Bill C-17 (Historical)

An Act to amend the Judges Act and certain other Acts in relation to courts

Part 1 of this enactment amends the Judges Act to implement the federal government’s response to the report of the most recent Judicial Compensation and Benefits Commission regarding salaries and benefits of federally appointed judges. Included is a mechanism to divide judicial annuities upon breakdown of the conjugal relationship.
Part 2 makes certain amendments to the Federal Courts Act and a number of technical amendments to other Acts in relation to courts.

Judges Act

[Nicole Demers, Bloc, Laval, QC]

Mr. Speaker, I listened carefully to my colleague’s very incisive and relevant comments.

He referred to social units in relation to older workers who lose their jobs in mass layoffs, but I think that he could also have referred to people who lack affordable housing, senior citizens who have been fleeced out of the guaranteed income supplement, people who no longer have access to literacy classes because of government cuts, senior citizens whose pensions are increased by only 1.5% or 2% a year, people who helped build the country and our wealth today, and the veterans whose programs and conditions suffer for lack of willingness to improve them.

Could my colleague talk to us a little about this in relation to judges' salaries?

[Michel Gauthier, Bloc, Roberval—Lac-Saint-Jean, QC]

I thank my colleague since this gives me a chance to clarify something. We must be careful not to lapse into demagogy when it comes to salary issues. We could not decide to freeze the salaries of every judge, member of Parliament and minister as long as there is human misery.

This would not be a good way of solving the problem. Still, what I say is that by looking at the problems of the homeless, of senior citizens who receive only a slight increase in their small monthly pension each year and the general enrichment of public servants—which is not very high either—by looking at all these questions, we see that the government can do better for everyone, but do better within its means. So what it can afford should serve as the criterion in all circumstances.

Indeed, within its means, the government could do much more for older workers and homeless people. This is a large number of people, but not such a large number that the government would go bankrupt if it helped them more.

What I mean is that, within its means, the government should do more for the homeless, for older workers who are victims of mass layoffs, perhaps a little more for senior citizens who might well deserve a little better support and for the needy groups of society.

The government could do for judges, as for MPs and public servants, what is fair and reasonable, that is, less than what it is now proposing. It is as clear as that. The homeless, senior citizens, workers who have lost their jobs and MPs all deserve justice. I will end by saying that judges—especially judges—who deserve all our esteem and all our respect, also deserve justice. We must therefore not cut them off from reality.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I am pleased to be here today to debate Bill C-17, an act to amend the Judges Act and certain other Acts in relation to courts.

Before I begin my remarks, I will note that I have just come from a meeting with a delegation from Mongolia. I certainly commend them for being here. I think we have a lot in common with that country. I am delighted that we were able to meet with the Mongolians, who have made the effort to come to Parliament today.

I would like to briefly comment on the remarks made by the Bloc member who just spoke. I have good news and bad news.

The good news is that a few hours ago I actually made a recommendation for how eloquent a speaker he was. That was certainly upheld by his speech today. I think all parliamentarians should take note of how eloquently he spoke. One of the keys in making an eloquent speech is to make only one or two points. He did that admirably. It was a dynamic speech.

The bad news is that I disagree with the two points the member made.

First, I have always had difficulty talking about the salaries of members of Parliament. I have never thought that salaries should decided by elected officials at any level.

Second, comparing judges and members of Parliament is like comparing apples and oranges. A special independent commission was set up to do the research on a particular occupational group. It did the research and came up with a recommendation that cannot necessarily be applied to other groups because there may be different histories, conditions and situations. It is a more complex situation.

Some members have suggested that it is a delicate topic any time we talk about the salaries of judges in a debate. I am not going to talk about their salaries. It would be a contradiction of the whole point that I am trying to make in this debate, and that is the independence of the legislative branch and the government.

I am not going to comment on whether judges are making too much or not enough, whether the original recommendation was enough, or whether the government's cut is too much. To do so would defeat the whole purpose, which is that we should not have great influence over the judiciary so that it can be independent.

Probably I will vote for Bill C-17, and certainly the Liberals will be supporting it, but only under extreme duress, which I will explain. My point is around the whole argument of the independence of the judiciary.

First, though, I want to reiterate a technical point that I made at the previous reading of the bill. It is related to my jurisdiction as the northern critic for the three northern territories. In the bill, the chief justices in the provinces are so named, but under subsections 22(1), 22(2) and 22(2.1), the bill refers to those who are the chief justices in the territories as senior judges. This is an archaic definition.

There have been no objections in the House to harmonizing these terms. The three territorial governments have suggested that the titles be harmonized. The federal minister of justice at the time and the judicial council also have recommended that this be modernized and updated so that the senior judges in the territories would also be called chief justices. As we see in the bill, they have the same responsibilities and receive the same remuneration. They should also receive the same title. I hope that technicality in the bill can be changed.

