Justice Committee on Oct. 25th, 2006

[Prof. Patrice Garant]

Well, I am inclined to think that given their responsibilities, parliamentarians should be better paid. In terms of giving them the same level of compensation as judges, I find nothing scandalous about that, given their responsibilities. The fact remains, however, that our society relies on certain myths. For example, we have always expected judges to earn much more than ordinary members of Parliament, or even ministers.

[Réal Ménard, Bloc, Hochelaga, QC]

Do I have the time for one last question, Mr. Chairman? I don't want to go too far.

I was surprised by your statement. I'm just wondering, with respect to people who have been appointed judges in our various courts of law whether the fact of being part of a firm--and I won't name any one in particular--in Montreal or Quebec City is a factor that increases your chances of being selected. Of course, we want to know which individuals are most qualified to be appointed to the bench. In my opinion, such an individual must have a thorough knowledge of the law, the ability to synthesize material, and have values that pretty well jibe with prevailing attitudes--which, of course, does not rule out the right to a dissenting view. Some justices of the Supreme Court have availed themselves of that right more than others. But, in your opinion, does being a partner in a major law firm or practising law in a large city make you a more attractive candidate?

[Prof. Patrice Garant]

It does make you attractive, but it's not the only factor. I have trouble understanding why commissions attach so much importance to that. I know of many public servants with legal training who work in departments all across Canada. In administrative tribunals, an area I am relatively familiar with, there are many remarkably talented people. Some of them become judges.

Have you considered the fact that many lawyers are earning high fees in areas of the law that do not prepare them very well for ordinary practice? Lawyers working for corporations, for example, are very often more like business people. They work on boards of directors, among other things. Imagine that from one day to the next, these people are suddenly sent to preside over a trial involving family law, which requires having some psychology, and other skills.

Indeed--and Mr. Cotler can confirm this--a great many of these lawyers from large firms in Toronto, Vancouver and Montreal would not agree to a career in a superior court, except perhaps in the Appeal Court or the Supreme Court, because it would not suit them. Their professional practice has nothing whatsoever to do with the work of a justice of the superior court, who has to hear a great many cases involving family law, private law or trade law, for example.

[The Vice-Chair, Liberal, Derek Lee]

Merci.

Mr. Comartin, for seven minutes.

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

Thank you, Mr. Chair.

I want to apologize to the committee and to the witnesses for my tardiness in being here, but as you know, Mr. Chair, I was caught on a privilege motion that kept me in the House until I could get here.

Professor Garant, I don't think there's anybody sitting at this committee table who has any doubt that the constitutional authority in this country lies with the government--with Parliament ultimately, I suppose--in terms of determining judicial salaries. I think the brief you gave us confirms all of that. But with due respect, it seems to miss the point that is set out in the CBA's brief, that there are three basic criteria that have generally been accepted in terms of analyzing the government response to the commission's report. You haven't addressed that other than in an indirect fashion.

There are three basic points. One, the government has to have rational reasons for departing from the commission's recommendations. Two, the government, again, to reject the commission's recommendations, must also have a reasonable factual basis. And three, the process has to show respect for the commission process.

I think what we heard from the commission yesterday, certainly on the latter point, was that they felt totally disrespected by the process we put them through and agreed with the CBA that the government had not given rational reasons or a reasonable factual basis for that.

So I would ask you, where do you see the government's position as being valid when you apply, in particular, the first two criteria?

[Prof. Patrice Garant]

With respect to the third one, I do not believe the government's response in any way suggests that the process was tainted. Personally, I am satisfied with the level of evidence and reasons the government is required to give.

Of course, the government could provide additional details when it says, for example, that it has other economic and social priorities and that these do not jibe with the normal concerns of this type of commission. The latter does, in fact, focus on specific aspects of public spending, such as the policy on compensation for judges.

The government says in its response that it has many other economic and social priorities and that these require it to allocate its budget differently. But how far can we go in terms of what we demand of the government? For example, should the government have to provide pages and pages of detailed explanation of the entire political agenda on which it was elected, and say exactly how the next budget will implement that agenda?

