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)".