Mr. Speaker, I think my remarks will pretty much follow along the same context as our colleague who just spoke.
In my remarks today I want capture three separate perspectives on the bill, and not because I am looking in a rear view mirror. The way the government appears to want to handle this matter will likely cause new files to open in the future. The other place, next door to the House of Commons, will undoubtedly be interested in some of these perspectives as it reviews the bill.
As we all know, the Supreme Court of Canada a few years ago decided that the only solution to the ambiguities and imprecision in the matter of setting or adjusting the salaries for judges was the need for an independent commission which would study and recommend what those salary levels should be. The commission has functioned for the last five or ten years. As I recall, the second last report was implemented as the Supreme Court had recommended.
It was a Supreme Court decision, which is a bit more than a recommendation. It created the law in that case in an arguable vacuum, taking into account the contingencies that the court felt were relevant at the time.
The report we are dealing with now is from the independent commission, not from the justice committee. It was introduced a couple of years ago. The last government introduced a bill that would have implemented the recommendations of the commission. That bill fell from the order paper at dissolution of the last Parliament. The new government has now introduced a bill that would substantially reduce the amount recommended by the commission.
Part of the problem identified by the government, which it felt empowered to identify, was that in assessing the costs and what should be paid to judges and the courts, there was a difference between street inflation in Canada and what I would call lawyer-judge inflation. The Supreme Court and the commission recognizes that one of the considerations of setting judicial salaries is the need to attract some of the best legal minds into the judicial profession. In order to attract them, there has to be appropriate amounts paid in salaries. Therefore, the court has accepted that lawyer-judge type inflation is very relevant to the setting of those amounts.
The setting of those amounts do not have very much to do, whether one agrees with this or not, with what a bus driver might make in Winnipeg or what a fish plant worker might make in Nova Scotia. As a result, we have these two different worlds competing. When the independent commission makes its report, it looks at the judicial-lawyer type inflation and the salary amounts that should be paid to continue to attract good people into the profession. As I said, the previous government had followed through on this, but the new government has not.
I want to now turn my attention to the legal infrastructure in this place to deal with the salaries of judges.
Just so the record is clear, section 100 of the Constitution Act says that judges' salaries shall be fixed by the Parliament of Canada. Section 17 of the Constitution Act says there shall be a Parliament of Canada composed of the Queen, the House of Commons and the Senate. Parliament has three heads. I think most would agree the modern manifestation of the Queen would be the Privy Council, which, for all practical purposes, is the cabinet. The cabinet is represented in the House of Commons through the Prime Minister and the other ministers. In dealing with judicial matters it would be the Minister of Justice.
There is another section of the Constitution Act which is a bit of a sleeper but very important to us here. Notwithstanding that section 100 says that Parliament shall fix judges' salaries, section 54 of the Constitution Act says that the House of Commons may not pass a bill or motion that involves the expenditure of public money unless the government, the Queen--the Privy Council--has already given a royal recommendation for the expenditure of that amount.
As the House deals with these matters in the ordinary course, the House cannot increase any of the spending of public money without a royal recommendation. That is very important because what has happened in this case is that the consideration of the report of the independent commission is done by this House. While this House under those constitutional rules could reduce the amount recommended by the commission and put it into a bill for adoption, this House could never increase the amount.
The best laid plans of the Supreme Court of Canada in setting up this independent commission which then makes a recommendation to Parliament is handicapped by the fact that there is only one player in the mechanism that has the ability to fairly implement, and that is a government bringing in a bill with a royal recommendation.
I make the point that it looks to me as though section 54 requiring a royal recommendation hobbles, handicaps, is an impediment to the House fairly dealing with the commission report. The independence that the Supreme Court of Canada had hoped for when it went through the Prince Edward Island case and the Bodner case has been lost simply because section 54 requires the existence of a royal recommendation. We have one hand tied behind our backs as we deal with this.
Oddly enough the Minister of Justice, confirmed as recently as yesterday by his parliamentary secretary, told the justice committee as it reviewed this report that if the committee wants to increase the amount recommended, it should go ahead. That is essentially what was said. That came from the justice minister. I suggest to the House, in this circumstance knowing the law as he should, and I am looking for an adverb or an adjective, but that position could be described as falling in the spectrum somewhere between ignorance and deceit, with sincerity in the middle.
Surely the justice minister knows that the committee and the House could never recommend an increase or adopt an amount that was in excess of what the Privy Council put into the bill without a royal recommendation. Yet it appears that publicly the government is giving the impression that the government, the Privy Council, is open to Parliament fixing this amount to what Parliament and the House think is appropriate, when all along it knows full well that such an increase could not be implemented, recommended, moved, proposed in committee or in the House because there is no royal recommendation.
