the part of aboriginal peoples, first nations communities and other interested third parties in the tedious and painfully slow negotiation process that has been under way for decades, if not centuries.

We recognize that Bill C-37 very closely resembles the Manitoba act of a similar nature which was passed only last year. As a member of parliament from Winnipeg I did seek advice from those parties that are affected by the Manitoba settlement claims process. We got a positive report. People are generally satisfied that what was implemented in Manitoba can and should serve as a model for the other two prairie provinces as they address very similar issues. I understand it will.

We note with interest that the minister for aboriginal affairs pointed out that Bill C-37 addresses 97% of all the outstanding treaty land entitlement negotiations and specific claims settlement negotiations which are currently underway. We welcome that. If we can clear up 97% of the unbelievable backlog, then when those administrative and bureaucratic details are put behind us we can look forward to the day when aboriginal communities can take real steps toward true self-government as contemplated in the recommendations of the royal commission on aboriginal peoples.

The aboriginal affairs critic for the official opposition failed to point out any of the specifics in the bill. It is incumbent upon somebody in the House to deal with some of the substance and to comment on the actual details surrounding the bill. I would have hoped that someone in the official opposition would have read the briefing book and would have gone through some of the specific details which people in the rest of the country are very interested in.

For people who may be watching and for aboriginal communities who realize that this is their day to have this issue dealt with in the House of Commons, I would like to go through some of the details of the bill. On behalf of aboriginal communities I will explain to the general public what we are talking about when we introduce a bill that would result in the addition of lands to reserves. I look to the manual that was provided to all members of parliament which explains quite clearly under what circumstances the federal government would seek to add to the land mass of reserves or to create new reserves.

A lot of non-aboriginal people may feel that this process was finished and done with at the turn of the century. Most of these treaties were signed between 1874 and 1906. However, there are circumstances under which for two reasons these lands are expanded by creating new reserve lands or allocating new pieces of land to existing reserves. One is to meet with the entitlement issue. The Indian Act specifies that based on the size of a family or the size of a community a certain amount of land will be allocated to that first nations community.

There are historic shortfalls. Some go right back to the day of the original signing of the treaty and some because the size of the community has grown and the land mass of the reserve no longer meets the needs of the size of the community. These things need to be addressed. It could be to address social concerns or another reason that is cited is to improve the geographic integrity of a reserve.

Some of these reserves were put together and mapped out in a period of time when there was less understanding as to what the ultimate usage would be of the first nations community, whether it was a geographical barrier like a river or a mountain range or a social or a cultural barrier like the development of industry in certain areas of a reserve. Those were not accommodated between 1874 and 1906, and now there are good arguments why they should be accommodated. That is another rationale under which we would improve the geographic integrity of a reserve by changing its physical and geographical shape.

Sometimes there is a need to compensate the first nations communities for the public takings of reserve land. For instance, if a bi-pole hydro-electric line was slated to go through reserve land, there would be a loss of land usage directly underneath those wires and for a right-of-way on both sides of those wires. This may constitute hundreds of thousands of acres on that reserve property. We believe it would be only fair to compensate that equal amount of land with usable land. This is another reason why we may see a situation and why we believe there are righteous claims made to the federal government to justify the expansion of existing reserves.

Finally, the rationale is to fulfill Canada's legal obligations under a court order or the terms of a claim settlement with the first nations relating to such matters as treaty land entitlements and specific claims.

To answer the question from the member from the official opposition who asked if non-aboriginal people in the community understood why it was necessary to introduce legislation that would contemplate expanding reserves and even creating new reserves, the rationale is cited in the briefing book should he have the time to read it. That would be useful for everybody concerned.

Not only should I point out what is in the bill in terms of what enabling measures it gives the minister, but I should also point out, for the comfort level of other people and of third parties who are affected by these expansions of reserves, what is not affected in the proposed legislation.

Again, to answer many of the questions raised by the critic from the official opposition, perhaps for his behalf and for the sake of people with legitimate concerns and to raise the comfort level of those who may criticize the expansion of aboriginal and first nation communities, such as rural municipalities, private property owners, third parties and non-aboriginal people who are affected by the expansion of a reserve, let me cite some of the things that are not affected by the legislation.

First, the bill would not automatically ratify any claim settlements. It would simply put in place the enabling measures or a process by which those settlements may be settled in a reasonable, fair period of time instead of the undue lengthy, tedious process that we have come to accept as the norm. The purpose of the bill is not to ratify these settlements but to facilitate the process by which the reserve creation commitments of these settlements can be implemented. That should address at least one of the points that was raised by the hon. member.

Another question that legitimately should be asked about the bill, and one thing that we can put to bed right now, is that no expropriation of private land or interests is contemplated by the bill or enabled by it. It does recognize that there are third party claims to land that we may seek to make a part of a reserve. Sometimes there is competing and compounding third party claims to resources or even the actual ownership of land which we seek to use to expand reserves.

Again, the legislation does nothing to actually expropriate any private land ownership. Third parties can take comfort in the fact that we as the opposition party in the House of Commons recognize that this is neither the intention nor the result of this legislation. In fact, we will find within this legislation specific protection of third party interests that did not exist before. Before we had to be subject to the vagaries of the settlement in the courts, now there some accepted and predictable processes under which a claim or a legitimate objection, as a third party, will be dealt with.

We should also point out that nothing in Bill C-37 deals or interferes with the taxation of on-reserve third party interests, which is another legitimate concern that could be and should have been raised by any critic of the bill. Having read the bill and the briefing books, we are satisfied that the bill does not affect first nations' ability to tax on-reserve third party interests. If it did, we would have to vote against the bill.

I point these things out only because they are predictable things that should and probably will be raised by people who present before the committee or the general public who may be concerned that we are taking steps in the House to expand the reserve system and to settle outstanding treaty entitlement and specific claim settlements in the provinces of Alberta and Saskatchewan.

We are used to hearing opposition to any steps that may move forward the legitimate aspirations of first nations communities to achieve self-government. It is a common theme that we in the NDP caucus have been opposing for a number of years. We hope that people in the House of Commons can set aside their biases and prejudices for or against, as is the case of the official opposition, aboriginal first nations' self-government. We hope they can see that the bill is not threatening in any way. It is an enabling measure which would clean up a bureaucratic backlog of outstanding claims, and having put those issues to bed, would allow us to deal with the more salient and pertinent issue of true aboriginal self-government. We all look forward to the day we can move on with that as well.

Some of the background information that was given to us is helpful as well. We recognize that Bill C-37 is advantageous in another way that was not pointed out by the official opposition. We note that the bill will facilitate the selection by first nations of commercially viable lands rather than simply lands that are encumbered by other interests. In other words, it could be looked upon as an economic development tool. For those who are always saying that aboriginal communities must become more self-sufficient, that they must promote business and that they must get more with it regarding the economic realities of Canada, the bill could enable first nations communities to access lands that have economic development potential. This is a real plus which we have not heard raised here before.

We are not saying that the only way we can expand the reserve is by choosing land that borders or is close to the reserve which is completely unused, unclaimed or undeveloped. It may result in choosing land that has economic activity on it. We would then have to negotiate some kind of compensation for the third party using the land. The land would then be transferred within the first nation.

In closing, in Manitoba we find that the steps to enable the process to move along more quickly has been quite a satisfactory experience. We have no hesitation in recommending a similar model for the provinces of Alberta and Saskatchewan. I believe that 30 first nations will benefit in the province of Alberta and as many as 16 in the province of Saskatchewan, and 97% of the outstanding entitlement and specific claims can be remedied and settled under this enabling process. That in itself is reason enough for us to support it at second reading to go to committee.

[Richard Marceau, Bloc, Charlesbourg—Jacques-Cartier, QC]

Mr. Speaker, I am delighted to rise to speak in this debate. Bill C-37, the claim settlements (Alberta and Saskatchewan) implementation act, which the House is currently considering, is, as its name indicates, intended to facilitate the implementation of territorial agreements reached between the federal government and the first nations.

The bill is very technical and does not bear the usual characteristics of the initiatives of the Minister of Indian Affairs and Northern Development, which tend to be rather controversial or at least to cause some flurry. In fact, the minister appears to want to assume his responsibilities fully and demonstrate the leadership needed to ensure the full development of the first nations.

I have a hard time understanding why the Bloc Quebecois would oppose quick passage of this bill, since the minister is finally proposing constructive action in support of the first nations. The position the Bloc Quebecois has taken on the bill is very much in keeping with the party's line on the first nations' right to self-government.

I, in fact, recognize the minister's, or rather the department's, openness. It seems now to be giving greater consideration to the real needs and deep aspirations of the first nations.

As such, Bill C-37 facilitates the implementation of land claim settlements, which we know are the result of long and difficult negotiations designed to bring about greater self-government and increased accountability for first nations.

It is important to point out that the legislative measure being discussed today is limited exclusively to the results of the negotiations in Alberta and Saskatchewan. Incidentally, similar legislation was adopted one year ago concerning Manitoba.

Bill C-37 will considerably reduce the time required to grant the lands negotiated real reserve status. Aboriginal people in these areas would be able to use the legislation to accelerate the land transfer process. This is a key element of the notion of self-government, as it would allow first nations to benefit sooner from the natural resources on their lands. Their economic space would be strengthened and everything seems to indicate that the legislation would have a positive effect on these communities.

In closing, while supporting this bill and hoping to see it adopted speedily and efficiently, I would like to express my desire to see the recommendations of the Erasmus-Dussault report, made public in 1996 at a cost of $50 million, adopted as quickly as possible to deal with the problems plaguing the first nations in a comprehensive manner, as opposed to limiting ourselves to a piecemeal approach.

The government must not limit itself to bills such as this one, which deals with a specific part of the problem, but it must develop a comprehensive policy and a clear direction to ensure that the recommendations made by the Erasmus-Dussault royal commission be implemented as quickly as possible.

[Roy H. Bailey, Canadian Alliance, Souris—Moose Mountain, SK]

Mr. Speaker, I was pleased to hear the minister announce the bill. I wish we would have had a little time to take a look at it. It was introduced last week and now it is Monday and it is here.

I think it is incumbent upon the minister to make sure people understand the different terminology in the bill. I come from a rural area where there are at least seven first nations. People understand the term reserve but, other than the first nations people, they do not understand the terms specific claims, additional land and so on.

The minister mentioned that Bill C-37 had the consent or approval of the government and provincial governments. I want to say something about the bill that will need to be mentioned in committee. Does the bill have the understanding and support of local governments? In the past we have run into some real difficulties, as the minister knows.

Let us say that 10 sections are added to a given reserve. The taxes from those 10 sections would no longer be available to the local government which would have that many fewer dollars to put toward road, schools and so on.

The minister should be cognizant of this if he wants clear passage and total acceptability of the bill. We need to do some work with the local governments. I know that in Saskatchewan it is the Saskatchewan Association of Rural Municipalities and the municipal governments at the places from which the land is being extracted. We have a problem there.