I would like to thank the justice minister. After discussions, the Minister of Justice has taken this suggestion to the Prime Minister, who apparently has to make that decision. Hopefully he will make this change so that we can get this technical improvement people are asking for and we can change the title of senior judge to chief justice so they are all the same.

As the representative for the north, I am totally in favour of the discussions related to the northern allowance and the added costs of doing business and living in the north that are covered in this bill.

I would like to comment first of all about some of the witnesses. I think the first group of witnesses we had at committee was the commission that determined these salaries. I must say that, just like some of us, they were apoplectic when I talked to them personally about this decision that had been made. They were not apoplectic that their decision had been changed, but that the process had been politicized.

They had given their report to the previous government, which had agreed with the report and was going to maintain that independence of the judiciary with no serious reason to question it. All of a sudden, a new government came in and changed the recommendations. What had changed from one day to the next?

The members of the committee thought that was an exceptional politicization of the process and exactly what was not supposed to occur. They were trying to create the independence of this commission, so it would not have political or legislative interference in the judiciary.

The reason that was given at the time was the cost, that the government could not influence its agenda the way it wanted to. Really, except for a few members on the Conservative side of the House, I do not think anyone could really understand or accept that a minor amount of $3,000 in the scope of the entire Canadian budget would stop a government from implementing its agenda, in particular at a time when there is a $13 billion surplus. It is really ludicrous to even consider that argument.

On top of that, the government has more cash than it ever expected to have. It cut the Kelowna accord which is $5 billion extra. The day care agreements that we had with the provinces would be $10 billion or $15 billion more. The government also let a number of excellent greenhouse gas programs expire, such as EnerGuide, so there was all sorts of extra cash. If we were to go with that rationale, the government would probably have too much cash and should be paying the judges more. It just does not wash.

I would like to present more evidence and more opinions to the same effect.

The way the system has been set up to maintain an independence of the judiciary begins with this independent commission. That commission had a member from the Canadian Superior Court Judges Association and a member from the government. They then chose the chair. This commission makes recommendations regarding benefits for judges. Unless there are serious reasons, and it is very specifically laid out as to the definition of those reasons, Parliament would approve those and make the final decision. However, as I was just suggesting, the government did not give any serious defensible rationale under the guidelines and description that the Supreme Court of Canada gave.

When we were decrying the very sad and senseless cutting of the Law Reform Commission, the justice minister suggested there were a number of other bodies that could give advice to government. One of them that was suggested was the Canadian Bar Association, which, by the way, said at that time that it was shocked that the government would suggest that, because it did not have the resources and time to do all the good work the Law Commission was doing.

Nevertheless, if the government wants to use the Canadian Bar Association instead of the Law Reform Commission, let me just quote what the Canadian Bar Association submitted to the committee on this bill, which backs up what I was just saying.

In its submission, it said:

The CBA is concerned that the government response fails to pay adequate heed to the constitutional imperative to depoliticize the process of setting judicial salaries and benefits, in accordance with the principles set out by the Supreme Court of Canada.

So, it is not just coming from me or from this side of the House and some of the other speakers we have heard. It is coming from the Canadian Bar Association, who the minister himself said was an excellent body to provide advice to the government.

It went on:

More particularly, the government response fails to provide adequate reasons, and evidence in support of those reasons, to deviate from the salary recommendations in the 2003 commission report.

In fact, it went on further. The whole basis of the point that I am trying to make today reflects on the independence of the judiciary. It is, as the Canadian Bar Association says: “An independent judiciary is a cornerstone of a democratic society”.

I am sure all parliamentarians agree with that basic foundation of our constitutional democracy, of law and order acceptance in Canada, and that there is a total separation of the judiciary and the legislative process. How could we have powerful legislators telling judges or influencing judges in their decisions: who they convicted, what they did, and the types of sentences? Would that be fair? Would that be equal justice before all? Of course not. I am sure every parliamentarian would agree with that.

The independence of the judiciary is referenced in the Constitution and it is just a cornerstone principle. As the Canadian Bar Association went on to say: “An independent judiciary is 'the lifeblood of constitutionalism in democratic societies'”.

So, it is this principle that I am basing my arguments on today. I do not think anyone would suggest that if they were getting paid by someone, someone influencing their salary, that it would not have an influence on their decisions. Certainly, with regard to all the employers I have had over my life that were paying me, I took some deference to their opinions and views. That is exactly why an independent commission was set up that had to have serious reasons for altering its recommendations.

I want to go on to present further comments on the report and those reasons as identified by the Canadian Bar Association.

