Justice Committee on Oct. 24th, 2006

[Roderick McLennan]

In a word, when we talk about judicial independence and money, the money doesn't buy integrity; the money insulates judges in part from the temptations of corruption, bribery, or whatever. To some degree, it insulates them, because they don't have to make their daily bread. Their pension insulates them from a concern about what happens when they quit. So only to that extent does money impact on independence.

The other thing about independence and money is that they ought not to be negotiating directly with the government for their money. That's the second reason for the creation of an independent commission. Otherwise, they would become like a trade union dealing with their employer, and that would, of course, be improper.

The third thing, and a very important thing about independence, is that you want to select from a pool of highly talented, dedicated people, and you're just not going to them for—

[Réal Ménard, Bloc, Hochelaga, QC]

That is not my question.

With your respect, I regret what Mr. Petit said, because there is no connection between your salary and your integrity. But that was not my question.

Just generally, could you tell us how you arrived at that percentage? The government is saying 7.25%, but you recommended 10.8%. There is a rationale for that. Beyond the technical rationale—because taxpayers are ultimately going to pay—I am sure it was certainly reasonable. I would like people watching to have some understanding of your rationale, without having to read 200 pages.

I would imagine one of you could explain it to us, with your characteristic ability to summarize.

[Gretta Chambers]

Even with an ability to summarize, it is a huge document and it is very complicated.

I will read you a few sentences...

[David Gourdeau]

If I may, I would just like to make a correction to my answer to Mr. Petit.

In terms of contributions and the pension plan for judges, it is sections 50 of the act and following. I would like to correct or amend my answer, because I mislead you. Once a judge is appointed, the estate is entitled to a pension upon death, under the provisions of the Act. But if a recently appointed judge decides after a couple of months to do something else or quits, there would be a return of contributions.

I wanted to be clear on that. So, it is sections 50 and following. For those who might like to read them.

[Earl Cherniak]

Mr. Chairman, could I just respond briefly?

We looked at a variety of the best comparisons we could find, from government, from deputy ministers, from the heads of senior boards and commissions—some of them judicial—and from what the incomes were across the country in private practice. We did not limit ourselves to what the two sides—the government and the judges—put to us. We conducted our own research and we retained our own consultant, Morneau Sobeco, a very highly respected and very able firm that gave us wonderful input.

We also used our own experience as to what it took to become the kinds of judges who are necessary in this country. We distilled all of that, and we distilled it in some detail in our chapter 2, which I urge you to read.

We then came up collectively with the amount we recommended.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Thank you, witnesses, for being here.

To the commission, I have to take some issue on some points. There seems to be a suggestion out there that the judiciary could somehow fall into the temptation of bribery or otherwise if they don't receive the amount suggested in the commission's report. That's a bit of what I've heard.

The commission's report recommended a salary increase of $23,400 per year, retroactive to 2004. The government's position is $15,700 per year, retroactive to 2004. If we adopt one or the other, I don't think we're in danger of the judiciary falling into that temptation.

[Roderick McLennan]

Certainly not, and that's not what I've suggested.

[The Chair, Conservative, Art Hanger]

I wonder if Mr. McLennan would respond to that. I think it's important that he does.

[Roderick McLennan]

Yes.

Certainly there's no suggestion that corruption starts around the $220,000-a-year level. At either level, they're not likely to be corrupted. But I'm talking philosophically.

Why does our Constitution establish that Parliament sets the salary of judges? Judges are the third arm of the government and they have to be independent. In order to be independent, they have to have a standard of living that's commensurate with the job they do. And amongst other things, philosophically it prevents them from being subject to corruption. It has nothing to do with whether it's $220,000 or $240,000 or $180,000.

[Rob Moore, Conservative, Fundy Royal, NB]

Thanks for clarifying that.

Some of what we've heard is that in order to attract candidates, this has to be the amount. I know Mr. Bagnell had some questions on it. I know there's a recognition that the Supreme Court has been pretty clear that it is Parliament that has final authority on the public purse. We are ultimately responsible for how taxpayers' money is spent even in this current system.

When we hear about those who have put their names forward for judicial appointment, the number of vacancies that are available, and the number of applicants who are in there as either recommended or highly recommended, then with the government's proposed increase of 7.25%, I fail to see how someone is somehow being denied the opportunity or is being discouraged from seeking judicial appointment.

I know a great deal of weight was put on the commission's work, and I certainly respect the work the commission has done. But I don't see any evidence that somehow we wouldn't be able to attract highly qualified candidates if the wages that judges are currently paid were increased by 7.25% per year.

[Roderick McLennan]

First of all, the statistics that are referred to are statistics from 2000 and are not available to us. But there's no doubt that it has been the case for many years that there are many more applicants for judicial office than there are judicial offices. The question is, what is the appropriate level of compensation, and what do you do to ensure that the best and the brightest are in the pool from which candidates can be selected?

