Justice Committee on Nov. 6th, 2006

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

Mr. Chair, I can ask my questions. There's no problem. I know that Mr. Murphy was to ask those of Mr. Cotler, so I...

[The Chair, Conservative, Art Hanger]

If that's the case, it doesn't matter to me.

Mr. Murphy, would you like to lead with a question?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Great. Thank you, Mr. Chairman.

Mr. Minister, concerning Bill C-17, I suggest to you there have been many comments made, and some in a political forum—the other place. I want to make sure, and Mr. Cotler and all Canadians want to make sure, that you have an opportunity to say here today that you have the utmost respect for the judiciary, which I'm sure as an officer of the court you do.

I'd like to hear you say it, because the questioning is in this line of thinking. There have been comments made in the press and in the other place about Liberal judges. Bill C-9 and Bill C-10, as you well know, take away some discretion of judges in certain circumstances, which could be seen as a disdain for judicial discretion. In fact, the whole process with respect to Justice Rothstein's confirmation could be seen as putting judges on public example. Notwithstanding that it was a very positive experience in this instance, it could be seen as putting judges on public display for public approval by elected politicians.

Now we have BillC-17, and the concern is this. There are provisions in Bill C-17, for many of which the ship has gone by in the public somewhat, and we're on the road to finally getting a settlement of the issue. But there are contained in Bill C-17 issues with respect to...let's call it “the rule of 80”, or the ability of judges to go supernumerary in certain provinces. Supernumerary judges may not be under the same leash or chain from their respective chief justices as are full-fledged justices. This bill, when passed, will result in more supernumerary judges; I know that from the field.

I want to hear from you first of all on this issue of respect for judges. I want to hear from you, if I may be so bold as to ask, what you are going to do to get these supernumeraries to work. Are you going to appoint other judges to fill the backlog of vacancies that exist? Was there any rhetoric from you or your department with respect to getting chief justices to get their supernumerary judges to work to make the system work? You will realize there's a heavy caseload coming down the pike in justice. We will need our judges.

The two-part question, in short, is, do you have respect for judges, and will you resource the field enough so that justice gets done?

[Vic Toews, Conservative, Provencher, MB]

I find that to be a very curious question. I think it arises out of a scrambling of the various responsibilities of the judiciary on the one side and Parliament on the other. It is Parliament that has the responsibility to establish social policy; judges do not. When Parliament passes legislation, every legislative scheme makes certain definitions and usually restricts or permits something or other. If what you are saying is that every time a piece of legislation is passed it shows a disdain for the judiciary, I would disagree with you.

We went from common law, which was what judges interpreted on a regular basis, and brought in statutes to change that common law. Did that show a disrespect for the judiciary? No, it indicated a specific social policy that governments and Parliament wanted to see implemented.

In all of our legislation, what we have said is, as a matter of social policy, we are bringing forward certain pieces of legislation. That doesn't show a disrespect for the judiciary. Even if it restricts their discretion, that is the nature of law-making and the responsibility of lawmakers in Parliament.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I guess the unanswered question is whether, since you have the utmost of respect for our judiciary, you will see to it in your capacity as Attorney General, in combination with the various committees across the nation, that federal judges, we'll call them—or Queen's Bench judges, or whatever level—will be sitting enough to handle the justice load, because there is a backlog of appointments.

[Vic Toews, Conservative, Provencher, MB]

That brings me to the second question, that you're somehow suggesting I would make supernumerary judges work more than they do. That's not my responsibility; that's the responsibility of the chief justice.

You saw in Ontario a recent report that made headlines in The Globe and Mail, that the various judges and law society members and others talked about the administration of the legal system and the judicial system. I had no input into that. And that, I think, is a healthy kind of self-analysis and self-examination by the judiciary and by the law society to improve how things are done.

I note, for example, that just recently the Attorney General in British Columbia talked about certain issues with respect to the working hours of judges. That individual, who is a former court of appeal judge in British Columbia, I assume has a good deal of inside knowledge about how the courts operate. He ventured an opinion; that opinion was made. It's certainly not mine to make. I don't have the expertise he purported to have in making that particular comment.

[The Chair, Conservative, Art Hanger]

Very quickly, Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

The backlog question remains. You were in St. John's, Newfoundland, in front of the CBA and said you weren't really going to change the way judges are being appointed, notwithstanding some political rhetoric during the campaign. Is there going to be movement on getting rid of the backlog of vacancies? Let's put it that way.

[Vic Toews, Conservative, Provencher, MB]

When we came into government there were 23 vacancies. I don't know what the numbers are.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

It's about 60, I believe.

