Bill C-31 (Historical)

An Act to amend the Judges Act

This enactment increases the number of judicial salaries that may be paid under paragraph 24(3)(b) of the Judges Act from thirty to fifty.

Judges Act

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

moved that Bill C-31, An Act to amend the Judges Act, be read the second time and referred to a committee.

[Rob Moore, Conservative, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, it is my great pleasure to rise today to speak to the Judges Act amendment bill.

This bill has the appearance of being of minor importance, for it amends a single number in a single paragraph of the Judges Act; however, the significance of this amendment is indeed great.

It will create the authority to appoint 20 new judges to the provincial superior trial courts and it will allow the government to achieve two very important objectives: first, to provide increased support and access to justice for some of Canada's most vulnerable groups, including aboriginal communities, victims of domestic violence and children in need of protection; second, it will facilitate the timely resolution of specific claims.

Subparagraph 24(3)(b) of the Judges Act, which we refer to as the pool, creates the authority to appoint additional judges to the superior trial courts of any jurisdiction in Canada. The pool was created in the early 1970s because of the recognized difficulty in having to constantly amend the Judges Act when jurisdictions needed an additional judge or judges.

This section is intended to permit the government to respond quickly to substantiated pressures on provincial superior courts. This bill would increase by 20 the number of appointments authorized under this section for judges of the trial courts and thus permit the appointment of 20 new judges to these courts.

The need for additional judicial resources to respond to existing and increasingly urgent pressures in the provincial superior courts has been clearly demonstrated, especially in six jurisdictions across Canada. Those jurisdictions are Ontario, Quebec, New Brunswick, Nova Scotia, Newfoundland and Labrador, and Nunavut.

In Ontario and the Atlantic provinces, the need for more judges arises in the existing family branches of the superior courts, and is largely the result of enhanced child protection laws and a growing population. Similarly, Quebec has witnessed mounting family and civil caseloads within its superior court.

Nunavut faces serious issues in terms of access to justice for its aboriginal communities. Complex criminal trials and increasing family law caseloads have clogged the system, and over the past year the senior judge of the Nunavut court has had to postpone several jury trials and court circuits due to a lack of judges.

Judges, lawyers, court administrators and other professionals are all struggling to meet those growing demands, and maintain an accessible and effective justice system for families and for children. Despite these efforts, court delays and backlogs have continued to increase and it has become clear that additional judges are required to be part of the answer to this situation.

Each of these jurisdictions have submitted detailed statistical data outlining case volumes, trends in court workload and backlogs. Based on the government's quantitative analysis of this information, these jurisdictions and their chief justices have objectively substantiated the need for at least 14 judges to respond to these existing pressures.

In addition, the government has introduced Bill C-30 creating the new specific claims tribunal. This tribunal will have the authority to make binding decisions where specific claims brought forward by first nations are rejected for negotiation, or when negotiations fail.

As the Prime Minister indicated in June, it is critical that the members of this tribunal have the necessary experience, capacity and credibility to examine historical facts and evidence. They must be able to address complex questions surrounding Canada's legal obligations and determine appropriate levels of compensation. For this reason, the proposed specific claims tribunal act provides that tribunal members must be superior court judges.

It is estimated that the tribunal will require the full time equivalent of six judges to handle its anticipated caseload of 40 claims per year. These claims are dispersed across the country with the greatest number arising in British Columbia, and some of the most complex cases originating in Ontario and Quebec.

All provincial superior courts are currently working at full capacity, with a number of them, as I have just described, experiencing significant backlogs and delays. As a result, authority for an additional six judges is being sought to provide the trial courts with the capacity to absorb the new work of the tribunal and to address these claims on a priority basis.

It is intended that through this infusion of new judicial resources, the courts will be able to allow a number of their experienced judges to be appointed to a tribunal roster of up to 18 judges. It is proposed that these judges would sit on the tribunal on a part time basis for a period of time equivalent to the number of additional judges provided to the court. The judges appointed to the roster would continue to sit for the balance of their time on cases assigned as usual by the chief justice of their own court.

Allocation of the 20 new judges to specific jurisdictions will take place following consultations with chief justices of the affected courts and the provincial and territorial governments. These consultations will begin immediately to allow the requesting jurisdictions to refresh the data upon which their original proposals for new judges was based.

It will also provide governments and courts the opportunity to discuss the workload and functioning of the new specific claims tribunal. The goal is to be in a position to appoint the new judges as soon as possible after the passage of this legislation.

We are extremely fortunate in Canada to have a judicial system that is independent and impartial. We take for granted that our judiciary will be fearlessly and fairly deciding on the basis of the facts and the law of each case, complicated issues that affect our children, our families, and our communities.

Our courts bear a tremendous responsibility. Each day they render decisions that have an impact on personal relationships, living arrangements and financial circumstances. These judges determine how parents will share responsibilities for their child, what level of support the child will receive, and sometimes whether a child can be safely left with parental care. At times the level of conflict between family members is extremely high, which increases the risk of negative repercussions for the children involved. There are few of us who do not experience a visceral reaction when we hear the facts of some of these cases.

Our judges cannot act upon these gut feelings. Throughout the process the court must be, and be perceived to be, completely unbiased and impartial. Public confidence in our judges and a decision they render demands no less. Maintaining an impartial and independent judiciary is thus the centrepiece of our justice system and we are rightly proud of the success we have achieved in this regard.