We also have another problem. As most members know, Saskatchewan and Alberta were not added to Confederation until 1905. While the minerals in other areas remained with the land or purchaser thereof, in Saskatchewan the minerals remained for the most part with the crown. I believe the hon. member mentioned 1930. One of the difficulties we have, even in my constituency, is that the minerals on lands in the eastern portion belong to the crown. As immigration and settlements moved west after 1905, the minerals went with the land when it was purchased.

Conceivably we would be adding 10 sections of land to a current day reserve. Under the previous owner the minerals belonged to the crown. The property owner did not have the minerals. As the property is moved to a reserve the minerals will go to the crown and there could be some problems with that.

I have some real concerns but not about the expansion. I agree with the minister, I think most people in general want the treaties to go forward, to get them out of the way and, for lack of a better word, to get on with the show. Let us make this happen but in doing so let us make sure we notify all partners and that everybody is aware of what is going on. That is very necessary.

To draw an analogy, my constituency had its first anthrax scare way out in a rural area in a village with maybe 20 people.I do not want to get into the details but they have never been told anything. Nothing has gone out as to what to do, who to call or what to expect. There is a lack of government information and explanation, a lack of printed government policy, a lack of PR with the newspapers, particularly in the area concerned. Those things are imperative.

I hope the minister will take my advice. As he goes into the specific land claims and the addition to the reserves, he would be well advised that people in that area have an understanding. Once there is an understanding there is more apt to be agreement with what is going on. That is necessary.

We will let the bill go to committee. We will support it at this point. However I am quite sure that when the bill gets to committee there will be a lot of questions. We will be asking questions not just on the part of the first nations, but also on the part of local government.

Something has to be clarified. The first nations people want to be called first nations. The result of mammoth research and, I believe, the 1988 booklet was that they want to be called first nations. Throughout the bill the minister refers to first nations, but the word Indian is still being used. They no longer want to be called Indians. Throughout the Indian Act, which we are going to look at, that word is used. Both terms are being used. We should not be doing that. Let us be consistent in using one term.

Finally, let us hope that in committee we will allow enough time to carefully look at not only the first nations people but other people who are affected. We must carefully look at the rural municipalities or other landowners who lose property or have the property consumed and what their rights are and what provisions will be given to local governments so that they may carry on their work. In the past in settling land claims the relationships between the parties have soured in many of the rural municipalities in my constituency and they remain that way today. Let us hope we can avoid that in the future.

[Bob Nault, Liberal, Minister of Indian Affairs and Northern Development]

moved that Bill C-37, an act to facilitate the implementation of those provisions of first nations claim settlements in the Provinces of Alberta and Saskatchewan that relate to the creation of reserves or the addition of land to existing reserves, and to make related amendments to the Manitoba Claim Settlements Implementation Act and the Saskatchewan Treaty Land Entitlement Act, be read the second time and referred to a committee.

Mr. Speaker, I rise to address the House on Bill C-37, the claim settlements (Alberta and Saskatchewan) implementation act. I welcome the opportunity to inform hon. members about the intent of Bill C-37 and explain how it fits into the government's broader aboriginal agenda.

Members will recall that the recent Speech from the Throne committed the government to strengthening Canada's relationship with aboriginal people, supporting aboriginal governance and bringing the benefits of prosperity to aboriginal communities. We are also implementing the pledges made in “Gathering Strength--Canada's Aboriginal Action Plan”, Canada's response to the report of the Royal Commission on Aboriginal Peoples.

Bill C-37 is another important step in these ongoing processes, one of many we will take in collaboration with aboriginal people and other stakeholders in the coming months and years.

The proposed legislation addresses a number of goals set out by the government including, most fundamentally, fulfilling our historical obligations to aboriginal peoples to live up to the promises that have been made not only by our government but by others before us going back 200 years or more.

Bill C-37 is about strengthening the capacity of first nations governments to make decisions about their lands and communities. It would give them additional tools to pursue economic development opportunities that would generate jobs and income for first nations people. In this way Bill C-37 would protect and enhance the rights of other parties and lead to partnerships between first nations communities and private sector interests throughout the provinces of Alberta and Saskatchewan.

Although the proposed legislation is somewhat technical in nature, its objective is simple: to facilitate the transfer of lands to reserve status in Alberta and Saskatchewan. Our goal is to improve existing processes which lead to uncertainty and missed opportunities for all parties and which can be unnecessarily time consuming and cumbersome.

Hon. members will be familiar with the rationale for the legislation from the debate respecting part 2 of the Manitoba Claim Settlements Implementation Act which was passed by the previous parliament. Bill C-37 would essentially extend the Manitoba process to the other two prairie provinces.

To put the issue into perspective, hon. members should be aware that the Government of Canada has numerous outstanding commitments to provide additional reserve lands to first nations in Alberta and Saskatchewan. These commitments have arisen out of two types of settlement agreements. Treaty land entitlement settlements are intended to address historical injustices involving more than 30 first nations in Alberta and Saskatchewan that did not receive all the land they were promised when they signed treaties.

Canada has also made commitments to expand reserve lands as part of 13 specific claim settlements in Alberta and Saskatchewan, most of which deal with alleged wrongs over the administration of first nations lands or assets under the Indian Act.

The government has been working to implement these settlement agreements for the past several years. We are making progress but it is clear to everyone involved that we need quicker and better ways to add lands to reserves. A million hectares, or 2.5 million acres, are yet to be added to reserves as a result of claim settlements in Alberta and Saskatchewan. More reserve expansion commitments are on the horizon as we continue to negotiate treaty land entitlements and specific claims in both provinces.

There are two principal reasons for the current backlog in reserve expansion commitments. First, in all provinces but Manitoba, thanks to the Manitoba Claim Settlements Implementation Act, creating reserve land under claim settlements requires an order from the governor in council. First nations have suggested that the process be streamlined. We agree with this objective.

More significant, however, is the need to accommodate existing third party interests when processing land selections. Canada's additions to reserve policy require that any such interests be either bought out with the agreement of the third party or somehow accommodated in a manner acceptable to Canada, the third party and the first nation. Only then could the land be transferred to Canada and granted reserve status.

Bill C-37 addresses both these issues as the Manitoba Claim Settlements Implication Act has done in Manitoba. First, Bill C-37 would empower the Minister of Indian Affairs and Northern Development rather than the governor in council to grant reserve status to lands selected by Alberta and Saskatchewan first nations under claim settlements. This would replace the current process of obtaining an order in council and would shorten the time needed to approve additions to reserves. This would in turn allow any economic benefits associated with the lands to be more immediately realized by first nations.

Second, and more important, Bill C-37 would streamline the way third party interests such as leases or mineral rights are dealt with in lands selected for additions to reserves under claim settlements.

The changes proposed in Bill C-37 would essentially allow first nations in Alberta and Saskatchewan to agree to continue an existing third party interest or negotiate a new one on such lands before the lands became part of a reserve or were purchased.

This is not possible under the Indian Act. Although the Saskatchewan Treaty Land Entitlement Act provides a pre-reserve interest granting power by way of what is called a designation, under that power first nations can only agree to continue existing interests. They cannot accommodate new development proposals that may arise while the land is being processed into reserve status. Moreover, this power can be used only in relation to treaty land entitlements and not to specific claims. It can be used only when the first nation has already purchased the land.

The pre-reserve designation power contained in Bill C-37 does not, I repeat, does not, have these limitations. The improved pre-reserve designation power could be used for all Alberta and Saskatchewan claim settlements and not just treaty land entitlements. It would give first nations access to a broader range of land that has development interests or potential. Because these lands could be selected and acquired more quickly, any third party interest associated with them would contribute more quickly to economic and social progress in the community.

These changes would obviously benefit first nations. However I would ask hon. members to consider the issue from the other side of the fence, so to speak. The new approaches set out in Bill C-37 would provide a higher level of commercial certainty for all concerned parties, not only first nations but private sector developers, land owners and people, companies or institutions that hold interests in land in Alberta and Saskatchewan.

Bill C-37 would enhance protection for third parties by bridging the gap between non-reserve and reserve status for lands, thereby avoiding potential interruption of access to or use of the lands. In other words, the proposed legislation would provide businesses and investors in Alberta and Saskatchewan with certainty of tenure for any third party interest they might hold in lands to be added to a reserve.

Bill C-37 would also provide the certainty, stability and predictability first nations and businesses needed to negotiate new commercial arrangements and economic development partnerships. This is clearly a win-win solution to the legal uncertainties and delays inherent in the current process for adding lands to reserves.

These new mechanisms to deal with third party interests and the ministerial authority to grant reserve status are the major thrust of the proposed legislation but I would like to bring a couple of additional points to the attention of the House.

The first point is that individual first nations will be able to elect whether or not to adopt the provisions of Bill C-37 in relation to their claim settlements. For existing settlement agreements, all that will be required is a simple resolution by the first nation council to opt into the new processes.

Settlements negotiated after the legislation comes into effect will need to state explicitly that the first nation wishes to adopt the provisions of Bill C-37.

As well, it is important to note that this opt-in provision will apply only on a settlement by settlement basis. In other words, any first nation that has both a specific claim settlement and a treaty land entitlement settlement must make a separate election for each settlement agreement and is free to make a different election in each case. In this way maximum freedom of choice is afforded to individual first nations.

As I noted earlier, Bill C-37 is modelled on the recently enacted Manitoba Claim Settlement Implementation Act. During the process of developing the current legislation, we saw an opportunity to bring needed minor improvements to the language of the previous bill. Bill C-37 therefore proposes to amend the Manitoba Claim Settlement Implementation Act to make these language improvements so that the two bills remain consistent with each other.

The proposed amendments are minor in nature, either removing a grammatical ambiguity or bringing precision to the post-reserve administrative regime that would apply to third party interests.

These amendments have the support of the aboriginal association representing Manitoba first nations most effected, namely the treaty land entitlement committee of Manitoba which represents the 20 first nations that are party to the 1997 treaty land entitlement framework agreement for that province.

Similarly, Bill C-37 proposes related amendments to the Saskatchewan Treaty Land Entitlement Act of 1993. One amendment would ensure that any agreement, past or future, to release the province of Saskatchewan from its obligation to provide unoccupied crown land as part of a treaty land entitlement settlement is expressly confirmed by the Saskatchewan Treaty Land Entitlement Act.

As hon. members may know, this obligation dates to the natural resources transfer agreement negotiated between Canada and Saskatchewan in 1930. Saskatchewan was released from this obligation respecting certain first nations in 1992 under the terms of the Saskatchewan treaty land entitlement framework agreement and the Nekaneet treaty land entitlement agreement, and this release was recognized in the 1993 Saskatchewan Treaty Land Entitlement Act. We are simply extending this legislative confirmation to any similar releases, whether given before or after the coming into force of this act, which are concluded as a result of post-1993 treaty land entitlement settlements in Saskatchewan.

