Justice Committee on Nov. 6th, 2012

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's important to have a complete response. This is a very important process, and I don't have to underline that for you. This is the second quadrennial commission that I have been involved with, and I believe it is and was important to have a complete response.

We take the process seriously, as we should. Again, I invite people to have a look at the government's response on this. I think it's well reasoned and it's complete, and that is as it should be. I think that's the fair way to do that, and that's exactly what we've done in this case.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

I want to also express my appreciation for the minister and his officials for being with us today to discuss the matter of judicial compensation set forth in the second budget implementation act, Bill C-45.

Minister, as you are aware, section 4.1 of the Department of Justice Act stipulates that bills must be checked for compliance with the Canadian Charter of Rights and Freedoms. My question is, by what standard was this bill vetted for charter compliance?

[Rob Nicholson, Conservative, Niagara Falls, ON]

All bills that are drafted by the Government of Canada are vetted to ensure they comply with the Constitution of this country. That is as it should be.

[Irwin Cotler, Liberal, Mount Royal, QC]

No, I understand the requirement, Minister, that is set forth in the Department of Justice Act, but the reason I raise the question of the standard that is used is that a previous witness from the Department of Justice said the standard is one that is—and I quote—“manifestly unconstitutional and could not be defended by credible arguments”. Others have said—and I quote—that it's one of “whether or not a credible Charter argument can be made”.

I'm asking your opinion because I don't think that you yourself have shared your views on what the appropriate standard would be in this regard.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, the standard is that we comply with all the constitutional documents, be it the charter or the Canadian Bill of Rights. We satisfy ourselves that all legislation is in compliance. I think that has been the procedure of this government and previous governments, and that will continue.

[Irwin Cotler, Liberal, Mount Royal, QC]

With respect to the legislation before us, Mr. Minister, has this in fact been checked with regard to compliance with the charter? If so, was a different standard used with regard to this particular piece of legislation regarding judicial compensation?

I'm only seeking to appreciate...because under section 4.1, as you know, there's a requirement for a report of “inconsistency” where one exists. Has there been a report prepared for this bill? If so, when will it be tabled?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, I can't tell you anything more than I've already told you. We comply with the tests that have been laid down.

I've indicated I think on a couple of occasions, to Madame Boivin and Ms. Findlay, that in my opinion this completely meets our constitutional responsibilities as set out in the Judges Act and in the Constitution Act of 1867.

I'm not quite sure exactly where you're driving this, Mr. Cotler, but I believe this is in complete compliance with the Constitution of this country, as I believe all the legislation we have tabled before Parliament is. That's a government responsibility.

[Irwin Cotler, Liberal, Mount Royal, QC]

The reason I'm asking, Mr. Minister, is that we have not had any tabling of the opinions that the legislation is constitutional. The Department of Justice Act mandates what I might call a constitutional seal of good housekeeping approval. I'm just saying, will this be tabled with respect to—

[Rob Nicholson, Conservative, Niagara Falls, ON]

I generally don't table legal opinions or legal advice. As the spokesperson for the government in this area, I've indicated that this bill, as with all the other pieces of legislation we've tabled before Parliament, in my opinion is compliant with both the charter and the Canadian Bill of Rights.

[Irwin Cotler, Liberal, Mount Royal, QC]

I still don't understand, though, Minister. If you're not tabling it, what standard is being used?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, the standard as set out in the Constitution of this country.

[Irwin Cotler, Liberal, Mount Royal, QC]

Because we have—

[Rob Nicholson, Conservative, Niagara Falls, ON]

Those who work with me are quite familiar with the British North America Act, now known as the Constitution Act of 1867. They're quite familiar with the Canadian Bill of Rights, as introduced by Mr. Diefenbaker, and with the Canadian charter, and with all other constitutional documents going back to the Magna Carta, for that matter. They're quite familiar with those. This is the advice when we draft legislation.