However, the protection of important principles such as independence and impartiality has little meaning to the average Canadian when the system is inaccessible to them. Average Canadians must have access to the court system for it to be properly functioning.

This government recognizes the social cost of maintaining a family justice system that is accessible and responsive to the needs of families in crisis. There is a social cost when the system is inaccessible. These costs include demands on the health care system and the criminal justice and youth justice systems that are incurred when family law issues are not dealt with in an effective and expedient manner. We have all witnessed as well the conflict and uncertainty that has arisen from past failures to establish a fair and impartial process for achieving binding resolutions on specific claims.

As members can see, this apparently minor amendment would have a significant impact on access to justice for a number of Canada's most vulnerable communities, including children in need of protection and aboriginal communities. It is also critical to the effective functioning of the new specific claims tribunal.

I am confident that all hon. members will recognize the true significance of this bill and will support its speedy passage.

The House resumed consideration of the motion that Bill C-31, An Act to amend the Judges Act, be read the second time and referred to a committee.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, there was a great deal of concern, particularly in my home province of Ontario over the last 18 months, about the number of appointments in Ontario to the Superior Court and the number of vacancies. I wonder if the parliamentary secretary could share with us what consultation process was held with bar associations and law societies across the province to determine by what appropriate number to increase these appointments.

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Speaker, I thank the hon. member for Windsor--Tecumseh for his question. Certainly it is good to see him back as we resume our work in this Parliament specifically on justice issues.

As I mentioned in my speech with respect to the positions that will be created when this piece of legislation passes, the allocation of these appointments will be done in consultation with the chief justice of each province as well as in consultation with the provinces.

We have all heard the stories of the need in various provinces to address the backlog in the family court system. I know that is of concern to the hon. member. We are taking those concerns seriously. We are endeavouring to fill the positions as quickly as possible.

Further, it has been impressed upon us by the chief justices of the various provinces that there is a need for more positions to be filled. That is why we need to create these new positions and fill them as quickly as possible to address the backlog.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Mr. Speaker, I have a question for the Parliamentary Secretary to the Minister of Justice. With regard to the bill we are debating today, increasing the number of judges appointed may seem very pertinent given that every citizen has the right to have access to justice and the courts are backed up. This could be a very interesting bill.

However, over the past two years, we have become accustomed to having the governing party introduce very repressive laws, which have multiplied the number of trials. On the one hand, they wish to appoint more judges and, on the other hand, they have increased considerably the burden of access to justice because of the multiplicity of trials.

I would like to know what the parliamentary secretary has to say about this situation. They are trying to solve one problem but the proliferation of laws has created another. How do we find balance?

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Speaker, if we listen to the chief justices in the various provinces as we have done, there is a need. The hon. member knows, as she sits on the Standing Committee on Justice and Human Rights, that there is a profound need for more family court and superior court judges to address family issues.

I mentioned in my speech the negative impact that can be had for justice delayed. A theme that we hear over and over from people who are involved in a dispute is that they want it resolved. They want the dispute resolved probably in a way that they would prefer, but all parties usually agree that they want it resolved as expeditiously as possible.

A backlog has existed for a long time in the system on family cases. In order to address that backlog, we need to create new positions. This bill does it in a comprehensive way, rather than a piecemeal way. It creates 20 new positions. It is going to go some way in addressing that backlog.

The hon. member mentioned the measures we are taking in the area of criminal justice. No one on this side and probably no one in the House wants to see our justice system clogged with cases, but when there is a crime committed, when there is a trial before a judge or before a judge and jury, we want to see that an appropriate sentence is available.

The legislation we have brought forward is to address the fact that the scales of justice have tilted too far away from the protection of the rights of society and the rights of an individual victim. We want to tip those scales back in a way that better protects society. That is why we have introduced a number of very positive criminal justice measures.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Mr. Speaker, I am delighted to rise in the House here today to speak to Bill C-31. This is my first opportunity to do so as the official opposition critic for justice. I must say, I look forward to working with my hon. colleagues on such important issues.

We have already heard some members ask the parliamentary secretary some questions. I have known him well for a few years now. He is, like me, a member from New Brunswick. I look forward to working with him and his colleagues on the House standing committee, so as to discuss these issues of mutual concern on the subject of justice, especially since I know the government is particularly concerned about criminal justice issues.

This piece of legislation which creates additional superior court positions in different jurisdictions across the country is something that we in the Liberal Party think should have been brought forward a number of months ago. In fact, in the previous Parliament it was legislation that was before the House at the same time as the legislation to deal with the recommendations of the quadrennial commission with respect to pay increases for federally appointed judges. It really is not new the idea that there is a backlog in the court system and that there is additional pressure on the trial courts across the country for a number of reasons which were correctly enunciated in many cases by the parliamentary secretary.

The Liberal Party sees this legislation as positive. We see it in a certain sense as unfortunate that it has taken this long. We would have preferred to see the government, in the legislation dealing with the quadrennial commission report some months ago, also include this particular provision to increase the number of seats on superior courts across the country.

The parliamentary secretary referred to six jurisdictions where there have been identified backlogs. I can speak with some personal knowledge about the jurisdiction that the parliamentary secretary and I represent, the province of New Brunswick.

