Mr. Speaker, I am pleased to participate in the debate on Bill C-12, an act to amend the Judges Act and to amend another act in consequence.
The bill amends the Judges Act to implement the government's response to the recommendations made by the 1999 judicial compensation and benefits commission. Among those recommendations is a retroactive salary increase of 11.2% for 1,013 federally appointed judges. The bill is purely administrative in nature, but that is the problem.
This is the fourth time the Liberal government has sought to amend the act. During the 35th parliament the government introduced Bill C-2 and Bill C-42 and during the 36th parliament, Bill C-37, all of which were minor pieces of legislation or of little significance to Canadians.
While we all recognize the need for housekeeping bills, there have been no significant initiatives by the current Liberal government to address the serious concerns of many Canadians with our judiciary. It appears more and more that the issues parliament may address when it comes to the judiciary are merely administrative in nature.
Under the guise of the charter the courts have appropriated for themselves the right to deal with substantive policy matters. The courts have in addition appropriated for themselves the right to effectively control the ability to set their salaries, a matter which the Constitution Act, 1867, specifically left to parliament.
The decision of the courts purported to find a new constitutional obligation to require the legislatures to set up a commission to establish the salaries for provincially appointed judges. The supreme court, which was called upon to confirm this process, not only did so but included a newfound constitutional obligation requiring parliament to follow a similar process when it came to setting salaries for federally appointed judges.
Although the fiction is that parliament can exercise its own judgment in respect to the salaries recommended by the committees, in reality the judges simply overturn those legislated decisions where they disagree with them. One need look no further than the Alberta legislature for a very practical demonstration of the court's powers.
This is simply a case of judges discovering new constitutional principles that benefit themselves financially without political accountability or, as one of my constituents observed in describing the case, “the judges paying the judge's case”.
This newfound constitutional process that the judges discovered further decreased parliamentary responsibility for the expenditure of public funds and moves toward the creation of an economically independent judiciary with its own political agenda.
A recent letter to Maclean's magazine by a Mr. W. J. Jack of Innisfil, Ontario, noted:
It seems to me that members of Parliament no longer want to or can't make laws that work, so they let appointed judges do that job. If the Supreme Court is going to legislate, we won't need elections, except to vote for one person who would then appoint the members of the court. This would save taxpayers a lot of money, and we'd still have the one-man-rule system that we have today.
Coupled with the self-granting powers under the charter and an executive appointed judiciary as we now have, I would argue the courts can be and often are used to advance the political agenda of a government in a particular direction without consultation with the members of parliament who are accountable to the people of Canada and who represent their interests.
Judicial activism is all too common in our courts. Many if not most Canadians would agree that it must remain the responsibility of parliament to debate and ultimately resolve the political, economic and social issues that govern all our lives.
However over the past two decades judges supreme court justices in particular have to varying degrees engaged in a frenzy of constitutional experimentation that resulted in the judiciary substituting its legal and social preferences for those of the elected representatives of the people in parliament and the legislatures.
A leader in this judicial activism was the former Chief Justice of Canada, Antonio Lamer. Although he is now retired, the decisions he wrote or participated in will continue to impact on the principles and institutions of our democracy. Unfortunately that impact has been at an alarming cost to our democracy and to the public safety and security of our citizens.
Another member of the court has recently added his concern to the direction of the supreme court and the judicial activism of the former chief justice. Mr. Justice Bastarache has warned the nation of the dangers of the judicial government favoured by the former chief justice. In contrast to the former chief justice, Justice Bastarache has committed himself to an interpretation of the charter of rights and freedoms that pays respect to democratic principles and institutions.
The House and the people of Canada should commend Mr. Justice Bastarache and other jurists who recognize the dangers of the legal and constitutional anarchy reflected in the judgments of the former chief justice. Our democratic principles and institutions are too important to be hijacked by a non-elected political judiciary.
Let us consider for a moment a recent high profile supreme court decision that typifies the issue. In Minister of Justice v Burns and Rafay the supreme court in effect removed the justice minister's parliamentary prerogative of choosing whether or not to seek assurances before extraditing alleged criminals facing the death penalty in another country, the United States or otherwise.
Regardless of where one stands on the issue of capital punishment, the court has attempted to deprive parliament of debating the issue further. The court has overridden Canada's law as written by parliament and has chosen to push its political agenda to the forefront by opening Canada's borders to violent criminals.
