Justice Committee on Oct. 25th, 2006

[Tamra Thomson]

I don't know the proportion of judges who are members. As I said before, all of them are isolated from the policy-making decisions. None of the judges who are members participated in the process of developing this brief, or any other policy of the CBA.

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

I understand, but they still are members of the organization itself.

I worked in the trenches for years--when I say “trenches”, I mean the law court trenches in Fort McMurray--and I spent considerable time arguing cases before many courts. I even went to the Court of Appeal on a particular occasion. I saw over the some 11 years I did this that different judges react in different ways to court processes. I don't know how it could be done, but I'm wondering if your organization has thought about any way you could tie the wage to work ethic.

For instance, in my own particular area, the Honourable Judge Stan Peck is a very hard-working man--extremely hard-working--but other members of the profession in different areas, because of the caseload, quite frankly just don't work very much. I've heard stories of where they'll work a day a week, or an hour or two hours a day for four or five days and then go golfing and other things. Quite frankly, I find it extremely disturbing. I think most taxpayers would find it disturbing.

I would direct this question to both the CBA and Monsieur Garant. This government stands for accountability, transparency, and getting something of value for taxpayers' money for work performed and wage received. Has the organization looked at ways to tie wage to performance?

[Robert Leurer]

Let me try to answer that for you, Mr. Jean.

First of all, the fundamental principle that has to be protected as a cornerstone for democracy is judicial independence. Even setting that aside, I know of no parallel you could draw on that would link somebody who needs to be independent to uphold the rule of law to so-called performance issues.

That said, the honourable member should recognize that there are constitutionally permissible methods to question issues that relate to particular judges. The Canadian Judicial Council has a process. With all respect, I would say that if there's an issue with respect to a particular judge or court, it's that constitutionally recognized forum to which you should refer. We would be deeply disturbed by any suggestion that the salary be tied to somebody's perception of performance.

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

You mean somebody like their boss, the chief judge?

[Robert Leurer]

I don't think anybody in the judicial process, with respect, has their salary tied to somebody's concept of performance. You would know, again with respect, the process that has to be followed constitutionally, that is in the written Constitution, for removal of a judge. I have to reiterate, with the greatest respect, that not only can we not go there, but we don't want to go there as a society.

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

So the answer would be that the CBA has not looked into the issue of work performance for--

[Robert Leurer]

I think, with respect, the CBA would say that doing that would profoundly undermine judicial independence.

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

Indeed.

Monsieur Garant, what are your comments in relation to that?

[Prof. Patrice Garant]

In terms of performance evaluation, that is something that is done for administrative tribunals--in other words, people working [Inaudible--Editor], and it is an accepted practice. It is also an accepted practice in the United States.

For judges, I believe that some felt--and that may be a myth--that even chief justices should not be evaluating performance, although some chief justices do monitor the work performed by judges and the distribution of work.

You are right to mention that litigants do realize in some cases that judges have it easy. That may be the fault of the system. A judge was telling me this summer that he was supposed to be in a rural district for one week, but that the case was resolved in half a day. So, for the rest of the week, he visited the area. Of course, that is really a problem of work distribution among judges. That judge had probably earned his salary for that week. So, that cannot be an argument. In my opinion, most judges work hard, particularly appeal court judges and judges that preside over important and complex cases.

In my profession, as a law professor, we examine court rulings, both the ones that are published and those that are put on the Internet. We have noticed that some judges write relatively short opinions, or may even write relatively few of them. Now the time allocated for deliberations and for writing a judgment may be too long, and thus there are probably judges who have a pretty easy time of it.

However, that is not a valid argument for not keeping judges compensation at a reasonable level--I believe I said “reasonably high” in my brief--in a democratic society such as ours.

[The Vice-Chair, Liberal, Derek Lee]

Merci.

Mr. Batters, you have five minutes.

[Dave Batters, Conservative, Palliser, SK]

Thank you very much, Mr. Chair.

Thank you to all the witnesses for appearing today. This is a treat for me. It's the first time I've been to the justice committee.

First of all, I think all members of Parliament would agree, and my colleague Mr. Jean would agree, that judges in this country do fantastic work. The vast majority of judges are very capable. They do very difficult work and they work very hard.

I'll tell you a little bit about my perspective and what I bring to this committee. My wife Denise is a lawyer in Regina. She has been at the bar for 10 years now. She'll make an annual salary of probably $50,000, maybe a bit more, in a good year. So as I sit down here and look at some of these figures, I think it's very reasonable, actually, that the government, instead of accepting a recommendation of a 10.8% increase, reduce it to 7.25%.

Judges make just shy of $220,000 per year, and I just cannot imagine, I just can't dream that many Canadians will cry in their beer--nor would a lot of judges, frankly, to my mind--if judges don't get a $33,000 a year pay increase. There are issues of fiscal prudence that governments have to wrestle with, and I think the government has made a very reasonable proposal to give an increase of 7.25% instead of 10.8%.

I do have a question I'd like to put to whoever chooses to answer it. Mr. Garant, I'll start with you.