It is a fact that in many cases, for example on an interim motion, in the family court in New Brunswick sometimes litigants have to wait eight months before being heard by a family court judge on what is a motion for interim relief. This is clearly an unacceptable circumstance. That is why the Chief Justice of the Queen's Bench of New Brunswick, the bar association and provincial attorneys general going back into the previous government had all been requesting that Parliament legislate to create additional spaces. In that sense, this legislation conforms to something that achieves a broad consensus across the country.

There is no doubt that the delays in family courts can be particularly troublesome. In many cases, because of changes in child protection legislation across the country, child protection cases clog up the docket. Because of the urgency of many of these matters they end up in effect bumping down the line some of the cases involving interim relief, cases of child custody, which can be very difficult and traumatic for families, not to mention the economic costs of continually having them delayed and adjourned.

For that reason, we think this legislation is needed and seeks to address a problem which has been identified for a number of years in many jurisdictions as pressing.

As for the 20 new appointments the government would make, if Parliament were to pass this bill, I would like the parliamentary secretary to be a little more conscious of linguistic issues, for instance, in my province, New Brunswick. We saw some strange situations, where bilingual or even francophone judges were replaced by unilingual anglophone judges. Once again, this has meant delays for anyone who wishes to plead their case before the courts in New Brunswick in French.

In one particular instance in the Moncton area, a francophone judge was appointed. The fact that someone was appointed who can conduct trials in French was very much appreciated. It was very important.

I would also ask the government to be equally aware of the fact that, in other jurisdictions in Canada, linguistic balance can be very important, if one claims to truly care about the issue of trials subject to delays or the issue of access to justice. Access to justice in one's mother tongue is also a fundamental question. If we cannot find a way to appoint judges who can conduct these trials or hear evidence in English or French, depending on the case, trial delays will increase at an alarming rate.

The parliamentary secretary also talked about the specific claims tribunal. Again, this will put additional pressure on superior court judges in some jurisdictions. There is no doubt that supernumerary judges or judges of long experience may in many cases be ideally suited to do a rotation on some of these specific claims tribunals, which means that chief justices in these jurisdictions will again have a need for more resources and for an increase in judges to hear some cases that have waited for a very long time. That is another valid reason why Parliament should consider increasing the number of superior court judges.

On this side of the House, we in the Liberal Party have some concern with respect to the appointments process this particular Conservative government has undertaken. One of its first acts was to attempt to stack the judicial appointments advisory committees in the provinces to ensure that the Minister of Justice would in fact control a majority of the members of the judicial appointments advisory committees in the provinces.

The parliamentary secretary talked about the independence of the judiciary. This is certainly something that I think all members value greatly. That independence is not enhanced when we try to stack and manipulate the independent process by which the qualifications of judicial candidates are assessed.

At the time of these changes, we raised some concerns about why the government would decide that it is important to have representatives of the police on these advisory committees. If one of the delays or concerns the parliamentary secretary identified is with respect to family courts across the country, or in some jurisdictions, the value that a police officer brings to the selection or evaluation of candidates for a family court appointment I think shows that the government was simply trying to pretend to give law enforcement a role in a process that really should be independent.

The minister should have resisted the temptation to be able to stack and manipulate these committees to ensure that he always would have a majority on each committee in every province, committees that are given the important responsibility of evaluating the competence and credentials of the men and women seeking to be appointed to the superior court.

Therefore, at committee we intend to look also at the issue of the appointments process. We are not satisfied that the government has been entirely responsible with respect to the independence of this appointment process, but we do recognize that there is a need to give these courts across the country increased resources. As I said at the beginning of my remarks, this is why we regret that this was not brought forward many months ago. The ideal time would have been when the government legislated its response to the quadrennial commission report.

In conclusion, I think all members share the sentiment that for those who seek to appear before the superior courts in jurisdictions across the country, whether it is with respect to a criminal charge and a criminal matter, a family law matter, other civil litigation or, in this particular example, with respect to specific claims tribunals, timely access to justice has long been held to be a fundamental right of Canadians.

In criminal law, the Askov case, as members will know, redefined what is reasonable access, that is, the right to be heard within a reasonable time. Surely that same principle in criminal law applies with respect to some of the most difficult cases in family law, where the custody of children can be at issue, where families are seeking to have their cases heard, and where, I think all members will agree, an eight month delay on an interim motion for interim relief simply does not make sense.

That is why if the government proceeds with this legislation quickly it will find that members of the Liberal Party are anxious to cooperate, but we would urge the government to resist the temptation in these appointments to once again seek out partisan appointments or once again attempt to manipulate the process by which the minister is given a list of persons, men and women, qualified to be appointed to the superior courts.

We believe that access to justice within a reasonable timeframe is a fundamental right, just as access to justice in one's first language is also a fundamental right in Canada. We therefore urge the government to respect these values.

We have been somewhat worried about some of the appointments made in recent months. Even so, we believe that adding 20 positions at the superior court and tribunal level should be fast-tracked by the House.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Mr. Speaker, I am pleased today to join the debate on something that directly affects the proper functioning of our justice system and thus the people of Quebec and Canada. I am talking about Bill C-31, An Act to amend the Judges Act.

