Justice Committee on Oct. 30th, 2006

[Sue Barnes, Liberal, London West, ON]

We're not allowed to.

[The Chair, Conservative, Art Hanger]

Why?

[Sue Barnes, Liberal, London West, ON]

Because you have to have been able to bring them here. You can't submit in the House what you couldn't bring here.

[The Chair, Conservative, Art Hanger]

Well, you still need a royal recommendation, regardless.

[Sue Barnes, Liberal, London West, ON]

Well, why don't we just proceed, then?

[The Chair, Conservative, Art Hanger]

Let's move ahead.

All right. We're on the Bloc motion.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, as we have been discussing throughout the course of our work, we would like the Prime Minister's salary to be defined, since clause two purports to establish the chief justices' salary on the basis of the Prime Minister's salary.

Therefore, we're providing a definition of the Prime Minister's salary.

[The Chair, Conservative, Art Hanger]

Is there any discussion on the admissibility before I rule?

Seeing there is no discussion, I will read my ruling:

Bill C-17 deals in part with salaries of federally-appointed judges, and sets out dollar values for these salaries. This amendment, and others which are consequential to it, proposes a scheme to replace the dollar values with a formula based on the Prime Minister's salary and sessional allowance.

The bill was referred to committee before second reading, which means that there is more latitude in the amending process. The requirement that amendments must fall within the scope of the bill does not apply to bills referred to before second reading. However, other rules of admissibility continue to apply.

For example, amendments must be relative to the subject-matter of the bill, and I find that the amendment before us is relevant.

The rule against defending the financial initiative of the Crown also continues to apply; and here I note that the bill is accompanied by a Royal Recommendation, which provides for the appropriation of public revenue “under the circumstances, in the manner and for the purposes”

--which is actually the royal recommendation in the bill--

set out in the bill.

This means that in assessing admissibility I must consider not just whether the amendment would exceed the level of expenditure provided for in the bill. I must also consider whether the amendment changes the circumstances, the manner or the purposes under which public funds would be expended.

This is expressed in Marleau & Montpetit on page 655: “An amendment is therefore inadmissible if it imposes a charge on the Public Treasury, or if it extends the objects or purposes or relaxes the conditions and qualifications as expressed in the Royal Recommendation.”

I find that the amendment infringes on the terms and conditions of the Royal Recommendation and on that basis I must rule it inadmissible. This ruling applies to all the amendments in the series--that is, BQ-1 to BQ-56.

Now we'll deal with the NDP motion.

Mr. Comartin, would you move that?

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

Yes, I'll move NDP-1, Mr. Chair. It is one in a series. They're all consequential. The effect of this amendment would be to start that process of reinstating the report that we have from the commission.

I want to make two points. One is that the position the government has taken in the bill before us is one that is obviously inconsistent with the commission's recommendations. That's obvious on the face of it, but it's also inconsistent, I believe, with the law as to how Parliament is to deal with the commission's recommendations when it appears before it.

I won't go back through the legal arguments. We saw those I think particularly in the brief we got from the Canadian Bar Association, but we certainly got similar indications from the commission itself when it was here.

Mr. Chair, I have to put on the record that the effect, if my amendments don't go through and the government's proposal does, is to seriously undermine, if not destroy, the system we have established as the best way of dealing with judicial compensation in this country for appointments by the federal government to our judiciary. The consequences of that are quite serious. The methodology that was established I think is quite clear. If the government is not going to accept the recommendations of the commission, it has to meet certain criteria. The criteria it has posited, on the face of it, seem to be below the standard that the courts have ruled in a number of other cases. So it hasn't met the criteria. This committee has a responsibility, I believe, to reinstate the commission's recommendations and, hopefully, have that adopted by Parliament.

That's our role here. We can get into all of the arguments over how much judges should be paid. I don't think that's our role. Our role here is to either accept the commissioner's recommendations or understand why, and accept why we're going to reject them. The material that's been put before us by the government does not give us any reasonable basis, based on the facts, for us to reject the commission's report. Therefore, we should accept it.

Thank you, Mr. Chair.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin. I know your arguments came forward when the witnesses were here, although Parliament does have the final say in these matters. I know you're aware of that.

I will now pass on my ruling on the NDP amendments.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

If you're going to make a ruling on whether or not these amendments are out of order, I'd like to speak to it, because I do want to get on record a position that I have.