I, personally, am relatively satisfied. I don't really see how the evidence and information the government and Parliament are required to provide as rationale for deviating from or rejecting a recommendation could be more comprehensive. And, of course, we're talking about marginal differences. The commission is proposing compensation of $240,000. The government--for a variety of reasons--is saying that compensation of $230,000 seems reasonable to it under the circumstances. It could provide additional details with respect to its rationale.

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

Supposing you were to put this in front of a judge or a court of law in any province in Canada. Do you think a court would say that these three reasons were adequately developed by the government? It has provided practically no explanation for the changes it is suggesting to the recommendation.

[Prof. Patrice Garant]

You could do what was done in Quebec, which was to send the whole matter back to government and ask it to provide a more detailed rationale, without suggesting that it was wrong to deviate from the recommendation, given its particular priorities. The government could deal with that matter fairly quickly. If you like that approach, it could, indeed, prove beneficial.

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

We can't do that kind of thing, Professor Garant. That is not within the powers of this Committee.

[Prof. Patrice Garant]

It would be yes or no.

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

Mr. Leurer, can you address this issue in terms of, as I'll put it, the inadequacy of the reasons given by the government? In particular, if we're again trying to judge it through some neutral decision-maker based on the constitutional law and practice of this country, is the government's position even weaker because what they came back with is exactly the same position as they started with, as the commission sets out somewhere in their report? You didn't address it in your brief, but does it further weaken the government's position again in front of that imaginary independent tribunal?

[Robert Leurer]

I want to resist the temptation to reiterate a couple of the things that were said in the written brief that was filed.

In its decisions and opinions on this particular subject, the Supreme Court said the government must not simply reiterate the submission that it has given to a commission when issuing the reasons for deviating from the commission report itself.

To that extent, it would certainly be an observation a third party may have that underscores the difficulty we have in trying to pull out the three paragraphs in the response that explain the reasons or purport to explain the reasons that the government deviated on the basis of an economic and financial position and could not implement the commission recommendations. We view it as a collateral point that supports the conclusion as opposed to the reason itself.

I want to very briefly comment on the other issue that has been bandied about a little bit, which is the use of comparators.

From a Canadian bar perspective, I want to emphasize that the fact of the matter is that judges must be lawyers. The fact of the matter is that the issues that courts are called upon to decide are more and more important, and sometimes this is the subject of negative comment.

We think it's a mug's game. We'd urge this committee not to get into a particular comparator at this stage. The issue at this point is one of process and whether the response has been true to the process itself.

I hope that helps you, Mr. Comartin.

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

It does.

Let me pursue it to this degree, because I agree that it's not appropriate for us to get into those kinds of details. But Monsieur Ménard from the Bloc keeps bringing up a point, which I think is an irrelevant point, about linking the salaries of judges to the incomes paid to members of Parliament. Could you give us an opinion on whether that would have been a proper consideration for the commission to make?

[Robert Leurer]

I think the best I could do to help you, Mr. Comartin, and the other members of the committee is to refer you to the commission report itself. This was something that became the subject of submissions before the commission. The commission, I think very correctly, indicated that it is not part of their role—and we would suggest to you it shouldn't become part of your role—to look at the consequences that follow by reason of the fact that other decisions have been made to link salaries to judges' salaries. The point we should be considering, at this point of time in the constitutional imperative, is setting judicial salaries in accordance with the process that's been prescribed by the Supreme Court.

[The Vice-Chair, Liberal, Derek Lee]

That's all the time you have.

Mr. Moore, for seven minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair, and thank you to all of the witnesses for taking the time to meet with us today.

I want to ask a couple of questions, but first I want to say that I think some of the response, particularly from the opposition, has been a little alarmist on this issue. I agree on a number of fronts with some of the witnesses we've heard and I agree with the Canadian Bar Association submission that we should act quickly. I think our government did act very quickly. Shortly after we were elected, we brought in this bill. We studied the committee's findings. As a matter of fact, this bill contains all the committee's recommendations, except there was one exception, and that is on the salary. Some have suggested that somehow this whole process undermines judicial independence, and I think that's a little alarmist. I know that's not the intention at all.

