Debates of Nov. 27th, 1996

Questions On The Order Paper

[Paul Zed, Liberal, Fundy Royal, NB]

Mr. Speaker, I ask that all questions be allowed to stand.

[The Deputy Speaker]

Is it agreed?

[Some hon. members]

Agreed.

Motions For Papers

[Paul Zed, Liberal, Parliamentary Secretary to Leader of the Government in the House of Commons]

Mr. Speaker, I ask the all Notices of Motions for the Production of Papers be allowed to stand.

[The Deputy Speaker]

Is it agreed.

[Some hon. members]

Agreed.

The House resumed from November 20 consideration of the motion in relation to the amendments made by the Senate to Bill C-42, an act to amend the Judges Act and to make consequential amendments to another act.

Judges Act

[Jack Ramsay, Reform, Crowfoot, AB]

Mr. Speaker, this bill was brought forward by the government as a very simple and straightforward bill, a bill that we were advised was housekeeping and a kind of innocuous bill. However, the more we look at it and the more I hear about it from people trained in the legal field, the more concern I have about it.

Some of the concerns I have are of course justified by what the justice minister has said.

I would just like to quote what the justice minister told the Senate committee when he appeared before that committee earlier this year: "There is no provision in the Judges Act for a federally appointed judge such as Madam Justice Arbour to be granted a leave of absence without pay to work for an international organization such as the UN. Nor does the act permit the salary and expenses of a judge during a period of leave to be paid by any organization or entity other than the Government of Canada or, in the case of expenses, by the government of a province.

"The amendments to the bill now before this committee have the full support of the Chief Justice of Canada and the Canadian Judicial Council. They would permit this type of arrangement to be entered into by Madam Justice Arbour and, in exception cases, by other judges. The provision contained in the bill's proposed new section 56.1 would be a narrow exception to the general prohibition set out in section 55 of the Judges Act against the judge engaging in any occupation or business other than her or his judicial duty".

If that is accurate, if the purpose of section 56.1 would be a narrow exception to the general prohibition set out in section 55 of the existing Judges Act against any judge engaging in any occupation or business other than her or his judicial business, it seems very clear that this act should have been passed before Judge Arbour accepted the appointment to her position with the UN on August 1.

What is the situation today? This bill went before the Senate and it came back with an amendment that I have some concerns about and which I will be offering an amendment to.

The question is very clear and of great concern. Is Judge Arbour now in violation of section 55 of the Judges Act? If she is not, what is the purpose of this particular amendment, section 56.1, which would exempt her from section 55, which creates a prohibition for her or other judges to accept employment in any other form?

We now have an Ontario federal court justice who has now accepted a position with the UN, a prestigious position, there is no question. However, there are at least three learned individuals who have expressed concerns about Bill C-42. Professor Morton appeared before the committee. In another debate on another amendment to the bill, I spoke to the comments he made before the committee. Professor Russell and Professor Manfredi also expressed grave concerns about the legality of what is happening here.

I am not going to belabour the House at this time on this bill. I am simply going to move the following motion:

I move:

That the motion be amended by deleting all the words after the word "that" and substituting the following therefor: "a Message be sent to the Senate to acquaint their Honours that this House disagrees with amendment 1 made by the Senate to Bill C-42, an act to amend the Judges Act and to make consequential amendments to another act, and that this House agrees with the principles set out in amendment 2, but would propose the following amendments:

Insert the words "for a period not to exceed three years" after the words "judicial duties" in section 56.1(1); and

Strike out all the lines in section 56.1(2) and substitute the following: "If Madam Justice Arbour elects to take leave pursuant to section 56.1(1) she may receive moving or transportation expenses and reasonable travel and other expenses, in connection with her services as Prosecutor, from the United Nations"; and

That the following words be added to section 56.1(3): "notwithstanding any prohibition against accepting any salary, fee, remuneration or other emolument described in section 57"; and

That the following words be added to section 56.1(5): "and that benefits payable under these sections will be paid or will commence to be paid at the expiration of the leave of absence without pay".

