House of Commons Hansard #91 of the 37th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was transport.
Geoff Regan Liberal Halifax West, NS
Mr. Speaker, I ask that the remaining Notices of Motions for the Production of Papers be allowed to stand.
The House resumed from October 1 consideration of the motion that Bill C-30, an 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, to amend the Federal Court Act, the Tax Court of Canada Act and the Judges Act, and to make related and consequential amendments to other acts, be read the second time and referred to a committee.
Robert Lanctôt Bloc Châteauguay, QC
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.
Bill Blaikie NDP Winnipeg—Transcona, MB
Mr. Speaker, I have just a brief comment on Bill C-30, formerly Bill C-40. It is a bill, as members will know, to establish a body to provide administrative services to the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court and the Tax Court of Canada.
The principal goal of the legislation, as I understand it, is to improve the efficiency and effectiveness of the administration of these courts while at the same time preserving the appropriate balance between judicial independence and financial accountability.
I understand that pursuant to a seminal case on judicial independence known as Valente v The Queen, the Supreme Court of Canada itself has indicated that the proposed structure satisfies in its mind the constitutional test for institutional independence, because this would certainly be one of the concerns people might have about the legislation.
The legislation follows again, as I understand it, upon the recommendation of a former auditor general who had recommended a complete merger of the Federal Court and the Tax Court of Canada as a means to address the administrative inefficiencies he identified but the government decided not to go this far. In my judgment it was probably right in not listening totally to the recommendations of the auditor general.
I might say in this context that I sometimes find, as I have said in the past, that the auditor general goes beyond what is required and goes much farther down the road in policy making and policy recommendation than I feel the auditor general ought to. I find it is often the case that the auditor general's office not only identifies inefficiencies or problems but then goes on to make recommendations, almost like an independent policy think-tank. I have had correspondence with previous auditors general on this but I do not want to grind that particular political axe this afternoon.
All I want to say is that although the bill is lengthy in terms of how much paper it consumes, the idea is pretty simple. The sooner we get this to committee and deal with it the better.
Vic Toews Canadian Alliance Provencher, MB
Madam Speaker, I noted the comments of the member for Winnipeg--Transcona in reference to the Supreme Court of Canada decision in Valente v The Queen and, of course, the more recent decision that some of my constituents referred to, when I was in provincial politics,as the case of the judges paying the judges, that is,the establishment of an independent constitutional authority that would require not simply government, be it order in council or parliament, paying judges but actually judges making sure that judges get paid. That was the classification that my constituents put that case into. That case as well talked about institutional independence of the courts.
While I generally support the bill, my concern is that as we move to the institutional independence of the courts, including administrative independence, how do we ensure accountability? We, as members of parliament, and the Minister of Finance are accountable to the taxpayers for the decisions that we make in respect of the running of a department. Whether there are defence issues or health issues, ultimately we are accountable.
My concern is if we simply hand over administrative independence to the courts. I realize the bill does not quite go that far but we are clearly going down that road and we have to tackle the issue. Who will then call the courts to account for misspent money or inefficiencies?
We read in the auditor general's report that there are many unused courts now. The reference was that in the federal court system around 35% to 40% of the courts are being used. Therefore on any given day over 60% of our courtrooms are unused. One can only think of all the expenses involved in unused courtrooms.
I know, for example, from my provincial experience and my involvement in the justice system, that courts were open one hour a day and then shut and the judge gone; then other courts were backed up because that court had too many cases.
The real issue is not that we do not want independence for the court so that justice is done in particular cases, but if we simply hand over money to the courts to run the courts, how do we ensure that accountability?
I wonder whether the member has any issues or comments that he could make in that respect.
Bill Blaikie NDP Winnipeg—Transcona, MB
Madam Speaker, the member for Provencher raises a good question. If I recall correctly, it is a question that he, in a former incarnation, had to deal with, or at least the government that he was part of had to deal with. I recall, and I hope correctly, the controversy in Manitoba when there was a decision by the provincial government of the day, I believe it was the Conservative government, with respect to the remuneration of judges, and there was a case which followed from that having to do with the independence of the judiciary. I believe that is the case to which the member is referring.
