Justice Committee on Oct. 25th, 2006

[Robert Leurer]

The Canadian Bar Association echoes the comment that you make, Mr. Comartin. Happily, we are getting good appointments. We would fundamentally echo your concerns that an erosion in the process incrementally can erode that particular outcome.

The Canadian Bar Association does not have a position on a national level with respect to the functioning of particular provincial commissions. We observe that the litigation arising out of the provincial commissions has been gradually declining as constitutional principles have been refined and articulated by the Supreme Court of Canada. What that essentially means is that we're slowly getting it right because they're adhering to constitutional principles.

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

That's all I have, Mr. Chair. Thank you.

[The Vice-Chair, Liberal, Derek Lee]

Thank you.

I have a couple of questions on the structure created by the Supreme Court to generate the salary and allowances recommendations, the independent commission construct.

Notwithstanding section 100 of the Constitution, which says that Parliament shall set the salaries and remuneration—I'm paraphrasing—the Supreme Court decided that the whole effort should be turned over to an independent commission that would make recommendations, and not just as a consultative body; they were essentially nailing the numbers down. But for whatever reason, the Supreme Court then decided that report would not be sent to Parliament; it would be sent to the government, to the executive. I suppose that's understandable, though, because in modern times the executive is one of the major bus drivers of Parliament.

You may not have given much thought to it; however, could I ask you if we're going to have problems here with the existing mechanism created by the courts--in their own file, I may say? Could we reconstruct a mechanism that would have the body reporting to Parliament? Maybe the report ought to be sent to the Speaker and not the Minister of Justice, thereby pre-empting the executive of government role.That might sail through Parliament more easily than it would through the executive and then Parliament.

I'm prepared to hear that the Canadian Bar Association would never think of second-guessing the Supreme Court of Canada and would never have conceived of such an impudent proposal, but I'll take your answer.

[Robert Leurer]

A fair characterization is that the witness who is sitting in front of you has never considered the question before this point in time, Mr. Chairman.

[The Vice-Chair, Liberal, Derek Lee]

Okay, then here's a simple question. Is it your view that, since setting up this independent commission, the Supreme Court of Canada was of the view that the independent commission had the right to be wrong and still have their will, their report, their recommendations implemented?

[Robert Leurer]

I think I can answer that question, Mr. Lee.

The Supreme Court of Canada indicated that at the end of the day, the commission's conclusions are not necessarily binding unless provided for by statute—that is, by decision of Parliament itself. I think all parties here, Professor Garant, and I would agree that at the end of the day it is possible to have a constitutional deviation from the recommendations of the commission.

Ultimately, I don't know whether the Supreme Court of Canada would consider as constitutional other mechanisms to serve as an institutional sieve to protect the legitimacy and the independence of the judiciary, which is the other aspect of the question you've posed.

[The Vice-Chair, Liberal, Derek Lee]

I have a final question, and it's related to that.

The Minister of Justice essentially said yesterday that this task is Parliament's. He was correct in that. He was simply quoting the Constitution on this task of setting the remuneration, of dealing with the report. So I want to ask the following question.

In the event that Parliament, on the advice of this committee or any other committee, decided to enhance the remuneration beyond what is in the bill, would Parliament have a royal recommendation trump card by the very nature of the wording of the Constitution, where it says Parliament shall set the remuneration? Could the committee enhance the remuneration, claiming it didn't need a royal recommendation through the executive, that it simply had one constitutionally because the Constitution says Parliament shall set, and this committee would offer to the House a report that recommended an enhancement beyond that which is contained in the current government report, with a view to coming closer to the recommendations of the independent commission?

[Robert Leurer]

Mr. Lee, I learned one hard lesson early in my legal career.

[The Vice-Chair, Liberal, Derek Lee]

You're not a constitutional lawyer.

[Robert Leurer]

No, when a client comes in and asks me a question that I haven't considered, I don't give an answer.

[The Vice-Chair, Liberal, Derek Lee]

Or you want a retainer.

I realized that I might not get answers to those, but I did want to get them on the record for Professor Garant's next constitutional law class.

[Prof. Patrice Garant]

You have raised some interesting questions to which there is no easy answer. Earlier you suggested that the Committee's report be tabled directly before Parliament, rather than with the government. However, that could run counter to constitutional practice, according to which money bills must be tabled by the government so that it can fulfill its constitutional responsibility.

It would be rather difficult to short-circuit the government by tabling the report of an independent commission directly with the Speaker of the House of Commons and, in so doing, with Parliament. The government would be stuck.

It's an interesting question, although somewhat theoretical.

[The Vice-Chair, Liberal, Derek Lee]

It was just food for thought. I'll stop there.

I thank both groups of witnesses for coming. It has been a useful addition to the debate.

Colleagues, we'll be doing clause-by-clause on this bill on Monday, I believe.

Having said that, we can stand adjourned.