Mr. Speaker, I am pleased not only as a lawyer and the associate justice critic for the Liberal Party, but also as an ordinary Canadian, to stand before the House today to lambaste the government for not respecting the independence of our judges.
Judges are well respected people with learning and wisdom, who for many people represent “the law”. It is often said that our fine law enforcement officials such as local police and RCMP administer the law to so many in the first instance, and it is true, but let me give an example of how that first ministration is almost always subject to the good decisions of a judge.
Not so long ago, in my own province, which is proudly bilingual, individuals suspected of having violated traffic regulations could be questioned in any language by otherwise well-intentioned police officers.
Through careful application of our laws and, I add, common sense, judges determined that the first question to be legally put was what language the alleged violator desired service in. That is common sense. It came from judges, not the legislature. I use this point to illustrate how lost we would be without judges and why they deserve to be treated fairly on the pay issue.
Secondly, the days are long gone where favouritism is shown to the privileged classes in the judicial system. A lawyer or judge charged with an offence now is always tried and prosecuted by an out of town, faraway lawyer and judicial prosecution team. This was settled by judges, not legislators.
If the method of payment of judges is at the whim of legislators, this independence is put in jeopardy.
That is why the previous government established the Judicial Compensation and Benefits Commission in 2003 and, having received the commission's report in 2004, it tabled its response in November 2004.
Bill C-51 was later introduced, following numerous consultations, but it died on the order paper when the government fell last November.
This bill approved wage increases, but I will touch on that later.
First, let us look at the process. The commission was comprised of Earl Cherniak, Gretta Chambers et Roderick McLennan, three distinguished Canadians.
They received many submissions and conducted public hearings. Expert evidence was called. They hired their own independent consultants. The commission drew particular comparisons to the public sector and the salaries of DM3s at the Department of Justice and also those from the private bar, where many of the good candidates for judiciary come from.
In many cases, judges today accept pay decreases for a promotion. This does not often happen in other jobs or professions. Imagine the head of the English department at the high school, the head nurse at the hospital, the foreman of the water plant or the captain of a firefighting brigade accepting less upon promotion than before. It is absurd and it is what the commission concluded.
The former government approved the findings of this independent commission for the sake of fairness.
Let us now turn to the issue of workload. The minister, who introduces legislation and works like a real sheriff, has caused a direct increase in the workload of judges.
An increase in mandatory minimums and a decrease in conditional sentencing leads, as any lawyer knows, to more jail time and therefore more careful consideration of the evidence, timing of trials, submissions on sentencing, writing of decisions, and further appeals, all the attendant work relative to the loss of liberty that is occasioned by the other two bills that the justice minister felt were a priority to this one. It is more work for judges.
At the same time, this government has indicated that the dream of a unified family court in four provinces of this country, and its concomitant appointment of new judges to fill the same, is not coming any time soon, so having retired judges work more often is the solution for the logjam in the courts of our country.
If anyone on the other side has listened to parties wishing to have key issues such as overdue child support, delayed marital property settlements, and prolonged and unsatisfactory child custody and visitation situations dealt with quickly, they will know how long it takes in provinces like New Brunswick, Nova Scotia, Newfoundland and Labrador, and Ontario.
No relief is on the way. That is the message from the government. On top of which, we are going to underpay the judges who are available. Justice delayed is justice denied, I remind the minister.
The government, in its two and a half page response, reached the following conclusion:
In particular, we do not agree that paragraph 26(1.1)(a) is simply directed at establishing whether the Government has sufficient funds to pay for whatever amount the Commission might otherwise think is appropriate.
In its 2006 budget, the government identified its key priorities, such as enhancing accountability, creating greater opportunity, et cetera. We have heard the five before, but one of them was protecting Canadian security. That was supposed to be important. One would think the judiciary was important to implement that.
The government said in its report that this is not one of their fiscal priorities:
In sum, the Government does not believe that the Commission’s salary recommendation pays adequate heed to this reality, as embodied in the first statutory criterion.
It is all about money and the priorities of the government. It has its five priorities. There is no money for a good judiciary, kept independent.
It is total hypocrisy. The current government has inherited the best financial situation it could have hoped for—and certainly one better than it was in 1993 when the last gang of Conservatives was tossed out—with a surplus totalling $80 billion today.
What do they with this? What do they do with this financial gift given to them by the Liberals? They cancel universal child care, eliminate $6,000 per university student for tuition fees and, touching on this subject, set aside $225 million for jails. But they failed to show the proper respect for the people who will order those jails full, or perhaps not, and they have failed to give respect to the subtle instrument that will put people in those jails, or not, and that instrument is the law.
A note on the law: judicial independence is an entrenched legal principle. Let me quote the Law Society of Saskatchewan:
Judicial independence has many definitions, but ultimately it means that judicial officers of the Court have the freedom to decide each case on its own merits, without interference or influence of any kind from any source...It is crucial that the judiciary both be independent and appear to be independent so that there is public confidence that judicial decisions are made without bias.
In order for judges to apply and interpret the law, they need to be free from inappropriate influences. As we know, in Canada there are three branches of the government. It is somewhat blurred sometimes when the government talks about it. There are the judiciary, or the courts, the executive, which is the cabinet, and the legislature, the lawmakers.
Judges are independent and should not be controlled by either elected officials or government employees. To ensure judges are independent, three important safeguards have been developed, and this is from the B.C. law association: security of tenure, which means they cannot be fired on a whim; financial security, which means that money matters, including judges' salaries, will not influence judicial decisions; and finally, institutional independence, which means the judiciary is kept separate from the other branches of government.
Judicial independence was established in 1701 by the British Act of Settlement. This allowed judges from that point on to do their jobs, immune from the pressures of outside influence. It seems the government does not respect our judicial system or the Constitution. We saw this with the accountability rebels in the last few months who wanted to take away rights of this Parliament that have been established since 1868.
In summary and in conclusion, the only accountability and the only independence the Prime Minister and his Roundheads want are the same that Oliver Cromwell wanted and that pretty much goes along these lines: “Agree with me and my authoritarian ways or off with your head”.
Judicial independence is at stake here. There are sufficient resources to secure judicial independence. Let us go with the recommendation of the commission and get rid of the tardiness that is involved around this issue.