This is a genuinely tough question and I do not pretend to have the answers. Do we create an administrative and categorical enclave in which there is no accountability in the name of judicial independence? Having done that in the past to some extent, what claim can government or the larger society make on courts if we feel that they are being underused or the money is not being spent wisely? How do we do that without being open to the charges that the Manitoba government was open to at the time and which led to that court case?
Perhaps having the bill go to the justice committee might be an opportunity to hear some witnesses on this very difficult question, not so much by way of seeking amendment to this particular bill, although that might flow from it, but it certainly might be an occasion, not for lengthy hearings or anything, to hear some evidence on this very difficult question. I agree with the hon. member that in fact it is a difficult question.
Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS
Madam Speaker, Bill C-30 is a fairly large and cumbersome bill. It is one that deals with a number of technical changes that touch on the establishment of a body to provide administrative services to the Federal Court, the Court Martial Appeal Court and the Tax Court of Canada. The bill essentially deals with amendments to the Federal Court Act, the Tax Court of Canada Act and the Judges Act and consequential amendments that flow from them.
The bill, although procedural and voluminous, is one that is important. It is one that has to occur to attempt to streamline a very complex system that is already in place. It is an attempt to consolidate the current administrative services of the Federal Court of Canada, the Court Martial Appeal Court and the Tax Court of Canada into a single administrative service.
The legislation comes about as a result of a number of triggering mechanisms, including, as mentioned previously, the auditor general's steady, guiding hand in influencing this action from occurring as well as the court case of Valente v The Queen.
The attempt here is obviously to strike the age old balance of judicial independence and achieving a certain level of service. The Progressive Conservative/Democratic Representative coalition supports the legislation. It is one that requires a great deal of attention to detail and perhaps, most appropriately, that will occur at the justice committee.
The previous two speakers have alluded to the fact that there will be an opportunity at committee to delve into the details because time and time again we are reminded that the devil is often in the details. The justice department has, on many occasions, been renowned for bringing in legislation that has this large pith and substance to it. When one takes the time to examine it, there are often nuggets of change that are quite substantial and that sometimes get lost in the forest and do not appear so readily when one looks at a bill of this size at first glance.
Some of the other amendments that will come about as a consequence deal with federal statutes, such as the Judges Act, the Access to Information Act, Canada Elections Act, Corrections and Conditional Release Act, Employment Insurance Act, Extradition Act, Immigration Act, Income Tax Act, defence and privacy, to name but a few. One can quickly glean that the bill has incredible reach. It touches on a number of existing statutes. The changes themselves, although administrative in nature, are quite substantial.
The court shall consist of at least two divisions: the Federal Court of Appeal and the Federal Court trial division. These changes that deal with the way in which the courts currently conduct themselves will have a significant impact.
My friend from Provencher and my friend from Winnipeg--Transcona talked about judicial independence and the salaries that are tied to it. The debate about judges having the capacity to set their own rates of pay is a debate that has been very interesting and often emotionally driven. To add controversy to that, legislation passed last spring will now tie in any future changes to the salary structure of members of parliament. Our salaries will be impacted by the rate of pay that judges receive. That can lead to an entire debate in and of itself.
Suffice it to say that the true intent behind giving judges a salary and setting their salary separate from the political process is to avoid any real or perceived interference from outside sources, be they political or, in a more nefarious way, I would argue, although some might suggest that the political influence can be just as nefarious, organized crime.
There has been ample evidence that organized crime is on the rise. It has reared its ugly head in many cities and towns throughout the country.
It is presenting itself time and again in a very aggressive way as we saw recently in the city of Halifax where the Hell's Angels opened a storefront operation, advertising in bright fluorescent lights their presence in the city.
There was legislation before the House in recent months that attempted to aid police in the difficult task of combating organized crime. There is a lot more to do in that regard. The resources, the training and the sophistication used by organized crime elements have to be motivation enough for us to step up every effort to give our law enforcement agents every bit of help in terms of resource support and legislative support.
