Debates of June 11th, 1998

Judges Act

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

Mr. Speaker, this morning we are considering Bill C-37, an act to amend the Judges Act and to make consequential amendments to other Acts.

I think the first question we should ask is why, today, we are at this point. We are at third reading of a bill concerning judges' salaries, Bill C-37. I think I should first provide a bit of background first and take a look at the constitutional context of the whole matter.

On September 18, 1997, the Supreme Court of Canada in a reference on the pay of provincial court judges in Prince Edward Island, determined the constitutional requirements the legislator must abide by in establishing judges' pay. The court stipulated that the independence of the court system, as protected by the Constitution, involved the establishment of an independent and objective commission with sway over decisions on judges' salaries.

The provincial and federal attorneys general asked the supreme court to stay the effects of the decision to enable them to meet the constitutional requirements.

The supreme court acted on this request in its decision. On February 10, the court decided to stay the effect of its decision from September 18, 1997 until September 18, 1998.

The justices of the supreme court sent us, the lawmakers, the following message “Change the law to comply with our recent decision, and we will give you time to do it, that is, one year, until September 18, 1998”.

Since time flies—here we are at the end of the session—the House must consider this legislation and its amendments and act on them.

The government amendments we have before us, however, are not necessarily what I would have liked to see. As it stands, the supreme court ruling calls for the creation of an independent commission, nothing more.

This is clear from reading the ruling. It calls for the creation of an independent commission, period. The government party is not right in saying that it is merely giving effect to a supreme court ruling with its salary increases. Naturally, I will come back to the government's salary increases for judges during my speech.

The supreme court ruling is not to be interpreted as a requirement to increase judges' salaries. To respect the constitutional imperatives imposed by the court in the reference, parliament is not obliged to go along with the Scott commission recommendation to increase judges' salaries. At the very outside, parliament should undertake to set up an independent commission that can influence, but not dictate, judges' salaries. Here again, it is very important to look at the supreme court ruling, to understand it and to compare it to the bill before us.

The Minister of Justice was not obliged—and I choose my words deliberately—to include an 8.2% salary increase over two years for federal judges in order to meet the constitutional requirements set down by the supreme court. Clause 5 of the bill we are now studying, Bill C-37, which contains the salary increase provision, threatens the whole bill, in my view. This is unfortunate because the bill contains some very good elements, such as the creation of permanent judicial compensation and benefits commissions.

The Bloc Quebecois considers that the government is far exceeding the conditions set by the supreme court in proposing a salary increase of 4.1% per year for two years. The government used a false claim of unconstitutionality to justify a salary increase that was not required by the supreme court in the reference on judges' salaries.

While only one clause in the bill being considered poses a problem, we cannot support the bill. The Bloc Quebecois is entitled to demand rigour from the government in the drafting of its bills and the avoidance of unjustified discrepancies.

It is immediately clear from the bill that the government has gone much farther than the justices of the supreme court asked it to. If we add up all the increases proposed in the Scott report and those authorized by government for the statutory increases provided under the Judges Act, passage of the bill will give the judges an increase of 12.4%.

As it appears that the government has been preparing this one for a long long time, the bill is likely to be passed intact.

While clause 5 of the bill refers to a salary increase of 4.1% a year for two years, the federal judges will be entitled to an increase of over 12% retroactive to April 1, 1997, if the bill is passed by the House of Commons.

If we add indexing of 2.1% on April 1, 1997 and 2.08% on April 1, 1998 to the 8.02% provided by the bill, the total is an increase of exactly 12.38% that will be given the judges. An increase of 12.8% just calculating the increases provided under the law and Bill C-37. It is simple math. Just add 4.1 twice, plus 2.08, plus 2.1%. We must add up all these increases to understand that, retroactively, this makes a total increase of 12.38%.

Any accountant and reasonable person who looks into the matter will tell you that the combined effect of these individual increases is an overall increase of more than 12.38% because increases are all one over another. Factor in retroactivity and we have been told by accountants that it is actually closer to 13%. That does not make sense.

As a the matter of fact, under Bill C-37, if passed, a superior court judge will earn approximately $175,800 a year. The chief justice of the Supreme Court of Canada will see his salary increase from an attractive $208,200 to a lovely $225,700. I do not think these can be considered middle class incomes. Yet, the government is granting judges a salary increase of approximately 13%.

Let me digress for a moment. At present, it is clear that the government across the way is not even able to come to an agreement with his own employees. Our pay clerks at the House of Commons did not get even a small salary increase, only crumbs off the table of the rich. They have to fight with their employer, and the pay office. They have to fight with the government, the Board of Internal Economy, just to get what they are owed, to maintain salaries similar to those paid elsewhere in government. They cannot get a small increase and adequate recognition for the work they do. The government over there will be giving about $25,000 in pay raises to senior justices, and $20,000 to the rest.

These judges perform very useful work, I am sure, but I also believe that certain government employees do extremely necessary work, including the pay clerks, who are currently involved in a dispute with the government.

Returning to the judges' raises in particular in Bill C-37, the Bloc Quebecois cannot honestly understand how the government can commit to a pay raise of 12.4% for federal judges, when we know that the attack on the deficit, and the subsequent budget surplus, are being achieved on the backs of the least well off. The incomes of those most in need are being cut, and those with high incomes are being given increases.

The government is not capable of competing with the lucrative private job market. That is one of the arguments that has been raised. We are told that, if we want to have competent judges, we have to pay them properly. I agree, but I think that, at some point, there has to be a limit.

David Scott, the head of the commission that looked into judges' benefits in 1995, told the justice committee that the government ought to raise the pay of federal judges if it hoped to attract the best candidates from the private sector.

At this time, the lists of candidates for judgeships are full to overflowing. The Judicial Council will attest to the fact that there is no shortage of applicants. Lots of people are queuing up to get judicial appointments.

If, however, the government has set itself the objective of going after the top-flight lawyers in the major law firms, the 4.1% increase yearly for two years will not make any difference to that.

When a lawyer emeritus decides to make the leap to a judgeship, he or she does so for the professional prestige, not just for the money. Despite the salary freeze of recent years, the federal courts have excellent magistrates at this time. Let me take this opportunity to congratulate and thank them for the excellent work they do in all the courts in Canada, particularly the provincial courts in Quebec, the superior court and the court of appeal. I congratulate them on their excellent work.

They do not do that excellent work because of the pay. They do excellent work because they have the qualifications and qualities required, they have good judgment, they are professionals, and I congratulate them. Again, it is not because we are giving them a 4.1% raise over two years that they will do an even greater job. Judges will continue to work the way they have been since they were appointed to the bench.

Are we to understand that the government decided to opt for a strategy similar to that used by major professional sports teams, which are prepared to raise the stakes in order to attract the best athletes? If so, the government should find a new approach, because it is not in a financial position to compete with private law firms. We all know that some brilliant lawyers in some big private firms make a lot more than $200,000 per year.

However, this does not necessarily mean that a lawyer who earns $150,000 in a private firm is not as good as one who makes $250,000 or $300,000. This is not how lawyers are rated. But the government seems to think so. I do not agree.

I know judges who used to work for legal aid, a government service. I know some who used to be crown attorneys and who are now excellent judges. These people did not earn $250,000 or $300,000 per year, yet they are very good judges because they believe in their profession and in the justice system. They are good, but they were not paid like brilliant lawyers in big law firms around the country, including in Montreal and in other major centres. Yet, they do a great job.

I heard all sorts of things about the review of Bill C-37. At the risk of offending some people, I say that anyone who works for his or her country—for Quebec or for Canada—must be considered a public servant. The salary of that person is paid by Canadians through their taxes. Senior public servants, secretaries of state, ministers, the Prime Minister and others are all paid with taxpayers' money, which means they are at the service of the public and the state. Judges—and this may upset some people—are also at the service of the state, since it is the people who pay the judges' salaries through their taxes.

