Evidence of meeting #24 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was judges.
A recording is available from Parliament.
Conservative
The Chair Conservative Art Hanger
I appreciate your comments, Mr. Lee. I think you've made your point.
Liberal
Conservative
The Chair Conservative Art Hanger
I believe the committee was very much aware that the minister's time was limited. In fact, the committee's time is limited.
Conservative
Rob Moore Conservative Fundy Royal, NB
On a point of order, Mr. Chair, it's a little bit ridiculous. We have an order. I have to say, Mr. Chair, that the Liberals are the only party that got to ask two questions of the minister. You have to determine who's going to ask what questions. Mr. Cotler would not have been next in the order anyway. Our tradition is to go around the circle. We agreed that it would be one hour.
Bloc
Réal Ménard Bloc Hochelaga, QC
Point of order.
We can't work this way. There is a sacred principle within parliamentary democracy: ministers appear before committees because of their ministerial responsibility. We began this meeting 15 minutes late. We are entitled to two questions, the Liberals are entitled to three. The Minister was our first witness. Out of all witnesses, he is the one who should be most available to answer our questions.
When you sat in opposition, you insisted on having ministers appear before committees every two weeks. I don't understand this. Mr. Chairman, if this is how you plan to chair this committee, there will be no cooperation on our part. I'd like to remind you that we have a majority here.
Yesterday, you asked for our cooperation to have the Minister appear on Bill C-10 despite the motion we had passed. I agreed to that, given the fact that the Minister has a busy schedule, but now the Minister, our first witness on a bill dealing with a constitutional matter, in other words judicial appointments, leaves, despite the fact that a former minister has not had an opportunity to ask a question nor has my colleague. If this how you intend to chair this committee, if this is how you want to have this committee operate, Mr. Chairman, you're not going to see many bills passed between now and Christmas. Mark my words.
Conservative
The Chair Conservative Art Hanger
We have five commission members present. I would ask that they take their seats at the commission table.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Mr. Chairman, I just want to make a point of order here.
The issue is not me speaking or not. The issue is that if a minister undertakes, as part of his responsibility, to appear before a committee for a one-hour duration, then the minister should not depart some 45 minutes into that appearance, nor should the chairman short-circuit or abbreviate the proceedings. That is unacceptable, Mr. Chairman, and I would say that the minister should be recalled in order to allow the committee to go ahead and put at least another 15 minutes of questions to him. That would be an appropriate way to establish the proper procedure for this committee to continue.
Conservative
The Chair Conservative Art Hanger
We'll do this, Mr. Cotler. At the end of this meeting, at the end of this time, at 15 minutes before 5:30, there's some business that this committee has to deal with. We will then bring that point up one more time. In the meantime, we have witnesses to hear.
I'd like to welcome the Judicial Compensation and Benefits Commission representatives: Mr. McLennan, Mr. Cherniak, and Ms. Chambers. Also, from the Office of the Commissioner for Federal and Judicial Affairs, we have Mr. Gourdeau and Mr. Osborne.
Thank you for appearing.
I know our time is limited. I really apologize for the shortness of it, but sometimes things are beyond our control. I know you have two presentations to make briefly.
If you could begin, who will be speaking for the Judicial Compensation and Benefits Commission? Mr. McLennan, please begin.
Roderick McLennan Chairperson, Judicial Compensation and Benefits Commission
What I'd like to say at the outset, Mr. Chair and members of the committee, is what our process was. It's outlined at page 3 of the report, but I want to be clear that this was never a fight between the people on the commission. That is, notwithstanding that Mr. Cherniak was appointed by the judges and Ms. Chambers by the government, this was not a partisan exercise in any way. I was never called on to referee or adjudicate between the two positions advanced by them. The three of us embarked on this exercise totally with a perception that we were operating exclusively in the public interest. We weren't conducting an arbitration. I want that to be clear.
Chairperson, Judicial Compensation and Benefits Commission
We come here today not to extol our report, but to lament the process that has been followed or, properly, not followed. I think it's appropriate to recall the sorry history of why the legislation creating this commission developed. It's outlined in the Drouin report, the report of the first quadrennial commission. At page 2—and I will just say what that says. The Drouin report, as you are aware, came from the first commission called under the changes to the Judges Act following the P.E.I. case in the Supreme Court of Canada. What Drouin reviewed was this.
