Justice Committee on Oct. 25th, 2006

[Larry Bagnell, Liberal, Yukon, YT]

I think your very first opening was that you recommended that the committee and the Parliament agree with the commission's recommendations and implement them. In my understanding, the problem is that we need a royal recommendation, because we'd be increasing money and we have no ability to do that. The government has already stated its position. The government has to provide a royal recommendation, so this committee and Parliament have no power to implement the commission's recommendation.

Where do you suggest we go from here?

[Robert Leurer]

There are two things. The Canadian Bar Association would hope that the government is persuaded by the strength of the reasons that the Canadian Bar Association brings forward. Failing that, and if the only option is to pass the bill in its present form, it's very important for this committee to emphasize the deficiencies in the existing response and to recognize that next year we're into another commission process.

That's one of the few happy facts that come from the fact that this matter has been allowed to drag for three years.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Garant, you took away the validity of the commission--you suggested that, which is not what we're debating today--but things in Canada also run through convention, and Supreme Court decisions refine the law, so those should be the validity for the commission to exist.

[Prof. Patrice Garant]

I'm sorry, I didn't pick up your question.

[Larry Bagnell, Liberal, Yukon, YT]

Things are done by convention, such as separation of the judiciary and the executive branch, and the Supreme Court is responsible for refining when there's not enough definition in law. So those reasons alone should be enough to validate the existence of the commission.

[Prof. Patrice Garant]

I do not believe with the 1997 reference, the Supreme Court caused a constitutional revolution or that it in any way set aside the principle of the separation of powers. It said that in addition to the democratic principle and other constitutional principles, there is the principle of judicial independence and that, in order to comply with that principle, it would create an advisory commission that would make a recommendation to the government. The government would then have to try and support the recommendation or reject it, if it had valid reasons to do so. Subsequently, the courts would examine the government's response based on the test of simple rationality, which is reasonable.

However, when you read all the reports, it becomes clear that the choice of a government's rationale can vary considerably. It is not necessarily unreasonable to emphasize one aspect more than another. Governments succeed one another and we all know that they are elected on the basis of political platforms that may be different.

So I am not in any way scandalized by the fact that the government is not taking this to the letter, 100%. There is nothing unconstitutional in that. The Supreme Court did in fact open the door to that kind of difference of opinion.

[The Vice-Chair, Liberal, Derek Lee]

Mr. Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Thank you, Mr. Chairman.

I'm not sure that your perspective and your enlightening testimony have or will help us to better understand this complex issue. That's the reason why I would like to address my question to Professor Garant, who taught me Administrative Law I, II, and III in the 1970s.

Professor Garant, I think this would be a fantastic examination question for your students. This is how I see the question: section 100 of the Constitution says that salaries, allowances, and so on are paid by the Government of Canada. On the other hand, section 99 of that same Constitution says that justices of the Superior Court shall hold office during good behaviour, etc.

Now, I absolutely have to be in the House at 4:55 p.m. So, I will ask my question this way, although you will probably correct me. Where does the legislative power--in other words, the power of this Committee--end in relation to the power of the judiciary or judges serving in a court of law? It seems to me that there is a very fine line there, particularly when we're talking about judges' compensation.

So, this is the question in my mind, and I want to apologize for sloughing it off on you in your great wisdom. I am certain that you will be in a position to enlighten us. Just how far does it go? Where does it end? I don't know if you understand my position. The student in me has come to the fore once again and thus I am putting the question directly to the teacher. So, please enlighten us.

[Prof. Patrice Garant]

I have read a number of rulings where appear courts and Superior Court justices have attempted to define the criterion of simple rationality, what is reasonable.

But where a compensation policy is concerned, it's more complex. There is a need to consider a number of political and economic issues. It's essentially political. Indeed, the Supreme Court clearly stated that the compensation policy was a political matter; we may try in vain to depoliticize it by having an independent commission process, but the fact remains that it is fundamentally a political choice. In a democratic system, this choice ultimately rests with Parliament.

Now, can Parliament make mistakes in expressing a different opinion? It's quite possible. But ultimately, there is the electorate. Now, you will say that what we're talking about around this table will certainly not be an election issue, but the fact is that this is where our democratic process comes into play.

Finally, as a democrat, I am inclined to say that this decision is one for parliamentarians to make. If they believe that the rationale provided is not adequate, they should do what the Canadian Bar Association has done. The next time, give us more information, or more to go on with respect to your rationale. If the judges ended up being dissatisfied with this legislation and decided to go to the Federal Court, and then on to the Supreme Court, on an issue like this, I have a hard time believing that the actions of this government would be deemed to be unconstitutional, in the sense that its answer was not consistent with the rationality test demanded by the Supreme Court. That, at least, is how I see it.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Do I have any time left?

[The Vice-Chair, Liberal, Derek Lee]

No. Thank you, Mr. Lemay.

