Evidence of meeting #25 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.
Member, Judicial Compensation and Benefits Committee, Canadian Bar Association
Our democratic system is dependent upon the courts as the guardian of our Constitution, and that's what separates Canada and other western democracies and other free and democratic societies from autocratic societies.
Liberal
Member, Judicial Compensation and Benefits Committee, Canadian Bar Association
It's implicit in a variety of provisions of the Constitution, including the provisions that deal with the appointment and tenure of judges.
Liberal
Larry Bagnell Liberal Yukon, YT
So if you're deciding someone's salary, if you're deciding how much someone gets paid, does that not appear to reduce your independence, especially if you're doing it frivolously or ideologically?
Member, Judicial Compensation and Benefits Committee, Canadian Bar Association
That's why the Supreme Court of Canada said two very important things. They said yes, fundamentally, the allocation of public resources rests with the Parliament of Canada. But--and there is a “but” attached to that, as a “but” attaches to very many other aspects of the supremacy of Parliament--there is a necessity to ensure that there is an institutional sieve, which is the commission process, to ensure that we don't end up with a clash between government, which is the payer, and judges, who are the payees, in this quasi-employment relationship that can politicize the process and destroy their independence.
So yes, it is very important, because absent that institutional sieve and the process behind it, we run the very real risk that we incrementally, slowly, over time undermine the importance of the judiciary and the independence of the judiciary.
Liberal
Larry Bagnell Liberal Yukon, YT
Okay. My last question is this. Isn't that a bit of a stretch? If you put the government's budget in terms of.... Let's say the government's budget is $100, then payments to judges would be a couple of cents. They are a tiny proportion of the Government of Canada's budget. Isn't it a bit of a stretch to say that the effect of a variation in the salaries would stop them from implementing their objectives, especially when there's a $13 billion surplus, and they have never once put a specific amount of a required surplus or a paydown of the debt in their objectives?
Member, Judicial Compensation and Benefits Committee, Canadian Bar Association
The Canadian Bar Association is here neither to condemn nor to support a particular allocation of a particular decimal point or dollars and cents. So at the end of the day, the Supreme Court has affirmed that, if adequately explained, the government can choose its allocation of resources. The problem here is that we don't understand--and with all due respect, we don't think that a reasonable reader of the commission report can understand--the effect that the change in the commission's recommendations from what they were in the government's proposal will have on the government's social and economic programs. It's that vacuum or void that renders, in our respectful view, the government response subject to criticism.
Liberal
Larry Bagnell Liberal Yukon, YT
The Supreme Court said there had to be a rationale, and if it's a tiny, infinitesimal amount of money, wouldn't it be very hard to make that rationale?
Member, Judicial Compensation and Benefits Committee, Canadian Bar Association
I repeat back to the honourable member what I just said.
Professor, University of Montreal, As an Individual
However, the Supreme Court said it had to be justified, and therefore, reasonable. It did not provide comprehensive details as regards that rationale. That is a government responsibility. I believe the government has to consider its overall political responsibilities.
On the other hand, the Commission has a more specific mandate. It is also required to consider economic conditions. The Commission's mandate is far more restricted than is the government's or Parliament's mandate. The government states in its response that it has to face the music in terms of its election platform and promises, and that it will subsequently have to face the electorate. That is not the same kind of mandate.
When it talks about subsequent judicial review, the Supreme Court seems to be saying that if the government's response is unconstitutional, if it does not abide by the principle of independence, it will be censored by the courts.
Some lower court judges have said that when there is the slightest difference between the Commission's recommendations and the government's response, the principle of independence has been violated. But that is incorrect. What has been said is that this would be the case if the government's response was not reasonable. But political rationale is very broad; it includes the government's overall responsibilities. I guess this is something that could be discussed at great length, but at some point, someone has to decide. And that responsibility rests with Parliament.
Liberal
The Vice-Chair Liberal Derek Lee
Thank you.
Mr. Ménard, this is going to be a very strict five minutes. When you get close to five, I'll give a warning, and I'll be cutting everybody off.
Then Mr. Comartin, the same rule, and then Mr. Petit. Maybe you could alternate with Mr. Petit to get some balance here. So after Monsieur Ménard, if you're okay with that, Mr. Comartin, I really should alternate here.
NDP
Bloc
Réal Ménard Bloc Hochelaga, QC
Thank you, Mr. Chairman.
I am an ardent defender of Parliamentary sovereignty, and other kinds of sovereignty as well. But that is a whole other debate.
It is important that parliamentary sovereignty not put us in an awkward position. The people who are interested in an alternative mechanism to the Commission have not said what they are talking about. There is a difference between a deputy minister and senior officials working for the government, who are serving their fellow citizens through their involvement in the public service, where the hierarchy is clear: it's Parliament or the minister. Theoretically, ministerial responsibility extends to all the decisions they make on behalf of the minister.
It's true that we're talking about public money here, and ultimately, about public policies. The judiciary has a very special role. We have to have constitutional guarantees so that when someone appears before a court of law, judges won't make rulings that have negative consequences for the government. If we don't have a commission, what mechanism could replace it?