The purpose of the bill is to allow a greater number of judges to be appointed to superior courts of the provinces, or 20 more judges than the current limit. The intention of this increase is to improve the flexibility of the justice system in order to process the many cases before the superior courts more quickly and more efficiently. The bill will also allow judges from superior courts to be assigned to the new specific claims tribunal, which was created by the Specific Claims Tribunal Act.

I should mention, with respect to this bill, that my constituents have often talked to me about how cumbersome and slow the current justice system is. However, let us make a distinction between cliché and reality. We have to acknowledge that the complexity of the cases, the proceedings, the needless procedures and a shortage of judges are causing delays. Nonetheless, I know that the increased number of cases, in family law in particular, is such that parents in Quebec sometimes have to wait several months before their alimony or custody case is finally settled by a judge.

This is an unfortunate situation, but it is so because the number of judges provided for under the Judges Act has not changed for years. Accordingly, the Act does not take into account the population increase and the resulting new social realities, including divorce and increasingly complex cases.

At present, the Judges Act provides for a Chief Justice, a Senior Associate Chief Justice and an Associate Chief Justice for the Superior Court of Quebec, and for 140 other judges. For anyone who knows a little bit about the judicial system in Quebec, I would point out that the Superior Court hears civil and commercial cases where the amount at issue is over $70,000, administrative and family law cases, bankruptcy cases, jury trials and criminal trials, and appeals in summary conviction cases.

Under paragraph 24(3)(b) of the Judges Act, the Superior Court of Quebec may still appoint 30 new judges, above and beyond its current 144 judges, to meet the needs that arise. Under Bill C-31, it could go ahead and have 50 additional judges. Clearly, that amounts to a ceiling that is higher than the one we have now by 20 judges.

In the opinion of the Bloc Québécois and myself, adding judges to handle the many cases before the courts is part of the solution for improving access to justice. Undeniably, it is the government’s duty to make sure that the public has access to the courts when they need it, that all accused persons are able to stand trial within a reasonable time, and that the system is not handicapped by a shortage of judges.

However, this must not become a panacea! I say this while at the same time believing that Bill C-31 is not a bad bill—quite the contrary—but the intended effects could be diminished by the ideology of this minority government, focused as it is on “law and order”. This approach concerns me, and I would like to share my concerns with my distinguished colleagues and with the general public watching us today.

In my speeches in the past, and in my work on the Standing Committee on Justice and Human Rights, I have frequently referred to my grave concern about the enforcement-oriented approach taken by the Conservatives. It has expanded considerably since this government changed the rules for the judicial advisory committees. In my view, this manoeuvre by the Conservatives, along with a number of others I will talk about later, suggests that these amendments are somewhat secondary details in their minds.

Why is it so important to debate this? Because every one of our fellow citizens expects to have an impartial, objective judicial system, where they feel protected from any political or ideological position that might influence a judgment. It seems, however, that the recent judicial appointments made by this government do not adhere to the idea of impartiality that the public expects. This interventionist attitude is extremely disturbing, and I believe it is important that people be made aware of what this minority government is doing and planning to do to ensure that its “law and order” ideology can be implemented smoothly.

In the case of judicial appointments, my colleagues will stand firmly behind me when I say that we have to try to strike a balance. That is why our judicial system is founded on an independent judiciary.

The Bloc Québécois has been saying for a long time now in this House that we are looking forward to the day when there will no longer be partisan appointments to the judiciary, when we will have independent committees selecting our judges, selecting people with the very best qualifications.

I am not saying the current judiciary is not qualified, but I am saying that often judges are appointed in a partisan and political manner. The media regularly decries this practice and shares its displeasure with the public, who in turn become cynical. The government must not try to appoint judges that suit its ideology, because that could interfere with the impartiality of the courts, a fundamental rule of justice shared by all citizens.

Once again, to all those who are not very familiar with the judicial appointment system, it has often been debated because of the political interference that has been found.

The problem currently before us is twofold: on one hand this minority government has changed the judicial appointment process; on the other hand it is taking advantage of these changes to ensure a position on the judiciary for candidates who are ideologically in favour of or well connected, directly or indirectly, to the Conservative Party.

Let us be clear: this practice was not invented by the Conservatives, since they themselves have criticized the Liberals for doing the same thing in the past. However, these accusations illustrate the extent of the problem of appointing judges and the impartiality of the justice system.

For those who are watching us, I will provide some context by saying that judges are appointed by the government from a list made by a judicial advisory committee whose members voted for the candidate they deem best qualified.

Before the changes made by the Conservatives, the advisory committees had seven members. Out of seven evaluators, four members were politically independent, in other words, there was a representative from the Canadian Bar Association, another from the bar of the province concerned, a representative of the provincial department and, finally, someone to represent the judges. The three other members were appointed by the federal Department of Justice came from the public. These individuals frequently subscribed to the ideas of the government of the day.

It is important to realize that, as it turned out, the federal government was in the minority on that committee and therefore could not impose a candidate.

Nevertheless, the Conservative government was not happy about this situation because it would have had a hard time passing its political “law and order” agenda for justice. So without consulting the legal community, my colleague from Provencher, who was then Minister of Justice, changed the makeup of the advisory committees as follows: First, in addition to the three members of the public, he decided to appoint a police officer, thereby ensuring that four members would be government supporters. Then he denied the judges' representative the right to vote except to break a tie. And there you have it. The government gave itself a majority on these committees and was able to impose its repressive “law and order” ideology with ease.