[The Chair, Conservative, Art Hanger]

Certainly, we can have that discussion, Mr. Lee. Go ahead.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

If your ruling is to be based on the matter of relevance, that's one thing, and we'll wait to hear what that is. I think these amendments are quite relevant, and based on the invitation of the Minister of Justice when he was before us, they're quite consistent with his invitation.

But the issue I want to address is a bit more meaty than the cordiality of submissions from the justice minister here. I want to argue that the precise matter we're dealing with of setting remuneration for another branch of government, for the courts, is conspicuously an exception to parliamentary practice, procedure, and constitutional law, as you have already outlined. I don't quarrel with your outline of that law on the issue of royal recommendation.

The basis of my position is absolutely not the invitation of the Minister of Justice, but a provision of our Constitution. If I'm not mistaken, section 100 of the Constitution Act states very clearly, explicitly, and without condition that Parliament shall set the remuneration and other amenities of the courts. It says very clearly, and I repeat, “without condition”.

Other established practices in Parliament, and the mother of Parliament's requirement that there be royal recommendation from a government or the Crown, exist outside of what is provided for in section 100. I say to you and this committee--and I may end up saying it to the House and the Speaker--that if our Constitution says that Parliament shall set, and I'm using those words advisedly, then no person and no government can put an obstacle in the way of that constitutional provision. No attorney general or government may steal that authority given by the Constitution, nor may it obstruct that authority given by the Constitution.

If this House decides that remuneration will be x plus y, then that shall be the remuneration of the courts. No government--and here I'm talking about a cabinet and government--has the constitutional power or ability to interfere with that, impair it, obstruct it, or prevent Parliament from fulfilling its constitutional responsibility and obligation.

So when the Minister of Justice was here and invited us to do something on this, whether he knew it or not, he was simply articulating what the Constitution not only empowers us to do but obliges Parliament to do. By saying that the twenty or so members of the cabinet have the ability to obstruct our House and the Senate by purporting to refuse to extend the royal recommendation, they are operating contrary to the Constitution that governs us. I am saying right here and now that section 100 is a higher law than any parliamentary convention, cabinet order or recommendation, statutory instrument, or law. It's bigger than all of us because it says it right there in black and white.

I want to make the point really clear that legally, politically, mechanically, technically, intrinsically, and morally, your ruling that this may be out of order simply has to be wrong. I could say the reason why we're in this situation. We're really at the pointy edge of the sword here, and were it not for all of the lovely conventions and all the polite judges down the street and all across Canada...we have ourselves an issue.

We do have ourselves an issue. The judges might or might not be unhappy with what's going on here. But I do want to say that the Supreme Court of Canada, on matters litigious that were brought to the court by judges...and I can say that they had every right and obligation in the world to attempt to construct a mechanism that would set judicial salaries in an appropriate and fair way. When they did that, I suppose they found they were not in a position to consult with either the cabinet or the Parliament, House or Senate.

As a result, in the absence of what I think should have been an appropriate consultation at the time, in constructing the mechanism of these reports, the absence of consultation has led to this difficult circumstance where the court has essentially laid down what the law is. And that's its function--or maybe it isn't; some around here will argue that it isn't its function to lay down the law, especially when it's their own compensation.

But as a result of that absence in collaboration at the time, we have a mechanism that is running into trouble. It ran into so much trouble and was so problematic that, having linked the salaries of the Prime Minister and members of Parliament to the judicial salaries, we had to delink a couple of years later. We had to delink because it looked so bad. Yet this is the mechanism the judges have chosen.

I say all this respectfully in the hope that.... Well, one, I think this may come up in the House on the main issue of whether or not this is in order and whether or not Parliament has the absolute constitutional authority and right to set these matters without obstruction from the cabinet. I hope my remarks will also signal to the courts and to government that maybe this has to be reworked a little bit. This is just one battle, with potentially a few more. If we end up with another court case on this--if we do--will there or will there not be a collaboration in settling on a new or revised mechanism?

I'll stop there, Mr. Chairman. I'm essentially challenging the chair in your decision here and whether this stuff is in order or not. But I won't move that, because I realize this issue is probably better dealt with on the floor of the House.

[The Chair, Conservative, Art Hanger]

On your latter point, I would agree; it is better dealt with on the floor of the House.