When the commission looked at the question of salaries, it looked at private practitioners from Canada's largest urban centres as the appropriate comparative groups--the largest urban centres. I'm a guy from Regina, Saskatchewan. The result is that the commission gave too much weight to the income of self-employed high-paid lawyers in private practice and not enough consideration to the income levels of lawyers from across all provincial centres, urban and rural.

I'd like to ask you, since one of the stated criteria for determining judicial compensation is, “the prevailing economic conditions in Canada”, meaning all of Canada, do you really consider the income of most highly paid urban lawyers in our largest centres to be in line with the prevailing economic conditions in Canada?

[Prof. Patrice Garant]

You are right to wonder about this and doubt the relevance of such a statement. You are right that the entire legal profession must be considered.

You talked about a lawyer with ten years' experience earning $50,000 or $75,000. She may be excellent and may be doing remarkable work. After ten years in practice, she may even be a candidate for a position on the bench. So, why would we automatically rely on the idea that in the past, a great many judges have come from large law firms? That is not a good reason.

Increasingly, there are large numbers of public servants working in the legal branch of various departments who are doing excellent work. They are not deputy ministers. They act as counsel, general counsel, and so on. There are also lawyers working in legal aid clinics.

In the field of family law, I know of some judges who came from legal aid offices and are excellent. They may have a greater appreciation than private practice lawyers for family or social issues facing litigants.

That is the kind of person we should be looking for. So, you're right: we need to consider a much broader range than just those who have supposedly had successful careers in large law firms in Montreal, Toronto or Vancouver.

[Dave Batters, Conservative, Palliser, SK]

Would anyone else like to respond to that?

[Robert Leurer]

Thank you, Mr. Batters. As another prairie boy, I'll try it, because I think in some respects I understand very well where you come from.

Let me start by indicating, as you will know from the brief that the Canadian Bar Association has filed, that we observed that the government put different weight than the commission did on the comparators, or chose to use a different comparator than the government did. From a constitutional perspective, the Canadian Bar Association says we may not have reached the same judgment as the government did, but we don't take issue with that and our conclusion is not that there's anything objectionable to that.

The concern that the Canadian Bar Association would have, though, is that although you articulate the relative salaries across Canada as relating to the paragraph in the Judges Act that relates to the economic condition and overall economic and financial position of the government, that's not a linkage that in that particular context the government drew in order to justify the deviation from the commission report. The Supreme Court has very clearly articulated that it's incumbent upon the government, in order to ensure it's part of a fair process, that it lay its cards on the table, so to speak.

So with all due respect, it would involve a recasting of the rationale to infuse the second reasoning into the first, because it doesn't exist in the context of the--

[Dave Batters, Conservative, Palliser, SK]

Right. With respect, though, Mr. Leurer, I'm brand new to this committee. I sat down for 10 minutes and this is hitting me right in the face. There seems to be this heavy reliance on what lawyers in our largest urban centres make. The commission relied heavily on that. I wonder how many lawyers' salaries they studied in Regina, Saskatchewan.

I'm sure my wife would welcome--I guarantee you we'd welcome--the 500% increase to her salary as a judge. This hits me in 10 minutes, so I'm sure that the government took this into account in terms of its calculation from what was a 10.8% recommendation to 7.25%. It seems perfectly reasonable to me.

[Robert Leurer]

It's completely clear from the commission report that, first of all, they cast around very broadly, with the assistance of the government and the other parties that appeared in front of the commission, for as much information as they had with respect to salaries.

Many of us approach any particular salary issue and immediately begin to relate it to our own particular circumstances. The commission did not take the salary of the best-paid lawyers in the country. The commission also, very interestingly, decided to--

[Dave Batters, Conservative, Palliser, SK]

Yes, they did. They took it from the largest urban centres.

[Robert Leurer]

Let me just say one other thing, Mr. Batters.

[The Vice-Chair, Liberal, Derek Lee]

Mr. Batters assured me his intervention would be really quite a short add-on. I will allow the witness to wrap up.

[Robert Leurer]

I'll be very quick, Mr. Chairman.

With respect to Mr. Batters, the commission also, interestingly, rejected a joint submission that was made by both government and judges for an annual $2,000-a-year increase, all with a view to try to get it right.

Again, the Canadian Bar Association is not here to defend x dollars or y dollars. We're here to defend a process, because that's fundamentally what ultimately drives the protection of the independence of the judiciary.

[Dave Batters, Conservative, Palliser, SK]

Then let's get it right.

[The Vice-Chair, Liberal, Derek Lee]

Thank you, Mr. Batters.

I have indications from Mr. Bagnell, M. Ménard, and Mr. Comartin, and the chair has a couple of real zingers when we're done, and there may be members opposite who do also.

We'll have Mr. Bagnell, for five minutes.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

Mr. Leurer, you said, in response to Mr. Jean, that judicial independence was a cornerstone of our democracy. Not being a lawyer, I'm just going to ask a simple Law 100 question. Where is that? What is the reference to that? How is it ingrained? How is it enforced? Where is it referenced in Canadian society?

[Robert Leurer]

I think Professor Garant can do as fine a job as I can in taking you back, but I would invite the honourable member to review the Supreme Court's rather eloquent explanation of this in the Bodner decision.

[Prof. Patrice Garant]

It was Bodner, yes.