I can already hear people protesting that this will not compromise the qualifications of those appointed, that we are exaggerating, or that we think this creates opportunities to interfere even though it does not.

However, various events have proven us right. I am not just talking about a few isolated cases. I am talking about a system that has a direct impact on the objectivity of our legal system.

I would like to draw to my distinguished colleagues' attention the results of The Globe and Mail's investigation into the matter, published on February 12, 2007, which showed that, apart from the police officers, no fewer than 16 of the 33 individuals appointed to 12 advisory committees were connected in some way to the Conservative Party. Sixteen of them. Coincidence? Unlikely. The newspaper revealed a number of cases where the connection was extremely clear.

Once again, some may say that this does not mean the individuals are not well suited to the job, that there is no conflict here, and that nobody is trying to push any agenda whatsoever. Nothing could be further from the truth.

In response to repeated questions about these appointments, the Prime Minister's own statements indicated that our concerns about changes to the advisory committees were well founded.

The Prime Minister said, on February 15, 2007, in this House, “We want to make sure we are bringing forward laws to make sure that we crack down on crime, that we make our streets and communities safer. We want to make sure our selection of judges is in correspondence with those objectives”. The result is that they add a police officer and make partisan appointments to the advisory committees and take the vote away from the judiciary!

I have no hesitation in saying that our police officers do very honourable work. That does not mean, though, that they are necessarily the best qualified to participate in the appointment of judges who hear mostly non-criminal cases. I should say as well that police officers represent primarily the executive branch of government, which is subject to judicial control. The presence of a police officer on a committee of this kind would further undermine the separation of powers on which our constitutional state is based.

It is blatantly obvious, therefore, that citizens cannot count on an impartial judicial system so long as this scheme is in place. When it comes to justice, this government should think long and hard about its real objectives.

When we look at the concerns I have listed—the political manoeuvring surrounding the evaluation committees, the elimination of a program like the legal challenges program, and the law and order ideology of this government—I am puzzled by the proposals in Bill C-31 to improve the legal system.

Certainly, more judges should improve access to justice, but if the Conservative ideology is rapidly implemented, how will the proposed change in Bill C-31 be enough to meet the demand? If the Conservatives want to punish rather than prevent, the legal system will quickly become overloaded. At the other end of the spectrum, adding judges will not do any good when people do not have the means to exercise their rights.

In conclusion, the Bloc Québécois will support Bill C-31. Maybe some things can be clarified during study in committee. In any case, though, the problem remains: partisanship will always play a major role in the selection of judges regardless of the total number of judges on a superior court. The Bloc Québécois will always continue the fight to eliminate partisan appointments to the bench. It will do all it can to help the people get truly independent committees that choose judges in such a way that we get those who are most competent.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, Bill C-31 is one paragraph long and simply increases the number of judges, from 30 to 50, at the superior court level across the country.

We need to put this in context in terms of the number of judges who sit at that level. The figure is somewhere in the range of about 750 to 800. Then there are a number of others who sit at the appeals level, plus the those who sit in the Federal Court. This section of the Judges Act was designed to allow for an increase in the number of judges appointed in this special category based on requests from the provinces and territories.

Other than appreciating that number, it is important to put in context the current situation and the length of time since there has been any increase in the absolute number of superior court justices across the country.

The simple fact is the increase in number does not even keep up with the overall growth of the population in Canada. Of the 20 judges to be added, 6 would be designated to go to the specific claims tribunal and would not be in our regular courts. Therefore, we would only get 14 additional trial judges at the superior court level across the country. The population increase far outstrips on a percentage basis, a per capita basis, those additional numbers of judges.

Across the country, bar associations, law societies and judicial councils have called on the federal government to increase the number of judges and hasten the number of appointments when vacancies are available. In my home province of Ontario, administrative senior judges have been unusually public in criticizing the government for the slow pace of appointments it has made.

We have heard from some of the other opposition parties the concern about the new appointment process introduced by the government. I do not think anybody who is objective about the process sees it as anything other than a very clear attempt on the part of the government, and in particular the Prime Minister, to ideologically shift the bench in the way appointments would be made.

It is not that the former Liberal administration was not guilty of similar misconduct in the way it made appointments, particularly of a partisanship nature, but this attempt to ideologically shape the bench is regrettable in a democratic society.

Again, I want to put in context the difficulties our judiciary has with the increased workload with which it is faced. Legislatures across the country continue to pass laws that, in effect, promote additional litigation. I do not want to overemphasize it, but this is true in the criminal law area. However, when the government introduced the appointment process change about a year and a half ago, what came out in the hearings of the justice committee was the small number of cases, percentage-wise, that were of a criminal nature at this level of the courts. The vast majority of criminal trials and proceedings in the criminal justice system are at the provincial court level, a different level than where these judges are.

What happens at this level and what increases the workload, not the sheer number of cases, although those are going up, is the number of super trials. These are trials that will go on for months and months and, in some cases, years. These are cases under the Criminal Code, under our anti-drug legislation, and they take up the entire year of a judge's workload at times. We are seeing more of those cases coming, not just in the drug area but in some security crimes that end up in front of the judges.