We must keep that in mind when we give a raise or when we pay a salary to someone who works for the state.

Of all the people working for the government, in Canada, specifically the professionals, including the Prime Minister, the ministers and all the members of this House, the judges are the best paid.

In considering the salary of judges, we have to think what an individual might earn in a liberal profession of similar scope. The Bloc Quebecois agrees with all those who say that judges perform very important functions and should be held in esteem in our society because of their position.

The Bloc Quebecois is not starting a war against the judges. On the contrary, it is simply raising the choice the government has made, which, in our opinion, is not the right one. So the judges are the best paid in the professional category in Canada.

In an article on May 13, the Toronto Star informed us that our judges earn an average of $126,000 a year. That is more than medical specialists and lawyers earn. Medical specialists earn about $123,000 and lawyers in private practice, an average of $81,000.

Mr. Speaker, I have a question for you. Should judges earn more than medical specialists? Which is more important in society?

I think the question is an easy one to answer or that, at least, it raises other questions. Is this the way we should look at it? Maybe not. Maybe we should not be comparing the salaries of judges and doctors.

The point I want to make, however, is that a medical specialist is every bit as important to society as a good judge. Why give an astronomical increase to judges and not to medical specialists? At some point, we have to stop and think. Is the increase too high? I think the government did not give it enough thought.

Another thing that bothers me a little bit about this bill is that they are trying to conceal the fact that it is retroactive. It is retroactive to April 1997. Why should there be retroactive compensation for the salary freeze of recent years? That is the reason we are being given. It is not retroactive, but it goes back to April 1, 1997 because judges' salaries have been frozen in recent years. Either it is retroactive, or it is not. If the government wants to compensate them for a freeze, they should be compensated for what they lost, and not more. In response to the minister, therefore, indexing would have been enough. But the government is giving more.

The 1995 Scott commission's report on judges' salaries and benefits proposed an 8% increase as compensation for the ground they lost in recent years. The Minister of Justice probably based the 8.2% increase mentioned in clause 8 of Bill C-37 on this figure.

As even certain Liberals on the Standing Committee on Justice and Human Rights have said during hearings, this catch-up policy is unacceptable. When salaries are frozen, it is because the public purse cannot keep pace with the consumer price index.

A salary freeze does not necessarily go hand-in-hand with a promise of an increase when the situation has improved. We are barely out of a budgetary crisis—a look at Canada's deficit makes it plain we are not yet out of the woods—and one of the ways this was done was by making the most disadvantaged members of society foot the bill, and the government is preparing to spend money retroactively by increasing judges' salaries and indexing them as well.

Public service salaries also dropped during the period when indexing was frozen. Members also had their salaries frozen for five years.

When the freeze was lifted, if one could call it that, the 1% or 2% indexation was restored, but there was never any question of raising salaries to compensate for the money lost because of the freeze. Why should we give judges special treatment? Whey should they be treated differently than other government professionals or salaried workers?

We also know that the least well off are the ones who have had to bear the brunt of the fight against the deficit, as I have already pointed out.

Now. the government is making those same people pay for the judges' salary increases. Those in greatest need get cuts, and those with what I consider respectable salaries are given an increase that works out to around 13%, when all the raises are combined.

Time is flying, but I would like to quickly remind people of the cuts to social transfers. The government over there cut billions in transfer payments. The eligibility criteria for employment insurance, formerly unemployment insurance, have been tightened up. In fact, judging by the effect on the public, it ought to be called poverty insurance. The government will be taking billions from the pockets of workers.

Now that the Minister of Finance has a bit of money to play around with, he wants to give it to the most well-off in salary increases. I think that both an individual and a collective contribution are required here. The Minister of Finance is digging into the employment insurance fund to solve his budget problems, and everybody knows it. I think the Bloc Quebecois has done excellent work on this. It has alerted the public to this extremely important matter.

I have already referred to transfer payments. It must be kept in mind that the amount the federal government transfers for health has been cut back terribly. This week we heard the minister boasting that the cut was only $42 billion, rather than $48 billion. Forty-some billion is a really big amount. I am not saying he was right or wrong. I am simply saying that he made these cuts on the backs of the most disadvantaged and vulnerable in our society, and on the backs of the sick; so he should not turn around and give the money he cut to the wealthiest.

The public remembers that the same people always pay. We have to conclude, in the case of Bill C-37, that the rich are not treated like the poor and disadvantaged.

The government wants us to agree and approve a bill awarding an increase like this. The government is accusing us of failing to honour the Supreme Court decision. That is not true. We want to comply with it. We are simply saying that the government is going well beyond the Supreme Court decision, because there was no mention of what sort of increase we should give the judges in that decision. The Supreme Court said “Set up an independent commission”. We could simply have limited the scope of the bill to establishing the commission sought by the justices of the Supreme Court of Canada.

In closing, judges too, in my opinion, should make budget sacrifices. Ask the man in the street. I am sure you will find that they agree with the Bloc Quebecois that judges, ministers, Prime Ministers and the like should contribute equally to the effort to eliminate the budget deficit.

Those opposite often criticize what goes on in the Quebec National Assembly.

Mr. Bouchard and his government could probably teach the members across the way something about making budgetary sacrifices, because that is what they have done in Quebec City, the premier included. Judges also did their part. The government reduced its payroll by 6%.

Why would it be any different here? If the federal government is taking in too much in taxes and no longer knows what to do with all the money, it could perhaps turn it over to the provinces so that they could use it as they saw fit, for their own objectives, to reduce their own deficits and ultimately lower taxes.

Since the federal government is providing increasingly fewer services to the public, if it no longer knows what to do with the money, it should get out of a lot of areas and leave the taxes for provincial governments, including the Government of Quebec.

I believe that all members of our society must work collectively to put our fiscal house back in order, and federal judges are no exception. An increase in the salary of federal judges during a period of cutbacks would, in our view, further undermine the public's confidence in the judiciary.

In closing, I wish to cite Mr. Justice Lamer himself, whose opinion can be found in the reference on judges' remuneration. It will help the members opposite in their reflections. In the supreme court ruling, Judge Lamer said the following:

I want to emphasize that the guarantee of a minimum acceptable level of judicial remuneration is not a device to shield the courts from the effects of deficit reduction. 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.

It could not be stated more clearly. Even the supreme court judges, in their ruling, told the Parliament of Canada that it should not give them salary increases because it would be prejudicial to the public's perception of them.

I sincerely believe that an increase that is close to 18% and that is retroactive to April 1, 1997 is ill-advised, and that it will not achieve the specific goal of increasing the public's confidence in the judiciary.

[Peter Mancini, NDP, Sydney—Victoria, NS]

Mr. Speaker, it gives me pleasure to rise to speak to Bill C-37, an act respecting changes to the Judges Act, changes to salaries with respect to eligibility for annuity, et cetera.

I will begin my comments by indicating, as has been done by some other speakers, particularly my colleague in the Bloc Quebecois, that there are some good things in this bill. I have indicated that in previous addresses to this House.

Clearly the creation of the unified family court in provinces in this country is an important step forward.

Like the Parliamentary Secretary to the Minister of Justice, I am honoured to serve on the Special Joint Committee on Child Custody and Access. I would say that one of the difficulties in sitting on that committee is that it sits at the same time as the Standing Committee on Justice and Human Rights.

I appreciate the frustrations that both the parliamentary secretary and myself have had in trying to make both meetings. However, at the meetings we have attended, it has been clear that many individuals who have come before that committee have had experiences in provincial courts dealing with the issues of custody and access, and perhaps matrimonial property if the court has the jurisdiction to do that. In some provinces it may and in some provinces it may not. Then they find themselves before a superior court dealing with the federal legislation of divorce and a whole range of matters that have already been dealt with which have to be re-adjudicated.