Before 1981, judges’ salaries and benefits were reviewed by advisory committees, a process which was generally unsatisfactory to the Judiciary. Judges felt that the process merely amounted to petitioning the government to fulfill its constitutional obligations.
In 1982, section 26 was introduced to the Judges Act, establishing the “Triennial Commission”. The intention was to create a body which would be independent of the Judiciary and Parliament, and which would present the Minister of Justice with objective and fair recommendations. The goal was to depoliticize the process, thus maintaining judicial independence.
There were five Triennial Commissions. Despite extensive inquiries and research by each of them, many of their recommendations on judicial salaries and benefits, between 1987 and 1993, generally were unimplemented or ignored. The Government of Canada...froze judges’ salaries and suspended indexation in the mid-1990s. The last adjustment to judges’ salaries was made in November 1998 pursuant to recommendations made by the Triennial Commission chaired by David Scott....
In its 1996 report, the Scott Commission described the problem with the triennial commission process by stating:
In spite of the thorough recommendation by successive Commissions, Parliament has failed, in a proactive sense, to fix judicial salaries and benefits for many years.
Furthermore, successive reports have failed to generate any meaningful response from Government. The whole subject of judicial salaries and benefits has, in spite of best intentions, been politicized.
As a consequence of that, the reference went to the Supreme Court of Canada—the P.E.I. reference—and the legislation pursuant to which Drouin acted and we acted was created. The clearest possible object of that legislation is to do away with the sorry history of judicial recommendations with respect to judicial compensation and to depoliticize the process. Our grave concern is that the process established, along with the resulting legislation that created this commission, is being perverted into a politicization of the exercise called for by the act.
Consider that we must act within two confined timeframes. The report that we produced must be tabled in Parliament within ten days. The minister must report or shall report within six months. These things surely say the process is to be regarded as requiring prompt action.
Here we are for the first time, two and a half years after we filed this report, to assist parliamentarians to address their constitutional obligations. We have discharged ours. Our concern is that neither the spirit nor the letter of the Judges Act, pursuant to which this commission was created, has been observed thus far by Parliament with respect to the report we filed.
For example, it's inappropriate, in my submission, to focus on a 2006 budget to consider a report that we had to file in May 2004. It's reasonable to expect a certain degree of prescience, but that may be too much. It's inappropriate, in my submission, to focus on this table or that table in the report, to say that an error was made or that there's too much emphasis here or too much emphasis there.
This exercise is somewhat an exercise of arbitrariness. You have to shrink the arbitrariness by gathering all the facts you can so that your decision becomes as informed as possible. But at the end, there's no way we or any other subsequent commission could file a report saying that 3/8 of 42,000, times 12, divided by 16, produces the adequate proper salary for judges. It can't be done. It has to be an exercise in judgment.
So it wasn't presented on the basis that it would be unassailable. Of course it's assailable. You have to work with all these numbers and do the best you can to come up with your best exercise in judgment, and it isn't bulletproof. But it's clear that it's done with the expectation that it will not be viewed through 2006 lenses, which is apparently the case.
I want to cite an observation that the government's second response makes, and with which I wholeheartedly agree. It is at paragraph 1 on page 5 of the second response of the government to the report:
It is...clear that the Commission undertook a detailed assessment and analysis of data and information available with respect to the relevant comparators for establishing the overall adequacy of judicial compensation. This has been a perennial challenge with which all previous federal judicial compensation commissions have grappled. As successive commissions and governments have discovered, it is as much an art as a science. There is no readily available mathematical formula to apply and a high degree of well-informed judgment is ultimately involved.
I assure you that's what we endeavoured to do. We looked at all the material that was put before us, and we considered it carefully. We debated the issues that it presented; we compromised our respective views; and all our conclusions were reached unanimously. We believe that what we came up with was in the public interest and was consistent with the legislation and the governing priority of judicial independence and securing for this country a pool of potential appointees to the federal judiciary, of outstanding candidates for those important roles.
