Mr. Speaker, I am pleased today to speak on Bill C-37, an act to amend the Judges Act.
I begin by putting this bill in its proper context. The judiciary is one of the fundamental institutions of our democracy. Since 1982 Canadian judges have been asked to assume increasingly demanding constitutional functions, determining issues of fundamental importance to all Canadians.
This government recognizes that in doing their job judges in their decisions are not always popular. It seems to me that this is inevitable given that we as legislators have given them the sometimes unenviable task of determining some of the most difficult and divisive legal, social and economic issues of our time. It is for this very reason that we do not want popular judges. Indeed it is and has always been of primary importance to all Canadians that judges are independent and free to make those difficult and sometimes unpopular decisions.
It is the principle of judicial independence that provides the foundation for a strong and courageous judiciary as well as being a cornerstone of our democratic society, a principle clearly reflected in and protected by sections 96 through 100 of the Canadian Constitution.
In 1981, in recognition of the importance of judicial independence and the unique constitutional role of the judiciary, Parliament provided for an independent commission to examine the adequacy of judges' salaries and benefits.
In September 1997, the supreme court underscored the importance and necessity of the role played by such independent commissions in ensuring public confidence in the independence and impartiality of the Canadian judiciary. The supreme court gave the example of the federal commission.
In its recent decision, the supreme court stressed the importance and necessity of the role played by such independent commissions in ensuring public confidence in the independence and impartiality of the Canadian judiciary.
A key part of that decision is to require public justification by government for a decision not to implement, or to only partially implement, the recommendation of such a commission.
The most recent triennial commission headed by David Scott heard from a range of organizations and individuals including all the provincial and territorial ministers of justice and attorneys general before putting forward a thoughtful and comprehensive set of recommendations. This government continues to support the principles that led parliament to institute the judicial salary commission process 17 years ago. In light of those principles and of the enhanced constitutional role of independent salary commissions following the supreme court decision, we have given serious consideration to all the recommendations of the Scott commission.
It was not unexpected that the issue which has evoked the greatest interest since the response was released and Bill C-37 was introduced is the proposed judicial salary increases. The Scott commission recommended an appropriately phased upward adjustment of 8.3% on the expiration of the salary freeze on April 1, 1997. We have accepted this recommendation and Bill C-37 will implement the Scott recommendations by providing a phased-in increase to judicial salaries of 4.1% per year over two years effective April 1, 1997.
The proposal is consistent with the government's view that it would be unreasonable for the judiciary not to share in the necessary economic restraint that was exercised from 1992 until very recently by all Canadians paid by the federal government. I want to express my strong agreement with a statement made by former Chief Justice Dickson of the Supreme Court of Canada in a seminal decision on the issue of financial security for judges in R. v Beauregard.
The chief justice observed “Canadian judges are Canadian citizens and must bear their fair share of the financial burden of administering the country”. This view is echoed in the recent decision of the Supreme Court of Canada where the Chief Justice of Canada observed “Nothing would be more damaging to the reputation of the judiciary and the administration of justice than a perception that judges were not shouldering their share of the burden in difficult economic times”.
Canadian judges are entitled to receive fair compensation that reflects both the importance of their role and the personal demands of their office. In deciding what was reasonable, the Scott commission in my view correctly recognized that a whole range of factors must be considered in establishing an appropriate level of remuneration, including the need to ensure levels of compensation that attract and keep the most qualified candidates for judicial office. That is what we are seeking, the most qualified candidates.
Bill C-37 would also implement the Scott commission recommendation for certain pension related amendments to the Judges Act, including the rule of 80 which will permit retirement when the sum of a judge's age and years of service equals at least 80 and the judge has served on the bench for a minimum of 15 years. In our view the proposed rule of 80 responds in an important way to the changing demographic profile of the judiciary. More and more judges are being appointed at a younger age. I would like to add that many of these younger judges are women. The government has made many attempts to assure that there be equality on the bench for the two sexes.
The current provision, although based on the rule of 80, requires a minimum age of 65. A judge who retires before 65 has no right to a pension at all. Therefore, a judge appointed at the age of 50 can retire with a pension at 65 with 15 years of service. However, a judge who is appointed at 40 must serve 25 years to receive any pension at all. This is a situation that is increasingly considered unfair.
This situation is even more unacceptable when we consider that it has a particular impact on women judges who constitute the majority of those appointed at an early age. The rule of 80 would allow older, longer serving judges to retire when they feel they no longer wish to continue in the role. Permitting this will be good for them and for the court itself as an institution.
The Scott commission has proposed a different retirement option for the judges of the Supreme Court of Canada. It recommended eligibility for retirement with a full pension after serving a minimum of 10 years on the bench. The government agrees with the commission that the immense workload and heavy responsibility inherent in membership on the supreme court justifies the proposed retirement provision. However, the government proposes to limit it to those judges who have reached the age of 65 years.
The bill also makes a couple of other changes to judges pensions in the interest of fairness. It will allow common-law spouses to receive surviving spouses' annuities. It will give a judge who marries or commences a common-law relationship after retirement the option of receiving an actuarially reduced pension which continues until the judge and the spouse have both died. These are both common features of other pension plans.