The other point that I don't think has really been addressed, and not only from the witnesses who appeared on the judges' salaries, is that none of these recommendations, from what I can see, are binding. Where were they binding on the government? Where were they binding on Parliament? I think these were recommendations by a commission, but from what I can understand, unless somebody can correct me on that point, there is no indication that the recommendations were binding on the government.

If you have that situation, then you're right, that's where it's all going to be decided, on the floor of the House.

I'm sorry, Ms. Barnes, I have a list here.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

I'd like to support the argument--much more briefly than Mr. Lee--that to rule Mr. Comartin's amendments out of order through royal recommendation is not appropriate, for two reasons, both constitutional.

The first reason, the one Mr. Lee gave, is the provision in section 100 that Parliament should decide. The second one is the fundamental base of the Canadian parliamentary system, the independence of the courts and the judiciary and Parliament. It's a fundamental tenet of the way we operate in Canada that those two are independent. As one of the witnesses said, that is protected and mentioned in several areas of our Constitution. You have another constitutional reference that there should be independence.

So for those two reasons, I think the lesser technicality of royal recommendation should not overrule these two main constitutional tenets of our system.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

Thank you, Mr. Chair. Since I may not get a chance to comment on Mr. Comartin's amendments should you rule them out of order here for lack of royal recommendation, I just want to say that our party would have been in favour of the recommendations.

I did want to say to you that the Constitution does not require that the commission's report be binding, but the government must give a rational or a legitimate set of reasons to depart from the commission's findings. Those reasons must have a factual and evidentiary basis, all part of the protection of the independence of the judiciary. My colleague said this the other day.

At this point, I think we should listen to your ruling, Mr. Chair, and then proceed from that point.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Barnes.

I know the matter is not going to be settled here. This committee is not obstructing, nor is this government, any points in dealing with this matter of remuneration, nor is it in violation, from what I can see, of section 100 of the Constitution Act. Are we not acting a bit prematurely, given the fact that the matter hasn't even finished being debated on the floor of the House? All these arguments will be presented at that time too, I would assume.

But I'll pass on my ruling on the NDP motions, from NDP-1 to NDP-29.

Bill C-17 deals, in part, with salaries of federally appointed judges and sets out dollar values for these salaries. This amendment is one of several that proposed to increase those amounts. I refer to Marleau and Montpetit on page 655. It says:

An amendment is therefore inadmissible if it imposes a charge on the Public Treasury, or if it extends the objects or purposes or relaxes the conditions and qualifications as expressed in the Royal Recommendation.

Since the Judges Act was adopted by Parliament, it is subject to parliamentary rule and practice. The chair deals with questions of procedure, not constitutional matters. It is clear that in proposing to increase the salary amounts provided in the bill, the amendment is increasing the charge on the public treasury. Therefore, I find that the amendment infringes on the financial initiative of the Crown, and on that basis I must rule it inadmissible.

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

I'd like to challenge the chair's ruling on the basis of the constitutional argument that you heard from Mr. Lee. I'm not going to repeat it; he put it forward in some detail, and I think very accurately so.

In addition to that--I want to make a second argument--we have a very unique set of circumstances here where you had a minister appear before you, and in effect, invite you, that is, the committee, to make alternative proposals, and those would be considered by the government. It has to be interpreted as a clear signal from the government that they may in fact use the royal prerogative and grant these amendments with the authority to proceed.

I think on those two bases, your ruling is not in keeping either with the Constitution or with the material that's before you by way of the government's position.

So I am challenging the chair, and I'd like it put to a vote.

[The Chair, Conservative, Art Hanger]

The question of the ruling before the committee is this. Shall the ruling of the chair be sustained?

[Sue Barnes, Liberal, London West, ON]

We'll have a roll call vote on that, please.

[The Chair, Conservative, Art Hanger]

A recorded vote.

[Sue Barnes, Liberal, London West, ON]

(Ruling of the chair sustained: yeas 6; nays 5)

[The Chair, Conservative, Art Hanger]

The ruling is sustained, six to five.

We've now covered all of the listed amendments. The next point will be the clauses.

The question is on clause 1. Shall clause 1 carry?

(Clause 1 agreed to on division)

[The Chair, Conservative, Art Hanger]

Mr. Moore, you have a point of order.