Mr. Speaker, we are talking about the act to establish a body that provides administrative services to the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court and the Tax Court of Canada.
One of the key principles underlying our legal system is that of the independence of the judiciary. The courts must contemplate this principle, the purpose of which is to reinforce our free and democratic system.
The same principle applies to the courts. They must be able to exercise their mandate of interpreting laws without being subjected to undue political pressure. That is one of the purposes of this bill.
What is judicial independence? To begin with, it must not be confused with judicial impartiality. Impartiality is different from independence in that the impartiality has to do with arriving at decisions which are neutral, without prejudice, based solely on the facts presented at trial. Impartiality means that the trial judge will not hand down a ruling based on subjective impressions, but solely on the facts and the testimony presented in court.
While impartiality is exercised vis-à-vis the defendant, judicial independence is exercised vis-à-vis the executive and legislative arms of the government. Judicial independence is necessary so that pressure from the government does not interfere, or appear to interfere, with court rulings.
Should a reasonable observer be able to conclude that pressure has been brought to bear, that would be enough for there to be the appearance of interference in judicial independence. The same observer could thus conclude that judicial impartiality has been tainted through government pressure, whether or not such is the case. That is why it is important to ensure that the body which provides administrative services to courts under federal jurisdiction leaves the judicial body free of any form of interference.
Many rulings have reached this conclusion. In Tobiass v Minister of Citizenship and Immigration, and Dueck v Minister of Citizenship and Immigration, the Supreme Court of Canada ruled that the appearance of judicial independence must not be tainted.
In addition, the court held that judicial independence has an institutional aspect and a personal aspect. The supreme court emphasized that the judiciary should not only remain independent in fact, but that it should be seen to remain independent. Once again, the key test is what a reasonable observer would perceive.
This objective test means that any reasonable person must be able to conclude that judges are free to hand down decisions without any possibility of interference from the government or from other judges. That is what is important in this bill and what should be important in all the government's bills: protection against government interference.
In the preface to the Canadian Judicial Council annual report for 1996, Chief Justice of the Supreme Court Antonio Lamer wrote that “the quality of their future depends on the existence of a judiciary system based on honesty, impartiality and independence”.
Honesty and impartiality are only possible when there is independence. Independence is the basic element which keeps our judiciary free of vice and interference.
For some years now, the bench has been calling for an administrative body to support the judiciary system, rather than the opposite. For some years now, the judiciary has been stressing that independence is possible only if there is an absolute appearance of impartiality and honesty. There must be a clear separation between the bench and government pressures. An organizational format would have to be put in place to truly separate the administrative and the decision making aspects.
Judicial independence requires the depoliticization of the judiciary and must clearly demonstrate that there can be no pernicious interference by government. Once again, the reasonable person criterion must be applied.
At the international congress of the Canadian Council of Administrative Tribunals, held in Quebec City this past June, Justice Claire L'Heureux-Dubé confirmed the need for judicial independence and emancipation of the courts from political power. This is evidence that this bill is more than essential.
Justice L'Heureux-Dubé made it clear that there must be an increased perception of independence, and each judge must be protected from undue pressures. These are fundamental principles that must be not just respecte, but also reinforced by the creation of an independent administrative structure.
This principle is international. At the same congress, an American, Judge Edwin L. Felter Jr., President of the National Conference of Administrative Law Judges, said:
Judiciary independence is not for the good of the judges, but for the good of the public, who expect judges to be fair and impartial, and to reach their decisions without constraint.
We confer a power of interpretation upon our judges. We must respect that power and therefore must provide them with the necessary tools to achieve those objectives. I repeat, there must be no interference of any kind in this decision making process which must be based on the facts.
The only obligation judges have toward government is to carry out their duties in a highly professional manner in keeping with their mandate.
For a judge to act in a highly professional manner, he must not be distracted from his mandate, which is to interpret the law according to the facts with which he is presented. To that end, the judiciary must also be freed up from any administrative and budgetary tasks. Any financial control over the judiciary might lend the appearance that there was interference.
As I stated earlier, we have given judges the power to interpret, and it is up to us, as parliamentarians, to provide them with the tools required to carry out this difficult task. An administrative body must therefore free judges from any restrictions and provide them with both the functional and institutional freedom needed to accomplish what they are appointed to do: hand down enlightened rulings without any interference.
One of the objectives of this bill is to enhance accountability for the use of public moneys. Once again, the notion of transparency is essential to the public's perception of our judicial system.
The criterion of accountability assures us that judges will appear more independent. The fact that it is the chief administrator who will be held accountable distances the judges from any apparent source of influence.
In short, the implementation of elements that strengthen the fundamental principles of judicial independence is seen as desirable and necessary to ensure the proper functioning of the courts and the entire judicial system.
Anything that helps ensure judges' freedom in ruling is desirable and necessary. Anything which helps eliminate interference or the appearance of interference is not only desirable, but essential and paramount. The government has no right to interfere here or elsewhere.
We must provide the judicial system with the necessary tools to ensure the fair and democratic protection of our rights.
All I can add at this point is that the only problem there may be with this bill is with the appointment of the chief administrator. I believe that it would be better if it were an elected position and the criteria could be established by parliament.