[The Deputy Speaker]

The motion has just been handed to the Chair. If the hon. member will give the Chair a little time to rule on whether it is receivable, I will get back to him as soon as it can be done.

Resuming debate, the hon. member for St. Albert.

[John Williams, Reform, St. Albert, AB]

Mr. Speaker, I am pleased to speak to the amendment to the motion that has been put forward by my colleague from Crowfoot.

We have talked about this particular motion before, which is in essence a message from the Senate that it does not feel comfortable with Bill C-42 as passed in this House and sent over to it back in June of this year.

The Senate had serious concerns with several sections of the act. The government amended the act in the Senate. It was not the deliberations within the Senate which led to the amendments. The government realized that the bill was in trouble in the Senate and put forth these amendments in the other place. The government realized that the bill was in trouble in the other place-

[The Deputy Speaker]

The amendment has not yet been ruled receivable. Accordingly, since the hon. member for St. Albert has spoken to the main motion, the only solution the Chair can see is to permit the member to speak on the understanding that shortly we will have a ruling that the motion is receivable, as long as all members understand what is happening.

[John Williams, Reform, St. Albert, AB]

I am speaking to the amendment, Mr. Speaker. We did ask the Clerk if he felt that the amendment was in order and he gave an initial presumption that it appeared superficially to be in order. I hope that once there has been a chance to read it in detail that it is found that the motion is in order. Therefore I am speaking to the amendment that has been tabled by my colleague from Crowfoot.

As I was saying, Bill C-42 which was passed in this House and referred to the other place ran into serious opposition in the other place. The government realized that it had serious problems in the other place and therefore put forth the amendment we are now talking on today which the other place has sent back to us for our consideration.

Not only did the bill run into serious opposition in the other place but the government realized it was somewhat out on a limb, if I may use that terminology. The government wanted to legitimize the appointment of Madam Justice Arbour to the position of prosecutor working in The Hague for the United Nations. Of course as we know, the Judges Act as it stands today does not allow for that, yet she is over there. Therefore the government wants to get this through as quickly as possible to save the embarrassment of her being, if I may euphemistically say, in legal limbo. I think one could actually argue it is far beyond legal limbo, but let us stay there at the moment.

I refer to my speech of last week. I talked about the preamble, the perception of conflict of interest and the perception of impartiality being compromised. My remarks of last week stand regarding the preamble.

Dealing with the amendments proposed in the message we received from the other place which has been amended by my hon. colleague from Crowfoot, I do want to speak to these and several issues.

The first one deals with the amendment to the act which would allow Madam Justice Arbour to apply for a leave of absence without term. It is an open-ended authorization. She could be gone for five years, she could be gone for ten years or she need not even come back. There is no requirement for her to come back in this authorization. It is an absolutely open-ended authorization for her to apply for a leave of absence without term.

Section 99(1) of the Constitution states that Parliament and only Parliament has the authority to remove people from the bench. That has been put right into our Constitution. It is not part of the Judges Act, it is part of our Constitution. It says that only Parliament can remove someone from the bench. We almost had to deliberate on that particular situation two or three months ago.

The reason that only Parliament and not the government can remove a judge from the bench is written in the Constitution is that we want to ensure there is absolutely no opportunity for government interference in the judiciary. That is a clear and simple fact which has been around as long as Canada has been around: the government cannot interfere with the judiciary.

The amendment by the other place gives a specific exemption to a specific member of the bench for her to apply for an open-ended leave of absence that theoretically does not require her to return to the bench. My point is: If the government approves that leave of absence, has the government removed Madam Justice Louise Arbour from the bench which is the prerogative of Parliament and no one else? That is why we amended the motion to make that leave of absence term certain. We said that it is not to exceed three years.

The testimony that I read before the committee of the other place suggested that she be gone for about two years. We have given ample time for her to return yet we have made the leave of absence term certain. This government cannot understand that we want to

ensure the government cannot, should not and does not interfere with the impartiality, integrity and the independence of the judiciary.

