Justice Committee on Nov. 6th, 2012

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Basically, the main actors in this, the Bar Association and the Canadian Superior Courts Judges Association, have been consulted. Mrs. Findlay noted that there had been extensive consultation. Of course, it's done over four years, so I guess it's only fair that we could report more quickly because it is a four-year process. I note that there has been a fair amount of consultation done with both of the main stakeholders, so it's welcome that they have both agreed that this process is improved.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes, I think that's a very good point.

Ms. Findlay pointed out the extensive representations that were made to this quadrennial commission. I think it's important that all these issues be thoroughly reviewed and that they be seen to be thoroughly reviewed. I think the quadrennial commission process has worked in this particular occasion, and I have nothing but thanks to them for tabling the report, for giving me their report.

We've tried to move as quickly as possible on this at the government level, which is why I thought it a good idea to include it with this particular piece of legislation, because it moves it forward. These are important considerations. There are a number of changes that we've outlined and that you're having a look at obviously. To have that included as part of the legislation and then have it debated and discussed here I think has been very important. I think these are all positive measures and I've been pleased to be associated with them.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Scott, go ahead.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Mr. Chair.

And thank you, Mr. Minister, for being here.

I was wondering if you could address recommendation 11 from the commission. They recommended:

...the Government and judiciary should examine methods whereby the Commission process can be made less adversarial and more effective.

I'm understanding that “adversarial” is in the technical sense of, as they say in French, contradictoire. I understand that the government, in its report, from my reading of it, has subscribed to this recommendation. If so, I'm wondering if you have any idea of how this might occur, how the government and the judiciary will talk about this, and what your understanding is of what problem is being perceived here in the recommendation.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm always open to any type of discussion, any suggestions in this area, to make improvements. One of the challenges is that the process seems to get dragged out. You can see from their response...the proposal we're making is to try to shorten up that process, to get it moved through the system, because it seems to me that's not in anyone's interest. This is something I've heard over the years, that nobody wants things to drag on. It's a lot better system, it seems to me, than we had, as I remember, in the mid-eighties, when these things were argued before your committee here, the justice committee, and the discussions....

The set-up of the quadrennial commission I think has been a step in the right direction. It's not perfect. As you can see, we made some modifications to it in this, but, again, I've always been open to suggestions on ways of improving this process. That being said, there are parameters that have been set out by the courts, and we abide by those, and there are constitutional responsibilities in the Constitution, as well as those set out in legislation under the Judges Act. We abide by and comply with those parameters. That being said, I think this is the next step in this. But, again, no system is perfect, and we're always open to suggestions.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you.

I can understand by both your response and the government's answer that when it says “the Government and judiciary should examine”, this is a recommendation for which you do foresee some kind of a coming together of the government and the judiciary to discuss this?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again—and I've made it clear over the years—I'm always open to any suggestions or recommendations that we get in these, and that would continue.

[Craig Scott, NDP, Toronto—Danforth, ON]

Okay, thank you.

Recommendation 10, which I understand is in some sense a non-substantive recommendation, but is a procedural recommendation, states:

Where consensus has emerged around a particular issue during a previous Commission inquiry, in the absence of demonstrated change, such consensus should be taken into account by the Commission, and reflected in the submissions of the parties.

I've read the justice department's—your—response to the commission, and I have to commend it for its thoroughness. I'm just wondering on this issue of the 3% differential whether this particular point, actually a recommendation from the commission itself, loomed large in your thinking. If we are in times that the government considers to be financially straitened times, did the fact that the previous consensus was that there would be no differential weigh extra heavy in your thinking? If this was originally put into a budget bill, I'd like to think that one of the primary motivations for not accepting a recommendation of the commission really was a financial judgment and not a substantively different judgment from the commission.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think it was a combination of a number of things. You alluded to the fact that decisions and reviews by previous commissions are of course looked at each time a new quadrennial commission is put in place. If you have a look at the 2003 McLennan commission, they addressed this issue very clearly and came to the conclusion that there would no recommendation with respect to a differential between trial and appellate judges.

That was the view they had at the present time. Again, when we came up with responses to this...one of the considerations that is set out in the Judges Act is the prevailing economic conditions in Canada, including the cost of living and overall economic financial position of the federal government. That being said, that's one of the criteria. Again, maintaining the fiscal responsibility as the Government of Canada is our responsibility. On the other hand, there are provisions within the Judges Act that ask us to look at the role of financial security of the judiciary and ensure judicial independence, and the need to attract outstanding candidates.

I'm of the opinion, and it has been my experience, that in terms of attracting qualified individuals to sit on the Court of Appeal, we have not had a problem, and there isn't a problem in Canada attracting outstanding individuals with the current salary and benefit levels, and other things that would attract people to the judiciary. It hasn't been a problem, and, quite frankly, I don't believe there is a consensus in Canada that there should be a differential. Again, as I pointed out, in the 2003 quadrennial commission they addressed it very directly and said no, they wouldn't recommend that.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Albas.

This will be the last question. I think we said an hour for the minister, and we will be past that. The bells are ringing because it's 10 o'clock, not 11 o'clock, so it's for the opening of the House.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Thank you, Mr. Chair, and thank you, Minister, for being here today.

