Justice Committee on Oct. 24th, 2006

[The Chair, Conservative, Art Hanger]

I call the Standing Committee on Justice and Human Rights to order.

On today's agenda is Bill C-17, An Act to amend the Judges Act and certain other Acts in relation to courts.

We have before the committee the Minister of Justice, the Honourable Vic Toews. Welcome to our committee, Minister.

I think you alone will be presenting at this point.

[Vic Toews, Conservative, Minister of Justice]

I will in fact be presenting at this time, but I have my official, Ms. Bellis, here to provide the committee with background information. The bill is quite technical, and she has the appropriate expertise to enlighten the committee.

[The Chair, Conservative, Art Hanger]

Thank you. Welcome, Ms. Bellis.

You can proceed, then, Minister.

[Vic Toews, Conservative, Provencher, MB]

Thank you.

Members of the committee, I have the honour of appearing before you today as you begin your consideration of Bill C-17. This important piece of legislation proposes to amend the Judges Act to implement the government's response to the report of the 2003 Judicial Compensation and Benefits Commission.

As committee members are well aware, the establishment of judicial compensation is governed by constitutional principles designed to ensure public confidence in the independence and impartiality of the judiciary. At the federal level, section 100 of the Constitution Act requires that Parliament, and not the executive alone, establish judicial compensation and benefits following full and public consideration and debate.

In addition to the protections of section 100, the Supreme Court of Canada has established a constitutional requirement for an independent, objective, and effective commission that makes non-binding recommendations to government. The government must respond publicly within a reasonable period of time.

As the committee is also well aware, any rejection or modification of a commission recommendation must be publicly justified, based on a standard of rationality. I will say something about this standard in a few moments.

The 2003 Judicial Compensation and Benefits Commission, commonly referred to as the quadrennial commission, delivered its report on May 31, 2004. The former government responded in November 2004 and introduced Bill C-51 in May 2005. However, despite the requirement for the government to act expeditiously, Bill C-51 was never taken beyond introduction and first reading. It died on the order paper in November 2005.

Upon assuming office in February 2006, we made it a priority to review the commission recommendations in light of the constitutional principles and statutory criteria that govern the process. We made this a serious priority precisely because this government is fully committed to the important constitutional principles that govern the establishment of judicial compensation. We recognize that the integrity of this entire process is dependent in part on timely passage of implementing legislation.

The government is firmly of the view that we had a responsibility to take the time to consider the report and recommendations in light of the mandate and priorities upon which we had been elected. However, we did undertake our review as quickly as reasonably possible. This government provided its response to the commission report on May 29 of this year, followed almost immediately by the introduction of Bill C-17 on May 31. The bill was referred after first reading to this committee on June 20.

Mr. Chair and honourable members, I know that you appreciate the critical importance of completing the final stage of the 2003 quadrennial cycle through the passage of legislation. The credibility, indeed the legitimacy, of this constitutional process requires it, especially since the next quadrennial commission process is due to commence in less than one year. I would therefore like to commend and thank the committee for according this bill priority in order to complete this process in a timely way.

Turning to Bill C-17 itself, as you know, the government has accepted virtually all of the commission's recommendations. The key exception relates to the percentage of salary increase. Mr. Chairman, I know that committee members have read the government's response, which fully explains the rationale for the modification of the commission's salary recommendations. I therefore intend to just briefly summarize our thinking on this important issue.

Before doing so, however, I think it's important to speak to the standard of rationality against which any modification of the commission's recommendations by Parliament will be assessed. It is necessary to displace some of the misconceptions that are at play in this area, and in particular suggestions that respect for the constitutional judicial compensation process and for judicial independence, broadly speaking, can only be demonstrated through verbatim implementation of commission recommendations.

To ensure public confidence in the process, I think it is absolutely critical that we have a shared appreciation and understanding of the very balanced guidance that has been provided by the Supreme Court of Canada in the following key cases: the P.E.I. judges' reference case and the Bodner case. In both decisions, the court has quite rightly acknowledged that allocation of public resources belongs to legislatures and to governments. A careful reading of both cases clearly indicates that governments are fully entitled to reject and modify commission recommendations, provided that a public, rational justification is given that demonstrates overall respect for the commission process.

Mr. Chair, I say it here, as we did in the response: the government is confident that we have fully met this requirement. The effectiveness of the commission is not measured by whether all of its recommendations are implemented unchanged; it is measured by whether the commission process, its information gathering and analysis, and its report and recommendations played the central role in informing the ultimate determination of judicial compensation.

The commission's work and analysis have been critical in the government's deliberations. Our response respectfully acknowledges the commission's efforts and explains the government's position in relation to the two modifications to the commission's proposals. Our response also underscores that it will be for this committee to consider the commission report, and ideally, to also hear directly from the commissioners.