We have said that if this has to be-and we do not like that it has gone this way, and I have argued this before in this House-but if it has to go this way, then surely they should do their homework properly and put in a term certain. Then we can be assured that Madam Justice Louise Arbour will return to the bench and that Parliament's prerogative, that which is only given to Parliament, is preserved. Parliament and Parliament alone has the right to remove people from the bench. It does not rest with the Minister of Justice who could grant this leave of absence and then prevent her from returning which would usurp Parliament's roles and responsibilities.

On the second one, we know that this legislation was drafted in a rush. When legislation is drafted in a rush, we usually end up with bad legislation. This was bad legislation right from the beginning. I have talked about that before. Then when they had to come up with an amendment in a hurry, I think it also was poorly drafted.

To briefly go through the amendment which has been referred to us by the other House, the first paragraph gives the judge authorization to apply for a leave of absence. The second one gives her the right to moving expenses. The third one says that if she accepts the appointment she will not get paid. The fourth one deals with her pension benefits and so on.

When we look at the text of the second paragraph which deals with moving expenses, we find that it is poorly worded. It says that she is entitled to moving expenses regardless of the situation. I would have thought that she would only be entitled to moving expenses if she elected to take a leave of absence. If she does not elect to take a leave of absence, then surely she would not be entitled to moving expenses. However, the clause is drafted to say that she is entitled to moving expenses. I do not know where she is going if she does not take a leave of absence, but she is entitled to moving expenses whether or not she takes a leave of absence. That is a poorly drafted clause which requires amendment.

It is simple. When things are done in a rush they can be done wrong. The government has to look carefully at the amendment which has been put forward.

The amendment deals with the fact that if she takes a leave of absence to work for the United Nations, she is not entitled to be paid by the Government of Canada. The Minister of Justice has told us that the UN must give an appearance of impartiality, integrity and independence from any country, because she will be working on behalf of all countries, for all of humanity. I would go along with that. However, if she takes the appointment she cannot be paid by the Government of Canada and she must be paid by the United Nations.

The minister has said that the Judges Act requires that she be paid by the Government of Canada. He is asking for a special exemption for Madam Justice Louise Arbour in order for her to be paid by someone else, presumably by the United Nations.

Section 57 of the Judges Act deals specifically with the fact that only the Government of Canada can pay judges on the bench. Section 56 has been amended to grant a special exemption which will allow her to be paid by someone else, but section 57 says that she cannot be paid by someone else. There is a conflict. I am sure the minister thought that it was drafted well enough to allow Madam Justice Louise Arbour not to be paid by the Government of Canada but to be paid by someone else; however, we must remember that section 57 was written long before anyone contemplated a specific exemption being allowed for one specific member of the bench.

I have argued against that, but nonetheless the government has pursued and insisted that this motion go forward. If we are going to be dragged into this against our will, then surely the government should write the legislation properly. That is why we have said "notwithstanding any prohibition against accepting any salary, fee, remuneration or other emolument described in section 57" she is entitled to be paid under section 56.1(3).

We on this side are doing the minister's work by cleaning up his legislation when in fact we do not even agree with his intent. However, if we are going to be dragged into it, then surely it should be done right.

We are dealing with members of the bench. We are dealing with people of integrity. We are dealing with people whose integrity has been compromised, in my opinion, by the minister. We are dealing with people whose integrity should be beyond question, whose independence should be beyond question. I am quite comfortable with the fact that these people exercise great diligence in ensuring that they are not compromised in any way and lo and behold the minister has stepped right in and muddied the waters to a great degree.

The last amendment moved by my hon. colleague is that under section 56.1(5) the benefits payable under these sections will commence to be paid at the expiration of the leave of absence without pay. This gets back to my earlier point. She is gone and we do not know when she is coming back. Perhaps she is gone until retirement. Perhaps she is gone with no intention of returning. We have no idea when she will return or if she will return. Can she return? Does she have any desire to return? We do not know.

My hon. colleague has said that until we know that point, perhaps any benefits that are payable to her through her service on the bench here, or to other members of the bench, should be held in abeyance until she returns. The amendment he put forward is reasonable but it may be a little too draconian. That is why I

suggest we make an amendment to the amendment by my colleague from Crowfoot.