The movement toward a unified family court is a good move. Were it not for other aspects of this bill, my party would support it.

With regard to the special joint committee on child custody and access, I mentioned the difficulty that the parliamentary secretary and I had in attending those meetings. That has been compounded by the fact that, like her, I have constituency work to do and voters to be answerable to. They are the most important reason we are here today and they are the most important priority for myself and for other elected members of this House. Unlike certain colleagues in the Senate who have a lot more time because they do not have constituents to answer to and they are only on one committee, we have had to divide our time between the many responsibilities that we have as elected representatives.

This bill moves in the direction of providing annuities and benefits to the surviving spouses of the judiciary. It provides a mechanism for the division of property for the judiciary.

An amendment was suggested by a member of my party to change the definition of spouse in the act. I will read the definition: “A surviving spouse, in relation to a judge, includes a person of the opposite sex who has cohabitated with the judge—”. In recent court rulings of the Supreme Court of Nova Scotia and in other human rights cases there is some question as to whether or not the definition of spouse, which is an older definition in the act, will hold up to judicial scrutiny at some point down the road. It seems that we could have gone further and taken out the heterosexual nature of the definition of spouse in the act and saved it from litigation at some point down the road. However, that amendment was not deemed important enough to be brought forward.

Those are some of the good aspects of this legislation that are worthy of consideration. At the same time there are important areas that could have been addressed by the Minister of Justice in bringing forward amendments to the Judges Act that have not been addressed.

First, I will deal with the formation of the committee that reviews judicial salaries. I have said before and I say again that I think that committee could have been expanded. I appreciate that the Minister of Justice used a model from arbitration, where a member is nominated by the judiciary, a member is nominated by the government and a third party is nominated by both individuals. However, we could have expanded that committee. We could have included a member of the Canadian Bar Association. No one knows better how much work the judiciary does than the lawyers who appear before the courts on a regular basis.

Some of the judiciary in this country are exemplary. Some go beyond the call of duty. They work late nights. They accept responsibilities. When cases fall through, they go looking for other cases to deal with their workload. At the same time, we know there are members of the judiciary who are not as hardworking as others. As parliament continues to play an increasing role in certain areas, some members of the judiciary have simply retreated from making decisions.

For example, consider the results of Bill C-41 which brought into existence the maintenance tables that the judiciary now uses upon divorce. There was a time when the responsibility of the judge upon divorce was to inquire as to what the means and the needs of the parties were, whether the children were provided for, what special circumstances families had to take into account. Today many of the judiciary simply ensure that the guidelines are imposed. They say they have no responsibility to make further inquiries. They have abandoned that work.

I will again refer to the Divorce Act where in many cases the plan is put forward by the children. We heard on the special joint committee on child custody and access repeated calls for parenting plans to be put forward by parents of children upon divorce.

In many cases it is left up to the lawyers to negotiate that and to ensure that there is a checklist for the judiciary. The judiciary simply checks things off in the way a clerk might. They say “Well, you haven't filled in all the blanks, so take the divorce papers back and when the lawyers do all the work bring it back to me and I'll sign on the dotted line”.

When we hear that type of thing the bill falls short of what might have been done.

First of all, the committee could have been expanded, as I have indicated, to include members of the bar association and to perhaps include a member from the Canadian Union of Public Employees. The Canadian Union of Public Employees represents public servants in this country who are paid by the taxpayer in the same way that the judiciary is. Why not have someone sitting on that committee on judicial salaries who understands what other public employees across this country are dealing with in terms of their own expenses and costs of living?

It has been mentioned by both my colleague in the Bloc and the member for Crowfoot that the people who work in the court system, the people who work in the protonotary's office, the people who work in the deeds office and the people who sit at the feet of the judges transcribing what goes on in the courtroom have suffered as a result of the government's emphasis on deficit reduction, have suffered roll-backs and freezes at both the provincial and federal levels. It would have been very interesting to have a representative of the Canadian Union of Public Employees sit on the judicial salaries commission.

The failure to expand the committee is a flaw in the bill.

I also think, and this has been the crux of many comments from other individuals, that the size of the increase in pay at this point in time for the judiciary is one that we have to question. The estimates and the figures we have been given range from 8.4%, I believe from the Parliamentary Secretary to the Minister of Justice, to well over 13% from the hon. member in the Bloc Quebecois. Either figure at this point in time we have to question, given the nature of what people in this country have gone through.

Further, given the fact of what we have seen in this country under the current economic policies, the gap between the wealthy and the poor continues to increase. That ought to give us pause for concern as we move to increasing the take home income of some of the wealthiest people in the country by either 8% or 13%.

It is not that I do not think the judiciary ought to be well paid. It is not that I do not think the judiciary has a difficult and important job to do. However, at a time when those who work in the court system and those who appear before the courts are suffering, it is unacceptable that we give such a high increase.

I see my hon. colleague from Pictou—Antigonish—Guysborough in the House today. He and I walked a picket line in Halifax. I must say that it was not a situation he was most comfortable with or used to. I had to give him a few lessons on where to turn and how to hold his sign, but he passed with flying colours. It was a sight to be seen. I think our picture appeared on the front page of the daily news. I am sure that Conservatives across that province will take great comfort in the fact that the Conservatives are now walking the picket lines.

However, on a more serious note, we walked that line with the crown attorneys for the province of Nova Scotia. We walked that line with the crown prosecutors in the province of Nova Scotia who were forced onto the street because they had been struggling with pay reductions and increased workloads and simply could not handle it any more.

The legal aid lawyers appear before the judiciary on the most serious matters every day, the most serious criminal matters, the most serious family issues that come before the courts on the questions of custody and access. They defend people who are charged with the most heinous crimes. The crown prosecutors prosecute those crimes to ensure justice is done. They have not had a pay increase. In fact they have had services and incomes slashed in the last four or five years.

I refer to section 41 in the Judges Act. I find this most interesting especially at this point in time. There is a section which allows and authorizes the court to pay for conference allowances, reasonable travel and other expenses actually incurred by the judiciary in travelling to conferences. As I have said I do not oppose that. I think it is important that judges attend conferences and that they understand and have an opportunity to explore the law.

However in my own province the travel budget for legal aid lawyers, and I am sure it is the same for any crown prosecutor, to travel to a conference to further educate themselves has been cut to the point where they cannot go. It is impossible. They have been told “We may pay for the registration fee but you pay for the travel allowance. You pay for your accommodations. You clear your schedule and find a lawyer who will cover for you. If you can accomplish all of that, you can go”.

Understanding the importance of continuing legal education, we have made provisions for the judiciary to have their reasonable expenses met. So what are we doing? We are creating a situation where the judiciary sitting on the bench will be even more critical of the lawyers who appear before them because the lawyers cannot afford to go to the same conferences to be as up to date on the law as they should be. How does that advance the interests of justice?

If the money is available for the judiciary, then we have to make it available for other programs. If it is not available for the other programs, then it is the wrong time to advance for the judiciary a pay increase of the magnitude which we have before us.

There are a few other important points to make. My colleague the member for Crowfoot from the Reform Party has raised some interesting issues on the question of the supreme court case which resulted in the creation of this commission and judicial independence. He and I have discussed the issue before.

The member says that we see an increasing role for the judiciary at the expense of the supremacy of parliament. I would point out that the supremacy of parliament requires checks and balances and always has. The idea that the British parliamentary system is one that has always met the needs of its population is one that is open to historical scrutiny.