I congratulate you for having decided to do that today. It will be for parliamentarians, not the government, to decide which proposal to implement, be it that of the commission, the government, or indeed a third proposal entirely.

In justifying our proposed modification of the salary recommendations, as reflected in Bill C-17, we gave careful consideration to all of the criteria established by the Judges Act, and to two of these in particular: one, the prevailing economic conditions in Canada, including the cost of living and the overall economic and financial position of the federal government; and two, the need to attract outstanding candidates to the judiciary.

With respect to the first of these, we concluded that the commission did not pay sufficient heed to the need to balance judicial compensation proposals within the overall context of economic pressures, fiscal priorities, and competing demands on the public purse. In essence, the government ascribed a different weight than the commission to the importance of this criterion.

In terms of attracting outstanding candidates, we took issue with the weight that the commission placed on certain comparator fact groups against which the adequacy of judicial salaries should be assessed. The government recognizes that the task of establishing appropriate comparators for judges has been a perennial challenge for past commissions as well as parliamentarians, given the unique nature of judicial office. We acknowledge that the commission carefully and thoroughly considered a range of comparative information, including senior public servants, Governor in Council appointments, and private practice lawyers' incomes.

Our key concern was the fact that the commission appeared to accord disproportionate weight to incomes earned by self-employed lawyers, and in particular to those practitioners in Canada's eight largest urban centres. In addition, there was an apparent lack of emphasis given to the value of the judicial annuity.

As the response elaborates, the government believes the commission's salary recommendation of 10.8% overshoots the mark in defining the level of salary increase necessary to ensure outstanding candidates for the judiciary. The government is proposing a modified judicial salary proposal for puisne judges of $232,300, or 7.25%, effective April 1, 2004, with statutory indexing to continue April 1 in each of the following years, with proportionate adjustments for chief justices and justices of the Supreme Court of Canada.

The one other proposed modification relates to the commission's recommendation that the judiciary be entitled to increase the level of reimbursement for costs incurred through the judges' participation before the commission. It recommended increases from 50% to 66% for legal fees and from 50% to 100% for disbursement costs.

As a matter of information, I note that disbursement costs in relation to the commission include not just photocopying and courier services, but in particular the cost of substantial contracts for the retention of expert compensation consultants and related matters. In our view, reimbursement at 100% of disbursement costs would provide little or no financial incentive for the judiciary to incur costs prudently. Accordingly, Bill C-17 would increase the current level of reimbursement for both legal fees and disbursement from the current 50% to 66%.

Mr. Chairman, Bill C-17 also implements a number of other compensation amendments, relating to eligibility for retirement and supernumerary office, and other minor changes to allowances.

Bill C-17 also includes a long overdue proposal aimed at leveling the playing field for partners of judges in the difficult circumstances of relationship breakdown, by facilitating the equitable sharing of the judicial annuity. The judicial annuity is currently the only federal pension that is not subject to such a division, despite the fact that the judicial annuity represents a very significant family asset. The proposed annuity amendments essentially mirror the provisions of the federal Pension Benefits Division Act. Like the Pension Benefits Division Act, these provisions uphold overarching principles of good pension division policy, allowing couples to achieve a clean break, with certainty and portability.

These provisions are also consistent with both the objectives of probative retirement planning and the constitutional requirement of financial security, as part of the guarantees of judicial independence. While on its face it is extremely complicated, the policy objective of this mechanism is very simple: to address a long outstanding equity issue in support of families undergoing the breakdown of the spousal relationship.

Honourable members, I will wrap up here and hand Bill C-17 over to you for your deliberations and decision. I invite you and all parliamentarians to carefully discharge your important responsibilities, in light of the governing constitutional and statutory principles. In doing so, you will help ensure that Canada continues to have a judiciary whose independence, impartiality, commitment, and overall excellence not only inspires the confidence of the Canadian public, but is envied around the world.

Thank you very much, Mr. Chair, for your attention.

I would be pleased to answer any questions that you or committee members may have.

[The Chair, Conservative, Art Hanger]

Thank you, Minister.

Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you, Mr. Chairman.

Thank you, Mr. Minister, for outlining the government's position.

I regard the circumstances as almost unique here at the committee. I think in your remarks you came just short of inviting the committee to consider the possibility of a third proposal that would vary from both the original, produced by the compensation commission, and the one outlined in the government's legislation.

We have this very odd circumstance where we have the executive of government with a position, the independent commission, which probably reflects the views of the judiciary, and then we have around this table a representation of Parliament. I can't recall that happening before, where you have all three branches of government essentially looking at each other around the table.