The CBA believes that the government response is so generalized and so lacking in particulars that it fails to give a meaningful effort to the 2003 commission report.

The government submitted two reasons. The second reason that it provided, a technical reason, and I give it credit, was actually accurate. It was accepted by the bar commission as a potential minor reason for some modification of the report. But it had this as the second reason.

Its first reason, which was given much more prominence in the view of the Canadian Bar Association in its decision, had no waiting specified in its decision, so it would be hard for observers to make an evaluation to that effect. However, it seems to give to the knowledgeable observers far more credibility to the first rationale which was not found to be acceptable and was not found to fall within the Supreme Court guidelines, and was not acceptable as a reason.

So, under those circumstances, the Canadian Bar Association just said that this is not acceptable, this does not maintain the independence of the judiciary and so, these changes are not appropriate. In fact, it suggested the best outcome for the judicial independence would be for Bill C-17 to be amended without delay to compare with the recommendations of the 2003 commission report.

I guess in the long run that would be best. However, we live in the real world, the day-to-day world. We also have to take into account other ramifications.

Judges must now wait for three years out of a four year cycle. It is about to start next year again and this decision is holding up the whole process.

Certainly, I personally do not mind doing it on a matter of principle, but on the other hand, through these technicalities, I do not want to hold up the process. The judges need to get on with their lives. The process can start again next year and we hope these considerations will be kept in mind.

I hope that in the future this will be a good warning to those people involved in the process to remember the great Canadian principle, that of modern constitutional democracies, which believe in the rule of law and that the independence of the legislature and the judiciary should be maintained. That is a very important principle of our society.

In conclusion, I have one last reference to a report from the Canadian Bar Association to substantiate that. It says that if we carry on like this with the government bill as is, it further risks damaging the judicial independence and public support for the administration of justice.

We certainly do not want that to happen. As previous speakers have said, we have one of the most honoured justice systems in the world. People from around the world are looking to our retired judges to lead worldwide initiatives. There is great credibility and part of that credibility is based on the independence of the judiciary to do its best. I hope I have made that point strongly today and that it will be thought out carefully in the future when this process comes back to us in the not too distant future.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

Mr. Speaker, I listened carefully to my official opposition colleague's speech.

Since becoming a member of Parliament, I have been meeting a lot of groups from my riding. I have met people living in seniors' homes who complain about the paltry increase in the guaranteed income supplement offered to pensioners. The rate of increase is very low and does not keep up with the increase in the cost of living.

I would be very unhappy if we were to adopt the bill before us today, which offers a 7.25% increase. A raise like that would make people from every walk of life jump for joy. How many people currently find themselves in a difficult situation?

Earlier, my colleague from Roberval—Lac-Saint-Jean talked about all of the older workers and people losing their jobs in Roberval, people who are affected by the government's repeated delays in implementing assistance programs that could help them meet their needs. They have no income.

How can we support the increase proposed today when there is already an indexation mechanism that has been used for parliamentarians, among others? The mechanism has proven reasonable, and it should also apply to pay increases for judges.

How can the member justify supporting this pay increase to his constituents, who are certainly not all financially well off?

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, the point I was making throughout my entire speech would make it inappropriate for me to answer the member's question specifically on the judges' remuneration because the point I was making is that it is not our decision. As legislators, we should not be commenting on that.

We should not be trying to influence judges one way or another. If people know that a group has charge over their salaries, how are they possibly going to be independent, so I will not comment on their salaries. There are 30 million other Canadians. Someone else should be making those recommendations, not us. We should not be interfering, whenever possible, in those salaries. The Supreme Court set up a mechanism to somewhat preserve that independence.

If the member would like the escalator he was talking about to be a new system to be put in place, there is nothing to stop the Bloc Québécois from suggesting that system. However, I agree wholeheartedly with his point about the disadvantaged people and the seniors trying to get back to work. We had studies on that. For how long did we put in a program? How many seniors are being covered?

The government has attacked the most vulnerable since it came into power. We have income tax cuts and business cuts, which I would have been totally in favour of if they had been even across the board, but the increase in income tax from 12% to 12.5% has hurt the poorest segment of society. Why would it give university students enough for a $70 book when, as a student told me the other day, books cost $200 each? We were offering $3,000. Why, when the government has a $13 billion surplus, would it not, as we did, increase the guaranteed income supplement? Why would it reduce the amount available for the basic deduction for the average person when there is a $13 billion surplus? Everyone should have had the benefit of those extra funds.

[Alexa McDonough, NDP, Halifax, NS]

Mr. Speaker, I found overwhelming favour with the position of the member for Yukon. He has a very clear understanding of the importance of an independent judiciary and he appreciates the importance of having an independent commission determining the level of remuneration for the judiciary as part of maintaining that independence of the judiciary.