Bill C-30 is very much in its purpose the pith and substance to keep the judiciary separate from that type of influence. Organized crime is not beyond attempting to influence the decisions of judges. It is not beyond any sort of act that is intended to destabilize or to bring the administration of justice into disrepute.
We have seen bold new efforts and aggressive acts on the part of organized crime. One could even make the leap to say that terrorism is in and of itself a more sophisticated and often a more philosophically driven form of organized crime. The results are staggering.
We are still reeling from the effects of September 11. The seriousness is there to underline the necessity of giving judges complete impartiality. That is a very difficult task indeed. Their financial compensation and salaries are often a way in which interference and influence can be exerted.
The coalition supports the legislation. We feel that it is necessary to bring about the changes, particularly in the area of the Judges Act where in recent years growing concerns were brought to bear about the increased elements of interference and influence.
Salaries for judges in the Federal Court are now tied to a schedule. No one would suggest for a minute that they are undercompensated when one compares those salaries to others working in the private sector. If we are to attract the best and the brightest and those individuals most capable of administrating and administering law in the country, those salaries must be commensurate with the ability. That has to be the number one priority in terms of the selection of judges and ensuring that we get the best people on the bench.
The other sections of the act to which I have referred that impact the Elections Act and Corrections and Conditional Release Act deal with changes that are meant to streamline and bring about greater efficiency in the administration of those acts.
The Extradition Act deals with a clause wherein the Federal Court and the court of appeal in the province in which the committal of a person was ordered have exclusive jurisdiction to hear and determine applications for judicial review under the act made in respect of a decision of the minister pursuant to section 40.
There is a change where the court of appeal may grant relief under a section of the act on the grounds that a trial division or a Federal Court of Canada also grants relief.
All these interconnected and related sections of the numerous acts are covered under Bill C-30. It is one that took a great deal of time and effort to prepare. We are looking forward to having an equal opportunity at the justice committee to review the work of the justice department. I am sure we can present and advance the very best legislation possible.
Werner Schmidt Canadian Alliance Kelowna, BC
Madam Speaker, I appreciate the comments made by the hon. member for Pictou--Antigonish--Guysborough. As a member of the bar he understands very well how the judicial system operates and how various justice and court arrangements are made.
Would he agree with Alex Macdonald, either the solicitor general or the attorney general for the province of B.C. who is now retired? He wrote an exposé of what happened in the Canadian justice system. At the beginning of his book he makes a very strong indictment against the justice system. He goes so far as to say that Canada does not have a justice system; it has a legal system.
He describes how one court is loaded with all kinds of cases. There is such a backlog that they cannot get the physical time in court even if the judge and court space were available. Yet there is an empty court right next door where nothing is happening. Cases cannot be expedited simply because of a lack of space.
Does the hon. member feel that this legislation might actually help to speed up the justice system so that cases can be heard before juveniles become adults?
Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS
Madam Speaker, I have not had the pleasure of reading Mr. Macdonald's book. It is something I should do. He makes the point that there is a pressing need in the country to have sufficient judges and courtrooms as well as physical space to hear cases.
The issue of backlogs, whether they be in the justice system for adults or juveniles, is a huge problem. When I worked as a crown attorney we encountered that difficulty many times, particularly as it pertained to charges that proceeded by indictment and resulted in jury trials. The backlog often resulted in a waiting period of two years. In the life of a young person two years severely undermines the ability to bring about the requisite deterrence and rehabilitative efforts.
I have concerns about the system as it currently operates. There is an effort in the bill to streamline and to ensure that judges are appointed in a timely fashion, to paraphrase the Minister of Justice and her favourite characterization.
I also believe that there is a huge problem looming with respect to the youth criminal justice act. We could be building new courtroom facilities and appointing judges. Yet there is a bill currently in the other place that is more complicated than the Income Tax Act. It is so convoluted, cumbersome, unmanageable and unenforceable that it will be an administrative nightmare. The local bar associations around the country are licking their lips in anticipation of that legislation passing.
On the one hand the government through the bill is attempting to streamline justice. On the other hand the justice department has produced Bill C-7 in an attempt to replace the Young Offenders Act, which will gum up the system.