Did you sincerely invite us to consider the possibility of rejigging the proposal here to better reflect the views of our electors, or were you just speaking in the hypothetical?

[Vic Toews, Conservative, Provencher, MB]

“Rejigging” sounds somewhat shoddy, and I would respect the committee much more than it doing any kind of shoddy workmanship.

All I'm suggesting is that this is a decision truly for parliamentarians, as opposed to the executive. Government has responded to the recommendations made by the commission, and provided that this committee follows the constitutional and statutory principles, it is free to deviate.

I would suggest that the government has considered the proposals very carefully and closely, and I believe they correspond both to the fiscal reality in this country and indeed the constitutional and statutory principles.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

My recollection of the policy basis for this independent commission was that it was a Supreme Court judgment, which you have referred to in your remarks. As I recall that judgment, it seemed to be rather clear, in my recollection of it. The court was of the view that when the independent commission had completed its work, it would only be in a rare circumstance, to be articulated by—I think they referred to the government, and I presume they meant the executive of government, with or without the support of government.... It would only vary it in extraordinary circumstances. I'm not so sure we have extraordinary circumstances here.

I'm not saying I agree or disagree with the reworking of the proposal in terms of the increase in the compensation, but would you be able to articulate here in some fashion the basis for the government's apparent view that it has ample authority, or reasonable authority, with or without the collaboration of the House and of Parliament, to rework the proposal of the independent commission in a way that coincides with what I described as the “extraordinary circumstances”? I may be using a poor adjective or adverb there, but could you do that?

[Vic Toews, Conservative, Provencher, MB]

Yes, in fact, I could.

Mr. Chair, the member is quite right that the initial decision—the P.E.I. judges' reference case—was much more restrictive than the second case that came out, which is the Bodner decision, and which I also referred to. We as lawyers sometimes get caught up here in Parliament and don't watch what is happening actually in the courts. I was myself familiar with the P.E.I. case, and when the department briefed me on the Bodner decision, it gave an entirely different light to the entire situation.

It is wrong—indeed, I would suggest, misleading—that modification of a commission recommendation undermines the commission process as established by the Supreme Court of Canada. In Bodner v. Alberta the court clearly acknowledged that decisions about allocations of public resources belong to the legislatures and to government.

Governments are entitled to reject or modify commission recommendations provided—and again I want to go to the principles, because they are very important principles and broaden the P.E.I. reference case—firstly, they have articulated a legitimate reason for doing so; secondly, the government's reasons rely upon a reasonable factual foundation; thirdly, it can be shown that, viewed globally and with deference to the government's opinion, the commission process has been respected and the purposes of the commission, namely preserving judicial independence and depoliticizing the setting of judicial remuneration, have been achieved.

Those are the three principles that expand the original P.E.I. reference case. It's only normal that the court would further refine a very unique decision, when it came out in the P.E.I. reference case. The court has done that in Bodner, and I thought in a very admirable and exemplary way, as we have come to expect from our Supreme Court of Canada.

[The Chair, Conservative, Art Hanger]

Thank you.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

Minister, ladies, good afternoon.

The Bloc Québécois is somewhat uncomfortable with this bill. Apart from the technical side of the matter, it is very difficult for parliamentarians to determine, when it comes to knowledge and impartiality, if the judge is worth 10.8%, 7.25% or 9.4%. That said, we would have liked to have two major parameters respected. The first is the constitutional principle which you yourself raised, in other words, an independent commission which would base its analysis on a number of criteria.

There is also one principle you failed to mention. It has been an integral part of the process from 1999 since quite recently, and it consisted in linking judges' salaries with those of members. The Bloc Québécois is quite uneasy with the idea that, if the bill were to be adopted, the Supreme Court Chief Justice would be earning $254,500, $258,000 or $254,400. We live in a society that respects the rule of law, but also democratic legitimacy. So, based on that last factor, we should not end up with a situation where the Chief Justice could be earning more than the Prime Minister, notwithstanding the work of the individual holding the position and performing the duties of Prime Minister. The Liberals are the ones who decided to stop linking up judges' and members' salaries despite the commission's recommendations.

Would you not agree that it is dangerous not to link up the Prime Minister's and the Chief Justice's salaries? Would you agree that they should be linked and determined by an independent commission?

[Vic Toews, Conservative, Provencher, MB]

Thank you. That's a good question, because it talks about the role of parliamentarians versus the role of the courts and the responsibility Parliament has under section 100 of the Constitution Act, 1867, to determine these kinds of issues.

The Prime Minister may well think he should receive the same salary as the Chief Justice, but that isn't the criterion. You might think the salaries of the Chief Justice and the Prime Minister should be linked. That isn't necessarily the criterion. Your opinion is important, but we have to go back to those guiding principles as to why in fact we've come up with this conclusion.