Given how cogent the member's arguments were and how clear an understanding the member seemed to have on why the independence in the judiciary must be maintained, I am totally buffaloed as to why he would, at the beginning of his comments and again at the end, say that he will be supporting the bill, a bill that is being widely criticized for doing precisely what he has indicated is indefensible and unacceptable.

I know he said that he would be doing it under extreme duress, and I guess I would like to hear him explain that a little bit more. The only other argument that I heard for why he was rationalizing support for the bill was a sort of pragmatic argument. It was not based on the important principles that he himself showed an understanding of. I guess I find this doubly puzzling because, if there were ever an important principle worth fighting for and worth preserving, and refusing to allow to be eroded in any way, it would be the independence of the judiciary because it is a fundamental cornerstone of a democratic society.

I do not want to misinterpret the member's comments, which is why I am asking for further interpretation. I think the member said that three years has now gone by since the four year independent review process was set in motion. As an argument, I could say that since we are almost at the end of the four years and we need to start the process over again, why not just hold our noses and pass this under duress and then we will...what? Respect the independence of the commission the next time around?

I do not want to be provocative about it but it seems that the Liberals did not really act on what needed to be dealt with and now we are three years into the process. I find it terrifying what the government is up to because it is not just an isolated thing. It is about a frontal assault on the judiciary on many fronts: the elimination of the court challenges program and the Law Reform Commission.

The government has only been in power for eight months. Where have the Liberals been in dealing with this with dispatch?

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, we certainly tried to act on this. I think the member's colleague on the justice committee mentioned that we tried to bring forward amendments but we were ruled out of order because we could not have a royal recommendation at the time. We did everything in our power under the present procedures to get this point across and to implement it in committee.

At the beginning of my speech I said that I would probably vote for the bill but that it would be under duress. My speech gave all the reasons as to why I had a problem with it. After discussions with most of the people involved, they do not want this to hold up the next process, which, in a way, would hold up the operation of an independent body and the independence of the judiciary. They could not get started on the next round if we were holding it up because of technicalities on a case that I seem to have no chance of winning.

As I said, I may or may not vote for it but the people involved would like us to get on with it. We may have lost this round but we have certainly inflicted enough damage that people will consider this more seriously the next time. I totally agree with the member that this is a fundamental principle of our law-abiding, law-respecting constitutional democracy and we cannot stop fighting for it.

[Alan Tonks, Liberal, York South—Weston, ON]

Mr. Speaker, my question for my colleague relates to the independence of the judiciary, which is part of the checks and balances of our system. He has made the point very well. He fears the concept that if Parliament pays the piper then Parliament should call the tune, and that, of course, would compromise the judiciary.

The fact that Parliament is debating the bill, in the form that it is in and setting judges salaries, is in fact Parliament's role. It seems to me that is a check and balance on--

[The Acting Speaker, Andrew Scheer]

I apologize to the hon. member for York South--Weston for having trouble remembering his riding name but it was because I often need to refer to the seating chart to help remind me which member is from which riding and he might find that he was over a couple of rows from his normal place. I see now that he is a bit closer to where he ought to be and he can continue on with his question. You have about 30 seconds left.

[Alan Tonks, Liberal, York South—Weston, ON]

Mr. Speaker, I do apologize.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, I rise on a point of order. Why is my colleague sitting in the seat belonging to my Bloc Québécois colleague for Berthier—Maskinongé?

[Alan Tonks, Liberal, York South—Weston, ON]

Mr. Speaker, I apologize once again.

Could my colleague simply indicate what other checks and balances in the appointment of judges that Parliament would be able to assert showing that there was a very clear and definitive difference between its power to appoint judges and its power to set salaries but would not compromise the objectivity of the judiciary?

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, just in case people who are watching are wondering what is happening, a member must be sitting in his or her actual seat to speak in Parliament.

To give the government credit, section 100 in the Constitution says that Parliament sets these salaries. What I was trying to say is that there is a whole process that keeps the appointments detached from government, although it does make the final decision, but those appointments are for life and the government cannot revoke it. There is independence there. It is not like having an influence in setting the salaries every year.

[Jay Hill, Conservative, Prince George—Peace River, BC]

Mr. Speaker, I rise on a point of order. There have been discussions between all parties and I think if you would seek it you would find unanimous consent for the following motion. I move:

That, whenever debate concludes today on Bill C-17, the vote on third reading of Bill C-17 be deferred to Tuesday, November 21 at 5:30 p.m.

[The Acting Speaker, Andrew Scheer]

Does the hon. chief government whip have the unanimous consent of the House to move the motion?