It seems to me that on the very issue of universal suffrage, the Parliament of England refused to grant universal suffrage time after time after time up until the turn of the century. It was the charterists in England who I think first brought before the House of Commons in the late 1860s or early 1870s a petition of 1.6 million names of workers who asked for the right to vote and were turned down. They came back a second time with another petition and were turned down. They came back a third time with a petition containing I think five million names and were turned down. Had it not been for the labour movement and the organization of workers in England and in other countries in Europe, the sovereign House of Commons in England would not have granted universal suffrage.

Today the right to vote and the freedom from discrimination can be challenged in the supreme court of this country and other courts at the provincial level.

Had England had that charter of rights and an activist court, then the check on the supremacy of parliament may have provided for universal suffrage much earlier. I say that not to say parliament should not be supreme, but until we have real and radical changes to the way in which we make laws in this country, we have to have a check on this very House. The check has to be more than the opposition of the government.

The way the laws are made in this country is clearly available for anyone who wants to read a political science book. The cabinet and 20 people in the front rows of this House determine what the law will be. Let us look at Bill C-37. They determine what the changes are to be in the legislation. It is presented to the House. There is an airing of different views. It is presented to committee and committee at times can make recommendations and amendments. Realistically at the end of the day the majority of the government members because of party discipline will vote in favour of the legislation. The opposition members may vote against it, but the legislation will pass.

We ask ourselves where is the check on the supreme power of parliament? The check is not in the Senate. I found it interesting to hear the hon. member for Crowfoot mention the house of sober second thought where he hopes this bill will be examined. I find it interesting to hear the Reform Party speak in favour of the Senate that way. It will not be realistically challenged because the government also has a majority in the Senate. It will not be checked by the governor general. The only check on the power of this House and on the legislation put forward by the government is the judiciary. The judiciary does play an important role.

Unfortunately, because the bill has not gone as far as I would like it to, we cannot support it. I do not want that to be seen as casting a bad light on the judiciary. Given the economic times, given the fact that the bill did not go as far as we like, and I have not touched on the method of judicial appointment which could have been included in this bill and is an important factor, but given those situations and given the fact that my time is running out, I say to the House that we will not be supporting the legislation because it is a missed opportunity.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, the member says he cannot support this particular bill. I find that quite disappointing given the fact that it goes very far in ensuring that judicial independence and impartiality. They are critical to public confidence in the judiciary and by extension to our justice system and are enhanced by this legislation.

The whole issue of judges pensions is very important. Anyone who has looked into the whole issue of judicial impartiality and independence would know that their financial independence is a very crucial issue to being able to act independently, being able to act with impartiality and not having to worry about financial considerations.

I also find it rather disappointing that the member does not support this bill because of the whole issue of the adjustments of the judges salaries. Those salaries need to be brought in line with today's world. This legislation goes a significant way in doing that.

Notwithstanding the fact that he has debated this issue for quite a few minutes now, I do not understand why he cannot support this bill given the fact that it does go a long way to ensuring public confidence in our justice system by ensuring financial independence of the judges.

I am not going to talk about the issue of the unified family courts which is very important as well. We know that there are barriers to women in the legal profession to gain access to our judiciary precisely because of what I would call our archaic rules and conditions for judges pensions. I do not know if the government would call it that, but I would call it that being someone who is part of the legal profession. Personally I would have a very difficult time if anyone had ever considered me to be qualified to be a judge to accept an appointment because of those archaic rules simply on the issue of the pensions and not even talking about the issue of the salaries.

I would like to hear a little bit more from the member on that. I am trying to understand your opposition to this legislation. The NDP is a party that is known or prides itself, justly or unjustly, on being for social justice, on ensuring that all segments of our society receive adequate justice in all spheres, especially social justice, as does this government. I would like to hear a little bit more from you on that.

[The Acting Speaker (Mr. McClelland)]

Just before the hon. member for Sydney—Victoria responds, may I remind all hon. members to please address each other through the Chair so as to not allow the Chair to feel left out.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, I apologize most sincerely and humbly. I would never want you to feel left out. You are an integral part of this entire process and a necessary part of this process. I apologize most humbly.

[The Acting Speaker (Mr. McClelland)]

Actually it is the Chair that is the integral part.

[Rick Borotsik, Progressive Conservative, Brandon—Souris, MB]

Mr. Speaker, I rise on a point of order. That is simply one member's opinion. I would like that on the record.

[Peter Mancini, NDP, Sydney—Victoria, NS]

Mr. Speaker, I thank the hon. member for her questions. I think she raises some good points. I want to address as many of them as I can in the time allotted.

The first one I would talk about is salaries and the issue of pensions for women and the lack of women judiciary in the country. This is an important issue. As a practising lawyer married to my spouse who is a practising lawyer at Nova Scotia legal aid, I say to the member that if she thinks that the rules for pensions are arcane for the judiciary, she should see what some of pension plans for the legal aid lawyers or crown prosecutors look like. In some cases they are a substantial bar to appointing women to the bench.

We need to go beyond that and this ties into the next point the member made and that is public confidence in the judiciary. I believe the member would concur with me that the reality is that part of the reason we do not have as many women on the bench or that we do not have as representative a bench as we should have is that the appointment of the judiciary in this country has for a long time been a reward for political favouritism. That is the reality and we may as well say it.

I could go through the annals and point to the members of the judiciary who have been appointed not because they were the best lawyers or because they had the best minds, but because they collected enough money for the right political party at the time. That is a historical reality we have to correct.

When we talk about public opinion and public confidence in the courts it is not enough until we amend the way the judiciary is appointed. I agree with the Minister of Justice in that I am not in favour of an elected judiciary in this country but the kind of method of appointment that there is south of the border.

When I say there was a missed opportunity, at the same time I think we could have looked at ways of improving the methodology of the appointment of the judiciary to take into account the needs of women lawyers and minorities and to ensure that the bench was better represented and that the public had confidence in the method of appointment.

The problem with political appointees is that even if the appointee has been involved in politics and would be a good judge, and there are some of those, they wear the disrespect of those who everybody in small communities particularly know climb their way to the judiciary because of political favouritism.

The hon. member has asked for clarification on the reason I do not support the bill. First of all on just those narrow issues, it does not go far enough to help public confidence in the judiciary. It does not go far enough.

She said that the NDP has always been a party that is proud to ensure that people are properly compensated. That is why I belong to it. At a time when the government has told us all and sent a message across the country that we cannot afford some of the essential things that we as Canadians have always believed were important, to turn around now and say that we have money to increase judiciary salaries by 8% or 13% and not provide money for legal aid and not provide more money for the crown prosecutors is why I cannot support it.

I said at the beginning I do not mind the judges making money so long as every other service is increased proportionately or more so where the need is greatest. That has always been our strength as a party in terms of social justice, in terms of making sure that the resources are fairly distributed. Because they are not we cannot support the bill.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Mr. Speaker, I am pleased to rise in the House and speak today on this bill as well. It is always an honour to follow the hon. member for Sydney—Victoria who pointed out that he and I did partake in a protest of sorts in Nova Scotia some time ago. Although I am not prepared to proclaim complete solidarity with the hon. member on political grounds, I guess it is not only politics but professions and personal contacts that sometimes make strange bedfellows as well.

Turning my attention now to the legislation before the House, it is a piece of legislation that we have seen has invoked a great deal of passion and a great deal of provocative commentary within the House of Commons and to some extent a great deal of righteous indignation on the part of some. Much of that I think arises from the issue of the salary increase itself and the fact that judges, as a result of this legislation, will be receiving a significant increase in remuneration.

I think it is important as well to focus on the role of judges and the important task they are charged to perform. Although Bill C-37 does address a lot of other issues such as the commission of salaries and benefits and unified family courts, I think we have to put the salary question in perspective.