Mr. Petit, you have the floor.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

I want to thank you, Professor Garant, Ms. Thomson and Mr. Leurer for being here today.

My first question is for Mr. Garant. You quoted several sections of the Constitution and, naturally, the Constitution makes reference to the Parliament of Canada, of which we are a part.

But you raised a doubt in my mind because the Commission that has been created could whittle away the powers of Parliament. And one of the privileges of members of Parliament is not to have their powers whittled away under any circumstances, and that is a privilege that the House of Commons, through its Speaker, is required to protect. The very reason why we have law clerks at the House of Commons is to ensure that the laws we pass do not remove any of those privileges.

But when I hear you speak, I really get the feeling that there is an attempt here to remove my right to decide, as a member of Parliament, for a number of reasons that do not require justification, to grant or reject a specific amount of compensation. My only master is the electorate.

But in this case, there is an attempt to impose another master, which is the Commission. And yet, if I understood your approach to this, I have no need to justify myself with such a commission. Naturally, it was created, but I do not need... If I have to justify what I do, that means I have lost certain rights at the House of Commons. It also means that at some point, the Commission will have too much power and could dictate to me, as a member of Parliament, how much money I should allocate. And when I go to the electorate, I will be defeated because of a commission that isn't even elected. I have a problem with that.

It's true that it may be a little late to be saying that now, but we have a bill before us. As Mr. Bagnell was saying, they cannot increase what we have put on the table, because otherwise it will not be passed by the House. So, I would like to ask you, because I was really non-plussed by what you said, whether you believe that this Commission seems to want to take powers away from me, as a member of Parliament.

[Prof. Patrice Garant]

That is my analysis of the entire system invented or proposed by the Supreme Court based on an unwritten, underlying constitutional principle. The system in itself, if the Commission has an advisory function, is perfectly valid and defensible. But from there to force Parliament to justify itself, not to the electorate alone, but in relation to the report of a commission, before the courts, and ultimately the Superior Court, the Federal Court or the Supreme Court...

As for the reasonableness of choices which are political, this comes as a surprise to me. As a member of Parliament, you are right to consider that the powers of Parliament are being whittled away, even though the Supreme Court has said that this is an advisory commission. In fact, I believe it was a Quebec Superior Court or Court of Appeal which ruled that a judge may not order Parliament to do something. A justice of the Superior Court had ordered the National Assembly to pass legislation to implement something, and the Court of Appeal said no, that this would be completely unconstitutional.

So, we have to come back to reality. I believe that when the government has defensible reasons to present a different opinion, it should do so and stick to its guns. Even the Supreme Court, in the 2005 ruling, did nuance somewhat the strictness, I guess I could say, of its opinion in the 1997 Reference. Mr. Cotler is not here now, but I think he would agree. When you read the two rulings and the overall arguments made by judges in every single one of the provinces, well, it's clear that there is a huge amount of literature and case law on what exactly can be considered reasonable.

You are right to say that Parliament should have the last word, and that Parliament is the one that has to face the electorate. The political choices that are made must be reasonable and cannot violate the Charter. I fully agree with your reasoning. This is not contrary to what the Supreme Court said. It may be an interpretation or a response to the rulings of the Supreme Court, but like laws, those rulings are subject to interpretation.

So, I am inclined to interpret it as giving precedence to Parliament's sovereignty, which is the very foundation of our democracy.

[The Vice-Chair, Liberal, Derek Lee]

That was five minutes. Thank you.

Under the rules, we will continue to recognize members who have not spoken for five minutes yet.

The next person who hasn't spoken is Mr. Jean, followed by Mr. Batters.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you, Mr. Lee.

Thank you to the members who presented today. I appreciate that very much.

I'm not going to take issue with the constitutionality of what has taken place. Indeed, Monsieur Garant, I appreciate the recommendation of the legislative change on the commission as being a consultative process. I think that's very wise and a good idea.

I'm wondering if the CBA actually polled their members in relation to the issue of raises and whether they've received an opinion from them.

[Tamra Thomson]

The policy of the CBA is set through our council process and through the expertise of the members on our standing committees. Just as every law is not subject to a plebiscite, the policies of the CBA go through a representative process.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

That's why I was asking. As a past member, I know I hadn't been able to consult or give opinion on specific issues that the CBA had taken on itself.

Do you have judges who are members of the CBA?

[Tamra Thomson]

There are judges who are members. However, the constitution of the CBA isolates them from participation in the policy-making process.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

What's the fee for the judges? Is there a fee for their membership in the CBA?

[Tamra Thomson]

Yes, and I'm not sure what it is offhand. It's comparable to that of a regular member.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Somewhere between $300 and $700?

[Tamra Thomson]

Depending on the province.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Do you know how many judges are members of your organization?

[Tamra Thomson]

Not offhand, no.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

It's a fair number, though. Is that accurate?