I move:

That the amendment be amended by deleting all the words after and including the words "and that the following words be added to section 56.1(5)".

[The Deputy Speaker]

The amendment of the hon. member for Crowfoot has been found to be receivable, and the Chair so rules. The subamendment will have to go through the same rigorous process and the Chair will rule as quickly as possible.

Debate.

[John Williams, Reform, St. Albert, AB]

Mr. Speaker, on a point of order. You have ruled that the amendment by my hon. colleague from Crowfoot is in order. My subamendment is strictly to delete the last paragraph of the member for Crowfoot's amendment. Therefore I would expect the Chair to find the subamendment in order.

[Bob Kilger, Liberal, Stormont—Dundas, ON]

Mr. Speaker, would members consider suspending the House, if the Chair so desires, while the ruling is made on the subamendment? The understanding is that there are no other speakers on this matter, because we are prepared for the question. You asked for debate and no one rose.

[The Deputy Speaker]

I appreciate the courtesy members are extending. The subamendment is receivable and therefore that issue is dispensed with. Is there further debate?

[Ted White, Reform, North Vancouver, BC]

Mr. Speaker, on a point of order. I have an inquiry. Questions and comments zoomed by there. I was going to get up and ask a question of the member. Did I miss the opportunity to do that?

[The Deputy Speaker]

This is Wednesday afternoon indeed. There is a questions and answers period and the Chair omitted them. I thank the hon. member for North Vancouver who has the right to ask questions or comments.

[Ted White, Reform, North Vancouver, BC]

Mr. Speaker, thank you. I listened carefully to the speech of the hon. member. I have a couple of questions based on things that happened in the discussions during question period in the House on this issue over the last couple of days.

I remember that the member was accused of being meanspirited a number of times in the House over the issue of the appointment of the judge.

Therefore I would really like to ask the member whether he can really answer that charge and explain why he is not meanspirited in this particular case. I would also like to ask him why he is concerned about the impartiality of this judge when she comes back, if she does, to the country.

Finally, in fairness to the government, does the member feel that its motives are well intentioned or does he feel there is really something more behind this?

[The Deputy Speaker]

I might indicate to the House that we are not to impute motives. We are not to get into questions of motives in the House.

[John Williams, Reform, St. Albert, AB]

Mr. Speaker, I am glad you have pointed out that we do not get into motives, because the member for North Vancouver is perfectly correct when he quoted the Minister of Justice. Perhaps that was imputing motives but we will let that go by because, as you know, I am not that kind of person.

However, the point is while the accusations may have been made in this House, the reason I have objected to this particular bill and to the amendments that have come back from the other House has nothing to do with being meanspirited or being motivated by anything other than upholding the independence and integrity of the judicial system and the bench.

We have, unfortunately, a situation where an individual exception to the law has been granted to one particular judge. I have argued in the House that the particular exception should be introduced by way of a private bill rather than a public bill. I feel the Minister of Justice has used the rules of this House in such a way that we have less scrutiny in this particular private business than more scrutiny on this particular piece of private business.

There was a quote by a previous speaker, which I cannot give off the top of my head, but he said that the reason we have private bills in this House is to ensure that they receive more vigorous scrutiny because they are exceptions to the rules than what public bills receive because they are a matter of public policy. Private business should require even more scrutiny.

This exemption to the act for one particular person went through here as a public bill, went over to the other House and has been returned with amendments from the other House. It is now back here as a private bill, in essence as a hybrid public-private bill, which is disallowed by the rules of this House. We have even seen the rules of this House being used to the advantage of the Minister of Justice rather than to the advantage of all members of this House so that we can provide even more vigorous scrutiny to the exemption being granted.

As far as the impartiality of the bench, I take great exception to the way it is being used and abused. We now have a member of our bench who is supposed to be impartial. I have not question whatsoever about her integrity, but she is now going to be a prosecutor and is no longer sitting in judgment. She is taking sides.

Can one imagine the hypocrisy of a situation where the United Nations came back to Canada and reached into our bench and said it would like to have this judge on the defence? We have two members of the bench from Canada, one prosecuting and one defending war criminals in The Hague. How ludicrous, how partial and how totally unindependent that would be. Yet half of that transaction is what is being contemplated, approved and passed in this House.