The point you raise, while it's one that is worthy of consideration, I don't think is determinative of the issue. For example, in many situations—I dare say, in your home province, perhaps—the premier makes less than the chief judge in the provincial court. I certainly know that's the case in Manitoba. So we see that disparity; indeed, we see departmental officials making more than the Prime Minister or the premier in many jurisdictions.

[Réal Ménard, Bloc, Hochelaga, QC]

Minister, you are right: That is not one of the criteria. Nonetheless, since 1999, members' salary increases have been matched with those of Supreme Court justices. Members of Parliament salaries are 75% of those of judges. The Prime Minister should be earning as much as the Supreme Court Chief Justice.

Despite the fact that that is not one of the criteria, would you, as Minister of Justice and as a parliamentarian, want us to go in that direction with this bill? Do you agree that, in the name of democratic legitimacy, we should match MPs' salaries with those of the judiciary, and ensure the Prime Minister is not earning less than the Chief Justice of the Supreme Court?

[Vic Toews, Conservative, Provencher, MB]

Well, members may recall that in April 2005 Parliament delinked MPs' and judges' salaries after full and careful deliberation. Instead, Parliament established a new method of indexation of salaries and allowances for members of Parliament and ministers. At the time, the Bloc alone opposed those amendments, which otherwise would have received broad support within the House and the Senate.

Although he has not clearly said so, in essence what the honourable member is proposing is that the Bloc supports a major increase in MPs' salaries, either 7.5% or 10.8%, for no other reason than that the judges will be getting such an increase. If the honourable member is serious about the proposal, I suggest he propose the necessary motion in the House and that there be full debate on that issue.

[Réal Ménard, Bloc, Hochelaga, QC]

I personally need very little in life, I am not attached to worldly possessions. But do you not believe, as Minister of Justice, that we should link these salaries and ensure that the Prime Minister is not earning less than the Chief Justice of the Supreme Court? Do you believe in this principle or not?

[Vic Toews, Conservative, Provencher, MB]

Let me put it this way: I don't believe the Prime Minister is any less than a Supreme Court of Canada justice, but that doesn't necessarily mean they should be paid the same. And that's all I can say on that.

I agree with what Parliament did back in April of 2005. I'm prepared to live with the delinking. I think there are different criteria that justify my salary and your salary and judges' salaries.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Mr. Comartin.

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

Thank you, Mr. Chair, and thank you, Minister, for being here today.

To follow up on that, Mr. Minister, the relevancy of that line of questioning is not what your opinion is but whether the delinking issue should have been taken into account by the commission. Would you agree with me that it was totally irrelevant for them to look at the issue of the linking of the salaries of MPs and judges, that it was not a factor for them to take into account?

[Vic Toews, Conservative, Provencher, MB]

I don't know. All I can say is that certainly there are broad criteria that the commission can look at. I don't think it derails their findings in any way to look at that particular issue. Similarly, though, I think we can discount it if we choose to.

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

Okay.

With regard to, as Mr. Lee says, sort of the implication that changes might be made here at the committee, do we have your assurances that those changes won't be reversed when they go back to the House?

[Vic Toews, Conservative, Provencher, MB]

No, you certainly don't have those assurances, because that's a decision for all parliamentarians to make, not simply the members of this committee.

I respect this committee. This committee is a wise committee that will give input into the bill and bring forward its recommendations. But parliamentarians will determine this issue--not the executive, not government.

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

But as to what's put in front of the House, you're reserving your right to place it before them as opposed to the will of this committee.

[Vic Toews, Conservative, Provencher, MB]

If the committee comes up with something better than what the government has proposed, I would certainly be willing to consider it, provided it meets the appropriate constitutional and statutory standards.

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

All right.

Let's go to both Bodner and P.E.I. If we follow your line of reasoning, Mr. Minister, where you say that the changes you've made to the commission's report are legitimate--that is, they have a reasonable factual basis, and they're legitimate reasons--does it not inevitably lead us to draw the conclusion that the commission's recommendations were unreasonable and were not based on reasonable facts?

[Vic Toews, Conservative, Provencher, MB]

I prefer to express it in the following fashion: the commission gave weight to certain factors that I think could have been better placed in other ways, or not as great weight placed on those.

I mentioned some of those in my remarks. I mentioned the urban salaries and the private practice lawyers' salaries. Again, it's not to say they're unreasonable. It's simply that they place different weight on those factors than I would have placed.

Ultimately, it's not the commissioner's decision. It's our decision as parliamentarians to determine what weight is to be given to each factor, provided we do not err in respect of the constitutional and statutory principles.