Professor Garant, I found your testimony to be interesting on some of the constitutional underpinnings, the fact that even today, ultimately, we as parliamentarians, as government, are responsible for the public purse.

So the facts are that the government acted quickly and brought in this bill. The only deviation from what the committee recommended is this. The committee recommended that judges receive a 10.8% increase retroactive to 2004, and we studied that, gave fair weight to that, but also felt that there were some shortfalls in their analysis and decided on a 7.25% increase.

So I just want to caution that in no way do I see, nor does the government see, this as impacting on the independence of the judiciary. There have been some rather alarmist comments made that somehow this could shake the foundation and judges would somehow be more susceptible to bribes, and I think that's pretty far-fetched. Whether we go with (a) or with (b), I don't think judges in this country will be any more or less susceptible to any wrongdoing. To suggest that shows a real lack of faith in the judiciary.

I almost get the sense from the opposition that somehow there's no way the commission--an independent commission, where one member is nominated from the government, one member from the judiciary, and then one selected by the other two--could ever do anything out of line with what the public expectations and the government responsibility is. I'm wondering what we would responsibly say if the commission had recommended a 30% increase in salaries.

We all have a sense, I think, of what's reasonable and what's not reasonable. I know if you talk to lawyers, and I know you do, I would suggest that most lawyers in the Canadian Bar Association, regardless of which of these increases is ultimately chosen at the end of the day, or something in between, would love to have a judicial appointment. To me, it's almost an insult to some lawyers and to those who get that very important appointment that somehow the salary would play that huge an impact anyway. So many people would take on that responsibility for half of what judges currently make. To think that 10.8% is some sort of magical number...because honestly, the sense I get from the opposition is that there's no way any other number could possibly do, that all of a sudden 10.8% is infallible.

For example, compared to incomes in the 75th percentile across all provincial centres, urban and rural, we felt there was too much of an emphasis placed on urban. And I can tell you--and you all know this already--there is no lack of highly qualified and qualified individuals who would love to have a judicial appointment and to be a member of our judiciary.

But could you comment a bit on when it would be reasonable? Under what scenario would the test be met? To the Canadian Bar Association, I note that you do feel that the government has met the test as set out by the Supreme Court in some respects, so under what scenario do you think that would be completely met?

[Robert Leurer]

Thank you, Mr. Moore. I'll do my best to try to answer the question.

What I'd like to do is begin the answer by taking you back to one of the questions that you included in your comments, which was the hypothetical--and I emphasize that it was hypothetical--situation of if the commission had recommended 30%, and I'll leave off to the side the observation that of course it didn't, that it recommended another number.

From the Canadian Bar Association's perspective, the important principle here is, first of all, not the number itself. The commission has explained how it has come up with the particular number, and after the number has been articulated by the commission it's quite clear from a constitutional perspective that the analysis then evolves into one that is process based.

So that leads to the second question that I think you've posed for us, in looking for some help from the Canadian Bar Association for the benefit of the commission, which is what is an adequate response from the government? There I have to go back to the problem the Canadian Bar Association has with the process and the detail of the government response itself, because you correctly observe that the government has explained the choice of a different comparator to derive a particular number.

The problem is that the rationale they layer into the response starts from something that doesn't explain the relationship between the need to deviate from the commission report and the--to quote from it--“economic and financial position” of the government itself. So we have this void where we have to take a leap.... We've been told in this process that “Canadians expect that any expenditure from the public purse should be reasonable and generally proportional to all of these other economic pressures and fiscal priorities.” But there's nothing we can draw out of the report that explains why the number that's been recommended by the commission is not reasonable and generally proportional. That's where the breakdown takes place, from the perspective of the Canadian Bar Association.