[Rob Moore, Conservative, Fundy Royal, NB]

Do you see evidence among the current pool of applicants that the best and the brightest are not in that pool? Are people of less than stellar qualifications applying? The individual committees provincially have to recommend or highly recommend these individuals, so do you see evidence that there's any shortage of anyone recommended or highly recommended? When we look at what the committees are putting forward, there seem to be many. The minister testified that there are many who are recommended and highly recommended.

[Roderick McLennan]

Of course, the minister's statistics are from 2006. I don't know what they were when this committee was sitting, but we obviously didn't have 2006 numbers.

It's just one of the factors in arriving at a number, but it's not the factor. With respect, if you're hunting for the new president of Canada Post, you don't put the job up for bid and describe its marvellous pension and the corporate jet and ask people to bid for it. If there are 100 qualified people, 25 of whom are really qualified, you don't have a Dutch auction to see what the lowest one is going to work for. You ought not to do that with judges either, in my submission.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moore.

Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

I would apologize for us not being here all the time. The government has chosen to call another piece of legislation at the same time, which necessitates some of us being in the House to speak on it.

I want to first of all put on the record how grateful most Canadians are for the work that you've done and the professional manner in which you have done it for us. I would also like to say that I think it's incredibly important that the concept of the independence of the judiciary is understood by Canadians.

Perhaps this has been canvassed on, but maybe I'll go to Mr. Cherniak to just do a bit of an education process for most Canadians who might be hearing this.

Why should we not be discussing the things we're being forced to discuss at this time?

[Earl Cherniak]

Well, the reason is that there was a constitutional process that came about because of the disaster that preceded, which resulted in the P.E.I. reference being necessary in the first place. The constitutional process was to appoint an independent, high-quality commission to work independently, not as an arbitration group but in the public interest, to hear input from the public, from the participants, and to come up with recommendations that, except with very good reason, would be accepted by Parliament to set judicial salaries.

Therein the process mandated not only the method of selecting the commission but the way in which the commission's report was to be addressed by Parliament. The commission had a mandate to report by May 31, 2004--and every fourth year on May 31--which we did. The government had an obligation, under the legislation, to respond in six months, which it did, and either accept the recommendations of the commission or give cogent reasons why it didn't and why the recommendations of the commission should not be accepted.

The government of the day did that, and with one minor exception, which isn't germane to what we're talking about, the government of the day accepted every one of the recommendations we made.

There is no provision in that constitutionally mandated process for what transpired after that. There's no provision for a second report after a new government comes in a year and a half or two years later. In my view, that politicizes the process, and it's extremely dangerous because it causes disrespect for the process among the judiciary, among the public, and it will make it more....

I say, immodestly, this was a very talented commission, and we thought what we were doing was very important to the public of this country. If a future commission's recommendations can be treated in the way that the process has transpired here, there will be a great deal of difficulty finding the kind of commissioners that this country needs to conduct this process every four years.

[Sue Barnes, Liberal, London West, ON]

Thank you very much. So in your opinion there was no legal authority to place before Parliament a second report that differed in nature from the first report. Am I hearing you correctly?

[Earl Cherniak]

I don't think I should give a legal opinion. I can read the statute. You can read the statute. There's a provision for the response in six months. That happened. There's no provision for any further response.

[Sue Barnes, Liberal, London West, ON]

Thank you. I think that does answer the concern there.

[The Chair, Conservative, Art Hanger]

You have time for one more question, Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

Thank you.

One thing that concerned us at this table is that to increase the numbers, to put this provision back to the original report--as I know some of us would like to do--we need a royal recommendation. Without the royal recommendation of this government, we don't have the authority to spend more money. That puts us in a very difficult position. I just put that on the table so people understand that we can take it down under the rules, but we cannot increase without the government allowing us to do so. We will see how this plays out.

I know my colleague, the former Minister of Justice, wanted to be here, but he's now at another place doing this.

I want to say, at least from my party, and I think from all the opposition parties, with the respect we hold for the judiciary, this attack that seems to be coming from the current government is not only disrespectful, but it is harmful to the whole system of justice in this country. This is a hard-working system of justice. It's led by judicial officers who have been chosen for their talents, as you well know. The fact that we are put in this position today by the current government, I think is wrong. I believe we have sufficient case law on point telling us that.

The Minister of Justice stood in the House, when I responded to it the first time, saying to plead less money in the area, when we had the best surplus ever. To plead that we could get people for cheaper was just a spurious argument. I feel somewhat ashamed to be in this situation at the current time.

I hope that in the future we are able to have people of your calibre doing this work, because it's important for all of us.

If anybody would care to make a comment, I certainly would give my time to them.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Barnes.

Would the witnesses like to comment?

[Roderick McLennan]

The minister was inviting what would virtually be a free vote, wasn't he? As I understood the minister, I thought he invited the committee to do what they thought was appropriate.