We have had an opportunity throughout today's debate and earlier to talk about the important question of the separation of powers in our society. I indicated in earlier remarks and reiterate that judicial independence is definitely the cornerstone of our democracy. There is no question that we in parliament may not always agree with what the courts decide, and there are numerous examples I can think of. The most recent perhaps is the Feeney decision. Parliament has since come to grips with that issue. The broader issue is that there is another body out there, a check on what takes place in parliament.

This body is armed with the charter. The charter has been the subject of much debate in recent years. Parliament once elected, and the important difference being the election of the members of parliament as opposed to the appointment of judges, can at times be heavy handed. Majority governments in particular have a tendency after several years in power or successive mandates to perhaps embark on heavy handed measures which the judiciary may be called on to check. I think that is a very important balance that has to be struck. It cannot be stated often enough or with enough vehemence the importance of having our judiciary independent of the elected body.

On September 18, 1997 the Supreme Court of Canada released a key decision that related to the constitutional requirements of financial security of judges. That decision reinforced the principle of judicial independence and it outlined broad constitutional requirements for the determination of judicial compensation.

The creation of an independent, objective and effective commission is what makes recommendations on aspects of judicial compensation, salaries and benefits possible. This arm's length body, independent of the judiciary, independent of parliament, I think is an important step that this piece of legislation does bring about.

To be independent, commission members must be appointed for a fixed term and the judiciary must nominate one of the members, and to be objective the commission must also use objective criteria to come to its decisions. To be effective, the government must deal with the recommendations of the commission with due diligence and reasonable dispatch.

Bill C-37 creates a body that will in effect set up a commission for any future changes with respect to remuneration. I will be the first to admit that timing in life seems to be everything and the timing of this bill is something that does lead to questions from the opposition, questions from the governing side as well, as to why this piece of legislation is coming through when it is coming through.

The perception out there among the Canadian population may be is this a priority, is this something that should be happening now. Without casting aspersion on the bill, I do cast aspersion on the decision making and the priority setting of this government in the timing of this piece of legislation.

The proposed amendments brought about by Bill C-37 that will, following the supreme court decision, improve the independence and objectivity and effectiveness of salary and benefit remuneration process must be viewed in a positive light. Bill C-37 will also implement the Scott commission's recommendations. The Scott commission recommended that judges' salaries be gradually increased from 8.3% from the date which the salary freeze was lifted, April 1, 1997, and bring about a gradual process rather than a lump sum process.

In the supreme court decision in Beauregard: “Canadian judges are Canadian citizens and must bear their fair share of financial burden of administering the country”. Although judges' salaries will be increased as a result of this piece of legislation, they will obviously be in a tax bracket which will see a significant portion of that salary returned to government, as all Canadians in their various tax brackets.

I certainly share the view echoed in the recent supreme court decision that judicial compensation is a necessary thing when it comes to placing the importance and the significance of the role judges play. I quote from that decision again: “Nothing could be more damaging for the reputation of the judiciary and the administration of justice than a perception that judges are not shouldering their share of the burden in difficult economic times”.

The timing is always questionable. That is perhaps what has led to some of the animosity about when this salary increase is going to be effective. We cannot blind ourselves to the fact that the important role of judges leads to the necessity for making this an attractive job financially.

It has been discussed at the justice committee and it has been raised here in debate that if we are to have individuals willing to give up the practice of law and become appointed and take on that task, there has to be compensation that is at least attractive enough to, in some cases I suggest, result in a pay cut.

I know that what we are talking about here is a salary in excess of $100,000, which is certainly a great deal of money when one considers the average salary of Canadians.

In to Toronto as opposed to New Glasgow, Nova Scotia there is a difference in the salary range. But the suggestion is if we are to have the best and the brightest leave the practice of law and take on the role of a judge, we have to be able to compensate them in a fair way that is at least going to be on par or perhaps in the ballpark of what they were making in private practice.

In deciding what was reasonable, the Scott commission recognized that a complex range of factors had to be considered in establishing an appropriate level of remuneration and that included the need to ensure that levels of compensation did attract the most qualified candidates.

During the hearings in the standing committee I asked on numerous occasions of different witnesses appearing on this issue if salary was an important factor for lawyers in the decision to accept or refuse a judicial appointment. Each and every time, sometimes reluctantly, the answer was yes. It was an important decision.

We can no longer let qualified and excellent private practitioners refuse judicial appointments due to salary alone. If we need to improve the quality of our tribunals and judicial appointments, and certainly this is something we want and strive to do, I believe we cannot simply ignore that salary and compensation is an important factor.

Salaries may very well be one factor but certainly the quality and the process in making those selections is equally important. Although it is somewhat off the topic of this bill, certainly what we want to do is ensure that we do have a process in place that enables input from the various levels of society that are going to be most affected by judicial appointments.

I keep in mind some of the comments made by previous speakers about judges. I am troubled with the perception the Reform Party would leave with the Canadian public on the issue. I am not here to say that all judges are infallible and that decisions are not sometimes bizarre and difficult to understand and stretch the bounds of comprehension. That is one of the human qualities every judge has. We in this House have bad days too. It happens on occasion that a judge makes a terrible decision and that the following day with some circumspect and perhaps a different outlook he or she may have made a completely different decision.

There is no need to engage in what I saw taking place during the debate on this topic that judges themselves are being personally attacked, much in the same way that we see senators personally attacked. It would seem that judges, when they do not religiously follow the Reform Party line, can be denounced as elites. They are denounced as undemocratic and they are described, quoting the words of the hon. member from Wild Rose on March 30, 1998, as greedy little parasitic fraternities that exist across the land.

In my opinion that goes a long way to further undermine public confidence in the judiciary. It does not add anything to the debate.

A basic respect has to exist and this type of personal scathing attack should not occur here or anywhere for that matter. It happens far too often. I think it bears repeating that this is not going to further this debate in any way. There are always those in every profession of whom we will be less than proud but judges, like all professions, are for the majority a number of hardworking professional and committed people who are in the pursuit of justice. That is what is important. They do a very necessary job and at times a very stressful and morally taxing job. We have to try to avoid that type of talk when we can.

There are a number of provincial governments across Canada that have already reacted to the supreme court's decision of increasing judges' salaries. In most cases retroactive adjustments would also have to be made to remedy previous salary cuts and freezes. For the reasons I have outlined, the Conservative Party does not oppose these amendments to the Judges Act to increase the salaries by 4.1% for two years, effective April 1. It is proportionate and we believe it is not a bad thing.

The old expression that you get what you pay for does apply in this instance. The bill also provides for new rules in establishing an independent commission for the responsibility of reviewing salaries and benefits every four years for judges. These rules do not ensure in any certain way that the system will be perfect. However I suggest it goes in the right direction in ensuring that it will be equitable and reflect reality in Canadian society. A four year review seems like a reasonable period of time. The Conservative Party of Canada has concerns that we must always emphasize there will be changes. New proposals may arise. New circumstances may come to light. A four year review process is a necessary step.

As parliamentarians we must also ensure that the commission will be held accountable to parliament and that the process is as transparent as possible. While three members on the commission is a good idea, there will be an appointment by the Minister of Justice, another from the judiciary and the third one by the first two appointees.

One suggestion would be that perhaps the third person should be selected from the bar society. I believe it was the hon. member for Sydney—Victoria that made the suggestion. It is a good suggestion and one that we would support. It would approve accountability and transparency. Another suggestion might be that the Standing Committee on Justice and Human Rights have a hand in making that appointment.

The bill provides for a commission that would report every four years. The report would be presented by the Minister of Justice who in return would bring it to the House and table it here. This improves accountability. It improves input and the process itself is elevated as a result. It is certainly a way of doing what the government often talks about and that is having more transparency. I question whether that is happening to the extent that it could.

Another suggestion would be that the commission could be held accountable directly to parliament. Like the human rights commission which reports directly to the House of Commons and not through the minister, this commission could report directly to the House and therefore be held more accountable. It would also allow the Standing Committee on Justice and Human Rights to review the report in a more significant way.