The hon. member is exactly right. We will have young people who will be ready to collect their pensions before they will have made it through the youth justice system. It is rather incongruous that the justice department can work at such cross purposes at times and in essence leave the justice system cross threaded to the detriment of Canadians.
Vic Toews Canadian Alliance Provencher, MB
Madam Speaker, I appreciated the comments made by the member of the coalition. I am pleased to participate in the discussion regarding Bill C-30, the courts administration service act.
The bill would consolidate the administrative services of the Federal Court of Canada, the Court Martial Appeal Court and the Tax Court of Canada into a single courts administration service. It would create the position of chief administrator of the courts administrative service. The bill would also create a separate federal court of appeal and change the status of the tax court to that of a superior court.
Bill C-30 is the government's response to the 1997 report of the auditor general entitled “Report on the Federal Court of Canada and the Tax Court of Canada”. The report reviewed the possible regionalization and or merger of the Federal Court's trial division and the Tax Court of Canada as well as the consolidation of their administrative support services. The report also presented the results of an audit of the registry services of the two courts.
The member for Winnipeg--Transcona indicated that he had some concerns about the auditor general moving into what he classified as a policy initiative. I welcome that kind of initiative by a public servant. It gives members of the House a clearly laid out plan and suggestion. Ultimately it would always be up to members of the House to determine whether or not we would accept that policy recommendation.
Bill C-30 enacts only the report's recommendation to consolidate the administrative services of the two courts, although it may be viewed by some as a first step toward an eventual total merger.
The arguments in favour of the proposed consolidation of the administrative services in Bill C-30 appear to be reasonable and sound calculations. The main concern articulated by the auditor general was that significant improvements were needed in the area of court registry cost effectiveness.
Among the existing problems cited were poor planning of facilities, lack of information technology and the fact that the supply of courtrooms exceeded the combined needs of both the federal court and the tax court.
With respect to the excess of courtrooms available, the auditor general simply noted what most members of the bar have been stating for years. His affirmation of this in the report was an important step which we can now use to proceed.
The report examined the physical facilities of both courts to determine whether they were being planned or used in an effective manner. The conclusion of the auditor general was that the two courts had an oversupply of courtrooms and that the actual use of courtrooms was low. The Federal Court's rate of use of its own courtrooms was about 21% based on data from 1993 to 1995.
Other users account for about 16% of overall use and total use amounts to only 36% of total availability. The tax court's use of its own courtrooms is slightly higher at 35% to 38% and total use ranges between 37% and 41%.
If we were any kind of a private business that needed to account to shareholders for efficiencies, our shareholders would have this board of directors out on its ears. We are in fact accountable but not just to shareholders. We are accountable to the voters of Canada. This kind of glaring problem staring us in the face demands action.
Again it illustrates the concern that I voiced earlier. I have no problem with the consolidation of courtrooms and administrators and the like to improve efficiencies. My concern, which I see as an apparently inevitable road that we will go down, arises as we move toward the independent administration of the courts by judges. As the members responsible for taxpayer dollars, how do we ask judges to account if we turn this over to them?
Looking at the rate of use now, I think most judges would say we would not have much trouble trying to beat that record. Therefore, we as parliamentarians, and specifically the Liberal government, have done nothing to encourage efficiency in that respect. That may be a good reason for saying that the government has done nothing to encourage efficiency and that the courts should do it. I have a better plan which involves this side of the House sitting in the government benches, but that will have to wait for a number of years.
The auditor general's report claims that consolidation of courtrooms and registry offices could yield major savings, perhaps $1 million just in leasing expenses. The auditor general further estimates that millions of dollars of possible savings could be gained if all recommended changes within the report were implemented.
Let us take a brief look at the report's specific recommendations to consolidate the administrative services to the Federal Court of Canada, Trial Division and the Tax Court of Canada.
The report recommends the consolidation of corporate services for the court registries, estimating the savings at $600,000 per year. The report states that consolidation could greatly facilitate improved planning and use of resources, as well as increase the opportunity to plan for federal judicial centres that would meet the needs of the courts, federal boards and tribunals.
Of course many of the issues reviewed in the auditor general's report are not new to the two courts being considered. Many of the recommendations of the auditor general have been previously endorsed by the courts.