To be absolutely clear, it couldn't matter less to us whether or not Parliament endorses our recommendations or not. It's the process that we're concerned about. But I want to be clear that we have no proprietary interest in the result of this. Mr. Cherniak and I are too old and Ms. Chambers is overqualified.
Our only concern is that we didn't labour pursuing what we thought was a public duty—and hence poorly paid, I might say—only to have produced a report that falls prey to politicization, such as has happened in the sorry past, when one government said too little, another government said too much, and a third government said, “Well let's just not deal with judges. They're not that important anyway.”
Our job is legislatively mandated and we believe we acted within the confines of our jurisdiction. Your job is constitutionally mandated and has yet to be performed. We hope it is exercised consistent with the honourable minister's assurance that appears on page 11, but which I won't repeat to you now because he said it when he was here giving evidence.
It's for this committee and it's for parliamentarians to decide what the appropriate compensation for judges is. Our sincere hope is that this exercise is promptly done, and is done consistent with the principles of which everyone is aware.
If there are going to be any questions, Mr. Chairman, we may not be unanimous. Frequently, we haven't been. So I would invite any questions, but I would also ask Ms. Chambers and Mr. Cherniak to supplement or contradict anything I might say.
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. McLennan.
I have one question, but I am going to ask for the presentation from Mr. Gourdeau prior to the question time. Has your commission appeared before this committee at any other time?
David Gourdeau Commissioner for Federal Judicial Affairs, Office of the Commissioner for Federal Judicial Affairs
Thank you, Mr. Chair. I'll try to be brief.
My name is David Gourdeau, and I am the Commissioner for Federal Judicial Affairs. I'm accompanied today by Mr. Wayne Osborne, the director of our finance division.
I will be brief in my presentation, as the role our office plays in the process related to the Judicial Compensation and Benefits Commission and the ensuing drafting of the legislation is limited. To start with, let me provide you with a short overview of our office for those who may not be familiar with it.
The Office of the Commissioner for Federal Judicial Affairs was created under the Judges Act in 1978, to safeguard the independence of the judiciary and to put federally appointed judges at arm's length from the Department of Justice. At the present time there are 1,045 federally appointed judges who are active. Our services also extend to retired judges, of which there are now 400, as well as the judges' survivors, of which there are 350.
Our mandate extends to promoting better administration of justice and providing support for the federal judiciary. This support or these services stem from the Judges Act. Therefore, any amendment to the act will have an impact on our operations.
One of the main roles and responsibilities of the commissioner is to act on behalf of the Minister of Justice on matters related to the administration of Part I of the Judges Act, which deals with the terms of appointment, age limit and salaries applicable to federally-appointed judges. These are matters dealt with by our finance and human resources divisions. The office also has an appointments secretariat which administers 16 advisory committees responsible for evaluating candidates for federal judicial appointments.
For the last appointment to the Supreme Court of Canada our office was also given additional administrative mandates. The federal courts report division of our office is responsible for selecting and publishing Federal Court of Appeal and Federal Court decisions in both official languages. We also have an intranet site called JUDICOM, which provides judges with e-mail, a secure, restricted access conversation system and a virtual library. For judges wishing to better their skills in either English or French, we have a language training program.
We also play a role in the coordination of initiatives related to the Canadian judiciary's role in international cooperation. Finally, we support the work of the Judicial Compensation and Benefits Commission, and this is our reason for being here today. While the Commission is made up of three members—one nominated by the judiciary, another by the government, and a third nominated by the first two members—the Commission requires a secretariat to provide administrative services. For this Commission, the head of the secretariat, the executive director, is Ms. Jeanne Ruest.
What our office essentially does for the commission is support the operation of its secretariat. This includes the provision of office space, furniture, computer equipment—both hardware and software—access to our internal e-mail/communications network, accounting, purchasing, contracting, telecommunications, and website maintenance.
We also distribute copies of the final report to all members of the judiciary and any other interested parties. As well, our office will provide responses to questions for statistical information on the judiciary, as well as responses to questions on administrative practices and support provided to the judiciary.
