Madam Speaker, judicial interdependence is the cornerstone of our democratic society, a principle clearly reflected in and protected by sections 96 to 100 of the Canadian Constitution.
The Supreme Court of Canada recently reiterated that financial security for judges is a constitutional requirement established to ensure public confidence in the independence and impartiality of the judiciary.
On September 18, 1997, in the reference on the independence of provincial court judges in Prince Edward Island, the Supreme Court of Canada reiterated that financial security for judges is a constitutional requirement established to ensure public confidence in the independence and impartiality of the judiciary.
In 1981, in recognition of the importance of judicial interdependence and the unique constitutional role of the judiciary, Parliament provided for an independent commission to examine the adequacy of judges' salaries and benefits. In its recent decision, the supreme court underscored the importance and necessity of the role played by such independent commissions in ensuring public confidence in the independence and impartiality of the Canadian judiciary.
A key part of that decision is to require public justification by government for a decision not to implement or to only partially implement the recommendation of such a commission. The most recent commission on judges' salaries and benefits, chaired by Mr. David Scott, reported on September 30, 1996 and the commission's report was tabled in Parliament on October 11, 1996.
This government continues to support the principles that led Parliament to institute the judicial salary commission process 17 years ago. In light of those principles and the enhanced constitutional role of independent salary commissions following the supreme court decision, we have given serious consideration to the recommendations of the Scott commission. Bill C-37 would implement those recommendations which the government is prepared to accept.
Regarding judicial remuneration, the Scott commission recommended that judges' salaries be gradually increased by 8.3% from the date when the salary freeze was lifted: April 1, 1997.
By proposing only prospective increases, the Scott report reflects a position endorsed by the government and according to which it would be unreasonable for the judiciary not to be affected by the necessary budget restraints that were imposed from 1992 until just recently on all Canadians paid by the federal government.
This government agrees with Chief Justice Dickson of the Supreme Court of Canada when he stated in Beauregard v. Canada: “Canadian judges are Canadian citizens and must bear their fair share of the financial burden of administering the country”. This view is echoed in the recent decision of the Supreme Court of Canada where the chief justice of Canada observed: “Nothing could be more damaging to the reputation of the judiciary and the administration of justice than a perception that judges were not shouldering their share of the burden in difficult economic times”.
At the same time, in deciding what was reasonable the Scott commission recognized that a complex range of factors must be considered in establishing an appropriate level of remuneration, including the need to ensure levels of compensation that attract and keep the most qualified candidates for judicial office.
The government is also aware that a number of provincial governments across Canada reacted to the recent supreme court decision by increasing their judges' salaries and that, in some cases, retroactive adjustments were also made to remedy previous salary cuts or freezes.
That is why the government proposed to amend the Judges Act to increase judges' salaries by 4.1% per year for two years, as of April 1, 1997.
Bill C-37 would also implement certain pension related amendments to the Judges Act, including the rule of 80 which will permit retirement when a judge has served on the bench for a minimum of 15 years and the sum of age and years of service equals at least 80.
The government agrees with this recommendation which responds in an important way to the changing democratic profile of the judiciary. More and more judges are being appointed at a younger age and many of these younger judges are women.
The current provision, although based on the rule of 80, requires the minimum age of 65. A judge who retires before 65 has no right to a pension at all. Therefore a judge appointed at the age of 50 can retire with a pension at 65 with 15 years of service but a judge who is appointed at 40 must serve 25 years, a situation that is increasingly considered unfair.
This situation is even more unacceptable when we consider that it has a particular impact on women judges, who constitute the majority of those appointed at an early age. The rule of 80 would allow older, longer serving judges to retire when they feel they no longer wish to continue in that role. Permitting this would be good for them and for the court as an institution.
The Scott commission has proposed a different retirement option for the judges of the Supreme Court of Canada who would be permitted to retire with a full pension after serving a minimum of 10 years on the bench. The government agrees with the commission that the immense workload and heavy responsibility inherent in membership on that court justifies the proposed retirement provision. However, the government proposes to limit it to those judges who have reached age 65.
The bill would also make a couple of other changes to judges' pensions in the interest of fairness. It would allow common law spouses to receive surviving spouses' annuities and it would give a judge who marries after retirement the option of receiving an actuarially reduced pension which continues until the judge and the spouse have both died.
These are both common features of other pension plans. The common law provision in particular is an equality issue which recent jurisprudence suggests is overdue for inclusion in the act.
I want to point out that while the government has given serious consideration to the Scott commission recommendations, we are not prepared to accept them all.
The Scott commission recommended that the judges' life insurance coverage paid by the government be more in line with that of deputy ministers. However, before responding to the proposals made by the Scott commission, complex and serious matters must first be considered, including the equity issue arising from the potential diverse impact on younger judges, including women judges, of the resulting increase in a taxable benefit.
While there has been some discussion of the range of approaches to this issue, fuller consideration of this and other options is required. This is therefore an issue that would be appropriate to refer to the new commission once established for further study and recommendations.