Bill C-37 would also amend the Saskatchewan Treaty Land Entitlement Act as it relates to the pre-reserve designation power I mentioned earlier.

As I have noted, Bill C-37 would provide a similar but improved mechanism for granting a third party interest in land before the land has been set apart as a reserve.

The proposed amendments to the Saskatchewan Treaty Land Entitlement Act would establish clear rules for determining which mechanism will apply depending on the first nations' opt-in decision I alluded to earlier.

I want to make it clear that Bill C-37 would not give effect to any claim settlement in Alberta or Saskatchewan. Nor does Bill C-37 create new institutions of government, new regulations or new financial obligations for Canada.

The goal here is simply to ensure that claims agreements, including those that may be negotiated in the future, can be implemented more quickly and efficiently.

There is nothing contentious about this proposed legislation. In fact it was developed in close consultation with the affected stakeholders.

The underlying principles for the bill were first discussed with first nations in Alberta in 1997 when Canada was negotiating treaty land entitlement agreements with the Alexander First Nation and the Loon River Cree First Nation.

It should be noted that Bill C-37 has since specifically been endorsed by both of these Alberta first nations whose treaty land entitlement settlements included commitments by Canada to recommend such legislation.

Given the level of support for the proposed approach in Alberta, our government seized the opportunity to make the same mechanisms available to first nations in Saskatchewan.

To that end, we initiated discussions with the Federation of Saskatchewan Indian Nations and the government of Saskatchewan in December 1999, and again we received a very positive response.

To broaden the consultation process, a draft of the proposed legislation was distributed in February 2000 to all Alberta and Saskatchewan first nations which currently have claim settlements with reserve expansion commitments to implement.

The governments of both provinces as well as Alberta treaty organizations and the Federation of Saskatchewan Indian Nations also received this draft. An updated version was sent out in April of this year to all these same stakeholders.

Some minor improvements have been made to Bill C-37 based on feedback received from these stakeholders. I am pleased to say that the proposed legislation now has the full support of all parties from the provincial governments of Alberta and Saskatchewan to first nations and their treaty organizations in both provinces.

As I noted earlier, the minor amendments to the Manitoba Claims Settlement Implementation Act are also supported by treaty land entitlement first nations in that province.

Between them, the Manitoba Claims Settlement Implementation Act and Bill C-37, will cover fully 97% of existing reserve expansion commitments under claim settlements across Canada.

We are proceeding with the legislation in Alberta and Saskatchewan for the same reason we went forward in Manitoba: we know a better process is needed and there is strong consensus among stakeholders in these two provinces that this approach is reasonable, responsible and effective.

Bill C-37 would benefit first nations in Alberta and Saskatchewan and would benefit third parties that hold interest in land selected for additions to reserves under claim settlements in these two provinces. It would also move Canada forward in fulfilling our outstanding commitments to aboriginal people.

It is the right solution for everyone and I trust we can count on the support of hon. members from all sides of the House in voting to send the legislation to committee for review.

Business of the House

[Don Boudria, Liberal, Minister of State and Leader of the Government in the House of Commons]

Mr. Speaker, let me start by thanking House leaders of all parties for their co-operation in these particularly tumultuous times. I think indeed the nation is well served by their co-operation.

This afternoon we will continue with the consideration of Bill C-15A, respecting child pornography and other amendments to the criminal code. I understand that consideration of that is nearing its end.

After that I will call the resumption of consideration of Bill C-35, respecting foreign missions. Should that consideration terminate before the end of the day, I do not propose to call other bills today.

On Friday we will deal with report stage and third reading of Bill S-23, the Customs Act amendments.

On Monday we will debate Bill C-37, the Alberta-Saskatchewan land claims bill, as well as any other legislation that may not have been completed under consideration over the next couple of days.

Next Tuesday shall be an allotted day. I believe it is in the name of the Canadian Alliance again.

On Wednesday we will consider Bill C-32 concerning Costa Rican trade.

I was asked a question regarding the preparation of the second omnibus bill further to the first one that is presently, as of an hour or two ago, before committee. I do not have a timeline on that yet.

As well, I am not aware whether the next bill would be a compendium of bills such as the first one was or perhaps only one or two in a separate manner. However I will try to obtain as much information as possible for the House leaders meeting next Tuesday so that I can make that information available through the House leaders to all colleagues.

Claim Settlements (Alberta and Saskatchewan) Implementation Act

[Bob Nault, Liberal, Minister of Indian Affairs and Northern Development]

moved for leave to introduce Bill C-37, an act to facilitate the implementation of those provisions of first nations' claim settlements in the Provinces of Alberta and Saskatchewan that relate to the creation of reserves or the addition of land to existing reserves, and to make related amendments to the Manitoba Claim Settlements Implementation Act and the Saskatchewan Treaty Land Entitlement Act.

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

Young Offenders Act

[Kevin Sorenson, Canadian Alliance, Crowfoot, AB]

moved that Bill C-289, an act to amend the Young Offenders Act (public safety), be read the second time and referred to a committee.

Madam Speaker, I rise tonight to speak to my private member's bill, C-289, which attempts to amend the Young Offenders Act and to achieve a number of objectives.

Before I proceed, I would like to point out to the House that I initiated the drafting of the bill before the justice minister introduced Bill C-3, a carbon copy of Bill C-7 that died on the order paper at the dissolution of parliament with the call of the 2000 federal election. Bill C-3 was an act to enact the criminal justice act.

Bill C-289 reflects the sentiments expressed to me by many of the Crowfoot residents during that 2000 federal election campaign, sentiments which have been reverberating throughout the country since the Liberals took power in 1993.

I made a commitment to the people of Crowfoot to restore some sanity to a justice system that has, for far too long, in their opinion, coddled offenders, particularly violent young offenders. Canadians from coast to coast are concerned about their personal safety and the safety of their children.

The Liberals made a promise to Canadians. In successive elections, they promised to make our homes and our streets much safer. It is evident from the lenient justice legislation introduced and subsequently enacted by this majority government, including the subsequent lax amendments to the Young Offenders Act under Bill C-37, that the Liberals have not lived up to those promises; indeed, the Liberals have broken those promises.

The Liberal government's soft on crime position will not enhance public safety and personal security. The Liberal's soft justice legislation, such as that enacting conditional sentences, threatens the safety of all Canadians.

The Liberal justice minister, despite having overwhelming support from people throughout the country, does not have the fortitude to enact the necessary tough measures to hold murderers and other violent offenders, including violent young offenders, fully accountable for their heinous crimes against innocent citizens.

In 1996, the justice minister mandated the standing committee on justice and legal affairs to review the Young Offenders Act following the 10th anniversary of its enactment in 1984. After months of cross country hearings, submissions and presentations by people with vested interest in youth justice, and at a cost of almost half a million dollars, the committee tabled a report in April 1997. The report contained a number of recommendations for the Young Offenders Act.

Despite the committee's report and despite the justice minister's promise in June 1997, immediately following that federal election, to make amending the Young Offenders Act a priority, it took her more than two years to do so.

Thinking that old habits die hard, immediately following the election I requested the drafting of Bill C-289 anticipating that once again the justice minister would move slowly and drag her feet on bringing in changes to the most despised piece of legislation in Canada, the Young Offenders Act.

The minister proved me wrong and did introduce Bill C-3 relatively soon after the 2000 federal election. She did, however, true to her form, bring in a bill with little or no teeth.

At this time, I commend my colleague from Surrey North for repeatedly pointing out the inadequacies of Bill C-3.

The fundamental purpose of Canada's youth justice system is the protection of society, which entails dealing effectively with an offender after a crime has been committed. It was not designed to repair social flaws. It was not designed to deal with dysfunctional families. It was not designed to deal with economic hardships. It was not put into place to deal with the deficiencies of our education system. These root causes of youth crime must instead be addressed through effective social programs, sound economic policies, support for Canadian families and early detection and intervention programs.

By failing to recognize this simple fact, successive federal governments have diluted and weakened the effectiveness of Canada's criminal justice system. Young offenders are no longer being held accountable for their actions in a proper and effective manner. As a result, Canadians have lost faith in their ability to protect their families and their property.

If this all sounds familiar, it is because it is taken from the Reform Party, our predecessor, minority report in response to the justice committee's report on amending the Young Offenders Act. A significant amount of time has passed, actually four years, since that minority report was product. Nothing was different as far as youth crime goes. Therefore, our position has not changed.

The first and perhaps the most important amendment I seek through the private members' bill is to make the protection of society and the safety of others the first purpose of the law respecting young offenders. Appearing before the Standing Committee on Justice and Legal Affairs in October 1996, Victor Doerksen, who was a member of the legislature of Alberta, said:

In listening to Albertans, one lesson became very clear. The protection of society should take priority over all other considerations and there must be some accountability on the part of all offenders...Alberta also recommends that the declaration of principles within the act be amended to give the protection of society and offender accountability priority over all other considerations.

Bill C-3 does not, as recommended by this Alberta member of the legislature and many others who appeared before that standing committee, make the protection of society the first and guiding principle of the youth act. According to the declaration of principles, the safety and security of Canadians is secondary to the rehabilitation and reintegration of young offenders back into society.

Beside failing to make the protection of society the guiding principle, the new youth criminal justice act effectively enacts the most contentious parts of the old Juvenile Delinquents Act; that is the portion that wrongfully promotes an inequitable application of criminal law, in that it allows or provides far too much discretion to the youth court.

Bill C-289 also serves to support section 43 of the criminal code in that it attempts to reinforce the principle that reasonable force may be used to discipline young persons by those with authority over them. Those in positions of authority over youth, including parents, teachers and police officers, should not be afraid to use reasonable means of discipline or intervention in minor incidents.

Schools are effectively diverting police officers from far more serious matters by calling them unnecessarily to settle disputes that could be handled by teachers or by other students. However, teachers fear that they themselves may be charged if they inadvertently harm a student while trying to stop a fight or dealing with an uncontrollable student. They are reluctant to do anything but standby, stand back and watch until the police arrive. That must be changed.

Bill C-289 attempts to do a number of other things. It attempts to lower the maximum age of the Young Offenders Act from 17 to 15 years of age. Sixteen and seventeen year olds are legally allowed to drive cars. They are allowed to get married. They are allowed to live on their own. They have the knowledge and the capacity to know right from wrong. They also have the physical strength of most adults. In some cases perhaps more physical strength than what most adults would have. For all intents and purposes, in my opinion 16 and 17 year olds are adults and should be treated as such under the criminal law. That opinion is shared by a number of people who appeared before the committee as well. It is shared by the former Attorney General of Ontario, Charles Harnick, who said before the standing committee:

Our first recommendation is that a young offender be defined as a person aged 15 years or under. Until the passing of the Young Offenders Act in 1984, the maximum age for young offenders in Ontario under the Juvenile Delinquents Act was 15-years old. For the purpose of criminal law, 16 and 17-year-olds were considered adults... A 16-year-old can legally drive, work, get married and have a family. If, as a society, we accept a younger person's ability to make serious choices such as that, then we must accept that 16-year-olds have the moral capacity to understand the consequences of doing wrong and should be held accountable for their actions.