If it is ludicrous to have a member of the defence and prosecution working on these cases in the United Nations then surely it is just as ludicrous to have one member of the bench on the prosecutor's side.

I will also come back to the last point the member made. We are dealing with crimes against humanity. We are dealing with horrific crimes that were committed in Bosnia, the former Yugoslavia and Rwanda. In the news today are the hundreds of thousands of people who are starving and the hundreds who are being slaughtered, massacred every day. These are crimes of great human tragedy no matter where they happen in the world.

Is a member of the Canadian bench the only person in the world who can act as a prosecutor? Is that the only person who could be found to uphold justice in the world, who can act as a prosecutor against these crimes? I ask that question. I do not in any way take away from the seriousness of these crimes and the fact that the criminals must be prosecuted. However, I seriously do question if she is the only person who could be found to do the job. That is the point I wanted to make.

Finally, I presume she will return to the bench. Remember she and she alone has been granted special dispensation by the Government of Canada. She has to decide on a case that involves the Government of Canada against someone else.

The defence counsel could will ask: "Madam Justice Louise Arbour, how can you be independent here when you are deciding between the Government of Canada as the defendant and someone else and you have been granted special dispensation by the government?" The appearance of impartiality, of integrity, of independence goes right out the window. That is an important principle which is being seriously undermined and eroded, aided and abetted by the Minister of Justice.

I find that repulsive and quite odious. I certainly hope the Minister of Justice will see the sense of the whole thing and withdraw this concurrence.

[Michel Bellehumeur, Bloc, Berthier—Montcalm, QC]

Mr. Speaker, I find it rather odd that the Reform Party has latched onto such a question. I would consider it an honour for all Canadians to be represented abroad by a fellow Canadian. You might find this particularly odd out of the mouth of a Bloc member, but it is true.

It is deplorable that the Reform Party has latched onto such a case as this to make political hay, to make the newspapers, or for whatever reason, and is using every means possible to put other cases before the House of Commons, when the matter could be resolved once and for all with Bill C-42.

I have already spoken to Bill C-42 and criticized the work done by the Senate on certain amendments. I criticized the Senate's meddling in a matter of this sort and its forcing the House to some extent to decide on each case individually, to come back with a specific bill for each judge wishing to do any sort of work internationally.

The Reformers are doing much the same thing. They introduce an amendment and then an amendment to an amendment. They will try every means to delay the work of the House on this bill, whose objective is clear: to permit judges with the experience or certain abilities, who have a vision of things international, to provide assistance, as other countries are entitled to expect from Canada, from a democratic country with a lot of experienced judges.

It is Justice Arbour in this case, but it could be Justice Bellehumeur or any other judge looking for an opportunity to fulfil a specific international mandate. All kinds of reasons are being put forward to delay passage of this bill. They are going to great lengths to deter judges who might want to fulfil specific international functions.

We have before us a Reform amendment adding yet more requirements. The Reform Party wants to make it quite clear that Canada will not pay moving, transport and other costs, although this is already provided for in Bill C-42.

Section 56.1, as proposed in Bill C-42, gives the government discretion. Of course, I am not 100 per cent behind everything the people across the way do, but we must realize that voters have given the Liberal government opposite a mandate to manage public funds. We must at least trust our friends in this regard. There is a time to condemn, but there are times also when we must realize that it is pointless to protest, and I think this is a case in point.

I will take a moment to read section 56.1, so that you and the people listening to us can see the risk of going too far in making changes and waging procedural battles in the House for the sake of it.

Section 56.1 states:

(1) Notwithstanding section 55, a judge may, with the authorization of the Government of Canada, participate in international activities or international technical assistance programs or in the work of an international organization of states or an institution of such an organization, and may, if the participation is so authorized, receive moving or transportation expenses and reasonable travel and other expenses either from the Government of Canada or from an international organization or an institution of such an organization.