As part of a government wide series of program reviews in 1994, the Federal Court undertook a review of its activities. The Federal Court's program review recommended that the government consider consolidation of judicial responsibilities presently held by different courts and different tribunals.
The Federal Court's program review suggested that the government also explore amalgamation of the Federal Court with the tax court and opportunities where by responsibilities of boards and commissions could be dealt with more appropriately, by a trial court for example.
The tax court also recommended to the government a possible consolidation of corporate services among the Supreme Court of Canada, the Federal Court of Canada and the Tax Court of Canada, as well as quasi-judicial commissions, boards and tribunals.
They believe a consolidation could eliminate duplication of work and harmonize policies and procedures in areas such as personnel, finance, security, administration and information technology.
Although the bill only proposes to consolidate the administrative services of the two courts, a move which would not face much opposition from each court, I would suggest, as I stated earlier, it may be viewed by some as the first step toward a total merger of the courts.
While consolidation of the administrative services of the courts as outlined in the bill is a reasonable solution to the many problems articulated by the auditor general, a total merger of the courts is a far more contentious issue. The tax court and legal counsel appearing before that court are known to be strongly opposed to a merger. Those employed by the tax court believe that the efficiency of the court would be lost in a merger and maintain that the hearing of tax cases requires a specialized court.
The tax court indeed has highly specialized judges and it is seen as efficient and effective by the lawyers who appear before it.
The tax court also maintains that most of the significant problems in registry services are related to the Federal Court and not the tax court. It argues that there would be increased delays in hearing tax cases if the tax court merged with the Federal Court. Furthermore, the judges of the tax court joined the court with the understanding that they would deal primarily with tax matters. They may view a merger that requires them to deal with other matters as a breach of that understanding.
Tax counsel have stated that at a minimum judges experienced in tax law are needed to hear cases and that if the courts are merged a separate tax division should be established. I do not think that is a radical suggestion. We have done that with other superior courts in the area of provincial superior courts. For example, we would have a general court of justice and then a specialized family law division. I do not see as being a negative thing. Indeed, I think we could respect that specialization and yet still have the flexibility of ensuring that the courts and the courtrooms are used more effectively.
However, many of the counsel also maintain that tax court judges are already working at full capacity, so in their case they argue productivity is not an issue as has been suggested by some may be the case in the Federal Court.
Currently the administrative services of the various courts are independent of each other. The bill creates the position of a chief administrator who would have the rank and status of a deputy head of a department, creating another layer of government, and that is a concern.
Furthermore, the chief justice of the tax court, when he reviewed the auditor general's report, did not agree with all of the calculations that indicated the need for increased cost effectiveness of the court nor with the methods used to determine possible advantages of a merger.
Those are my comments. I am prepared to move ahead on the bill, but there is still a lot of work that needs to be done.
Werner Schmidt Canadian Alliance Kelowna, BC
Madam Speaker, I appreciate the erudite analysis of Bill C-30 that my hon. colleague from Provencher just gave us.
Given his experience as attorney general and, in his previous life, as a practitioner and a member of the bar, would he agree with the comments of Alex Macdonald, the former attorney general of British Columbia, regarding the prodigal law in the justice system in Canada? He said that the law states that the amount of time it takes to bring a case to its culmination depends directly on the amount of money and the amount of time available to service the case.
The auditor general showed us that roughly less than 50% of the courts actually were occupied by judges and lawyers hearing cases. There is a tremendous inefficiency here. It must have taken a lot of ingenuity on the part of the judges and lawyers to bring it up to 50% because clearly their interest would be to make sure they have access to the space and that it would be free and independent as it possibly could be.
The auditor general has provided us with a tremendous insight here. He was able to unearth something that apparently was clear to everyone, yet at the same time these people had a vested interest to make sure they did not find that.
Could the member comment on the prodigal law and on the vested interest that individuals have in making sure that the space is available in the public sector that they want but may not need?