In summary, with respect to this element of the bill and these amendments pertaining to salary, we see them as positive improvements that perhaps could have been brought about in a different way. The timing could have been different, but I believe it is the beginning of a recognition that in the justice system there is a need for more resources.

I do not disagree with the suggestion about other segments of the justice system like legal aid and crown prosecutors who are presently toiling in Nova Scotia under less than ideal conditions. There is a need to improve the situation of frontline police officers. There is a need to have more children's aid societies and more programs aimed at preventing crime. However I believe this is a start. Perhaps it is the top end when it comes to judges but it is a start.

There is also a very important segment of Bill C-37 which deals with the unified family court. Bill C-37 supports the creation and expansion of the unified family court across the country. The Conservative Party supports the model of a unified family court in part because it allows one judge to resolve all family court issues: issues relating to separation, divorce and custody access. This reduces complexity and delay when its comes to the court. This is a problem that many encounter in the court system today.

It would create a system which would ensure that matters are presided over by experts in the area, judges who have an expertise particularly in the area of family matters which can become very complex and emotionally driven. I see it as a positive step.

Unified family court offers services which include information on family law, educational programs on the effects of separation on children, home studies, referrals to counselling and other community services, information on alternatives to litigation, and access to services that include mediation and supervised visits to homes.

These are areas that we should be focusing on. The bill is a step toward improving our system in family courts. Because these services would be available under one roof, public access would be improved as a result.

From the perspective of the children involved, better long term plans can be expected from these changes; lower levels of conflict; quicker resolutions; greater focus on the impact on children; and increased durability of outcomes with emphasis on integrated services, an intense approach to child protection, child support, custody and access. All these things are viewed positively by the Conservative Party.

Bill C-37 will also appoint 27 new federal judges for the unified family court in four provinces, eight in the province of Nova Scotia. We welcome these additions. These amendments will permit the governments and the provinces to improve legal services available to families.

Regarding the pension itself, Bill C-37 provides for changes to the criteria of the supreme court that allow retirement with a full pension. Judges will now have to be 65 or older and have to accomplish at least 10 years of service on the bench prior to their retirement. The Conservative Party does not have difficulty with that change.

In conclusion, we are encouraged generally that these amendments have been brought about in good faith although we question the timing. We believe there could be other improvements as they pertain to the accountability and transparency of the salary and benefits commission. As a whole we support the bill. We are ready to support it because we believe it is a good thing. The bill will bring about some of the changes that we have had the opportunity to discuss. We are thankful for the opportunity to do so.

[John Bryden, Liberal, Wentworth—Burlington, ON]

Mr. Speaker, I thank the member for his excellent remarks.

When a bill comes before parliament that deals with the remuneration of public figures it serves the very useful purpose of giving us the opportunity to examine the roles of those public figures. It is very much in the public interest that we do so.

The member alluded to some of the earlier debates on the bill and mentioned that the Reform Party had made some disparaging remarks about the behaviour of judges and their quality.

I draw to his attention that this attitude of questioning the discretion of judges is not something that is exclusive to the Reform Party. It is a very worrisome trend that exists generally in society today, on this side of the House and in the justice department.

The issue is how far we go in giving discretion to judges. As the member mentioned, the law and the interpretation of the law and the issues it deals with are very human issues. Traditionally in common law we have relied on the judges to use their good judgment, their experience of life and their compassion to interpret the law.

Unfortunately there seems to have been a very alarming trend over recent years to withdraw some of the discretionary powers of judges. A perfect example is the whole concept of minimum sentences.

This is question and comment period. I was hoping to offer the member some comments which I think are very important and directly arise from his remarks. A number of private members' bills were before the House in the previous sitting that dealt with minimum sentences for drunk driving. We had quite a sharp debate here and I spoke on that occasion.

My concern is that while we want to protect victims rights and that kind of thing we must allow the judges compassion to deal with cases in which perhaps even no sentence at all or no jail term at all is appropriate because sometimes there are rare instances like that.

For the member's benefit I refer to another bill that passed through the House in the last parliament, Bill C-46, the access to records legislation. It is now before the supreme court on a challenge. I do not want to refer to the charter challenge that Bill C-46 is now encountering.

What was relevant in that bill was that it limited the discretion of judges to request the records of therapists in sexual assault cases. Judges already had the power to hear from the accused, to look at the records and to determine whether the records were relevant.

Bill C-46 seriously curtailed the judge's discretion to seek records by citing certain conditions the judge would have to take into account before he could request those records from therapists on behalf of the accused.

This type of restriction on a judge's ability to interpret the law and to act equally on the side of the person making the accusation and more important the defendant causes some concern. We must never hobble a judge's discretion to use his discretion. I feel there is an alarming trend particularly in victims rights cases and cases involving sexual assault, drunk driving and alimony. These are areas in which the opportunities for judges to exercise discretion were limited by bills in the last parliament.

Could the member comment on that? I believe it is a very serious problem to restrict the opportunity of judges to do their job. One reason we want to pay judges well is to get the most talented individuals possible who will exercise the best discretion possible. We must give those judges that discretion.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Mr. Speaker, I thank the hon. member for his commentary. His remarks reflect a great deal of insight into this area.

With respect to the issue of mandatory minimum sentences which he raised, I tend to agree that judges need to exercise discretion. That is what they do. They exercise discretion daily. The scope, breadth and effect of decisions are sometimes staggering. The effect they can have on the everyday lives of Canadians and of those affected can be very far reaching. However there is a time and place for some limitations on that and those would be imposed by mandatory minimum sentences in the Criminal Code.

It is important to note that increasing victims rights does not necessarily mean decreasing the right of the accused to be presumed innocent. I do not think it is necessarily a proportionate counter to say that any increase in victims rights will result in a decrease in the rights of the accused.

I use as an example the discretion of a judge to use conditional sentences in the area of serious sexual assaults or crimes of violence. There is a need for parliament in that instance to place some restrictions on the discretion of a judge to use a conditional sentence for those types of crime. I do not think that was the intent of parliament when conditional sentences were introduced into the Criminal Code. As is the case with the law, a growing tree moves in different directions. I believe that provision of the code has been misinterpreted.

Impaired driving legislation was another example that was cited by the hon. member. Once again I believe there is a need for changes to the provisions of the Criminal Code as they pertain to impaired driving. There is a need to improve the level of accountability that impaired drivers suffer to their peril when they decide to get behind the steering wheel of a car and potentially put people's lives in jeopardy. If that means upping the ante or improving the provisions of the Criminal Code for sentencing I would encourage those changes.

He also spoke of the discretion judges can exercise in ordering therapy or mandatory treatment for offenders. That is something we should be encouraging, not trying to limit by imposing mandatory use of those provisions in the sentencing provisions of the code.

There is certainly a need for more discussion in this area. I look forward, as I am sure the hon. member does, to trying to improve our justice system and working diligently in that direction.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, over the last few weeks it has occurred to me that the record of debate on this bill is less fulsome than perhaps it should be. There are some issues that I think should be outlined for the record for Canadians and for that other class of citizens we do not see too much in the political arena, the judges. Yes, they are all citizens and generally all active civic participants. They care a great deal about what happens in our communities, in our courts, in our parliaments and in our legislatures.

One of their handicaps as a group is precisely that we in our society legally and in many other ways set judges aside because we want them to be and appear to be impartial. We want them to be wise and experienced and to bring that with them to the bench when they are appointed. But after they get to the bench they are relatively pigeon-holed, set aside, relatively secluded and unable to generally engage in public debate or in community or political discourse which is the source of the problem that originally gave rise to the Supreme Court of Canada decision in the Beauregard case and one other court application.