My private member's bill also attempts to lower the minimum age limit of the Young Offenders Act from 12 years to 10.

Numerous witnesses appeared before the standing committee, including a city councillor from Scarborough, Ontario. That councillor spoke in support of lowering the age of criminality. Councillor Brad Duguid said:

--I'd like to see the age lowered in terms of the applicability to 10 years or under. And that's not an attempt to try to throw 10 and 11-year-olds in custody or in jail...It's simply an attempt to try to give the police a little more legal ability to intervene, and I think that's the key, is being able to intervene...

Regarding lowering the age limit, Constable Sue Olsen, who is a native resource officer with the Edmonton police service, testified. I loved the quote she gave at the standing committee. She said:

I work in the inner city school. One of the issues that comes up for us as street police officers is that there is a gap with the under 12-year-old children who get involved in criminal activity. We're in a sit and wait process, waiting until they're 12 before we can get them into services and deal with them before they become more of a problem down the road.

The officer was saying that as it now applies we must sit and wait until they are 12 years old so that they can get the help they need.

Some of these young people in inner cities throughout this nation need intervention at an early age. This is not so that people can be incarcerated. This is not so we can take 10 and 11 year olds, hold them in custody and throw them in jail. This is so they can get the rehabilitative programs they need so that they will be successfully integrated into society.

On April 18, 1996, Superintendent Gwen Boniface, a member of the Canadian Association of Police Chiefs, said in regard to the anonymity of the Young Offenders Act:

--while valuable from the perspective of not labelling first offenders and for all the very valid reasons that we know of, it is often outweighed by the ability of young offenders to deflect responsibility. The flaw with the system is that it countermands the basic principles that all responsible parents attempt to instill in their children--namely, to accept responsibility for one's actions.

In response to the Canadian Association of Chiefs of Police and in response to Albertans, who support a partial lifting of the ban, my private member's bill seeks to allow for the publishing of all the names of all violent offenders. I believe that the public has a right to know if a violent offender has been released or may reside in their community. I believe that knowledge far outweighs any privacy considerations for the offender. Parents have the right to protect their children.

I would submit that they cannot do so if they do not know with whom their children are associating; perhaps with a convicted drug dealer or a violent offender.

In recognition that some youth make minor mistakes that they do not repeat, I believe, as does my party, that their privacy should be maintained.

The recidivism rate for young offenders clearly shows that the sentencing provisions of the Young Offenders Act have been ineffective. Particularly in cases of violent offences such as sexual assault, the current maximum sentence of only three years does not provide an adequate period of time for rehabilitation to occur.

It has taken years for the offender to develop this behaviour and it takes years to reverse it. The maximum sentence of seven years proposed in my private member's bill would provide judges with greater sentencing options for the most severe cases.

When I campaigned in the election the people of Crowfoot said that we needed an act that was not simply there to punish but was also there to rehabilitate. Bill C-289 does that.

Youth Criminal Justice Act

[Tom Wappel, Liberal, Scarborough Southwest, ON]

Mr. Speaker, I wish to advise you as I begin that I will be splitting my time with the hon. member for Waterloo—Wellington.

I am very pleased to engage in the debate on Bill C-7 today. I want to do so by taking an historical look at what has happened in the treatment of young people in Canada. The reason I want to do this is that I believe we can learn from history and that we can predict from history. If we examine history, we can get a general feel for where we are going and for what is likely to happen in the future.

I want to remind the members of the Bloc Quebecois in the 10 minutes I have that ever since the first day of Confederation criminal law has been the exclusive jurisdiction of the federal government. It is up to the federal government of the country to pass criminal law. That makes us distinct from the United States where, for example, there are 50 states and 50 different types of criminal law. Here in Canada we have one criminal law for the entire country and it has been so since the creation of our country. The various laws governing the treatment of young offenders have all been federal laws and have pertained to all youth across Canada from coast to coast.

In approximately 1911 we passed the Juvenile Delinquents Act. It existed in one form or another for over 70 years. I doubt very much there are too many people in Canada who would seriously argue that the frame of mind in place in the early 1900s insofar as it related to youth remained in place in the late seventies and eighties. Over the course of those 70 years, the ideas about youth and about treatment of young people changed. As a result, there was a movement to modernize, shall we say, the treatment of young offenders.

That movement to modernize culminated in 1984 in the Young Offenders Act, which was developed during the Liberal years in power. It was, however, implemented during the Progressive Conservative government of Brian Mulroney.

It became evident rather quickly that there were some problems in the legislation. As time went on, it became more evident. A lot of people started to complain about the Young Offenders Act. Indeed, it became such a problem that during the second Mulroney government mandate between 1988 and 1993, the government amended the Young Offenders Act. Then justice minister Kim Campbell brought in what I would call cosmetic amendments to try to placate voters who complained about what were seen as defects in the act.

One example of the kind of cosmetic amendment I am talking about is, on the one hand, the Conservative government saying it had increased the sentence for violent crimes to five years when the reality was that the sentence remained at three years of incarceration with an additional two years tacked on by way of mandatory supervision in the community. On the one hand the Conservative government pretended that it had increased the maximum sentence to five years in jail, when on the other hand in reality it was three years with two years of mandatory supervision.

In any event, along came the 1993 election. In the 1993 red book we said the following:

The Young Offenders Act will be reformed to increase sentence lengths for certain violent crimes, allowing for full treatment and rehabilitation of young offenders. We will ensure that treatment and rehabilitation services are available to all convicted young offenders. A Liberal government will restrict the charges for which a young offender could be transferred to adult court, but at the same time will develop the category of “dangerous young offender,” designating a youth who could be transferred to adult court, receive an adult sentence, and be kept in an adult facility.

Obviously there is a question that has to be asked. If that is what we promised, what did we deliver? Indeed, it is a fair question. What we delivered was this: Bill C-37 provided for amendments to the Young Offenders Act which came into force in December 1995. The amendments focused on harsher remedies for violent young offenders while encouraging alternative sentences for non-violent offenders. That, however, was only phase one of a two phase process. The second phase implemented by the justice minister of the day was to ask the justice committee of the House of Commons to fully review the youth justice system.

That second phase began during the first mandate of the Liberal government and indeed was completed by the justice committee. That was between 1993 and 1997. Once the justice committee completed that study, it then had to be studied by the justice department. The department considered the study and began the drafting of legislation.

Along came the 1997 election campaign. This was one of the issues that was dealt with in the 1997 election campaign and we on this side promised to improve the Young Offenders Act. The result of that promise was the youth criminal justice act.

It turned out that it was apparently too tough for the Bloc Quebecois. There were some arguments about what was going on in the province of Quebec, which we heard many times. On the other hand, it was too lenient for the then Reform Party. I would say that is probably not a bad thing. It is therefore a middle of the road approach: too tough for some and not tough enough for others. It is probably a fairly good middle of the road approach.

In any event, we asked the justice committee to consider the legislation. During a period of time between 1997 and 2000, the justice committee did that. It reported, there was a filibuster by the Bloc Quebecois and the bill was stalled. The bill continued to be stalled until along came the election of the year 2000. We won again, thankfully, and as a result we reintroduced the act in February 2001.

Let us remember, then, that there was a two-pronged promise in 1993 to toughen up the existing act and to study the Young Offenders Act. In 1997 we had the results of the study by the justice committee and then we introduced this legislation. It got stalled, then we had the election, and we have reintroduced it again. The subject matter has been studied for many years. It is now time to pass it. We will not be able to please the Bloc Quebecois. We will not be able to please the critics. Our role in government is not to dither but to get on with the job, so we are going to pass the legislation, or at least that is the hope.

What will we be able to learn from history? I think we will be able to learn that the treatment of young offenders changes with time and with societal values. That means it is not static. That means that after we pass the bill, in future years society may decide to treat young offenders in a different way and this bill may become anachronistic.

Second, we can learn from history that anything drafted by human beings is not perfect. That is not a startling statement, but we should remember it. This bill is not perfect. The bill before this one was not perfect. Nothing we do can be perfect. All we can say is that we have done the best we can given the circumstances and given our knowledge.

Third, we can learn from history that it takes time and experience to expose the faults of any legislation.

Fourth, we can learn that it has taken 17 years for the problems in the Young Offenders Act to be exposed, studied and hopefully dealt with in the youth criminal justice act.

Fifth, we can learn that the problems with this new act, and I am sure there will be some, will be exposed, studied and corrected over time, but probably not in less than a decade. In the meantime, we can only do our best to try to enact corrections to the problems we have found in the Young Offenders Act. I believe this act does just that and I believe, therefore, that it deserves the support of the House.

Judges Act

[Gurmant Grewal, Canadian Alliance, Surrey Central, BC]

Mr. Speaker, I am pleased to rise on behalf of the people of Surrey Central to participate in the third reading debate on Bill C-12, an act to amend the Judges Act.

Before I begin my remarks I would like to congratulate the chief opposition justice critic, the hon. member for Provencher, who has made excellent comments and explained very eloquently the official opposition's position on the Judges Act.

The purpose of the bill is to implement the federal government's response to the report of the 1999 Judicial Compensation and Benefits Commission regarding compensation and benefits for judges. It would amend the Judges Act to increase judicial salaries and allowances, modify the current judicial annuities scheme and put into place a separate life insurance plan for federally appointed judges.

Bill C-12 makes other consequential amendments to the Judges Act and the Supplementary Retirement Benefits Act. The commission is appointed for a four year term and mandated to consider the compensation and benefits of judges and to make recommendations to government.

The commission consists of three members appointed by the governor in council and it should be noted who nominates the three persons. One is nominated by the judiciary, one by the Minister of Justice and one, who acts as a chair, is nominated by the first two members.

The government accepted the commission's recommendation of a salary increase of 11.2% retroactive to April 1, 2000. The salary increase will cost approximately $19 million. The 42 page bill contains nothing but amendments, replacements or additions to previous clauses changing the salaries of 1,013 federally appointed judges. There are also amendments to compensation benefits, early and special retirement provisions, pro-rated annuities, et cetera.

The judiciary had initially proposed a salary increase of 26.3%. It had said the federal government must compete with high paying law firms to attract superior candidates to the bench. However federal representatives told a hearing into judges' salaries earlier this year that there was no shortage of candidates for the bench, pointing out that there had been eight applicants for each federal job over the last decade.

The last pay raise for federal judges was in 1998 when they received 4.1%. In 1997 they received another 4.1%. The judges received more than 8.2% in increases over two years. Judges' salaries are also indexed so they receive annual cost of living increases. While we have no position on judges' salaries and pensions we favour generally that they be comparable to those in the private sector.