A very important part of Bill C-37 is improvements to the judicial compensation commission process designed to reinforce the independence, objectivity and effectiveness of the process as a means of further enhancing judicial independence. The Supreme Court of Canada in its decision of last September set out guidelines for such process improvements.
In order to be independent, commission members must enjoy security of tenure by being appointed for a fixed term and the judiciary must nominate a member. To be objective, a commission must use objective criteria in coming to its recommendations. And to be effective, governments must deal with the commission's recommendations with due diligence and reasonable dispatch.
The supreme court also expressly stated that it was up to the executive and the legislator to define the institutional models, and that the administrations should be free to choose the procedures and provisions best suited to their own reality.
In our proposed design, the length of time between commissions would be extended from the current three to a four year period. The new commission would conduct an inquiry similar to that conducted by previous commissions, including public hearings and inviting submissions from all those interested in judicial compensation, including all Canadians.
While this will be a permanent commission in the sense of having a mandate for a fixed period of time, the members of the commission would be part time only. As a general rule, members will only be active during the first nine months of each four year period until the report is delivered. Furthermore, the members will only receive per diem fees for the time they are actually performing commission business.
The commission would have nine months to complete its inquiry and submit a report to the Minister of Justice. To provide flexibility, the period to report could be extended on agreement of the minister and the judiciary.
The exception to the general nine month period of activity would be when the minister decides to submit a matter to the commission for its inquiry as permitted under these proposals. This provision would allow for changes to judicial compensation to be made where necessary between the fixed four year timeframe. This is necessary in light of the new constitutional requirement established by the supreme court that future changes to judicial compensation cannot be implemented without prior consideration by a judicial compensation commission. This power to refer matters might also occasionally be used to have more detailed and informed consideration of particularly complex policy issues.
The independence of the commission would be enhanced by our proposal that it would have one member nominated by the judiciary and one nominated by the Minister of Justice. The representatives of each side would in turn nominate a third member who would be the chair. Members would be appointed by the governor in council for a fixed four year term, on good behaviour, removable for cause. Terms would be renewed once on renomination.
The bill also includes a proposal that the Minister of Justice be required to respond to a report of a salary commission. The role of parliament in reviewing the commission recommendations has also been preserved in the continuation of the current requirement that the report of the Judicial Compensation and Benefits Commission be tabled before both houses of parliament.
I am delighted that another key element of Bill C-37 appears to have secured widespread support across party lines. It provides for the largest ever expansion to date of unified family courts in Canada. This broad support is natural and welcomed since unified family courts are widely recognized to be responsive to widespread concerns that the family law system is too slow, confusing and expensive and intensifies and prolongs the degree of family conflict.
Delay, conflict and confusion arise in large part because of jurisdictional overlap and the traditional emphasis on courts and litigation to resolve family issues. Unified family courts reduce these problems by enabling a single judge to hear all family matters under both federal and provincial law. Unified family courts also provide access to an array of services which promote durable, mutually agreeable solutions to family law disputes and improve the long term outcomes for children and their families.
I must say that being a member of the mixed committee of both houses on custody and access, a lot of the witnesses that came before the committee praised this type of move on the part of the government. They encouraged the federal government to work with the provincial governments in ensuring that this type of system is available from coast to coast to coast.
I am therefore very pleased that the level of funding provided in the 1997 budget will permit the appointment of 24 additional judges to unified family courts. The cost will be $4.4 million ongoing to support the salary and benefits of federally appointed judges. Three other positions are currently available under the Judges Act for a total of 27 new unified family court judges.
Unified family courts demonstrate an effective federal-provincial partnership to meet the needs of children and parents when family disputes occur, reflecting the high degree of interdependence in this area of law and social policy. The federal government provides and pays for specialized family law judges with complete jurisdiction. This allows for one-stop shopping, less delay in costs and better understanding and outcomes. The provinces use the resulting savings to provide and pay for an array of social services for families experiencing disputes which will result in reduced levels of conflict, mutually agreeable outcomes and better futures for families and children.
In the long term, this bill will benefit children, because the risks of conflict will be lower and these conflicts will be settled more quickly. Children's needs will be better cared for, the results will last longer and, in terms of protection, child support, custody and access, the approach will be based on intensive and integrated services.
Once again, this reflects exactly the views expressed by those who appeared before the joint committee of the House and the Senate to the members representing all political parties, and to the senators.
In conclusion, these amendments will serve to strengthen what is already one of the best judicial systems in the world by enhancing the independence of our courts and improving access to justice. The improvements to the judicial compensation process will ensure continued public confidence in the independence of our judiciary.
Increased judicial resources for unified family courts combined with provincial commitment of support services will improve the way our courts respond to families and children in crisis. That certainly is one of the priorities of the government and I am sure of all members of the House.
I hope we can look forward to the support of all members in moving these important amendments to the Judges Act quickly through parliament to the benefit of all Canadians.