That is not just my characterization. The day after the Rafay and Burns decision was delivered by the Supreme Court of Canada the lawyers for the Minister of Justice, in another related case, stood before the court and said that the impact of the decisions was to create safe havens for criminals.
According to the precedent set in previous supreme court rulings, the minister had only been required to seek guarantees when the possibility of the death penalty would shock the conscience or otherwise outrage standards of decency.
In this decision, the supreme court has attempted to reconcile its new position with its 1991 precedent. However, in actual fact it has rewritten the law. The recent ruling stipulated that the Minister of Justice was required to seek guarantees prior to the extradition of Rafay and Burns and in the future on all accused of such crimes.
Our extradition treaty with the United States has also been effectively rewritten. One might think that the practical effect of extraditing these individuals, if they are convicted in the state of Washington, is that they would face life imprisonment without the possibility of parole. That is only technically true. If they are convicted and all appeals are exhausted, they become automatically eligible for the prisoner exchange program. They then come back to Canada where the maximum sentence is 25 years before eligibility for parole and, with the faint hope clause, they can apply for parole after 15 years.
Taking into account that these individuals have already been held for six or seven years, if they were successful under the faint hope clause they would be on the streets after eight years. If in fact they are the people who brutally killed three American citizens for insurance money, the practical consequence of their crime would be eight years.
This is not an issue about the death penalty. This is the circumvention of parliament by refusing to allow parliament to have a say in the laws that govern crime in Canada. This is an abdication of our responsibility. Our responsibility has been taken away by the Supreme Court of Canada which has its own political agenda when it comes to criminal law.
In Minister of Justice v Burns and Rafay the supreme court has prevented any legislative attempt to reintroduce capital punishment in Canada. This is regardless of where one stands on the issue. Our party does not have a position on capital punishment. The court's decision effectively says that the elected people of Canada can never make the decision because it is constitutionally prohibited. The political reason given was that the practice is unjust and should be stopped. That is not a legal judgment. That is a political decision.
Again, regardless of where one stands on the issue, it is a decision for parliament and its elected representatives to make. Regardless of the convictions of the court, amending Canada's laws and treaties for policy reasons should be the responsibility of parliament and not the courts.
Former Chief Justice Lamer's judicial activism is not in harmony with the democratic principles of Canada, regardless of whether we oppose or defend the cause that the court may support. People might say that it is a good decision regardless of it being a political one.
The decisions of the court on political matters short-circuit the process, undermine the authority of parliament and bring the institution of parliament into disrepute. It is not that it insults parliamentarians, it insults the people who elected parliamentarians to make these decisions on their behalf.
While this issue is a major concern, it is far from being the only problem in our judicial system that requires the attention of parliament. Another such issue is related to the appointment process.
It is interesting to note that the last bill to amend the Judges Act, Bill C-37 from the 36th parliament, created the Judicial Compensation and Benefits Commission which provided the federal government with yet another opportunity to make patronage appointments. The commission consists of three members appointed by the governor in council and it should be noted who nominates these three: One is nominated by the judiciary; one is nominated by the Minister of Justice; and one, who acts as a chair, is nominated by the first two persons nominated.
The failure of the bill to introduce any changes in the appointment process means that important and high paying positions in our court system will remain essentially part of the patronage system.
The Canadian Alliance would like to see the patronage appointment process overhauled to make it more transparent and publicly accountable. One option would be to strike a committee that would review and interview candidates whose names would be put forward to the Prime Minister. The input of the provinces, which are affected directly by decisions of the Supreme Court of Canada, is required in these matters.
Another concern I have with the bill is that the increase in pay for federally appointed judges is higher than the federal government is prepared to grant the much lower paid civil service. It lately has been the practice of the government to grant raises to senior officers in the military, senior bureaucrats and now judges while dragging its feet on a general salary increase for staff.
While we do not dispute that salaries for appointed judges and others should generally be in line with the private sector, it is apparent that the foot soldiers of our justice system are being ignored.
What we propose is an independent and publicly accountable judiciary that would act as a safeguard to protect Canadians from the arbitrary power of the state. However it must remain the responsibility of parliament, not the courts, to debate and assess the conflicting objectives inherent in public policy development.
This bill, like its predecessors, deals solely with the administrative aspects of the courts and does not address the multitude of concerns that many Canadians have with the judicial system. Therefore, my colleagues and I strongly oppose the bill.