In the 35th parliament the government introduced two bills, Bill C-2 and Bill C-42, amending the Judges Act. In the 36th parliament there was Bill C-37. All these bills, including Bill C-12 which we are debating today, have been said to be administrative in nature. Four times the Liberal government has come forward with amendments to the Judges Act.

Another concern I have with the bill is that the pay increase for federally appointed judges is higher than the increase the federal government is prepared to grant much lower paid public service employees. Lately it has been the practice of the government to grant raises to senior officers in the military, to senior bureaucrats and now to judges while dragging its feet on a general salary increase for staff.

While we do not dispute the salaries of appointed judges and others, they should generally be in line with the private sector. It is apparent that staff in the lower echelons of our justice system is being ignored. Public servants should get salary increases in keeping with the average Canadian wage earner. The government has awarded pay raises and bonuses to judges and senior bureaucrats while frontline police officers and lower level public servants receive little or nothing.

On March 27, 1998, RCMP officers secured a pay raise of 2% retroactive to January 1, 1998. They received a second increment of 1% on April 1, 1998, and an additional 0.7% increase on October 1, 1998. RCMP officers had their wages frozen for five years.

The official opposition will review and closely scrutinize the provisions of Bill C-12, including the annuities scheme.

It seems the government has tailor made legislation to fit certain individuals and situations. Legislation tailor made to fit an individual would compromise the impartiality of our judiciary. The changes proposed to the Judges Act would allow a judge who is married for the second time to another judge after the death of his or her first spouse, also a judge, to collect both or two survivor's benefits upon the death of his second spouse. One could only guess why the government would contemplate such a rare and highly unlikely situation. We will be investigating that and we will be vigilant while debating the bill.

We propose an independent and publicly accountable judiciary that would safeguard Canadians from the arbitrary power of the state. However it must remain the responsibility of parliament, not the courts, to debate and assess the conflicting objectives inherent in public policy development.

It is interesting to note that the last bill to amend the Judges Act, Bill C-37 in the 36th parliament, created the Judicial Compensation and Benefits Commission which provided the federal government yet another opportunity to make patronage appointments. The failure of the current bill to introduce changes to the appointment process means that important and high paying positions in our court system will remain part of the patronage system.

However the Canadian Alliance would like to see the patronage appointment process in the judiciary overhauled to make it more transparent and publicly accountable. One option would be to strike a committee to review and interview candidates whose names would be put forward to the Prime Minister.

The input of the provinces, which are affected directly by decisions of the Supreme Court of Canada, is required in such matters. At the moment there is no input from the provinces in the appointment of judges to the Supreme Court of Canada.

Section 69 of the Canadian Alliance declaration of policy, which is always dictated by the grassroots members, states:

We believe that a non-partisan civil service, an independent judiciary and competent leadership of government agencies, boards and commissions are vital in a democracy. We will therefore ensure appointments to these positions are made through an open and accountable process based on merit.

In conclusion, both Liberal justice ministers since 1993 have failed to introduce a victims' bill of rights, address important issues pertaining to drinking and driving or even pass a young offenders act. Instead they occupy the justice committee with administrative matters at the expense of more important issues. The country is experiencing a backlog in the courts and criminal trials are being put on hold, yet the government tinkers with the salaries of judges.

I regret that judges are somehow caught up in the legislation. We acknowledge that judges are very hard working and want to contribute to making our judicial system fairer and faster as well as to making Canada a better country. We are talking about Liberal government mismanagement.

The government's unfair treatment of Canadians who work or are otherwise involved in the criminal justice system knows no boundaries. Its inequitable treatment of Canadian workers extends all the way to the federal court benches. It does not treat the victims of crime fairly, and today we are debating a bill that does not even treat judges fairly.

The bill does not address the multitude of concerns that many Canadians have with the judicial system. My colleagues and I strongly oppose the bill unless it is amended.

[Vic Toews, Canadian Alliance, Provencher, MB]

Mr. Speaker, the bill amends the Judges Act to implement the government's response to the recommendations made by the 1999 Judicial Compensation and Benefits Commission. Among those recommendations is a retroactive salary increase of 11.2% for approximately 1,013 federally appointed judges. This would cost the federal government approximately $19 million.

The increase is retroactive to April 1, 2000, and would raise the base salary from $179,200 to $198,000 for judges who sit on appeal courts and superior courts in each province. The salaries for the chief justices in those courts would increase to $217,000 from $196,500. These same increases would also apply to federal court judges.

The judges on the Supreme Court of Canada would remain the highest paid. The eight regular judges would see an increase to $235,700 from $213,000, while the salary of the chief justice would rise to $254,000 from $230,200.

This is the fourth time the government has sought to amend the Judges Act. During the 35th parliament the government introduced Bill C-2 and Bill C-42, and during the 36th parliament, Bill C-37, all of which were relatively minor pieces of legislation.

In April 1998, Bill C-37 was introduced to establish the Judicial Compensation and Benefits Commission. Bill C-37 also increased judges' salaries retroactively, providing an 8.3% pay increase over two years. This meant an average $13,000 pay increase for federal judges, with salaries increasing from $159,000 to over $172,000.

I would be hard pressed to think of any other public servant, or any hard-working Canadian for that matter, who received that kind of pay increase in 1998.

According to Statistics Canada, the consumer price index from 1996 to 1998 rose 2.55%. It is safe to assume that the salaries of most Canadians across the country would be affected by that statistic. Not only have the salaries of judges increased at a rate substantially higher than those of most Canadians, but their salaries are already indexed. I think that is important to remember.

No other senior public servant or any other lower level public employee has been given such a significant pay increase in the last number of years. While the government indicates that the raise is a reasonable one, it is interesting to note that senior public servants have received raises of no more than 5.7%.

It is not only public servants and other public employees who do not receive these types of extensive benefits. The very people who administer our justice system, the people on the ground who do the practical work in looking after the safety and security of Canadians first hand, seem to be ignored.

For example, in 1998, the same year that federal judges were given these generous salary increases, RCMP officers who had their salaries and wages frozen for five years were finally granted an increase of a mere 2% in March 1998, retroactive to January. If the concern is that judges receive these raises to ensure that there is no corruption of our justice system or any undue influence, is the same not true for the men and women who serve in our federal police forces?

A second pay increase was given to RCMP officers in April 1998 and later that year they received another small increase. However, over the five years that their salaries were frozen and in the next year, 1998, the RCMP received an increase of only 3.75%. These frontline officers are putting their lives on the line every day for Canadians, but the average three year constable received an increase of less than $2,000 over those years.

In contrast, the bill would provide an 11.2% increase to judges who are making well over $120,000 or $130,000 a year, some over $200,000 a year. There are so many other people within our justice system who are absolutely vital in ensuring that the system is functioning properly but are not getting the same kind of increase. These are often the same men and women who are forced to cope with the results of several years of cutbacks to the justice system.

One would assume that if money can be found to increase the salaries of judges, then money could also be found to give local police and RCMP the resources they need to do their jobs effectively.

Also, in many provinces crown attorneys do not have sufficient resources to prosecute the cases they are charged with. In this context I am especially thinking of the new legislation the government is bringing forward in respect of organized crime. While I support many of the principles, I wonder about the genuine attitude of the government in failing to provide adequately for the resources for frontline officers and frontline prosecutors to get the job done. There is no question that in the Canadian justice system there is a significant amount of delay and backlog, which needs to be remedied.

Another appalling situation in our country is the embarrassingly low wages paid to members of our armed forces. It is ridiculous that people who protect our nation, both at home and abroad, and put their lives at risk to ensure some measure of security for all Canadian citizens are fighting with antiquated equipment and are often forced to go to food banks to make ends meet. Now we hear that the minister is authorizing a raise in the rents that our armed forces have to pay. I do not think that is acceptable.

I understand from the government that the main rationale for this pay increase for judges is that the federal government must compete with high paying law firms to attract superior candidates to the bench. While I believe that a competitive salary is required to ensure good candidates, I do not believe that there has ever been any great shortage of candidates for the bench.

In such cities as Toronto and Vancouver, where a $200,000 plus yearly income for a lawyer may not be unusual, it is not outside the realm of possibility that such people may not be attracted to the bench for fear of a pay cut. However, in Manitoba, for example, I believe there would be no shortage of competent lawyers available for judicial appointments at $190,000 and, indeed, at perhaps even less considering the compensation packages and extra benefits that come with such appointments.

Perhaps that is a problem of the mandate of the commission and of the restrictions it had. Perhaps those regional differences should be reflected in salaries or expenses. The commission was operating at a bit of a disadvantage. It did not have the appropriate mandate to discuss those kinds of significant differences.

Many Canadians in the legal profession, no matter what their salary, would consider it a great honour to be appointed to a judgeship at any level. Over the past decade there have been an average of eight candidates for every opening on the bench. As I understand it, the eight candidates are previously screened for suitability. One assumes there would be at least one qualified applicant out of the eight. I have great respect for the legal profession. I believe there are many more than eight qualified candidates for one position.

The majority of my constituents, and most likely the majority of Canadians as a whole, would not consider a salary increase of almost 20% for federal judges over a three year period to be the best way to increase the quality of our justice system. We must ask ourselves how the government can justify giving federal judges a salary increase of 11.2% over and above the 8.2% increase they received in 1998.

The increase would in no way remedy the current backlog of federal court cases. That issue must be dealt with by the administration of the courts, the responsibility of which primarily lies with the judges. I have great confidence that the judges are capable of taking steps to ensure justice is dispensed in a timely fashion.

The pay increase would in no way help the thousands of front- line police officers who are at a severe disadvantage in their daily efforts to fight crime. I am not saying judges should not be well paid. They should be well paid and most Canadians would argue that they are. It is a question of whether they should be paid more than they are already.

My party has great reluctance in supporting the bill on the basis that it ignores the real problems of the Canadian justice system and the manner in which judges are appointed. That is another issue we could perhaps leave for another day.

The backlog of the courts would not be remedied by the bill. The appointment process, which many Canadians believe should be reformed to make the judiciary more independent and publicly accountable, would remain the same.

The administrators of the justice system, the provincial attorneys general, crown attorneys, police officers and members of the federal police force, the RCMP, would still be handcuffed by a lack of sufficient resources.

Perhaps nothing can be done with respect to the proposal in view of the structure and mandate of the commission and the constitutional obligations recently imposed upon parliament by the Supreme Court of Canada. However I urge all hon. members to consider a better way of dealing with the issue.

[Gurmant Grewal, Canadian Alliance, Surrey Central, BC]

Madam Speaker, I rise on behalf of the people of Surrey Central to participate in the second reading debate on Bill C-12, an act to amend the Judges Act.

I would like to talk about the purpose of the bill, which is to implement the federal government's response to the 1999 report of the Judicial Compensation and Benefits Commission regarding compensation and benefits for judges.

The bill amends the Judges Act to: increase judicial salaries and allowances; modify the current judicial annuities scheme; and put into place a separate life insurance plan for federally appointed judges.