Minister, the Judicial Compensation and Benefits Commission was established by the Judges Act to conform to the constitutional requirements of the P.E.I. Judges Reference of 1997. The commission must establish every four years to conduct an inquiry and must report within nine months of its establishment. The government is required by the act to respond publicly within six months of delivery of the report to the Minister of Justice.

Could you please take some time to tell us a little bit more about the commission's mandates, and specifically which criteria must the commission take into consideration in fulfilling its mandate?

[Rob Nicholson, Conservative, Niagara Falls, ON]

The commission's mandate is to inquire and to report to the government on the adequacy of judicial compensation and benefits. That's the mandate. There are four criteria set out within the Judges Act that they are to take into consideration. I think I've mentioned a couple of them. One of them is the prevailing economic conditions in the country. The role of the financial security of the judiciary is the second one. There is the need to attract outstanding candidates, and any other objective the commission considers relevant. That means they can have a very broad look at all the issues surrounding the judiciary.

Again, this is a process that has worked up to the present time. The government has indicated they appreciate the work that has been done on these. These are not easy issues. As you hear, there are constitutional considerations, there are considerations with respect to legislation that's been passed in this area, there's the principle of judicial independence, and there are Supreme Court of Canada decisions that give guidelines. So there is lots to take into consideration.

As I indicated to your colleagues across the aisle, I believe our response has been very reasonable in terms of accepting the main recommendation with respect to the salaries. I believed it was important as well to bring to an end some of the anomalies that take place. For instance, on the differential between senior judges in the territories and chief justices in the provinces, making those changes with respect to part of their compensation package I think was very important to do.

As I indicated, I like the provisions helping to speed up the process, and again having the government's response within four months. There's no reason why governments can't and shouldn't focus on these issues, and we certainly have done that. Then there is the requirement that within a reasonable period of time, legislation implementing these changes would be tabled in Parliament.

I think most people having a look at this would say they like the idea that the system is moving forward and that it doesn't get stalled. I can't see why that wouldn't be in everybody's interests, so this is why those recommendations and those responses certainly appealed to me when we were putting this together. But thank you for that.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

I appreciate the answer.

One of the members, Mr. Scott, had mentioned earlier that he appreciated the fullness of the government's response to the quadrennial Judicial Compensation and Benefits Commission's report. I would like to take a moment on that. To recommendation 11 you responded that you were open to further ideas and to working with future commissions to make the process better. I think part of your answer was in regard to time, which shows respect. It was not only that the government significantly complied with a very comprehensive response, but that it did so in a timely way.

Minister, under the Judges Act, the Judicial Compensation and Benefits Commission must be established every four years beginning on September 1. It must deliver its report within nine months, so that would be June 1 of the following year. The Minister of Justice must respond publicly to the report within six months of its release, normally by December 1. You have proposed some changes, which you mentioned in your opening statement. You proposed that the time for response to the commission's report be reduced from six to four months. It sounded as though you believed this would allow sufficient time for the development of a government response and subsequent ratification by cabinet. The question is whether by doing these changes we are going to see a better process going forward in regard to the concerns about time and other suggestions.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think so, just for the reasons I've indicated.

Most people would like to see this process move along, whether they're in the judiciary or not. Certainly if I were a member of the judiciary, I'd want the process to be implemented and moved forward on a reasonable timeline for the parliamentarians and the government. Nobody wants these things to drag on. We want to have some sort of a conclusion to that.

Again, as was pointed out, we have a constitutional responsibility in this area. To move forward with this is important. This is why in the government's response, as you indicated—and it's a fulsome response, as it should be—we've made some changes to the timelines, and I think that's something that's going to be well received.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

That ends our time.

[Irwin Cotler, Liberal, Mount Royal, QC]

I also want to commend the minister and the officials for their comprehensive response. I went through this exercise, and I appreciate the minister's remarks about timing and timelines in that regard.

I have a short question, if the minister will allow, since he's here, because some time was taken up on a point of order. It bears on a motion I have.

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

Excuse me, Mr. Chair. A point of order.

[The Chair, Conservative, Dave MacKenzie]

Go ahead.

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

I thought we'd finished our final round.

I was wondering if Mr. Cotler could confirm whether he tabled a legal opinion while he was Minister of Justice, or whether the Liberal government did, in relation—

[Irwin Cotler, Liberal, Mount Royal, QC]

I did table a legal opinion.

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

Do you have a copy of that today, Mr. Cotler?

[The Chair, Conservative, Dave MacKenzie]

Let's deal with the matter at hand.

[Irwin Cotler, Liberal, Mount Royal, QC]

I have a short question, if the minister will allow, because it does bear on a motion that it may concern.

The question is, Minister, that you indicated in your response—

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

Excuse me, Mr. Chair. A point of order.

I'm sorry, but we have a system in this place. Mr. Cotler has had an opportunity to question the minister. I think I was next on the list for the government side. We all have privileges as members here. I haven't had an opportunity to ask a question yet, and Mr. Cotler is getting a second round. I don't think that's in order, sir.

[The Chair, Conservative, Dave MacKenzie]

Fair enough.

I'm sorry, Mr. Cotler.

Thank you, Minister.

We'll take a brief break, if the minister and his officials wish to leave.