Could it be any clearer? The government may provide financial assistance at the time of approving participation. Take Justice Arbour for example. Upon receiving a request from her, the government may authorize Justice Arbour to participate in international activities and specify in this authorization that it will be up to the judge to have her expenses reimbursed either by the UN, or whatever organization hires her, or by Canada. Canada can contribute by paying these costs.

At present, Canada gives money to the UN every time it participates in an international aid mission. Shall we stop at paying a judge's moving expenses if that is the kind of contribution Canada wants to make? Section 56.1 very clearly provides that the government may, in authorizing participation, confirm with the international organization or an institution of such organization who will pay the moving and transportation expenses or any other expense associated with the function the judge has applied for and been selected.

I cannot understand why we have a Reform amendment on this today. Let us stop playing this little game, for which a number of us, including myself, were condemning the Senate a few days ago. My point was that the Senate was wasting its time on insignificant changes. This bill had already been passed here, and moved on to the Senate. After great philosophical discussions, after consulting such eminent publications as Frank , a highly serious newspaper on which the senators based their demands for amendments, after this most serious work, the Senate sends us back the bill, and the Reform jumps on the bandwagon to call for other amendments, whereas they had every opportunity to question the witnesses and to propose amendments at the appropriate time.

The first time this bill came before the House, they did nothing, because they did not believe it was a serious bill, or so I heard in the House. Now, today, they realize that it is fairly significant, for the senators have said so-and they are such a reliable source.

Today, amendments are being presented, and for some reason they are attempting to make political hay with this bill.

I wish it to be known that we in the Bloc Quebecois are totally against the proposed amendment to clause 56.1(2) of Bill C-42. I would invite the Reform Party members to look at this bill a little more seriously so we can move on to something else.

[John Williams, Reform, St. Albert, AB]

Mr. Speaker, I was listening to the speech by the member. I wonder why Bloc members feel they can oppose this motion but at the same time they want to vote in favour of the bill as a whole as it went through this House.

He says that a specific exemption for one person is not possible, and they would not want to do that, but that the bill as a whole seems to be in order. I wonder if he would give us a quick synopsis of why he would agree that the entire bill is actually in order compared to this amendment.

[Michel Bellehumeur, Bloc, Berthier—Montcalm, QC]

Mr. Speaker, our position is quite clear. When Bill C-42 was passed, we supported the bill. We still do today.

What the Bloc Quebecois, the official opposition objects to is the amendments made by the Senate. We said so openly, we said it in debate, I said so myself and I say it again today, that we should not even be looking at all the changes, all the amendments proposed by the Senate because they are not well founded, they are frivolous and useless. What the Senate has done hardly justifies the $42 million or $43 million it is given annually to do a job that has already been done in the House.

Today I will say again that Bill C-42 provides for all kinds of cases. It was not intended to deal with one specific case. The Senate wanted to do just that. The Reform Party is doing the same, by amending this bill so that every time a judge wants to take on international responsibilities, it would be necessary to go back to Parliament to pass specific legislation.

I say this is useless. We passed Bill C-42 in this House, heard witnesses, worked on this bill in committee and passed it at first, second and third reading. We went through all the different stages. The Reform Party was there, and its members did not propose any changes.

The legislation we adopted at the time could be applied to anyone, not just Judge Arbour or Justice Lamer or other judges, but to all judges throughout Canada and Quebec.

The amendments before the House today are an attempt to narrow the scope of this bill so that it will apply only to one particular judge, Judge Arbour. I say that the legislator should not use his legislative power to pass this kind of legislation.

That is why we are against this amendment, as we were against similar amendments proposed by the Senate.

[Ted White, Reform, North Vancouver, BC]

Mr. Speaker, I listened to the response given by the hon. member and I can understand his frustration with the Senate. Reform has long

proposed an equal, elected and effective Senate. It is supposed to be the House of sober second thought.

Does the member not think it is actually a good sign when the Senate does something? It has returned a bill to the House and indicated it has given consideration to it. Is that not a very important signal that the Senate is prepared to give sober second thought to something? The bill has been sent back here and the Senate has said: "Take another look at this. Is this really what you want?"

Does the member not think that is quite a good thing to happen?