Therefore, the sheer number of cases is not going up. What is up going up is the length of the trials and the number of hours judges have to commit to those very lengthy trials.

That is true as well in civil litigation. I think of the amount of additional judicial time that was taken up across the country as the reforms went through in our auto insurance legislation. In Ontario, at one period of time, I was dealing with four separate pieces of legislation that affected automobile accidents depending on when they had occurred. This imposed significant additional burdens on our courts because they had to interpret those statutes as the law changed, which took up additional hours. That is repeated by any number of other examples across the country.

The number of hours spent on the criminal cases is going up. Similarly, the number of hours on civil litigation cases of a general nature is going up. Those trials are also becoming longer.

I can remember hearing some of our more senior judges describe what it was like to do a trial 20, or 30 or 40 years ago compared to the amount of additional work and hours that now went into these cases, with more expert witnesses and more witnesses generally called. A trial that might have taken 3 to 5 days is now taking 20 to 30 days in just the standard automobile accident trial where there is any kind of severe injury.

In addition to that, and perhaps where the greatest additional burden in absolute hours has come from, has been in the matrimonial law area. It is taking two forms. The sheer number of trials has increased dramatically. The interim motions and interim work that go on prior to trial and the time superior court justices are in court to hear the motions has quadrupled, and in some cases even more, their basic workload. That has gone up quite dramatically. It has been compounded by the number of files where one of the two parties, in some cases both of the parties, are self-represented. The reason for that is the costs in the vast majority of cases.

When I first started practising in the early seventies, a family law trial including a divorce, property settlement and the issue of support, whether spousal or child, would normally take two to three days. Those trials are now taking a minimum of 10 days and it is not unusual for them to go 20 or 30 days.

We are not talking millions of dollars. In most cases we are talking of the average family in Canada with assets of maybe a couple of hundred thousand dollars and incomes in the mid-range. That is what trials cost at the present time. Therefore, many applicants and defendants before the courts cannot afford to be represented by legal counsel. This inevitably leads to much longer trials. From talking to judges, a great deal of frustration on their part is trying to ensure that the individual representing himself or herself gets a fair hearing and that the process is fair to both the represented party and the non-represented party.

The additional thing that happens, and it goes back to the shortage of judges, is this phenomenon in the matrimonial area in particular has resulted in additional costs. I think one of the Toronto papers through the holiday break did a lengthy article on the number of adjournments that had to be granted because there was not enough judges available in the province of Ontario. I know it is a problem in my hometown of Windsor and I understand it to be a problem across the province of Ontario. I also believe it is a problem right across the country.

When clients are represented by counsel, counsel goes to court with them on one of these interim motions, which usually takes an hour to two hours to argue. A lengthy list may have 10 or 20 files before the judge that day. If too many of them do not get resolved, that is if they are argued, obviously the judge runs out of time before the end of the day and the case gets adjourned.

However, the lawyer, who has prepared for the motion, sits all day in court waiting for it to be heard and, if it is adjourned, the lawyer charges the client for that time. The same thing happens again a week or a month later and it may be adjourned again. In Toronto, in particular, we are seeing repeated adjournments of that nature. This costs the clients more money and forces them, in a number of cases, after a period of time of being represented, to take on their own representation, which prolongs the amount of time that is being spent.

That is the context in which we are functioning. Again, the appointments of the additional 14 judges, while welcomed and needed, will not be adequate to deal with the problems.

I want to make a final point with regard to the criminal law cases. From a number of questions that I and other members of the justice committee have asked at the justice committee when legislation has come forward, I know the government has not been doing an analysis, as the amendments to the Criminal Code have come forward, on how much additional court time these cases would take.

I want to put this into context. When we increase penalties in particular or we create new crimes with severe penalties attached to them, we end up with fewer pleas of guilty, fewer negotiated plea bargains and many more trials. We have not seen that increase yet but that will be coming over the next while. Again, the sheer number of cases in front of our criminal courts is not likely to go up much but I believe the length of them will go up quite dramatically because most of these cases from where this new legislation is coming deal with more severe crimes. The government has not done an analysis of how much more judicial time will be needed to take care of that.

At the end of the day we are asking our judges to cope with a growing population and the number of cases that have been added to their trial lists as a result of that. In each one of the major areas that they must deal with, criminal law, matrimonial law and general civil litigation law, which includes commercial litigation, the amount of work they are doing per file is going up dramatically and, in some cases, the number of files is also going up.

The NDP members will be supporting the bill but we are urging the government today, and we will be doing the same at the justice committee when the bill gets there, to seriously consider augmenting this relatively modest number of additional judges and look at increasing the number more substantially in keeping with what we are hearing from the judicial councils, the bar associations and the law societies.

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, although our party supports Bill C-31 because we understand that there is a need to deal with the backlog in the superior court system, I agree with my colleague that it is not an adequate solution. However, we still need to support it because we are dealing with a backlog. I agree with my hon. colleague that there are huge costs and implications and we are dealing with people's rights. Justice is never served when it is delayed.