[Vic Toews, Conservative, Provencher, MB]

No, I don't believe there are 60 judges' vacancies. I'd have to check on that.

But the commitment I made was to look at getting rid of those vacancies by filling those vacancies as quickly as we have. I've made two larger groups of appointments, I believe both of more than ten judges at a time, and then some of smaller groups—I think about three separate groups of appointments. I can tell you that I'm working on others. But that's my first priority.

We are also looking at all kinds of issues inside the justice system, and I'm sure the chief justices are looking at how they can improve efficiencies in the court. I have the utmost respect in the ability of the chief justices to examine that issue and utilize the resources that are provided to them by the people of Canada in an efficient and appropriate way.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Murphy.

Monsieur Lemay.

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

Thank you, minister.

Indeed, speaking for Quebec, it's almost urgent that appointments be made as soon as possible. There are shortages. Right now, there's an obvious shortage of judges in Quebec. There are supernumerary judges, and other positions will become vacant. However, I get the impression that that's not the issue, minister.

I read the report of the Judicial Compensation and Benefits Commission submitted to the Minister of Justice on May 31, 2004, and I've read Bill C-17. Is Bill C-17 the response to the report? If you don't like the reports of the Judicial Compensation and Benefits Commission, are you also going to abolish it and cut off its funding?

[Vic Toews, Conservative, Provencher, MB]

Mr. Lemay, you know that there's a constitutional obligation for the existence of that particular commission, but that's not to say the commission is therefore perfect in its decision-making. The Supreme Court of Canada made it very clear, and not so much in the P.E.I. reference case but in the Bodner decision, that the Parliament is ultimately responsible for the determination of the salaries, and the response the government made is in accordance with the constitutional principles.

In respect to the judges, I've recommended and the government has appointed 28 judges to date. When we came into office there were 23 vacancies, as I recall.

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

Okay. I know that, under the Constitution—it's written in a section the number of which escapes me—you are required to establish a commission. Can you direct, that is to say indicate to the commission that you'll be determining the kind of work it will have to do and how you see the work concerning judicial compensation instead of preparing such a large bill?

[Vic Toews, Conservative, Provencher, MB]

No, I don't believe there is a specific section in our Constitution, in either the 1867 or 1982 Constitution Acts. There is the requirement under section 100 that says Parliament is responsible for the determination of the judicial compensation.

The idea of the commission was established as a constitutional principle by the Supreme Court of Canada in the P.E.I. reference case, but it's not reflected in any specific statutory provision, as for example we would have with the Law Commission of Canada legislation.

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

What's happening right now is that, when the judges aren't satisfied with the decision, they go to court, literally. We had this situation with the New Brunswick Provincial Court Judges Association, the Ontario Judges Association and so on. We've been in a kind of vicious circle since 2004. How do we go about breaking that circle, as a result of which, if you're not happy with the decision, you go to court, the court renders a decision, and the government isn't happy with it and goes to court?

[Vic Toews, Conservative, Provencher, MB]

You must have some information that I don't have about the judges' association going to court with respect to this. I have not heard of it, but if you have some inside information from the judges or otherwise, I would be pleased to hear from you. I'm trying to follow it.

The commission makes certain recommendations. The Government of Canada is obliged to respond to that in a principled fashion, and we did so. In fact we came into office on January 23, and I think cabinet was sworn in on February 6. We had a response out very quickly, before the end of the summer.

The report came out in 2004, and Parliament had not dealt with it and in fact didn't deal with it until the election on January 23. So I don't see how you're saying that somehow my government has been remiss in acting in an appropriate way.

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

No, minister. I only want...

[The Chair, Conservative, Art Hanger]

Mr. Lemay, make it very quick.

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

I have a point of order, Mr. Chair.

I simply want to tell you, minister, that I'm not accusing; I'm being careful. I didn't accuse your government of not responding. What I want to ask you is how do we break this circle whereby we too often wind up in court to resolve the matter of judicial compensation? My question is just that.

[Vic Toews, Conservative, Provencher, MB]

This mechanism was established as a constitutional principle by the Supreme Court of Canada. Our government will do everything to implement a decision of the commission appropriately, including revising the recommendations in accordance with the principles established by the Supreme Court of Canada in the P.E.I. reference case and later refined in the Bodner decision.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lemay.

The committee would like to thank you, Minister, and Mr. Sims, for your appearance here.

This committee will be suspended for one minute while the other witnesses come to the table.

[Vic Toews, Conservative, Provencher, MB]

Last time, I was accused of leaving too abruptly. I don't want to be seen as leaving here too abruptly. Is there anything that I'm supposed to do other than thank you, Mr. Chair, and thank the members?

[Some hon. members]

Hear, hear!