Let me speak about the details of the bill. The government accepted the commission's recommendation of a salary increase of 11.2% for over 1,000 federally appointed judges, retroactive to April 1, 2000. The salary increase will cost Canadian taxpayers approximately $19 million.

The judiciary had initially proposed a salary increase of 26.3%. It had maintained that the federal government must compete with high paying law firms in order to attract superior candidates to the bench. However, federal representatives told a hearing into judges' pay earlier this year that there was no shortage of candidates for the bench, with about eight applicants for each federal job over the last decade.

The last pay raise for federal judges was in 1998, when they received 4.1%. In 1997 they also received an increase of 4.1%. In other words, judges received an 8.2% increase in two years. Additionally, judges' salaries are indexed so they receive an annual cost of living increase as well.

In the 35th parliament, the government introduced two bills amending the Judges Act. In the 36th parliament, one bill was introduced. All of these bills, including Bill C-12, have been administrative in nature.

Or have they been merely administrative in nature? We do not know.

Canadians can be assured that the official opposition will closely scrutinize Bill C-12. In particular, we will review the provisions of the bill that change the annuities scheme.

The Liberal government has made amendments four times to the Judges Act. The big question is why. We have seen time and time again where the government has tailor made legislation to fit certain individuals and certain situations.

We will also assure the House and Canadians in general that Bill C-12 will not be tailor made to any individual. That is the job of the official opposition: to hold the government accountable. If it were tailor made, it would definitely compromise the impartiality of our judiciary, so we will be investigating that.

For example, the changes being made to the Judges Act allow a judge who is married for the second time to another judge to collect, after the death of his or her spouse who also happened to be a judge, two survivor benefits upon the death of the spouse. One can only guess why the government is contemplating such a rare and highly unlikely situation.

It is interesting to note that the last bill to amend the Judges Act, Bill C-37 from the 36th parliament, created the Judicial Compensation and Benefits Commission, which provided the federal government with yet another opportunity to make patronage appointments.

The commission consists of three members appointed by the governor in council. It should be noted who nominates these three individuals. One is nominated by the judiciary. One is nominated by the Minister of Justice. The third one, who acts as the chair, is nominated by the first two people nominated.

The failure of the bill to introduce any changes in the appointment process means that important and high paying positions in our court system will remain essentially part of the patronage system. The Canadian Alliance would like to see the patronage appointment process overhauled to make it more transparent and publicly accountable.

One option would be to strike a committee that would review and interview candidates whose names would be put forward to the Prime Minister. The input of the provinces, which are affected directly by decisions of the Supreme Court of Canada, is required in these matters.

Another concern I have with the bill is that the increase in pay for federally appointed judges is higher than the federal government is prepared to grant to the lower paid civil service employees. Lately it has been the practice of the government to grant raises to senior officers in the military, to senior bureaucrats and now to judges, while dragging its feet on a general salary increase for staff.

The question here is about fairness. All the hard working employees of the public service and the armed forces need raises in comparison to the cost of living. Why is the government only focusing on top executives or top officials and not on the other employees? While we do not dispute that salaries for appointed judges and others should generally be in line with the private sector, it is apparent that the staff on the lower echelons of our justice system are being ignored.

What we propose is an independent and publicly accountable judiciary that would act as a safeguard to protect Canadians from the arbitrary power of the state. However, it must remain the responsibility of parliament, not the courts, to debate and assess the conflicting objectives inherent in public policy development.

The bill does not address the multitude of concerns that many Canadians have with the judicial system, therefore my colleagues and I strongly oppose the bill. We will see what adjustments or amendments the government is willing to accept at the committee stage.

While we have no position on the exact level of judges' salaries and pensions, we generally favour salaries that are comparable to those in the private sector. However, we would like to see an overhaul of the process of patronage appointments in the judiciary to make it more transparent and publicly accountable.

The Canadian Alliance declaration of policy, section 69, states:

We believe that a non-partisan civil service, an independent judiciary and competent leadership of government agencies, boards and commissions are vital in a democracy. We will therefore ensure appointments to these positions are made through an open and accountable process based on qualification and merit.

Public servants should only be given salaries in keeping with the average Canadian wage earner. The government has awarded judges and senior bureaucrats with large pay raises and bonuses, while frontline police officers and lower level public servants receive little or nothing.

It should be noted that on March 27, 1998, RCMP officers secured a pay raise of 2% retroactive to January 1, 1998. They received a second increment of just 1% on April 1, 1998, and an additional .75% on October 1, 1998. RCMP officers have had their wages frozen for five years.

Since my time is almost up I have just a few more comments.

Both of the Liberal justice ministers since 1993 have failed to introduce a victims bill of rights or to address important issues pertaining to drinking and driving or even to pass a new Young Offenders Act. Instead they occupy the justice committee with administrative matters at the expense of more important issues. For example, the country is experiencing a high degree of backlog in the courts and many criminal trials must be put on hold in the meantime, yet the government tinkers with salaries of judges.

In conclusion, I hope the government will entertain amendments during the committee hearings. I regret that the judges themselves are somehow caught up in the legislation. I would like to acknowledge that there are judges who are very hard working and very much want to contribute to making our judicial system fairer and faster and to making Canada a better country.

We are talking about mismanagement by this weak Liberal government. The unfair treatment handed out by the Liberal government to Canadians working or otherwise involved in the criminal justice system knows no boundaries. The inequitable treatment of Canadian workers extends all the way to our federal court benches.

We know the government does not treat the victims of crime fairly and today we are debating a bill that does not even treat judges fairly.

[Chuck Cadman, Canadian Alliance, Surrey North, BC]

Madam Speaker, I am pleased to rise today in debate to speak to Bill C-12, an act to amend the Judges Act and to amend another act in consequence.

I first must state how disappointed I am that once again the government is going to great lengths to look after what some refer to as the elite of our society. At the same time, what it is doing for the ordinary citizens, other than taxing them into the ground, is unclear.

Those who occupy the upper echelons of our public service are well looked after. Meanwhile those in the trenches, the clerks and receptionists who comprise the first line of contact between the government and citizens, are again expected to do without.

Everything I have just said is almost word for word what I said in March 1998 when I rose to debate Bill C-37. It appears the more things change around here, the more they stay the same.

Judges, for some reason, attract an inordinate level of attention from the Liberal government. It seems that with every new parliament we debate and pass legislation to look after the interests of judges. It is unfortunate that the government is not as keen to address the problems of our young offender legislation or the creation of a national sex offender registry.

I note that farmers were once again demonstrating here on Parliament Hill this week. Thousands of family farms are lost each year as debts rise, but the government does little to address the problem.

I also note, once again, the vast number of RCMP officers who will be seconded to provide security at the Quebec City summit of the Americas in late April. Entire crime fighting units will be stripped of their top investigators. Since most of the personnel will come from Quebec and Ontario, I foresee organized crime having a field day with its drug operations, commercial frauds, stock market manipulations and smuggling operations. I mention only federal areas of police jurisdiction because, as we all know, when the cat is away the mice will play.

When the RCMP is required to take on additional responsibility of the nature of this summit for VIPs, the force gets further and further behind in its battle against crime. However the government will look good because it is hosting such an important event. It will be our citizens and victims of crime who pay for enabling the Prime Minister to play on the world stage. The government looks after the elite but often conveniently forgets the ordinary citizen.

With respect to Bill C-12, I note that the Constitution Act of 1867, formerly the BNA Act, is part of our formal constitution. The Canadian Charter of Rights and Freedoms, as we know, includes the Constitution Act of 1867. It was, after all, the document that set the stage for the country. Section 100 of that document states:

The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada.

Some of the names of our courts have changed over the years. Some have even been replaced. This section of our constitution requires salaries of superior court judges to be decided by parliament. That is partly why we have had the Judges Act for the past many years. By constitutional law, parliamentarians have the power to fix the salaries and pensions of superior court level judges.

On the inside cover of Bill C-12, in the summary of the legislation, it states:

This enactment implements the federal government's response to the report of the 1999 Judicial Compensation and Benefits Commission regarding compensation and benefits for judges. It amends the Judges Act to increase judicial salaries and allowances, improve the current judicial annuities scheme and put into place a separate life insurance plan for federally appointed judges.

What I am seeing is the derogation of power, at least to some extent, in that the Judicial Compensation and Benefits Commission is making a report to which the government must respond. I fully appreciate that the commission has been set up because of Supreme Court of Canada decisions concerning the independence and impartiality of the judiciary.

However what has not often been stated is that Supreme Court of Canada judges are in a conflict of interest when they try to change the law regarding the pay and benefits of the judiciary, which of course includes them.

Having slammed the supreme court judges for causing changes to our laws while they are in direct conflict with those changes, I fully understand that this is the fix the government has put us in. We have acceded to the use of the Judicial Compensation and Benefits Commission, but it merely makes recommendations, with all due respect. We parliamentarians must retain full control over what is to be provided to the valuable portion of the administration of justice within the country.

I note that Chief Justice Dickson, as he then was, stated in the Supreme Court of Canada case of Regina v Beauregard:

Nothing would be more damaging to the reputation of the judiciary and the administration of justice than a perception that judges were not shouldering their fair share of the burden in difficult economic times.

Following his works, I point out that for a number of years the country faced severe economic times. I recall the Prime Minister stating time and time again that Canadians must be patient and essentially bite the bullet a little longer until the economy has recovered and Canada has returned to a better financial state.

I urge members of the Chamber to carefully consider the 11.2% increase in salary for these judges, especially in light of the far less significant salary increases the government has been providing to our civil service, our federal police force and all other employees of the federal government.

I fully understand the government being hesitant to open the vaults to reimburse all of its employees to the fair and equitable level in comparison to the public sector, especially when this country has had such a debt hanging over us from years of Liberal mismanagement.

In any case, 11.2% as a raise in salary, plus a very generous pension plan, is obviously creating just the situation anticipated by Chief Justice Dickson. It damages the reputation of the judiciary because it creates at least a perception that judges are not doing their fair share in getting this country back into financial balance. I am paraphrasing the words of the chief justice here.

I may not be the first person to recognize the value of our judiciary, but I will certainly not be the last. I have spent much time in our courts witnessing day to day administration of justice.

A government argument for such excessive salary increases for judges has been that we must pay well in order to attract capable and experienced people. Surely this is just another argument for having the judicial appointment process more open and accountable. As far as I can determine, it has not been that difficult to attract capable individuals to apply and sit on the benches of our superior courts. I often wonder whether this is just not a case of some individuals wanting everything: the prestige, the opportunity to channel legal cases down particular paths, or more regular working hours. Then, after getting the position, they are now politicking for extraordinary salaries.

If members of parliament had the opportunity to become involved in reviewing these appointments, perhaps they would have a better chance to see just what is required to ensure that capable and experienced individuals are encouraged to continue to apply for judicial appointment.

It is difficult to accept pay raises beyond the norm when we are dealing with salaries in the $200,000 range, when we are dealing with, in some cases, sheer patronage, and when the whole process is deliberately kept from parliamentary scrutiny.