Vic Toews Canadian Alliance Provencher, MB
Madam Speaker, with respect to the concept of the prodigal laws where cases and time expand dependent upon the amount of money available to serve the cases, that is clearly true. Litigation is a very expensive business. One has to have the money in order to fuel that fire. Depending upon the goodwill or indeed the lack of goodwill of some litigants, we can see time being eaten away by the courts.
In all fairness, many trial judges that I appeared in front of recognized the problem. They tried to do things about it. They did not like abuse of the court system. They did not like counsel wasting time. However, there was always a fear by the trial judges that, if they cut short frivolous arguments they would be overturned on appeal because they did not give the lawyer or individual a fair hearing.
I have found that judges have been more than tolerant of the comments, the length of comments and the time they take, not because they do not recognize the problem at the trial level but because of their fear of being overturned by a court of appeal which may not have that hands-on day to day experience and not see the problem creeping up. It is a serious problem.
When I was serving as a provincial justice minister, we tried to do a number of things to increase the efficiency and the use of the courts. It was extremely difficult to get the facts and the figures. The clerks who answered to a deputy minister and who answered to me kept all the records of the use of the courts but were prohibited by the judges from providing that information to me. Eventually after a long protracted battle I got some of it.
It essentially demonstrated that even in our provincial judges' courts, which are considered the workhorses of the court system, the day to day courts where 90% of the cases are heard, that three to three and a half hours a day was the average. That indicated to me that there was something wrong but I could not quite put my finger on it.
I have a tremendous concern that as we move toward the independence of the administrators of the court the very small ability that elected officials now have to demand some type of accountability will disappear completely. That is my concern.
I share some of his concerns but I would not necessarily fault trial court judges in that respect. Generally speaking they do a very good job of trying to move matters ahead.
Werner Schmidt Canadian Alliance Kelowna, BC
Madam Speaker, we have an interesting bill before us. It is probably one of the simplest and most incontrovertible bills we have seen for a long time. It rationalizes what would appear to be a logical thing to do: to organize these courts under one umbrella and one chief administrator. It makes eminent good sense.
As a business person and an administrator in a previous life I think it makes jolly good sense. It is about time someone did something like this. The auditor general said it would be a good thing to do and it is. On the face of it that part makes excellent sense.
For the benefit of our listeners and viewers this afternoon I will indicate exactly which four courts would be rationalized under one administrative body. They are the Federal Court of Canada, the Federal Court of Appeal, the Court Martial Appeal Court of Canada and the Tax Court of Canada.
As we all know there is entrepreneurial bureaucracy in the world. There are entrepreneurial bureaucrats whose function seems to be to increase the number of people under their administration. The salary structure is put together in such a way that the more people one administers the greater one's pay, and of course the greater the responsibility and the more the work expands.
We have created a super administrative body whose chief administrator has one of the most auspicious jobs in the world. The administrator's job is to tell judges they cannot use a particular room on a certain day. That is a tremendous power. The chief administrator can tell judges, who for all intents and purposes are superior, where they can go to practise their art.
I am overstating the case. I am not really serious but I am sure that kind of thing will happen. The independence that my colleague mentioned is a real issue. The way the government states the case in terms of the purposes of the bill is significant. I will read from the bill. It states:
The purposes of this Act are to
(a) facilitate coordination and cooperation among the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court and the Tax Court of Canada for the purpose of ensuring the effective and efficient provision of administrative services to those courts;
Here is the significant part. Its purpose is also to:
(b) enhance judicial independence by placing administrative services at arm's length from the Government of Canada and by affirming the roles of chief justices and judges in the management of the courts; and
(c) enhance accountability for the use of public money in support of court administration while safeguarding the independence of the judiciary.
Three issues are at stake here: independence, accountability, and not only independence for the justices but independence from the Government of Canada. Is it not interesting that the judiciary should be placed in a position where there is independence from the Government of Canada? I am not entirely sure how a judge would interpret this. In the final analysis the courts are set up by legislation which is a function of the Government of Canada. We do it here.
In one sense we want judges to be independent when they interpret laws. In their interpretations judges should take into account the intent of the Parliament of Canada when it passed the laws. That is what they should do. I want judges to be independent and not influenced by the political vagaries of the day a law was passed. However I want them to know what the intent of the law was.