[Prof. Patrice Garant]

I am inclined to link that to the perception of independence, something that was raised on this side of the table. The process that the Commission engaged in was perfectly appropriate. I believe the Association had asked for a 17% increase. The Commission, which relied on serious studies, held hearings and consulted quite a number of people, including experts, proposed an increase of 18.9%. For slightly different reasons, which are well explained in the government's response, the latter is proposing a 7.5% increase.

But why not ask the general public, your constituents, or some 750,000 employment insurance recipients whether they consider that kind of salary increase to be unreasonable? Why not ask 40% of the people working for the City of Montreal, who earn less than $30,000 a year, whether they feel that judges will no longer be independent if they only receive a 17 or 10.5% salary increase? I think the answer there is obvious.

As members of Parliament, you must understand that people's perception of independence is not related to that sort of thing. These issues will not change much in that regard. As experts in the field, we may be keeping a myth alive by looking closely at these issues and endlessly analyzing the report of the Commission and the government's response. In my opinion, if we take a more comprehensive view of things, we should be satisfied with the fact that in our constitutional system, the judiciary is independent and the compensation process is satisfactory. Everyone has to take their own responsibilities. Parliament has its responsibilities, which are of a constitutional nature.

I already stated that in my view, the government can deviate from the recommendation. It has good reasons to do so. Perhaps we would have liked a little more information in terms of what it says on pages 5 and 6. But the Canadian public is aware of the government's priorities. People want there to be federal transfers, in order to reduce waiting times for health care services or improve the daycare system. The vast number of federal government programs currently operating means that the government will have to invest a great deal of money. And that money simply cannot be invested elsewhere.

[The Vice-Chair, Liberal, Derek Lee]

Thank you.

That was just about eleven minutes. Thank you.

I'll recognize Mr. Bagnell, who will have five minutes. Then we'll go to Mr. Lemay and then Mr. Petit.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

My question is for the Canadian Bar Association. Maybe the biggest issue for the opposition, for me, and for you might be that the frivolous or ideological change in the judges' salaries is threatening the independence of the judiciary.

We had the commission before us yesterday, and that wasn't their biggest concern. Their biggest concern was that after the government had made a decision on the commission report and it was all finalized and ready to be implemented, a new government came in and changed it completely. The commission was apoplectic, in that this action was causing a travesty in the process.

I wonder what your thoughts are on that.

[Robert Leurer]

I can't help but begin by noting that fundamentally the Canadian Bar Association's position is that the first bill should have passed, which of course would render the matter moot. Beyond that, the Canadian Bar Association has not developed a position with respect to the constitutionality of the fact that the government has changed its position with the change in the government that's behind the commission--

[Larry Bagnell, Liberal, Yukon, YT]

It's not the constitutionality, but the travesty of the spirit of the independence of the commission and the process.

[Robert Leurer]

It's impossible for me to take myself away from the first conclusion I expressed, because the spirit of the legislation would be a timely response and an implementation of the commission reports themselves. We find ourselves less than 12 months away from the implementation of the next quadrennial commission itself. I don't know whether I can provide much more help to committee members than that.

[Larry Bagnell, Liberal, Yukon, YT]

To go on to the main concern that we've talked about, if you're paying someone and deciding their salary, they're not really independent; our understanding is that's why we have an independent commission, and I think it was suggested yesterday in committee that only in dramatic circumstances should there be changes to those recommendations.

I think you'd tend to agree that there are no dramatic reasons for jeopardizing the public perception of the independence of the judiciary by making these changes in salary at this time.

[Robert Leurer]

Simply put, the test that's prescribed--the existence or non-existence of rational, evidence-based, legitimate reasons--doesn't exist, in the submission of the Canadian Bar Association. Again, we end up with the conclusion, the feeling, that a reasonable person, leaving aside the detail of the salary, would conclude that the government response was that judges are paid enough already, or will be paid enough, without responding to the detail, at least insofar as the attempt is to peg the rationale for that upon economic conditions of the government.