Justice Committee on Oct. 24th, 2006

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

Both today and certainly in the House, when you spoke to the bill, you raised the issue of decision-making with regard to appropriate spending of public funds. Not only in P.E.I. and Bodner but also in a number of other decisions the courts have made it quite clear that the test, if I can put it that way, or those criteria are to be applied when a government is in financial difficulty.

You're not suggesting, are you, that there was any inability on the part of the federal government to pay the amounts recommended by the commission?

[Vic Toews, Conservative, Provencher, MB]

If we look at it in the context of $500 billion of debt, then I would say yes.

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

There's an annual surplus of $13.5 billion this year.

[Vic Toews, Conservative, Provencher, MB]

That's another context for looking at it.

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

Do you think that test would be accepted by the courts?

[Vic Toews, Conservative, Provencher, MB]

I think the courts have given us quite a bit of latitude within the context of constitutional and statutory principles. I believe what we have brought forward articulates a legitimate reason: that we have relied upon a reasonable factual foundation, striven to maintain judicial independence, and ensured there wasn't politicization of the process.

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

I guess that's where we fundamentally disagree, Mr. Minister.

I don't see, when you read the P.E.I. and the Bodner cases—and actually some others, by analogy—how this approach by this government would be seen as anything but interference at the political level.

I'll be blunt: you're nitpicking to reduce it from the 10% to the 7.5%.

I'm not downplaying the significance of the dollar, but as I see the decisions, you have a very difficult test before our courts to override, which is what you're proposing we do as a government, as a Parliament: override the report of an independent commissioner. That strikes right at the heart of the whole issue of judicial independence.

It seems to me the criteria and explanations you put forward really amount to no more than nitpicking. The inevitable conclusion one has to draw is that it is political. It's about a political agenda that says we're going to cut back those fat cat judges, and nothing more than that.

[Vic Toews, Conservative, Provencher, MB]

I certainly have never expressed that kind of view about fat cat judges, any more than I've expressed the view that MPs or ministers are fat cat ministers or MPs. We have a certain responsibility. I believe I've attempted to carry out that responsibility; I don't agree that nitpicking is involved here.

You are a man with a background in labour law, and the difference between criminal law—

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

Mr. Minister, I've done some of that, but most of it was civil litigation.

I was in the courts all the time, and I respect the role our judges play and how well we should pay them.

[Vic Toews, Conservative, Provencher, MB]

In terms of the settlements you made in civil cases, a 10.8% and 7.2%—and I might have gotten the numbers mixed up here—is nevertheless significant to your client.

Our client is the people of Canada. We have a responsibility to the people of Canada under section 100 of the Constitution Act. I believe I've carried out that responsibility.

But as I've indicated, you're free to make such amendments as you consider appropriate, in accordance with constitutional and statutory principles. This committee will have that debate, and we'll have that debate in the House, if there isn't unanimity in that respect.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

Mr. Moore.

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

This is a point for the chair, if we can get an answer—not at this point, but at some point down the road—on the amendments that have been proposed by the government.

I would like that information shared with the committee, as to whether those have been in any way approved by the representative of the judicial counsels or the judges. That can come at some point in the future.

[Vic Toews, Conservative, Provencher, MB]

Just for clarification, are you asking if the minister's response has been approved?

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

The amendments you're proposing.

[Vic Toews, Conservative, Provencher, MB]

There are two very technical amendments that have been approved by the judiciary.

They're drafting amendments, and we'll get you that information, Mr. Comartin.

[The Chair, Conservative, Art Hanger]

Thank you, Minister.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Thank you, Minister, for appearing here today on this bill.

I did want to take a bit of an issue with my colleague, Mr. Comartin, on the issue of nitpicking. I don't think that's at all what happened, when I listened to the reasoning that went into this and the study that was undertaken.

In your response, was there any consideration given to, or do you know, the median family income in Canada? Could you please give a little perspective to the numbers we're talking about?

[Judith Bellis, General Counsel, Courts and Tribunal Policy, Department of Justice]

There's no specific reference to that.

[Rob Moore, Conservative, Fundy Royal, NB]

What is the amount we're talking about per year under the proposal that is being put forward, the 7.25%? What would the annual increase be?

[Vic Toews, Conservative, Provencher, MB]

I can indicate—and this may help you—that the commission devoted considerable attention to analyzing private practice incomes earned among lawyers in Canada's eight largest cities, even though 48% of the appointees were not from one of these centres. Table 17 of the commission report is of interest, because it reports incomes by province rather than by urban centre, giving a better picture of incomes at the 75th percentile across all provincial centres, urban and rural.

The commission's proposed salary of $240,000 exceeds, in some cases to a significant degree, the 75th percentile of self-employed income in every province, with the exception of Alberta and Ontario.

When the value of the judicial annuity, which is 22.5% of the salary, is included with the $240,000, the real value of $294,000 exceeds significantly the 75th percentile for Canada overall, and for every province except Alberta at $297,700 and Ontario at $311,700. So in terms of private practice lawyers, which is what we're talking about here, you can see that this is not a small amount. It is a significant amount and I think takes into account at least the incomes of private practitioners in the area of law.

[Rob Moore, Conservative, Fundy Royal, NB]

That goes to my next question, about the value of the annuity. I think in most cases individuals who are in private practice, lawyers, whether in commercial or criminal law or otherwise, are probably funding their own retirement out of their own pockets. They have to contribute to an RRSP or some other savings mechanism to provide for their own retirement. Judges, as we know, are going to receive an annuity at the time of their retirement. What is the valuation that went into this to account for the increase being proposed? I think there would be and should be a great value placed on an annuity that someone's going to be receiving at some point.

[Vic Toews, Conservative, Provencher, MB]

I can only repeat that the value of the judicial annuity is 22.5% of salary and that it then creates a real value of $294,000 per annum. The government believes the commission's salary recommendation placed undue emphasis on the third statutory criterion, which is another criterion that I haven't talked about: attracting outstanding candidates.

There does not appear to be a shortage of outstanding candidates for the bench. The commission's proposal overshoots the mark in defining the level of salary increase necessary to ensure outstanding candidates for the judiciary, and therefore we came, as a government, to the conclusion that the more reasonable salary proposal would be $232,000, or 7.25%, as of April 1, 2004.

[Rob Moore, Conservative, Fundy Royal, NB]

That leads me to my next question, Minister. It may even be an understatement to say, based on what judges are paid now, and then the increase that's being proposed—the reasonable increase of 7.25%—that the proposal by the commission of a more than 10% increase overshoots the mark needed to attract candidates.

Is there any evidence that practitioners of law are not knocking down the doors to be appointed to the bench? I certainly haven't heard that there's any lack of individuals who would be interested in a judicial appointment, anywhere. Regardless of whether they live in a city or a rural area, and whatever province they live in, I've never heard of that. I'm wondering whether you could comment a bit on that.

[Vic Toews, Conservative, Provencher, MB]

I can give you some numbers as of May 2006. At that time, Ontario had eight judicial vacancies. In terms of candidates for judicial office, there were 36 highly recommended, 114 recommended, and 25 provincial court judges qualified for appointment, which means that they had brought their names forward and were in fact qualified by the commission, although not in the same manner as ordinary lawyers.

There's a different process, which Mr. Cotler can certainly explain. He's familiar with that process.

But Mr. Lemay notwithstanding, there are many who are applying for a position. And that is Ontario, where, as you will recall, the number was $311,000, as opposed to the $294,000 that the proposal would have brought.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moore.

Mr. Bagnell.