When the Canadian constitution and the bill of rights were passed certain clear indications were made by the Parliament of Canada. The Supreme Court of Canada later read into those provisions certain clauses, interpretations and definitions that were never intended by the House of Commons.
That means there is independence not only in terms of interpreting the law but in the sense of judges telling parliament what they think it should have done. A power exists in Canada today that ought not to be there as far as judges are concerned.
One might ask whether I am taking this too far. I do not think so. There is evidence that this has happened. We need to be careful in considering this type of legislation which seems so innocuous on the surface. When it is working its way through the system we should examine what its end result could be.
It is interesting that the auditor general not only recommended a body that would tie together the administrative services of the courts under one umbrella, he also suggested some courts ought to be amalgamated. My hon. colleague said there was opposition to amalgamation.
I talked earlier about bureaucratic entrepreneurship. One of the laws of bureaucratic entrepreneurship is that no one shall ever take away one's authority or reduce the number of people over whom one has supervisory responsibility. That is anathema to being a bureaucrat.
Am I suggesting bureaucrats are bad people? Heavens no, I am not. They are wonderful people. They help us a lot. It would be terrible if bureaucrats were not extremely jealous about their positions. They had better be, or what are they doing there?
I want bureaucrats to be truthful and honest. In discussing his experience in the provincial legislature the hon. member indicated that it was difficult to find out from the people he was responsible for what was happening with the utilization of space they were paying for.
I do not blame these people for making it difficult, but there is something wrong with the system when it is that difficult to get at the truth. We need to recognize that as a society. We need to recognize it in the House of Commons.
I will move away from Bill C-30 for a couple of minutes to talk about its timing. Canadians are neighbours of the United States of America. Twenty-two days ago we witnessed a horrible event. Terrorists killed innocent people. Yet here we are today being asked by the government and the House to consider legislation to rationalize the administrative services of our courts rather than legislation to deal with terrorism. I question the timing. How could this be more important than the September 11 tragedy?
What we need in our society today is a commitment to honesty, truth and the recognition that terrorism does not arise out of poverty. Terrorism does not arise out of the fact that someone did not get his way. Terrorism arises from a heart that wants to kill or destroy, for whatever reason. There is evil in the world. That is what gives rise to terrorism. The best laws in the world will not prevent evil. All they can hope to do is push it back a bit so it does not become the force it could become.
The hon. member from the coalition indicated the establishment in Halifax of the Hell's Angels. The group had a storefront advertising the fact that they were there. We would not call them terrorists at this point; however, what goes on in the hearts of people who are organized for the specific purpose of defying the law?
What goes on in the mind of a judge who issues a perfunctory punishment to people who deliberately and in an organized manner grow marijuana? The judge slaps them on the wrist with a $5,000 fine. They laugh at the judge and say it is an expensive business licence, and they carry on doing business.
It used to be that law enforcement officers and the judges who found these people guilty could confiscate the material they used to grow the marijuana, or whatever the criminal offence was. They cannot do so any more.
What has happened to us? What has happened to our school systems? The system does not seem to care any more whether students cheat on an examination. Yes, we make noise and tell students they shall not cheat, but the kids go home and say that everyone is doing it. What is wrong when students feel they cannot perform too well because they will be frowned upon up on? They do not make their best effort.
We need to move ahead with truth, honesty and integrity so we can do the things that will build our society and make us strong. That is the strongest instrument against terrorism we could possibly devise.
Does that mean we should not have good legislation against terrorism? Of course we should. However we should also challenge parents, school teachers, MPs and every leader of the community to instill into the hearts and minds of people that it is important to pass good laws, obey those laws and make sure our kids do the same.
We need to be sure Bill C-30 achieves its purpose of giving independence to the administrative body. That is what we need to go for. However it will depend on judges who have the right heart. It will depend on administrators who have the right heart. The intent of Bill C-30 will need to be observed by the judges who are asked to interpret and apply it.
Ted White Canadian Alliance North Vancouver, BC
Madam Speaker, I got the feeling from the member's speech that he had two major concerns. First, while consolidation of the various court administrations might make things more efficient and less costly, the bureaucratic aspect to all this and the fact that the jobs will probably be preserved means we might only be transferring costs to another area of government without cutting them at all. Is that one of the member's concerns?