It was not a decision that changed the course of Canadian history but I believe it could be called a landmark because for the first time the court set down what it believed was the proper constitutional framework for the other parts of government in Canada to deal with the judiciary as an administrative wing.

Canadians all realize our judges are paid from the public purse. Somewhere in the public service in Ottawa and in each of the provincial capitals cheques are cranked out, as they are for all public servants, and judges are paid an amount. However, judges do not have a union or a collective agreement. I think there was some reference earlier today to crown attorneys in the province of Nova Scotia walking a picket line. Judges do not walk picket lines either, at least the last time I looked, and they do not do it for the reasons I outlined earlier, which is that legally and socially our judges are asked to set themselves aside and maintain their impartiality.

That impartiality is a two sided coin. What happened over the last few years were a few occasions of governments, not necessarily legislatures but administrative governments, making changes to the levels of compensation of judges in various provinces. Some of the judges in these provinces took exception to the process that was used. When they did, which they could not do publicly, there was a disagreement over who was in charge.

The judges maintained the position that stated there should be a continuing and ongoing process so that everyone, the judges, the governments and the legislatures, will know what the process is for dealing with matters of compensation, pay and benefits and working conditions of judges.

The Supreme Court of Canada has given guidance to all governments in Canada, including the Government of Canada, and guidance to the parliaments and legislatures in Canada as to what this process should be. I do not see how any Canadian or parliamentarian in the House could object to their being a process that was in place and continued to operate for that purpose.

It was important that the supreme court do that because governments are prone to do from time to time, and we in this House on both sides know about this phenomenon, taking their piece of the power pie and using it the way they feel is best with or without the guidance of legislatures and parliaments, in this case perhaps without the consultation with the judicial constituency.

That process is in place. We have to keep in mind that our judges do not have an outlet, a mechanism, an ombudsman, a method of dealing with the issues that deal with the administration of their pay and benefits. The court has said there must be a process. That process in part involves what previously was a three year commission. Every three years a commission would look at the issues of pay and benefits and report back to the respective government. In this case it is the Government of Canada.

Some provinces did not have this mechanism. Now based on the supreme court decision that process will be required to be in place. We in this House have taken advantage of that decision and have decided to refine or modify the current process. We do have a process for federal judges. The changes are modest. The commission will do its work every four years rather than every three years. There are some fine tuning provisions regarding how the individuals on the commission are selected and how they will be remunerated for the period of time they spend on the issue.

One of the compelling political issues surrounding the existence of a commission and the process has been raised by the member for Crowfoot. He seems to be asking whether parliament must be subservient to whatever is in this commission report, whether parliament must rubber stamp what is in it.

I think it is important to read the supreme court decision which is there for our guidance. It has stated there must be a process and the process should not be interfered with by other forces. When the commission makes its report it should be adopted.

The question is does a government, does a parliament, does a legislature have to adopt comprehensively every element of the report. I do not think that is what the supreme court said. But it certainly did say that if a parliament or a legislature or a government were to proceed in a direction other than that which was provided for in the report, then it must have good reasons that apply to the country as a whole.

I do make reference to the provision of the supreme court decision that says judges cannot shield themselves from the economic circumstances that other Canadians must endure. They have to shoulder their fair share of what the country is or is not into economically. I am quite sure all judges endorse that.

There is a frustration on the part of some parliamentarians and some suggestion perhaps that somehow parliament, because the supreme court says we must proceed this way, has lost control. This is not the case. When this measure is voted on, not all members of parliament will vote in favour of the bill.

I suggest that manifests very clearly that it is not wrong or improper to not follow what the report says. The courts do say, and I support this, that if the report is not to be followed the reasons should be rational, clear and relate to the circumstances that apply to all Canadians.

One of the other underlying themes of this legislation is the process by which we set judges' salaries. I know there is an underlying principle and I hope Canadians accept it. In selecting compensation levels for judges our goal is to pay amounts that will attract the best and the brightest to the judiciary. I accept that it is not our goal to simply attract judges. We must attract the best available people, the best candidates to be judges. It is difficult to make comparisons with other professions such as a surgeon. We want people who would not simply open the owners manual and go through the manual as to how one does a heart operation. We want people who not only know the manual and the specs but who are extremely capable, intellectually capable, well rounded people who understand all the elements that go into judicial decisions and dispute resolutions in our country.

We have to make sure we have the best. To do anything other than that is penny wise and pound foolish. If we pay low amounts for judges we run the risk that we will not get the best. If we do not have the best making judicial decisions this will, more than anything else, undermine the confidence of Canadians in our Canadian judiciary and our justice system. The judges are the focal point of that system. They are the fulcrum on which the whole system turns. If judges are not good at what they do our judicial system will suffer. We do have a good one in Canada. We have one of the best in the world. People come from all over the world to take a look at how we run things in Canada. We want to keep it that way.

I must address the level of increase for judges. The commission did its very best to isolate what it felt was the appropriate compensation level for judges of the calibre and level that we are dealing with in our courts. Historically, going back 10, 20, 30 years, there was a benchmark established. It was a rough benchmark. Some judges thought it was a good idea. Others did not. We did not have Gallup do a poll with the judges to figure these things out. We have to make these judgments in this House. The benchmark was one that set judges' salaries at a level equivalent to the level of the civil service category called DM-3. I think that means deputy minister three. It would be the third level of deputy minister. That is one of the highest levels of the deputy minister compensation package.

Over the last few years the DM-3 level has gone up. Judges' salaries were frozen back in the early 1990s along with almost all other public servants and members of parliament. There was some drift. Now the DM-3 level of compensation has gone up and the compensation level of the judges has stayed.

The Scott Commission has addressed this and in its own way has pointed out the percentage levels by which we should be increasing the judges' salaries to get back to the benchmark.

Because some judges have rejected the concept of judges being in the same category as public servants, I think the Scott Commission report did not pay a lot of attention to that direct linkage and it looked at other reasons to provide the increase.

Let us put on the record what the increase is. It is the equivalent, over a two year period, of roughly 4%, plus 4%, plus 2% relative to the cost of living, plus 2% relative to the cost of living. If this bill is adopted those increases would be the ones that would be applicable to judges' salaries and they would be retroactive to last year and would move up into 1999.

Originally I had a problem with the way the Scott Commission report was worded. It might have been interpreted by some to suggest that what the judges were doing was simply catching up from where they were before the salary freezes were imposed across the federal public service.

On that basis, as a member of parliament, I would have fully rejected the proposal. I am not accepting that judges or anyone else in the federal public service should have what has become known as “catch up”. I did not buy it. Because some of the percentage increases I have just referred to were the equivalent of the remuneration lost during the period of the salary freezes, I was very cautious about the recommendations. But at the justice committee hearings it became clear that what the Scott Commission was trying to do was to place judges back in the ballpark of the DM-3 level where they have been for many years. It was not catch up for the salary lost through the freeze period.

I am more comfortable with that now. The only missing item in the circumstances at play now is that we need a better understanding among parliamentarians of the process that is at play so that the next time a commission report comes up it will not be necessary for parliamentarians to stand and say “How can one court of unelected judges be dictating to Canada's sovereign Parliament what it must legislate?”

That type of suggestion reflects a misunderstanding of the process recommended by the supreme court. I do not quite know how to bring parliamentarians to a better understanding of that. I am sure the supreme court judgement would make boring bedtime reading, but I do commend it to those who have an interest in the issue.

Last but not least, just to put things in perspective a bit, I note that the member for Crowfoot is an active member of the justice committee. His remarks earlier referred to the dollar amounts of the increases and how there were still pockets of poverty and people in Canada in difficult economic circumstances, all of which is true and all of which this House continues to recognize.