I would say today that if the government were sincere in saying it is possible to raise these amounts to what the independent commission had recommended, I challenge the government now, I challenge the minister now, I challenge the members of the Conservative caucus to say they will give a royal recommendation to implement what this House wants, what the committee would have adopted had the proposed amendments to increase the amount in the bill not been ruled out of order at the committee. The amendments to reinstate the commission's report were ruled out of order. If the government were really sincere in its suggestion that the House could increase the amounts, it must say that it is also prepared to provide a royal recommendation, which the government is apparently not prepared to do.
After the bill passes third reading it will move to the other place. There is another rule in the Constitution which says that the other place is not able to initiate a money bill or spending. The only place in the whole world where one could implement an increase in this bill is in this House, but we have one arm tied behind our back because of section 54 which says that we need a royal recommendation and that royal recommendation can only come from the government.
I regret that. I wanted the record to show that. It is most insincere for the attorney general to hold that out, that he and the government are willing to see an increase when they will not come forward and say that they will give a royal recommendation for the increase that might be there.
Now that I have that out of the way, I want to do two more things. The first is to talk about the independent commission mechanism that was set up by the courts. Looking back over that, it occurred within the last 10 years, it seems to me that while the court was sincere in wishing to create the independent mechanism and to have a vehicle that Parliament could make use of, I believe the courts overlooked some of these elements that I have described here today, the incapacity of the House to move anything upward or to make a move without a royal recommendation. At the end of the day, the one component of government that obstructs the court, i.e., the cabinet and the Privy Council, is the one component the court wanted to distance itself from when it set up the mechanism.
The court felt that there should be a degree of judicial independence and it should not be in a position to go cap in hand to the cabinet, to the Privy Council, and yet, after implementing this mechanism, we are still stuck with the problem that was there before. The cabinet, the Privy Council, still has that one piece of paper, the royal recommendation, that prevents Parliament from fulfilling its constitutional obligation.
There was a time at the committee when I was prepared to argue that the royal recommendation provision in section 54 was, I will not say it was unconstitutional, but because there was a conflict between section 100 and section 54, that section 100 empowering Parliament to fix the salaries of judges should prevail over section 54. It is an argument for another day, not here.
I do suggest in the event the court wishes to deal with the matter again, and the court may, given what has happened here with this bill, that an attempt be made to implement an improved dialogue between Parliament and the court just this one time. The courts do not have to come cap in hand here. They are an independent institution and have to be constitutionally.
If they are designing a judicial salary adjustment mechanism, and if Parliament is an integral part of that process, then the mechanism surely must be designed in collaboration with Parliament itself. Had that dialogue occurred 10 or so years ago, the problem we have today might have been avoided.
The last thing I want to do is to connect some dots, and my colleague who spoke just prior to me actually began to do that. It has to do with the position of the current Conservative government that has in one sequence of actions managed to clip the increases to judges' salaries. Some would say the government has not done it very respectfully or at least respected the mechanism already in place. The government has also managed to clip the court challenges program, virtually abolishing it, and the Law Commission.
What do all of these things have in common? I am going to try to connect some dots. I could be wrong; I can only do this by inference. It is very difficult for me to figure out why, in a period of relative prosperity in this country where we have had balanced budgets and surpluses every year for seven or eight years, the government finds the need to get rid of the Law Commission and the court challenges program and to not implement the independent commission's report on judges' salaries. The only thing I can see that these things have in common is disposition over the last two or three years of the same sex marriage issue.
I recall the report from the Law Commission entitled “Beyond Conjugality”. It was a discussion of the law relating to spousal and non-spousal relationships. Part of the discussion dealt with many of the same sex marriage issues which this House has dealt with. I could not help but detect some disfavour on the part of many Conservative members about it. I have seen it at the justice committee. It is not always on the record, but it is there.
The court challenges program brings court charter challenges into the courts. Members will recall the same sex marriage issue, the redevelopment of the definition of civil marriage, was accomplished primarily as a result of litigation charter challenge. I am not certain whether the court challenges program funded any of that; it may have, but it is passing strange. I see a connection there.
I mentioned the Law Commission's report and now the judges who made these decisions that essentially required Parliament to act a year or two ago. I have simply had no choice but to draw the inference that the Conservatives' distaste for those decisions was a prime motivator in this, because I cannot see any economic or fiscal reason to turn attention to these very viable working mechanisms in our judicial sector.
The Law Commission which is being scrapped now was the reincarnation of the old Law Reform Commission, which was scrapped by the previous Conservative government in 1990 or 1991. A very strange thing. The Conservatives do not like law reform commissions. They junk them.
I appreciated the opportunity to make these remarks. I hope they will be helpful for the record.