I'm satisfied that the bills we table before Parliament are completely compliant with the Constitution of this country. I believe this bill is, and I believe the response we have tabled with respect to the quadrennial commission is in line with that approach and that it respects the constitutional responsibilities we have with respect to judicial independence, judicial salaries, and judicial benefits.

[Irwin Cotler, Liberal, Mount Royal, QC]

Minister, I'm not going to pursue it any further, other than to say that I'm still not aware of what the standard is that is being invoked with respect to the determination, under the Department of Justice Act, of compliance with the charter. I'll leave it at that, but I would hope that at some future occasion that might be shared with us.

On the compensation—

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Goguen.

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

Thank you, Mr. Chair.

Thank you, Minister, for appearing today.

Thanks to the witnesses.

In essence, I guess the recommendations have been reviewed. Of course, you balance them on the necessity of attracting good candidates and on the necessity of having the independence of the judiciary tempered against a background of fiscal restraint. In this case, we've gone with the status quo. That means the salaries will remain the same, subject to annual indexation.

I also note that the Canadian Bar Association and the Canadian Superior Courts Judges Association were very pleased with the results and the process. It causes me to wonder about Mr. Cotler's argument and his suspicion that somehow this could be anti-constitutional when major stakeholders such as the Canadian Bar Association and the Canadian Superior Courts Judges Association are both pleased with the results and the process. So the suspicion of anti-constitutionality...I really don't know where that comes from.

[Irwin Cotler, Liberal, Mount Royal, QC]

A point of order, Mr. Chair.

There's no suspicion alleged or adduced on my part of unconstitutionality. I asked about the question because it's a constitutional requirement with regard to compliance.

What standard was used for that purpose? That's all I asked.

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

There's a recurring theme in the questioning, Mr. Cotler, that everything somehow has a dark, anti-constitutional element to it. I don't really think everything has that taint.

[Irwin Cotler, Liberal, Mount Royal, QC]

That imputation is in the mind of the beholder.

[The Chair, Conservative, Dave MacKenzie]

Not in this chair.

Let's deal with the minister.

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

Back on the theme of the stakeholders being so favourable and agreeable to this well-thought-out process, Mr. Pierre Bienvenu, a representative of the Canadian Superior Courts Judges Association said, “The judiciary has been concerned about delayed government responses to past commission reports”, and he was pleased that the government provided its response in a timely fashion.

So again, there's an improvement in the process that's being welcomed by the main stakeholders.

Robert Brun from the Canadian Bar Association was also pleased with the government's timely response.

My question is—and it's going to be more timely, Minister—do you agree with the Canadian Bar Association and the Canadian Superior Courts Judges Association? Do you believe that our government is acting in good faith, that we're balancing the criteria, and that we're respecting the need for fiscal restraint?

[Rob Nicholson, Conservative, Niagara Falls, ON]

It will come as no surprise to you, Mr. Goguen, that I do agree with their comments. I was pleased to hear those comments about the tabling of our response to the quadrennial commission, as well as the recommendations we've made. As you pointed out, they picked out changes with respect to the government's response and the timeliness of any response. As you can see, we've made some modifications in that, and I think that's a good idea.

We're reducing the government's time to respond to this from six months to four months. I think that's reasonable. We put in as well that if any judicial changes are to be made, that they be introduced within a reasonable period of time. You might have situations where Parliament is adjourned because there's an election, or for any number of reasons, and it's not possible to immediately introduce legislation. I believe it was reasonable to put in there that it would be done “within a reasonable period of time” and to shorten the government's response.

Nobody wants to have these things drag on. That we move forward, have a look at the whole question of judicial salaries and benefits, and do it in a timely manner I think is welcomed by everyone. You correctly pointed out that the Canadian Bar Association and the Canadian Superior Courts Judges Association, and others, have given generally favourable comments on those changes. I think they were important to make, because it's in no one's interest if these things drag on, so I'm pleased that they're moving in that direction.

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

Thank you.

[The Chair, Conservative, Dave MacKenzie]

You still have one minute.