A very important part of Bill C-37 is improvements to the judicial compensation commission process that are responsive to the supreme court decision and are designed to reinforce its independence, objectivity and effectiveness.
The judicial compensation and benefits commission would conduct an inquiry into the adequacy of judicial compensation once every four years. However, to provide flexibility timeframes would be extended on agreement.
The commission would have nine months to complete its inquiry and submit a report to the Minister of Justice. Again flexibility is provided by providing that the period to report be extended on the agreement of the minister. In addition, the minister could submit a matter to the commission for full inquiry, make recommendations at any time and establish the timeframe for a report in such cases.
The independence of the commission would be enhanced by our proposal that it have one member nominated by the judiciary and one nominated by the Minister of Justice. The representatives of each side would in turn nominate a third member who would be chair. Members would be appointed by the governor in council for a fixed four year term on good behaviour, removable for cause. Terms could be renewed once on renomination.
The bill also includes a proposal that the Minister of Justice be required to respond to a report of a salary commission. This is responsive in part to the recommendations of the Scott commission that would require the Minister of Justice to table the report of a commission in the House of Commons, together with the government's response to the report and the government bill.
More important, perhaps, this proposal is designed to comply with the new constitutional requirement that commission reports be dealt with in due dispatch.
The government is proposing a response that differs in two respects from that recommended by the Scott commission, however.
First, we are proposing that the minister respond, at the latest, six months, and not three, after the report, so as to allow the time required for careful study of a commission's reports.
Second, the government cannot agree with the recommendation that bills should be tabled within a set time frame. Control of legislative priorities and of the House agenda are the government's prerogative and this prerogative must not be hampered by rigid or inflexible deadlines.
I am very happy that this bill also follows up on a promise we made in the 1997 budget to expand family courts. It proposes adding 24 new judges positions, paving the way for the largest increase yet in these very important courts.
We support the model of the unified family court in part because it allows one judge to resolve all family law issues resulting from separation or divorce. This reduces complexity, delay and costs, and helps ensure that these matters are presided over by expert specialist judges.
It is equally important to point out that the courts are based on a model which we have supported from the outset and have discussed with the provinces and territories interested in establishing or expanding courts, and which would see extrajudicial services incorporated into the conflict resolution process.
These services include information on family law, educational programs on the effects of separation on children, home studies, referrals to counselling and other community services, information on alternatives to litigation and access to such services, including mediation, and supervised visiting programs.
Including these services with appropriate safeguards for power imbalances and special measures where required to ensure equality of access can reduce the level of conflict both during and after the resolution of the matter and promote resolutions which are acceptable to the parties and likely to last.
From the perspective of the children involved, better long term outcomes can be expected from the lower levels of conflict, quicker resolutions, greater focus on impacts on children, increased durability of outcomes, and from the emphasis on an integrated service intensive approach to child protection, child support and custody and access issues.
In conclusion, the bill includes an amendment requested by the Government of Ontario, which is calling for the appointment of three new judges to that province's court of appeal.
The Ontario Court of Appeal is by far the busiest appeal court in the country but, with its complement of 19 full-time judges, it is only the second largest of all provincial appeal courts, and its combined staff of full-time and supernumerary judges equals that of two other provinces.
The Ontario Court of Appeal is facing significant delays, particularly in civil appeals. The civil appeal backlog increased from 1,400 in 1990 to over 2,300 at the end of 1996, notwithstanding that between 1990 and 1996 the court increased the number of civil appeals yearly by 100%.
To deal with this growing backlog the court embarked on a number of innovative measures to further increase its productivity. As a result of these initiatives, in 1996 the court heard about 50% more civil appeals than it did in 1995 and, as I indicated, 100% more than it did in 1990. Notwithstanding this very significant productivity improvement, the growing number of new appeals that were filed resulted in the civil appeal backlog decreasing only marginally in 1996 over 1995.
The province's increasing population and overall economic activity suggest that the court's workload will increase rather than decrease in the years ahead, contributing further to the backlog situation.
The Ontario and federal governments, as well as the court itself, have examined the nature and extent of the court's case load. The consensus is that an increase of three to the court's full-time complement of 19 would result in a significant reduction in the backlog and a concomitant reduction in the delays experienced by litigants before the court.
The bill includes other technical amendments, including amendments arising from changes in the names of the Ontario Court, General Division, and the Ontario Court, Provincial Division, made by the Government of Ontario.
In conclusion, these amendments will serve to strengthen what is already one of the best judicial systems in the world by enhancing the independence of our courts and improving access to justice.
The improvements to the judicial compensation process will ensure continued public confidence in the independence of our judiciary. Increased judicial resources for unified family courts combined with provincial commitment of support services will improve the way our courts respond to families and children in crisis. Increased court of appeal judges will improve access to justice generally.
I hope we can look forward to the support of all members in the House in moving these important amendments to the Judges Act quickly through parliament to the benefit of all Canadians.