After completion of the commission's work, we maintain the office space, equipment, files, etc., in a separate, secure area. We monitor and respond to questions asked and forward requests for information from the commission to either the chairperson or the executive director of the commission.
If the Minister of Justice requests that the commission undertake other duties, we will again support the members of the commission through the provision of administrative support, as mentioned above.
Once a bill is drafted by the Department of Justice following the report of the Commission, we will take the necessary measures within our office to ensure that we can administer and comply with the provisions of the new bill once it becomes law. Indeed, we have staff preparing now to be able to respond to amendments to the Judges Act.
To conclude, I had indicated at the beginning of my presentation that I would be brief yet I hope that I have been able to provide valuable information on our general role and more specific role in terms of the Judicial Compensation and Benefits Commission. If there are any questions, we would obviously be pleased to answer them. Thank you, Mr. Chairman.
Conservative
The Chair Conservative Art Hanger
Thank you to both of you.
To continue with our direction for the questioning of witnesses, I'll go to Mr. Lemay.
Mr. Lemay.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Present.
Thank you, Mr. Chairman. I will answer the minister, who is not here. I imagine that his parliamentary secretary will report all this to him.
I certainly have no intention of becoming a judge. Indeed, with the number of bills the government will be tabling, the courts will be so clogged that I will have a lot of work in a few years as a lawyer, especially as a criminal defence lawyer.
The following comment is addressed to the members of the Commission. Allow me to congratulate you on the work that you have done. I am sure that is very arduous and complicated. Being familiar with a similar system in Quebec, I can say that establishing judges salaries must have been a huge task. I find it regrettable that the government rejected your conclusion out of hand. I would like to ask you a question that, even if it is rather general in nature, defines the debate rather well.
The court described as follows the three step analysis intended to assess the rationale for the government's refusal. First of all, we must determine if its decision to reject the Commission's recommendations was made on legitimate grounds, that is to say, comprehensive and concrete. Then, it must be made clear that the reasons given had a reasonable factual basis. Finally, given the overall perspective marked by restraint, it must be determined wether or not the review mechanism was respected.
Do you believe that the government, in rejecting your report, has complied with these three steps? Or do you rather believe that it was acting for purely political reasons, that is that it did not wish to increase judges' salaries? Good luck!
Gretta Chambers Commissioner, Judicial Compensation and Benefits Commission
We will start in English and continue in French. Personally, I am not a lawyer.
Chairperson, Judicial Compensation and Benefits Commission
That's a legal question that may well have to be addressed if the judges don't agree with what eventually occurs here. Presumably, if they don't, or if they feel strongly enough about it, they will attack the second government's response on the basis that it doesn't qualify with the three tests that you've referred to, Mr. Lemay, which is the Bodner case. But I think it would be inappropriate for us to say who is going to win that battle.
Commissioner, Judicial Compensation and Benefits Commission
Mr. Chairman, I would like to add our report deals not only with judges' salaries. We also made recommendations on how to proceed. There is no rule. The Commission was set up precisely because there were no specific rules. One of the recommendations was that during the four years of peace, therefore during the period where under no circumstances would the salaries be changed, research be done to find comparable criteria. The government justified its rejection by saying that they were not good comparisons. This is vital. We only had a few months and we did our best. There was tons of information to deal with. We assessed the situation and decided that it was the best way to proceed.
The members of our commission did not agree on everything, but they did agree from the outset that judges were crucial entities for the wellbeing of society. Judges had not only to be independent, but that independence had to be obvious. We want the cream of the legal world to come to the bench. It is one thing to say that there are a lot of candidates, but that does not mean that they are the best. These facts had to be emphasized.
We began our work with the idea that it was important to find the happy medium, and we gave it our best shot. We understand that it is not perfect and that we will have to continue studying these issues.
Earl Cherniak Commissioner, Judicial Compensation and Benefits Commission
If I could just add this, Mr. Chair, our report was based on research that we did ourselves and submissions from the government and the judiciary, and considerable public input into and knowledge of what we were doing.
The report speaks for itself. We worked very hard on it. It is really for this committee and perhaps, ultimately, the courts to say whether the government's response, both in its content and timing, meets constitutional requirements. That's not for us to say, but those are very significant issues.