I would like my hon. colleague to comment on an issue that is of great importance to Canadians and that is the whole issue that the government seems to be attacking the judiciary. I think the judicial system needs to be defended by our parliamentary system because it is one of the cornerstones of our institution of democracy. Perhaps my hon. colleague could comment on the whole issue of judicial independence and the need to respect our judicial system in this country.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, we saw the attitude of the government in the final week of the 2006 election when the now Prime Minister but then leader of the official opposition made the point that the judiciary from his perspective was an adversary to where he and his party stood ideologically; the positions that they had taken on a number of issues confronting the country. They did not see them as part of the structure so much as being an impediment to the structure of government, which is, quite frankly, frightful in a democracy.

The Conservatives have made allegations over patronage appointments, which have some validity. An analysis was done on the appointments made by the former Liberal government and it was found that a number of people had direct involvement with the Liberal Party prior to their appointment as a judge.

What that analysis always misses is that no matter which party appoints them and no matter what their affiliation may or may not have been, the vast majority of judges, because of the legal training and their experience in our courts and in our law schools, they take an independent stance once appointed. That is something that did not seem to fit into the vision that our current Prime Minister has of the judiciary.

We have an excellent judiciary. I would argue that there is no judiciary in the world that is superior to ours, although there may be a few that are on a peer level. We have an excellent judiciary but we do not have enough of them.

The other point I would make concerns the government's constant attempt to undermine the discretion of our judiciary in criminal law and in other areas where we would think it would want to undermine the amount of discretion, in particular in the interpretation of our Constitution and our Charter of Rights. In a democracy that is frightful.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I was intrigued by my hon. colleague's dissertation on the pressures that we are seeing in courts all across the country. I know that many families in my riding cannot access the kind of justice they need because of the stress.

However, it becomes exacerbated if we look at the issue of isolated first nations communities. We certainly have a double standard in health, in education and definitely in justice in first nations communities.

Just recently, the Nishnawbe Aski Nation brought forward a human rights complaint over the issue of policing in isolated communities. The Nishnawbe Aski police are working under conditions that no non-native police service would ever be expected to work. Communities are not being served with proper justice at that level. When cases finally go to court, there is a lack of judges and legal representation to help people in isolated communities.

I would like to ask my hon. colleague if there is anything in the bill to address the woeful under-representation of resources for first nations law and justice in the isolated regions of the country.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I wish I had thought of addressing my colleague's question in my opening remarks because he makes a valid point. I suppose the government could say that six of the twenty new judicial appointments will go to the specific claims tribunal which will, hopefully, dramatically increase the speed at which land claims are dealt with in Canada. That would be a very positive result for our first nations.

[Pat Martin, NDP, Winnipeg Centre, MB]

Or be much slower.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, my colleague from Winnipeg makes the point that it may actually slow the process down. Maybe a different process would have been more useful. I think there is some merit to that.

However, beyond that there is nothing in the bill that would expand access by our first nations to our courts.

Getting back to the appointment process, maybe we should concentrate on getting more lawyers who come out of first nations and aboriginal communities onto the bench. In that regard, a little over two years ago an aboriginal lawyers' group that appeared before committee were quite proud of the fact that for the first time 100 lawyers had come out of first nations and Métis communities. That was a very negative comment with regard to recruitment from our law schools. In Ontario alone we have something like 30,000 lawyers and of those 30,000 only about 30 or 40 of them have come out of first nations.

Another thing concerns me about the bill. Two first nations communities in Yukon have approached me about expanding their methodology of dispensing justice. This is something we have not pursued. The prior Liberal government did not do it and the present Conservative government seems to be paying no attention to it whatsoever.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I wonder if the member could elaborate more on his comments about the independence of the judiciary. As he outlined, the Prime Minister made some embarrassing comments about that when he was in opposition but when his party became government it actually did things to change the ridiculous roll back of judges' wages. The Conservatives also changed the appointment process, stacking it with government appointees even though they did not have to follow the appointments. They changed the qualification requirements so they could pick anyone out of the group.

I wonder if the member could comment on that total attack on judicial independence which was a hallmark of the justice system in Canada until the Conservatives took power.

I wonder if my colleague could also comment on whether the appointment of 14 more judges to deal with the backlog is an indictment of the government's failure to deal with crime. The Conservatives have identified crime as one of their high priorities. However, had they been dealing with crime in ways that we have both promoted, such as dealing with the cause, recidivism, et cetera, then less judges would be needed, not more. Is this not an indictment of the government's failure to deal properly with crime and to reduce crime in the country?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, quickly on the points about the government not dealing with crime with a holistic viewpoint and with regard to its judicial appointments, one of the things that is of concern to a lot of trial lawyers in the country, in particular those on the prosecution side, is that we are going to get hit with another Askov type of decision by a superior court.

The backlog in the criminal area is increasing dramatically. A number of cases have been dismissed. The fear is that at some point there is going to be an overwhelming decision by one of our superior courts or appeal courts that is going to strike down a large number of criminal cases. It is not going to be an issue of dealing with them at all; they are just going to be out of the court system. When it happened in Ontario back in the early 1990s, it included a number of serious criminal cases that were dismissed at that point because they had not been dealt with in a proper fashion.