Mr. Garant, on page 4 of your brief, you wrote something that I found quite interesting:
It is extremely rare for judges to be allowed to negotiate directly with governments, although they are often permitted to take part in advisory bodies.
What did you mean by that?
Professor, University of Montreal, As an Individual
When the Supreme Court uses the word “negotiation”, it is referring to negotiation in the labour relations sense--in other words, collective bargaining.
However, to my knowledge, there is relatively little collective bargaining of working conditions elsewhere in the world. However, there are advisory commissions in France and certain European countries that judges are involved in. They are only advisory bodies but make recommendations to government, which then sets the level of compensation for magistrates. These commissions are often highly credible, because it is relatively rare--in France, for example--for their recommendations not to be followed. But it is an advisory process.
I know of no system where judges negotiates directly with governments. In some Canadian provinces, there have occasionally been negotiations between the provincial government and the judges' association.
Bloc
Réal Ménard Bloc Hochelaga, QC
I will ask my question and then turn it over to Mr. Comartin and Mr. Petit.
I assume you are not in favour of a system where lawmakers would be responsible for giving the overall direction in terms of compensation for magistrates? In terms of maintaining the strict separation of the three powers, I guess we agree that this would result in undesirable vulnerability or interaction between the legislative branch and the judicial branch.
Do you agree?
Professor, University of Montreal, As an Individual
On that point, the advisory commission process is an attractive one. There is different input. The Department of Justice develops a compensation policy for everyone involved in the administration of justice, be they public servants working for the department or other officials. But there is input. In the final analysis, however, I believe it is Parliament's responsibility to make the decision and be accountable for it to the electorate.
In my opinion, the notion of rationality must be tied to respect for constitutional independence. Is this legislation recommending 7.5%, rather than 10 or 17% unconstitutional in and of itself? You would tear your hair out trying to prove it. The government's decision with respect to a 7.5% increase has to be clearly articulated. The document could be more precise. In fact, it is rather oddly drafted. Starting on page 7, there is a very interesting explanation.
Bloc
Réal Ménard Bloc Hochelaga, QC
I will interrupt you so that there is enough time left for my colleagues to ask their questions.
Thank you for your commitment.
Liberal
October 25th, 2006 / 5:15 p.m.
Conservative
Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC
My question is for Mr. Garant.
I find myself in a rather delicate position. I myself am a lawyer in the province of Quebec, and you are talking about judicial compensation. I hope there is no camera here.
I also find myself in the position of taking the Bloc's place, in that I am defending taxpayers here, rather than the upper middle class, if I could put it that way.
In their analysis, they look at lawyers practising in each province, the best paid, in the largest firms, and so on. But, in Quebec, our situation is somewhat special as regards lawyers and notaries. In the other provinces, the two are together, so that their income is much higher. In Quebec, lawyers' salaries alone are considered, even though they cannot be notaries at the same time, and nor can notaries be judges.
The problem is that the figures used in their analysis are completed distorted as far as Quebec is concerned. It is illusory to want to use that other reference, because it cannot work for the province of Quebec. We operate in a completely different manner for these two professions.
Professor, University of Montreal, As an Individual
I agree with you that we need a broader basis of comparison. In Quebec, the legal profession also includes notaries. I know a great many notaries, particularly some young ones, who don't have a very high income, compared to what lawyers earn. If you take that into account, as you say, it tells you much more about what people in the legal profession are paid.
Other than deputy ministers, would it not be possible to include all public servants who practice law? I know people in Quebec who have become Superior Court or Appeal Court judges after simply working as a public servant at the Department of Justice. Why not also consider law professors?
So, there is definitely a need to broaden the basis for comparison of all people involved in legal work.
Conservative
Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC
Lawyers in Ontario, Manitoba and Saskatchewan are both barristers and notaries. That is not the case in Quebec: a lawyer cannot be a notary, and vice versa. The basis of comparison they used therefore does not work for Quebec. In the nine other provinces, which are English-speaking, lawyers are also notaries, whereas in Quebec, the two functions are completely separate. Therefore no comparison is possible.
Professor, University of Montreal, As an Individual
You are right; it will be difficult to apply as is. Some nuance is necessary that is, unfortunately, missing in the commission's report.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you, Mr. Chair.
I may ask for comment from the Canadian Bar Association on this. I have just a quick comment about a concern.
In my professional career, as I watched the appointment of judges at both the provincial court level in Ontario and the county court level, which we had at one period of time, there were any number of superior candidates who simply didn't apply, quite frankly. We had a long list of people who were prepared to take the bench, but they weren't the top quality. It was simply because of the amount of money that was there for compensation, in terms of the lifestyle they had already created for themselves and their families. I'm quite afraid of that happening now.
I'm not surprised that we have a long list now. I say without equivocation, without making comments about the political interference in appointments, that we generally get the best appointments. But I don't see that continuing to happen when we get this kind of interference with the independent commission.
That's really where my question comes to, Mr. Leurer. I have the perception that at the provincial level a number of the commissions or the alternatives that they've set up are not functioning well because too many of the provinces have done just what this government is doing now. They have not accepted the commissions' reports or have not accepted them without valid reasons. Does the Canadian Bar Association have any position on what's happening at the provincial level across the country with the other commissions?