Second, while perhaps making the administration of the courts more efficient the act would do nothing to improve the judgments coming out of them. The member used as an example the current terrorist threat and a recent court ruling that has made it virtually impossible to deport terrorists.
It brought to mind a case from North Vancouver. I received a fax a moment ago from one of my constituents. Mr. Alastair Ritchie called to remind me about the case of a man who was forging passports in North Vancouver. We wanted to see the man deported but he still lives there. I just remembered the case. The man was convicted in North Vancouver three years ago of forging passports and the judge gave him a six month suspended sentence.
We must ask ourselves what on earth goes through the mind of a judge who would do that. I criticized the judge openly. The hon. member talked about accountability. I criticized the judge openly. The judge called me and said we should have lunch because he wanted to talk with me about what happens in courts and so on.
We went to lunch together and he tried to justify giving a six month suspended sentence to someone who forges passports. I said to him in the end that he had become jaded and insensitive and was no longer in touch with the values of the community.
Does the hon. member get the sense, as I do, that the bill would not change court judgments? Does he feel the government should be tabling meaningful legislation that gets on top of the problems instead of twiddling around the edges as it usually does with administrative matters?
Werner Schmidt Canadian Alliance Kelowna, BC
Madam Speaker, my colleague from North Vancouver understood my speech very well. He understood exactly what I was trying to say.
It is interesting that the claim is made that the savings from bringing them under one umbrella would be somewhere in the neighbourhood of $600,000 to $1 million. That may or may not be true. There is absolutely nothing to show that would happen.
Although Alex Macdonald uses the prodigal law in the context of the legal system, that prodigal law also applies in administrative matters where the activity in a particular office expands to cover the time available to the individuals sitting there. Sometimes when asked how much time people spend in the office, they will say six hours. The question is about what they achieved. The important aspect is not how long they were there but rather what they achieved. It is one of the issues that is very critical.
The other point I want to emphasize is that we need to recognize that the intent of legislation is every bit as important, maybe more important, than what the legislation actually says word for word. Too often legal expertise is very good at pulling out the tiny little issue, and one word will slit a particular meaning of a section in an act. Sometimes people will be declared innocent or acquitted on one tiny technicality. Sometimes a technicality is critical because it does reveal the intent but sometimes it does not. It is critical that we recognize that sort of thing and deal directly with the level and degree of punishment involved.
These are questions of intent. They are also questions of values that operate in our society. It is very important.
I have to use this opportunity to refer to something else. In terms of terrorism, a committee of 10 senior cabinet ministers has been created. They are to look after the domestic security of Canadians. That sounds very good. The head of the committee is the Minister of Foreign Affairs.
This is really interesting because in the government cabinet there is a solicitor general. He has CSIS and the RCMP under his jurisdiction. CSIS is supposed to provide intelligence about what is happening, particularly in regard to terrorism and other threats. The RCMP does that as well.
Stan Keyes Liberal Hamilton West, ON
Madam Speaker, I rise on a point of order. I wonder if you could ask the hon. member to address the issue that is before the House, specifically Bill C-30 on streamlining and the effectiveness of combining the administration of the courts.
Courts Administration Service ActGovernment Orders
The Acting Speaker (Ms. Bakopanos)
With respect to the Chair occupant guiding the member's topic, I am sure the member is coming to the end of his remarks and his time.
Werner Schmidt Canadian Alliance Kelowna, BC
Madam Speaker, if the hon. member had listened just a little longer, he would have gotten the connection right away.
Stan Keyes Liberal Hamilton West, ON
Oh, I have been listening to your whole speech. I haven't missed a word.
Werner Schmidt Canadian Alliance Kelowna, BC
It is wonderful, Madam Speaker, that he took the time to listen. I am so glad he did that. That is excellent.
Stan Keyes Liberal Hamilton West, ON
But I have not heard anything.
Courts Administration Service ActGovernment Orders
The Acting Speaker (Ms. Bakopanos)
Members will address questions and comments through the Chair.