As I have stated, it is the responsibility of parliament to decide on the salaries and benefits of our federally appointed judges. Without sufficient information to determine whether such a significant jump in pay is necessary to maintain and/or enhance the judicial personnel, it is difficult for me to accept the proposals of this legislation.

In light of the meagre percentage raises given by the government to so many other needy and deserving employees of the federal government, 11.2% is particularly hard to swallow. I keep hearing about our military personnel using food banks to survive between paycheques. I become concerned about our RCMP members working two or three jobs when their families have trouble paying the bills, especially when we see how rich and powerful organized crime is becoming in this country. When I see these things and others I cannot have quite the same concern for federal judges who are not nearly so badly off financially.

I will be opposing this legislation. I urge other members to have a serious look at what the government is proposing here.

Something is seriously wrong when the government continues to look after the top officers within the Department of National Defence and gives peanuts to the lower ranks. Something is seriously wrong when we have thousands of farmers losing their farms because we are reluctant to provide sufficient help in their time of need. Something is seriously wrong when we have hospital shortages right across this country because the government cut back to balance the budget. Something is wrong when the government continuously brings forth legislation in a timely fashion to look after the financial interests of judges.

[Vic Toews, Canadian Alliance, Provencher, MB]

Mr. Speaker, I am pleased to participate in the debate on Bill C-12, an act to amend the Judges Act and to amend another act in consequence.

The bill amends the Judges Act to implement the government's response to the recommendations made by the 1999 judicial compensation and benefits commission. Among those recommendations is a retroactive salary increase of 11.2% for 1,013 federally appointed judges. The bill is purely administrative in nature, but that is the problem.

This is the fourth time the Liberal government has sought to amend the act. During the 35th parliament the government introduced Bill C-2 and Bill C-42 and during the 36th parliament, Bill C-37, all of which were minor pieces of legislation or of little significance to Canadians.

While we all recognize the need for housekeeping bills, there have been no significant initiatives by the current Liberal government to address the serious concerns of many Canadians with our judiciary. It appears more and more that the issues parliament may address when it comes to the judiciary are merely administrative in nature.

Under the guise of the charter the courts have appropriated for themselves the right to deal with substantive policy matters. The courts have in addition appropriated for themselves the right to effectively control the ability to set their salaries, a matter which the Constitution Act, 1867, specifically left to parliament.

The decision of the courts purported to find a new constitutional obligation to require the legislatures to set up a commission to establish the salaries for provincially appointed judges. The supreme court, which was called upon to confirm this process, not only did so but included a newfound constitutional obligation requiring parliament to follow a similar process when it came to setting salaries for federally appointed judges.

Although the fiction is that parliament can exercise its own judgment in respect to the salaries recommended by the committees, in reality the judges simply overturn those legislated decisions where they disagree with them. One need look no further than the Alberta legislature for a very practical demonstration of the court's powers.

This is simply a case of judges discovering new constitutional principles that benefit themselves financially without political accountability or, as one of my constituents observed in describing the case, “the judges paying the judge's case”.

This newfound constitutional process that the judges discovered further decreased parliamentary responsibility for the expenditure of public funds and moves toward the creation of an economically independent judiciary with its own political agenda.

A recent letter to Maclean's magazine by a Mr. W. J. Jack of Innisfil, Ontario, noted:

It seems to me that members of Parliament no longer want to or can't make laws that work, so they let appointed judges do that job. If the Supreme Court is going to legislate, we won't need elections, except to vote for one person who would then appoint the members of the court. This would save taxpayers a lot of money, and we'd still have the one-man-rule system that we have today.

Coupled with the self-granting powers under the charter and an executive appointed judiciary as we now have, I would argue the courts can be and often are used to advance the political agenda of a government in a particular direction without consultation with the members of parliament who are accountable to the people of Canada and who represent their interests.

Judicial activism is all too common in our courts. Many if not most Canadians would agree that it must remain the responsibility of parliament to debate and ultimately resolve the political, economic and social issues that govern all our lives.

However over the past two decades judges supreme court justices in particular have to varying degrees engaged in a frenzy of constitutional experimentation that resulted in the judiciary substituting its legal and social preferences for those of the elected representatives of the people in parliament and the legislatures.

A leader in this judicial activism was the former Chief Justice of Canada, Antonio Lamer. Although he is now retired, the decisions he wrote or participated in will continue to impact on the principles and institutions of our democracy. Unfortunately that impact has been at an alarming cost to our democracy and to the public safety and security of our citizens.

Another member of the court has recently added his concern to the direction of the supreme court and the judicial activism of the former chief justice. Mr. Justice Bastarache has warned the nation of the dangers of the judicial government favoured by the former chief justice. In contrast to the former chief justice, Justice Bastarache has committed himself to an interpretation of the charter of rights and freedoms that pays respect to democratic principles and institutions.

The House and the people of Canada should commend Mr. Justice Bastarache and other jurists who recognize the dangers of the legal and constitutional anarchy reflected in the judgments of the former chief justice. Our democratic principles and institutions are too important to be hijacked by a non-elected political judiciary.

Let us consider for a moment a recent high profile supreme court decision that typifies the issue. In Minister of Justice v Burns and Rafay the supreme court in effect removed the justice minister's parliamentary prerogative of choosing whether or not to seek assurances before extraditing alleged criminals facing the death penalty in another country, the United States or otherwise.

Regardless of where one stands on the issue of capital punishment, the court has attempted to deprive parliament of debating the issue further. The court has overridden Canada's law as written by parliament and has chosen to push its political agenda to the forefront by opening Canada's borders to violent criminals.

That is not just my characterization. The day after the Rafay and Burns decision was delivered by the Supreme Court of Canada the lawyers for the Minister of Justice, in another related case, stood before the court and said that the impact of the decisions was to create safe havens for criminals.

According to the precedent set in previous supreme court rulings, the minister had only been required to seek guarantees when the possibility of the death penalty would shock the conscience or otherwise outrage standards of decency.

In this decision, the supreme court has attempted to reconcile its new position with its 1991 precedent. However, in actual fact it has rewritten the law. The recent ruling stipulated that the Minister of Justice was required to seek guarantees prior to the extradition of Rafay and Burns and in the future on all accused of such crimes.

Our extradition treaty with the United States has also been effectively rewritten. One might think that the practical effect of extraditing these individuals, if they are convicted in the state of Washington, is that they would face life imprisonment without the possibility of parole. That is only technically true. If they are convicted and all appeals are exhausted, they become automatically eligible for the prisoner exchange program. They then come back to Canada where the maximum sentence is 25 years before eligibility for parole and, with the faint hope clause, they can apply for parole after 15 years.

Taking into account that these individuals have already been held for six or seven years, if they were successful under the faint hope clause they would be on the streets after eight years. If in fact they are the people who brutally killed three American citizens for insurance money, the practical consequence of their crime would be eight years.

This is not an issue about the death penalty. This is the circumvention of parliament by refusing to allow parliament to have a say in the laws that govern crime in Canada. This is an abdication of our responsibility. Our responsibility has been taken away by the Supreme Court of Canada which has its own political agenda when it comes to criminal law.

In Minister of Justice v Burns and Rafay the supreme court has prevented any legislative attempt to reintroduce capital punishment in Canada. This is regardless of where one stands on the issue. Our party does not have a position on capital punishment. The court's decision effectively says that the elected people of Canada can never make the decision because it is constitutionally prohibited. The political reason given was that the practice is unjust and should be stopped. That is not a legal judgment. That is a political decision.

Again, regardless of where one stands on the issue, it is a decision for parliament and its elected representatives to make. Regardless of the convictions of the court, amending Canada's laws and treaties for policy reasons should be the responsibility of parliament and not the courts.

Former Chief Justice Lamer's judicial activism is not in harmony with the democratic principles of Canada, regardless of whether we oppose or defend the cause that the court may support. People might say that it is a good decision regardless of it being a political one.

The decisions of the court on political matters short-circuit the process, undermine the authority of parliament and bring the institution of parliament into disrepute. It is not that it insults parliamentarians, it insults the people who elected parliamentarians to make these decisions on their behalf.

While this issue is a major concern, it is far from being the only problem in our judicial system that requires the attention of parliament. Another such issue is related to the appointment process.

It is interesting to note that the last bill to amend the Judges Act, Bill C-37 from the 36th parliament, created the Judicial Compensation and Benefits Commission which provided the federal government with yet another opportunity to make patronage appointments. The commission consists of three members appointed by the governor in council and it should be noted who nominates these three: One is nominated by the judiciary; one is nominated by the Minister of Justice; and one, who acts as a chair, is nominated by the first two persons nominated.

The failure of the bill to introduce any changes in the appointment process means that important and high paying positions in our court system will remain essentially part of the patronage system.

The Canadian Alliance would like to see the patronage appointment process overhauled to make it more transparent and publicly accountable. One option would be to strike a committee that would review and interview candidates whose names would be put forward to the Prime Minister. The input of the provinces, which are affected directly by decisions of the Supreme Court of Canada, is required in these matters.

Another concern I have with the bill is that the increase in pay for federally appointed judges is higher than the federal government is prepared to grant the much lower paid civil service. It lately has been the practice of the government to grant raises to senior officers in the military, senior bureaucrats and now judges while dragging its feet on a general salary increase for staff.

While we do not dispute that salaries for appointed judges and others should generally be in line with the private sector, it is apparent that the foot soldiers of our justice system are being ignored.

What we propose is an independent and publicly accountable judiciary that would act as a safeguard to protect Canadians from the arbitrary power of the state. However it must remain the responsibility of parliament, not the courts, to debate and assess the conflicting objectives inherent in public policy development.

This bill, like its predecessors, deals solely with the administrative aspects of the courts and does not address the multitude of concerns that many Canadians have with the judicial system. Therefore, my colleagues and I strongly oppose the bill.

[Kevin Sorenson, Canadian Alliance, Crowfoot, AB]

Mr. Speaker, in December of last year, shortly after the federal election, I was going through an Ottawa Citizen article which mentioned that Canadian judges would be receiving a $19 million pay raise that would boost their income 11.2% on average to more than $205,000.

The 11.2% awarded on December 13, 2000, was according to that news article quoting a justice department lawyer a compromise between the 26.3% that the judges were asking for and the demands of taxpayers to keep costs down. Government justice lawyer Judith Bellis had taken the view that the 11.2% was in the range of reasonable.

Bill C-12, the subject of today's debate, enacts that 11.2% pay raise, thereby raising the salaries of approximately 1,013 federally appointed judges who sit on provincial superior courts and courts of appeal, as well as the tax courts and the Supreme Court of Canada.

The increase, retroactive to April 1, 2000, will raise the base salary from $179,200 to $198,000 for judges who sit on appeal courts and superior courts in each province. The salaries for the chief justices in those courts will rise to $217,000 from $196,500. The same rates will also apply to federal court judges.

