moved that Bill C-12, an act to amend the Judges Act and to amend another act in consequence, be read the second time and referred to a committee.
Mr. Speaker, I am pleased to begin second reading debate on Bill C-12, an act to amend the Judges Act.
The bill would make certain amendments to the Judges Act to ensure appropriate compensation for the federally appointed judiciary in Canada. It is intended to implement the commitments made by the government in its response to the report of the 1999 Judicial Compensation and Benefits Commission.
The strength of Canada's judiciary is a key factor in our prosperity and health as a nation. As the guardians of the constitutional right of Canadians to have peace, order and good government, judges form an important pillar in our democratic society.
As Peter Russell, a respected constitutional expert, has observed, following John Locke some two centuries before him:
If government is to be based on the rational consent of human beings, adjudication by impartial and independent judges must be regarded as an inherent requirement of political society.
An independent judiciary is essential to the rule of law. Judges must be free from undue influence of any kind, be it from those with money or power. There is a growing recognition that stability, human security and the rule of law are necessary to economic growth. There is a growing appreciation that an independent judiciary with the proper resources is the first step down this path.
Canadians are envied around the world for the quality, commitment and independence of our judiciary. Increasingly our court system and our judges are looked to as models of integrity and impartiality by developing democratic nations as they strive to implement fair and effective systems of their own.
We need only open the papers or listen to the international news to be reminded of the importance of a courageous, independent and impartial judiciary in ensuring the basic elements of a free and civil society. Like so many of the rights and advantages enjoyed by all Canadians, the importance of an independent judiciary cannot be underestimated or taken for granted. Without it our country would be a very different place.
It is with real pride that I note that Canada's experience and expertise has been sought in the development of judicial and court systems in such diverse countries and regions as the former Soviet Union, including the Ukraine and Kosovo, as well as South Africa and China.
In fact, during a recent visit to China the Prime Minister commented on the five year co-operation project on the training of judges which has been successfully undertaken by our two nations. Canada's contribution toward the training of the Chinese judiciary on issues such as ethics and independence of the judiciary will be integrated into ongoing judicial teaching.
The importance of an independent judiciary was succinctly captured by our Prime Minister when he stated:
For no matter how well the laws are written, there can be no justice without a fair trial overseen by a competent, independent, impartial and effective judiciary. A judiciary that applies the law equally for all citizens, regardless of gender, social status, religious belief, or political opinion.
The Government of Canada is committed to the principle of judicial independence as it is a fundamental precondition to ensuring the vitality of the rule of law in our democratic system of government.
The three constitutionally required elements of judicial independence are security of tenure, independence of administration of matters relating to the judicial function and financial security. In his seminal study on judicial independence and accountability, Professor Martin Friedland observed:
If a judge's salary is dependent on the whim of the government, the judge will not have the independence we desire in our judiciary. If salaries could be arbitrarily raised or lowered in individual cases, or even collectively, the government would have a strong measure of control over the judiciary.
It is in direct support of the principle of judicial independence that section 100 of the Constitution has conferred on parliament the important task of establishing financial security of the federally appointed judiciary. It is the responsibility of parliamentarians, all of us, to ensure that our judges are compensated fairly and appropriately in order to maintain the quality and independence of our benches.
In 1981 parliament established an independent judicial compensation and benefits commission to assist in its task under section 100 of the Constitution.
The Supreme Court of Canada explained the purpose of the independent commission process in the following words:
—financial security for the courts, as an institution, has three components which all flow from the constitutional imperative that, to the extent possible, the relationship between the judiciary and the other branches of government be depoliticized—this imperative demands that the courts both be free and appear to be free from political interference through economic manipulation by the other branches of government, and that they not become entangled in the politics of remuneration from the public purse.
In 1998 parliament amended the Judges Act in order to further enhance the commission's independence, objectivity and overall effectiveness in support of the principle of judicial independence.
The new commission process builds on the strength of the former commission. The independence of the new commission has been enhanced through the nomination process and the tenure of its members. In terms of their selection the judiciary and the government each nominated one member of the commission. Those two members nominated a third member to served as chair of the commission.
The commission is required to conduct an inquiry every four years and to make recommendations as to the adequacy of judicial compensation. Parliament further reinforced the commission's objectivity by establishing criteria which guide the assessment of what constitutes adequate judicial salaries, benefits and allowances.
These objective criteria include: the prevailing economic conditions in Canada, including the cost of living and the overall economic and financial position of the federal government; the role of financial security of the judiciary in ensuring judicial independence; the need to attract outstanding candidates to the judiciary; and any other objective criteria that the commission considers relevant.
The care with which the commission undertook its preparations and deliberations is evident in the quality and thoroughness of its report. While the government may not share all the commission's conclusions, it is clear that the commission made a great effort to offer reasons that are carefully explained and supported by evidence to the extent that evidence was available. I recommend that all members take the opportunity to read both the commission report and the government's response to it.
It must be remembered that the commission's recommendations are not binding. It is on parliament that the constitution has conferred the exclusive authority and responsibility for establishing judicial compensation. However, where parliament decides to reject or modify the commission's recommendations, it is legally and constitutionally required to explain publicly a reasonable justification for this decision.
In conclusion, Canada is fortunate to have a judiciary renowned internationally for its competence, commitment, independence and impartiality.
We are confident that all members will appreciate the particular importance of this first formal response to the new commission process in ensuring public confidence in the legitimacy of this process.
Through Bill C-12 the government is proposing implementation of most of the recommendations of the judicial compensation and benefits commission, including proposed salary increases and some modest improvements to pensions and allowances. In light of all the factors considered by this independent commission, including trends in both the public and the private sectors, the government is of the view that the proposals in Bill C-12 are within the range of what is reasonable and adequate to meet the constitutional principle of financial security.
That said, the government is not prepared to implement all the commission's recommendations. Specifically we will defer a proposal that would increase numbers of supernumerary or part time judges pending the outcome of important consultations with my colleagues in the provinces and the territories.
In addition, the government has not accepted the commission's recommendation with respect to legal fees. In our view the commission's proposal does not establish reasonable limits to these expenditures. Instead we are proposing a statutory formula designed to provide for a reasonable contribution to the costs of the participation of the judiciary while at the same time limit their scope.
In conclusion, Canada is fortunate to have a judiciary renowned internationally for its competence, commitment, independence and impartiality.
The constitution has entrusted parliament with a duty to fix judicial salaries, pensions and allowances at a level sufficient to support judicial independence. We will act to fulfil our obligation. Again, as the Prime Minister noted during his visit to China:
No one can be above the law. And no one can be forgotten by the law or denied its protection. And to be implied impartially, the rule of law means that there should be a clear separation of the prosecutor from the person who will ultimately pass judgment.
It is precisely to safeguard the principle of judicial independence, reflected in this statement, that the government has brought forward Bill C-12. I commend it to parliament for consideration.