To deal with the issue of the government's attitude toward our judiciary and in particular its trying to interfere with the independence of the judiciary, probably the classic example of this is the former justice minister, not the present one, who sat with us on our review of judicial appointments. The position that he consistently took was that of wanting to create a less partisan appointment process, which was the case under the Liberals in a number of cases, one where the person being appointed is the absolute best choice in the country or in that region, without caring about his or her political affiliation one way or the other, not as a positive or a negative. It would be that we simply went on merit and took the very best candidate.

I remember how hard he pushed for that when he was the justice critic for the Conservatives. Now that they are in power we see what they are in fact doing, which again is to very much move away from the complete independence of the judiciary, as our Constitution requires, and toward a very clear, focused attempt to ideologically affect the appointment process, which would then ideologically affect the judiciary at all levels all the way up to the Supreme Court of Canada.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I would like to continue with the theme that the problem is not the number of judges, although I think everyone agrees with regard to the backlog and the specific claims process, which we are all supporting. The problem is in the way judges are appointed. If the way judges are appointed is such a disaster, which it has been as handled by the government, of course if we have more judges the problem is just going to increase.

When the Conservatives came to power they went around the process of the judges' salaries and put the iron fist on that. Once again, they inhibited the independence of the process and the judiciary by interfering in that process. Then they rejigged the whole judicial appointment process in ways that were roundly criticized by most judicial system experts across the country. It was only a recommendation. They would stack the appointment of judges in favour of the government.

That is not a secret agenda. This was quite open because the Prime Minister himself made the point that they needed the judges not to be independent, but to implement government policy, to make their interpretation of the law so that it would affect government policy rather than be an independent, fair, just interpretation of whatever laws there are. Of course, then government can change the laws if it does not like how they are interpreted.

I of course want to support the point on specific claims. This is a very important procedure that will definitely support the judges who will be required to catch up on the horrific backlog of claims for aboriginal people in this country and get some of those longstanding claims finally dealt with.

The final point I want to make is on the failure of the government to deal with crime. Although crime is being reduced in Canada, the government chose this as a high priority, and if it had been successful during its mandate there would have been a reduction in crime and we would need fewer judges, not more.

What is the reason for this? There was a wonderful show on CBC's The Current, last Thursday I believe, in which Anna Maria Tremonti talked about the failures in the federal jails in Canada. If we are going to reduce crime and a majority of crime is repeat crime, how do we deal with that? We have debated this numerous times in the justice committee. We have heard the experts' solutions. We have heard police officers' solutions.

Those solutions deal with making sure those crimes do not occur in the first place. They deal with removing the root causes of crime. They deal with removing overcrowding and poverty. They deal with the lack of ability to gain meaningful employment, whatever the reason might be. They deal with removing the much lower achievement of aboriginal people, on average, and with getting their school system up to the same level of achievement and therefore the same opportunities for gainful employment.

As the CBC analyzed with great care last week, this also deals with the treatment of prisoners. There are the criminals, in jail, where we have access to them, and they are going to reoffend unless they are treated properly. The program showed repeated examples of insufficient treatment, educational opportunities and anger management. Quite often the inmates themselves were asking for these services, these things that would help them return to society.

At committee, the experts told us that longer jail terms in many cases actually increase crime because jail is like a university of crime and inmates who are away longer from a quickly evolving society do not then have the ability to easily integrate. However, if they have the skills, they come out to a whole different world. It just exacerbates the situation if they are not getting training in the institution.

There has been one great leap forward in training and rehabilitation. It relates to alternative sentencing and different types of treatment of criminals outside of simple incarceration. A few weeks ago at an Ottawa city committee that deals with this, the chief of police gave marvellous examples of how that system had much greater rehabilitation effects.

We have failed for probably a thousand years to rehabilitate and to succeed in stopping recidivism, but at least some of these group conferencing and other types of non-incarceration sentences are actually having an effect. That effect is 60% to 70% in stopping a person from repeating a crime, whereas traditional incarceration has an effect of roughly only 40%.

We have finally come upon a new system that is having some effect on certain levels of criminals, but the government tried to pass a bill that would eliminate this for the vast majority of crimes. Fortunately, that bill did not pass. It was stopped.

Another example is that of the aboriginal court justice workers. The program was renewed at the eleventh hour. Thank goodness the present justice minister is totally supportive of that program, thinks it is a good idea and ultimately did renew it, but the government pushed that program right to the brink. Instead of rehabilitating offenders in this way that has been so successful, those workers had to spend their time fighting the fact that their program was expiring and there would no longer be any funding. At the last moment, funding was put into the program. I hope this system is actually put in on a permanent basis so these workers do not have to keep applying for funds.

Our position on this is that of course we want the justice system to work effectively. Justice delayed can be justice denied, so we want sufficient justices in the system to deal with cases. We certainly want judges for the specific claims, but we would certainly like the government to take far more action to reduce crime in the ways suggested by members of all the opposition parties and all the experts who came before committee. That would actually reduce crime so we would not need to keep increasing the number of judges and have an act like this.

[The Deputy Speaker, NDP, Bill Blaikie]

Is the House ready for the question?

[Some hon. members]

Question.

[The Deputy Speaker, NDP, Bill Blaikie]

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[The Deputy Speaker, NDP, Bill Blaikie]

Accordingly, the bill stands referred to the Standing Committee on Justice and Human Rights.

(Motion agreed to, bill read the second time and referred to a committee)