The judges on the Supreme Court of Canada will remain the highest paid. The eight regular judges will see an increase to $235,700 from $213,000, while Chief Justice Beverley McLachlin's salary will jump to $254,000 from $230,200.

It is important to note that while the government considers this raise reasonable, the official opposition views it as extremely generous considering senior public servants have received raises of no more than 5.7%. As well, the pay of public servants is not indexed, while the pay and salaries of judges are. We on this side of the House, therefore, are opposed to Bill C-12.

For the information of other new members of the House, I would like to point out this is not the first time the Liberal government has tried to amend the Judges Act. In fact, this is the fourth time the Liberals have come forward and made changes to the act.

Originally in 1996, Bill C-2 and Bill C-42, both if I may paraphrase a former member of the House, were described as being nebulous, inconsequential pieces of legislation with little significance to Canadians who were genuinely concerned about their safety, as opposed to the simple administrative matters that these bills brought forward.

In April 1998 Bill C-37 was introduced to establish the judicial compensation and benefits commission. The compensation commission was set up as an independent advisory body after the supreme court ruled that judges' salaries were constitutionally protected and the previous system of setting pay was inadequate.

Bill C-37, increasing judges' salaries retroactively, provided them with an 8.3% pay increase over those two years. Translated into dollars, this meant an average $13,000 pay increase for federal judges with salaries increasing from $159,000 to over $172,000.

I do not know of any other federal public servant, or any hard-working Canadian citizen, who received a $13,000 pay increase in 1998. While the Liberal government and the Tories were voting in favour of the huge pay increase, Canadians' incomes were on a steady decline.

Members on this side of the House, with the exception of the Progressive Conservative Party, opposed the bill. Members on the other side of the House wrongfully insisted that our opposition to the bill was “the ravings of ill-informed and ill-prepared men of parliament who contributed to the ill-repute of the justice system”. The truth is that my party holds the judiciary in high esteem. We were opposed to Bill C-37 and we are opposed to Bill C-12, based on the fact that other senior public servants, lower level public employees and other Canadian workers had not and will not be awarded such generous increases.

In the same year that federal judges were being awarded these huge salary increases, comparatively Royal Canadian Mounted Police officers, who had had their salaries and wages frozen for five years, were granted an increase of 2% in March 1998, retroactive to January. A second pay increase was given to them in April 1998 and toward the end of that year they received another three-quarter per cent increase. Over the five years that they had been frozen, and in the next year of 1998, the Royal Canadian Mounted Police saw an increase of three and three-quarter per cent. They are on the front lines putting their lives in jeopardy. The average three year constable received less than $2,000 over those years.

I would be remiss if I did not mention that the former member of Crowfoot put forward an amendment to Bill C-37 that was supported and passed in the House during report stage. That amendment ensured that every four years the Standing Committee on Justice and Human Rights had the opportunity to review the report of the commission on judges' salaries and benefits. The task would not be left solely to the Minister of Justice as was originally contemplated by the Liberal government.

It would be negligent of me if I also did not recognize the thorough job the Senate did in reviewing Bill C-37, the pre-emptive bill to Bill C-12, and the substantive amendments that it brought forward at the upper house.

In particular, I would like to single out the efforts of Senator Anne Cools for her diligent efforts in revealing the many inadequacies of Bill C-37. Senator Cools apparently exposed the fact that Bill C-37 would effectively allow judges to set their own wages, salaries and benefits and in so doing would set up the possibility of there being a show down between parliament and the judiciary. It would allow judges to appeal parliament's decision regarding a recommendation of the salary increase put forward in the courts. Essentially the judges would have the final say over whether or not parliamentarians were giving them a sufficient raise.

Although former judicial pay commissioner David Scott said it was unlikely that judges would ever be setting their own salaries, he would not rule out the possibility of the judiciary challenging parliament's response to the commission's recommendations for a pay increase or for reducing pay.

The judiciary would have to prove, however, in a court that the refusal to increase salaries or a decision to lower them was motivated by a wish to diminish the independence of judges. Mr. Scott said that even if the judges won in such a case, the court could only declare parliament's motion on the issue void and that would result in a stalemate. As pointed out by the Liberal senator, this would “deprive Canadians of their undoubted constitutional right to parliament's control over the public purse in respect to the judiciary”.

Clearly, the control of the public purse rests with the elected members of parliament and not with the unelected members of the judiciary.

Section 100 of the 1867, Constitution Act, states in part that the salaries, allowances and pensions of the judges shall be fixed and provided by the Parliament of Canada. Clause 6 of Bill C-37 potentially abolished parliament's role in fixing judges' salaries.

Obviously we must question why the Minister of Justice at that time was so willing to bestow such potentially wielding powers on the judiciary through Bill C-37. One can only surmise, and again I use the words of Senator Cools when she said:

The real intent (of Bill C-37) is to remove parliament from the process.... There is a problem in that certain particular judges seem to crave a closeness to certain individuals in the Department of Justice and are trying to cling, closer and closer, to the executive rather than to parliament.

She went on to say to the Senate:

In other words, honourable senators, what is happening here is that 200 years of history are being turned on their head, and we are being told in this judgment that, quite frankly, judges prefer their fate to be in the hands of the executive rather than in the hands of parliament. It is a most curious and interesting subject matter.

It is more than curious and interesting, it is fearful.

Bill C-37, which was also an act to amend the Judges Act as it was originally drafted by the Department of Justice, had another problem. It created a legal right for a judge to have two spouses. The two spouses clause was meant to deal with circumstances in which a married judge, who was separated from his or her wife or husband and was living common law with another person, died. It would have allowed a judge to have both spouses, married and common law, to be eligible for the lucrative pension. In addition, the common law spouse would collect a one time payout of one-sixth of the judge's annual salary at the time of his or her passing.

Former supreme court Justice William Estey said that this particular section of Bill C-37 would “give his former colleagues on the bench the right to a kind of homemade harem. It would effectively create two separate sets of family law, one for the judges and one for everyone else”.

During debate on this legislation it was noted that the situations such as the contemplated one in Bill C-37 were rare. Therefore, questions arose as to why such a clause was put into Bill C-37. Critics suggested that this particular clause was tailor made for Chief Justice LeSage who was separated from his wife and had resided for about a year with Judge Lang. If Chief Justice LeSage were to die, the new amendment would have allowed both Judge Lang and Mrs. LeSage to qualify as his surviving spouse and share his pension.

As pointed out by Senator Cools during the debate, Bill C-37 appeared tailor fit to particular individuals. Senator Cools said “We have a situation in this country where individuals have access to the legislative writing machine”. Senator Cools said that it was very bothersome. Again, that is more than bothersome. That is a huge concern.

I understand that Bill C-37 was not the first time that the government has tailor made legislation to amend the Judges Act. Bill C-42, as mentioned earlier, also amended the Judges Act. It changed the pension scheme and working conditions of the federally appointed judiciary. In particular, it set out the terms on which Canadian judges could participate in international activities.

Although it was never explicitly admitted by the House or by the government, it was no secret that these amendments to the Judges Act arose due to the 1996 appointment of then Madam Justice Louise Arbour to the United Nations as a prosecutor for its special war crimes division.

Apparently opposition members naively agreed in June of that year, just before the House recessed for the summer, without any debate in the House, without any debate at committee, to pass Bill C-42 after being assured by the former justice minister that it was a simple innocuous housekeeping bill. It was not until the amended bill was returned from the Senate and the testimony of witnesses that appeared before the Senate committee were made known that my colleagues realized that Bill C-42, as claimed by legal experts, had “the appearance of transgressing the vital principle of judicial impartiality”, the very principle that our Minister of Justice has just spoken on.

In particular, I refer to the testimony of Professor Morton:

The government is concerned, as well it should be, with the current status of Justice Arbour and the implications of her status for those responsible at justice. The government seems to hope that by passing Bill C-42 as quickly as possible it can retroactively legitimate apparent indiscretions by Justice Arbour and possibly others—

It would appear that Justice Arbour agreed to the appointment before it had been approved by the Minister of Justice (or any other officials), thereby forcing the minister to react to a fait accompli. Furthermore, it then appears that the minister, rather than recommending to Justice Arbour that she postpone her new activities (at the Hague) pending necessary amendments to the Judges Act, sought to temporarily legitimate her actions by an order in council; and then (because the order in council is conceded to be insufficient) sought to retroactively legitimate Justice Arbour's new employment with general amendments to the Judges Act, Bill C-42, thereby forcing the hand of Parliament.

Professor Morton added:

No doubt some will say that this is nit-picking. My response is simple. If the justice minister and appeal court judges cannot be expected to comply with the letter of the law, then who can?...Indeed within the last month the justice minister himself pronounced on the meaning and the importance of the rule of the law. The rule of the law is “a living” principle that is fundamental to our democratic way of life. In substance it means that everyone in our society, including ministers of government, premiers, the rich and powerful and the ordinary citizen alike, is governed by the same law of the land.

While one section of Bill C-42 at that point in time appeared tailor made for Arbour, another section of that very same bill was apparently designed for the then chief justice of the supreme court in that it offered an unprecedented pension benefit to the chief justice and his wife at the very time when the top court was considering the most politically sensitive case of the decade, perhaps of confederation, whether Quebec had a constitutional right to secede from Canada.

The proposed changes did away with the prohibition on judicial double-dipping. Previously a retired judge received a pension equal to two-thirds of his annual salary; on average, about $104,000. When he died, his spouse collected a survivor's pension worth one-third of his salary or $52,000, provided that she was not a retired judge.

Under the new law retired judge spouses will collect both, thus receiving a total pension equivalent to their salary before retirement. The most obvious beneficiary of the change was Chief Justice Lamer and his wife, Federal Court of Canada Justice Danièle Tremblay-Lamer.

With regard to this section of Bill C-42, Professor Morton said:

Without imputing any illicit motive to anyone involved—the timing of this proposed change could not be worse.

Morton also said that sceptics would claim:

It is unacceptable that a chief justice who is about to benefit from the minister's proposed pension policy change now sits in judgment of the minister's Quebec reference—the most politically sensitive constitutional case of the decade.

In closing, I would assure the House and Canadians in general that the official opposition will closely scrutinize Bill C-12. In particular, we will review the provision of the bill that changes the annuities scheme.

I am not a financial expert. I am not an expert on annuities or the pay schedules that are put forward in the bill. Without the advantage of expert advice at this stage, what appears to happen is that the changes being made to the Judges Act allow a judge who is married for the second time to another judge after the death of his or her first spouse, also a judge, to collect both or two survivor benefits upon the death of the second spouse. One could only guess why the government is contemplating such a rare and highly unlikely situation.

As we have already mentioned, four times the Liberal government has come to make amendments to the Judges Act. We have seen time and time again where the government has tailor made legislation to fit certain individuals and certain situations. We will also assure the House and Canadians in general that Bill C-12 is not tailor made to any individuals. If it were, it would definitely compromise the impartiality of our judiciary.