Justice Committee on Oct. 24th, 2006

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

I have a quick technical question. Hopefully it can be really quick.

I'm assuming that the officials looked at the second reading debate and may have made or agreed with this change. The act has a different term for territorial judges. It calls them “senior judges” and “chief justices” in the provinces, and for no reason any more, because over time they get the same salary and benefits. Everyone seemed to agree. There were no objections from any of the parties during second reading debate. The territorial governments in all three territories agree. The Canadian Judicial Council agrees. They're paid the same and have the same jobs. All we want to do is change the word in this act, so that they're called the same thing. Is there any problem with that?

[Vic Toews, Conservative, Provencher, MB]

As you are likely aware, the decision to confer the title of chief justice is a prerogative of the Prime Minister. I would suggest it's not something that would be appropriately done in the legislation. In fact, this is something that has been drawn to my attention.

I know that there are considerations in the broader context of the overall structure and operation of the territories. I am not ruling out anything in that respect. But it would not be appropriate to put it into a statute, given that it is the prerogative of the Prime Minister and might raise constitutional issues.

That being said, your points are well taken, in respect of the salaries and other benefits the senior judges in the territories receive.

[Larry Bagnell, Liberal, Yukon, YT]

Would you commit to review that, seeing as all the territorial governments and the Canadian Judicial Council already have and agree? Would you commit to reviewing that and approaching the Prime Minister, seeing as it's timely with an act coming in?

[Vic Toews, Conservative, Provencher, MB]

I will bring forward the concerns of ministers, such as Minister Brendan Bell's from the Northwest Territories, who specifically brought this to my attention very recently. I can assure you that I am taking an active interest in that issue. That's all I can say at this point.

[Larry Bagnell, Liberal, Yukon, YT]

Do you believe in the separation of the executive branch of government and the judicial branch of government?

[Vic Toews, Conservative, Provencher, MB]

Separation between the executive and government?

[Larry Bagnell, Liberal, Yukon, YT]

Separation of the executive branch of government and the judicial branch of government in the Canadian system.

[Vic Toews, Conservative, Provencher, MB]

Absolutely.

[Larry Bagnell, Liberal, Yukon, YT]

How can they be separate and independent if you're paying the judges? You're determining their pay rate.

[Vic Toews, Conservative, Provencher, MB]

It's because section 100 of the Constitution requires it, so that every division is modified by a constitutional principle, or can be modified by a constitutional principle. That is one of these constitutional principles.

[Larry Bagnell, Liberal, Yukon, YT]

That's like suggesting that an employee of someone is going to take equal direction from all Canadians and not give preference to the person who's paying him or her. How could they possibly be independent when you're determining their salaries?

[Vic Toews, Conservative, Provencher, MB]

All I can say is that the Supreme Court of Canada established the process. They further refined that process in Bodner, and the government officials who put together the government's response took that into account.

Obviously, in our system, we couldn't have the judges paying themselves, because that would be an affront to constitutional democracy and to the requirement that Parliament controls the purse strings in this country.

[Larry Bagnell, Liberal, Yukon, YT]

That's why they recommended that an independent system be set up. As Mr. Lee says, you didn't really adequately respond. It would only be in an emergency or some drastic condition that we, as parliamentarians or the executive branch of government, would vary what this independent commission suggested should be the salaries.

If it's not independent enough and that's wrong, we should change that. But why would we interfere and remove the public's confidence if there's a separation between the executive branch and the judiciary?

[Vic Toews, Conservative, Provencher, MB]

I'm sorry, Mr. Bagnell, but I'm having difficulty following this, because this isn't the judiciary that's making this recommendation. It isn't something that falls within the purview of the judiciary; it falls within the purview of this commission. Ultimately, as the Supreme Court of Canada recognized, it's parliamentarians who must make this decision. For us to simply abdicate our constitutional responsibility under section 100 of the Constitution Act, 1867, would be inappropriate. So I'm not quite sure I understand why you feel parliamentarians should abdicate their responsibility.

[Larry Bagnell, Liberal, Yukon, YT]

That's probably the problem.

I have one other question. When you did this calculation on the judicial salaries, in response to Mr. Moore, you added their pensions and then compared them with everyone else's. I assume you added the pensions to the salaries of everyone to whom you were comparing them, because other people get pensions too.

[Vic Toews, Conservative, Provencher, MB]

Yes, but generally speaking, as I it understand from my officials—and I think most of the private practice lawyers in this room can testify—they paid their own pensions out of the salaries they made, as opposed to receiving an annuity.

[The Chair, Conservative, Art Hanger]

That's it, Mr. Bagnell. You've actually had the last question.

I would like to thank the minister for his attendance.

We are pressed, of course. We have the Judicial Compensation and Benefits Commission to speak to yet and the Office of the Commissioner for Federal Judicial Affairs.

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

Mr. Chairman, on a point of order, I know my colleague Mr. Cotler had a couple of questions, and I do note that the first hour has not expired yet. In the event that Mr. Cotler had not signalled his intention to ask a question, I'm certainly indicating so now.

[Irwin Cotler, Liberal, Mount Royal, QC]

We've only been at it for 45 minutes, Mr. Chair.

[The Chair, Conservative, Art Hanger]

I can appreciate the concern. It's actually 50 minutes. However, we do have additional witnesses appearing, and I might point out to the committee that if you look at your agenda, we have committee business at the end of this session.

[Réal Ménard, Bloc, Hochelaga, QC]

On a point of order, Mr. Chairman.

We have to agree on this. We had agreed to meet with the Minister, and I don't understand why his appearance is being cut short. The Bloc Québécois is entitled to two questions. The government is also entitled to questions. I don't understand.

[The Chair, Conservative, Art Hanger]

Unfortunately, members on both sides of the committee did not have an opportunity to ask questions. I know it's short, but it's going to be cut on both ends of the schedule for witnesses who are appearing.

[Réal Ménard, Bloc, Hochelaga, QC]

What criteria are you using? Why are you putting a stop to the Minister's appearance? I don't understand.

[The Chair, Conservative, Art Hanger]

The minister has left, so I would suggest that it's a moot point.

I'm going to ask the commissioners to step forward now.

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

Mr. Chairman, just a moment.

I consider this to be a very serious issue. I'm not going to take away unduly from the time in order to deal further with this issue, but in advance of the time set aside for hearing from the minister, for whatever reasons exist here, you chose to terminate the minister's appearance, at which point he immediately walked out. He left the colleague he came with sitting at the table and he left my colleague's issues unaddressed, and you didn't recognize my colleague.

This is not satisfactory. It's much less than I expect. I'm just going to say that and let it stand, and I'm going to stand down.