He was indicating that a large dollar amount is involved. I just want to say that if the increases are the equivalent of $10,000 or $15,000, the last time I looked at the tax rates there is a consolation prize for the taxpayers because about half of the increases will come back in income tax deductions from the judges' cheques. That is true for all Canadians, not just judges. I suppose the point I am making is, let us not be too distracted by the numbers and let us make the best decision consistent with the supreme court and the needs of our judicial community.

[John Bryden, Liberal, Wentworth—Burlington, ON]

Mr. Speaker, I asked a question of an earlier speaker with respect to the growing trend in legislation to limit the discretion of judges. The member who just spoke was in the Chamber at that time and heard my question. I wonder if he would like to share with us some of his thoughts on this whole question of limiting the discretion of judges.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, the issue put forward by the hon. member is one that is not amenable to easy debate.

The reason we give discretion to our judges in dispute resolution or resolving issues is because we the lawmakers are unable to organize, set out and nail down with precision how every dispute should be resolved. It is simply impossible for the House to sit in judgment and settle disputes between citizens as the Lord Chancellor of the Exchequer used to do for the king or as the king himself used to do centuries ago.

Judges are sometimes uncomfortable if the laws do not set out a proper framework. I have often read judgments where judges point out that the area they are dealing with is one that should be addressed by legislators and structured a bit better to give better direction to judges and those who are organizing their affairs.

On the one hand we have a group in society which suggests that judges have too much discretion, too much power, which, being unelected, they should not have. There are others, and I think I am in the second group, who say that if there is too much discretion, if we fail to structure it properly in our laws, then it is our job to make sure we do it right. That is an ongoing process in society and I think we are doing reasonably well in this parliament.

[Jason Kenney, Reform, Calgary Southeast, AB]

Mr. Speaker, I appreciate the opportunity to speak briefly to Bill C-37, an act to amend the Judges Act. I know we will be breaking for votes in several minutes and I will therefore summarize my remarks.

I would like, first of all, to commend the hon. member for Scarborough—Rouge River for his thoughtful remarks. He spent a great deal of time and attention on this issue and I share many of his concerns about the question of judicial compensation.

I also wish at the outset to associate myself with the remarks of my hon. colleague from Crowfoot whom I think eloquently expressed the inappropriateness of parliament granting a de facto 10% compensation increase to members of the federal judiciary over the next two years at a time when Canadians have suffered from a reduction in their after tax disposable income over the past two decades.

It occurs to me that parliament's principal obligation is to promote the interests of all Canadians and not small groups of Canadians. It seems to me that until all Canadians have seen some increase in their disposable income and an increased standard of living, we ought not to be using our power to increase the disposable after tax income of a particular discrete elite in our society such as judges.

I would also like to say that we are now debating Bill C-37 and this afternoon we are going to be very briefly debating Bill C-47, which applies to compensation increases for members of this House. One cannot comment on the judges bill without taking note of the fact that we will be voting on our own pay increase this afternoon.

Unfortunately I will not have an opportunity to speak to that bill because of a motion that was granted by unanimous consent of this place to limit debate.

The Scott commission on the increase in federal judges' salaries recommended this 10% increase and the government has taken that recommendation in the sense that it has legislated it in Bill C-37. I find it very interesting that there is a double standard. Bill C-47, concerning MPs' compensation, which we will be debating and voting on this afternoon, has been brought before this place without consideration being given to the report of another independent commission, the Blais commission, which was established following the last general election to review and make recommendations on the compensation paid to parliamentarians.

It occurs to me that we are creating another double standard. Canadians have shrinking disposable incomes because of high taxes and we are proposing an increase in pay for judges. We are also creating a double standard when we accept the binding recommendations of one commission on compensation, the Scott commission, but on the other hand ignore the recommendations of the Blais commission.

I have a very serious problem with this process which I would like to put on the record. I feel that the Blais commission, like the Scott commission, did good work and was sincere in its recommendations, which I thought were very thoughtful and appropriate.

Among other things, the commission recommended full transparency in MP compensation. It recommended scrapping the tax free expense allowance and replacing it with a proportionate amount of taxable income so that MPs alone could no longer exempt themselves from the tax laws that we impose on other Canadians. It recommended no net increase in actual compensation, contrary to the recommendations of the Scott commission for judges, and it recommended reform of the members' pension plan. It also recommended an increase in the housing allowance available to parliamentarians.

On the whole, I thought these were sensible recommendations which respected the need for a single standard of compensation for all Canadians. We ought not to choose one particular group of people, in particular ourselves, to exempt ourselves from the laws that apply to the rest of Canadians, as we do by exempting one-third of our income from the Income Tax Act. We ought to follow the same guideline when it comes to our retirement allowances.

When the Scott commission came down with its report, the government said “Fine. Everything is well. We will go ahead without even a review of a parliamentary committee and legislate this 10% increase”. When the Blais commission came down with its report, suddenly there was a huge clamour among government MPs who said that they rejected its recommendations. I do not suspect all of them did, but certainly some did.

I quote, for instance, the hon. member for Mississauga Centre who in the February 9 edition of the The Hill Times said with respect to the recommendation of the Blais commission that we eliminate the tax free expense allowance and gross up the taxable salaries “If we are going to get nailed, at least we want to get nailed for a reason and see it in the wallet. Screw the Blais report”.

I find that very difficult to swallow, coming from a member of the government which legislated the Scott commission report. We did not say, in the words of that hon. member, “Screw the Scott commission report”—excuse me, Mr. Speaker, but I am quoting another member—but we did with respect to the Blais commission report.

I would like to put this on the record and say that I object to the process by which our own compensation has been handled. I think the process that is contemplated in Bill C-37 is far more appropriate, where an independent commission would make the decisions and recommendations. Although I disagree with the recommendations of the Scott commission and will vote against the bill because of them, I do think that we need to take these decisions out of our own hands, particularly where there is a conflict of interest.

I hope that we will at some point in this place revise the manner in which we change our own compensation so that it is an arm's length process which will not be compromised by an inherent conflict of interest.

[The Speaker]

Pursuant to order made on Wednesday, June 10, 1998, all questions necessary to dispose of the third reading stage of the bill now before the House are deemed put and the recorded divisions are deemed requested and deferred until immediately after completion of the divisions on Bill C-38.

The House resumed consideration of Bill C-38, an act to amend the National Parks Act, as reported (without amendment) from the committee.

National Parks Act

[The Speaker]

The House will now proceed to the taking of the deferred recorded divisions at the report stage of Bill C-38. The question is on Motion No. 2.

Call in the members.

(The House divided on Motion No. 2, which was negatived on the following division:)

Division No. 216

[The Speaker]

I declare Motion No. 2 defeated. The next question is on Motion No. 3.

[Marlene Catterall, Liberal, Ottawa West—Nepean, ON]

Mr. Speaker, I would propose that you seek the unanimous consent of the House that the members who voted on the previous motion be recorded as having voted on the motion now before the House, with Liberal members voting no.

[The Speaker]

Is there agreement to proceed in such a fashion?

[Some hon. members]

Agreed.

[Chuck Strahl, Reform, Fraser Valley, BC]

Mr. Speaker, the official opposition will vote no to this as well. I would ask that you include in this vote the member for Crowfoot, the member for Cypress Hills—Grasslands and the member for West Vancouver—Sunshine Coast who are with us for this vote.

[Stéphane Bergeron, Bloc, Verchères, QC]

Mr. Speaker, members of the Bloc Quebecois will be voting in favour of the motion. The hon. member for Manicouagan, who had to leave, should however be excluded from this vote.

[John Solomon, NDP, Regina—Lumsden—Lake Centre, SK]

Mr. Speaker, the New Democratic Party members present vote no on this motion except for the member from Saskatoon—Rosetown—Biggar who stepped out to hold a press conference on his Internet child pornography prevention act.