Sue Barnes

[Judges Act, June 20th, 2006]

Mr. Speaker, section 100 of the Constitution Act of 1867 requires that the salaries and allowances of the federally appointed judiciary be established by Parliament. In the last Parliament, on May 20, 2005, Bill C-51, an act to amend the Judges Act, the Federal Courts Act and other acts, was introduced into the House of Commons by the former minister of justice.

This former Bill C-51 died on the order paper last fall when three opposition parties brought down the former government on a non-confidence vote. Bill C-51 included a number of court-related reforms as well as the expansion of the unified family courts across the country. The judicial salaries and benefits of the former government's response set out in Bill C-51 was essentially an implementation of the McLennan Commission's recommendations.

Bill C-17, being discussed today, came to be since the new government tabled a different response to the same McLennan Commission. The new Conservative government chose to remove some of the policy sections regarding the unified family court section that were of great interest to some provinces including Newfoundland, New Brunswick, Nova Scotia and Ontario. Also, inclusion of the section relating to prothonotaries, officers of the court who exercise judicial and quasi-judicial functions, were deleted.

This is the prerogative of the government. It can choose not to deal with these pressing issues at this time, but hopefully it will deal with them shortly.

The establishment of judicial compensation is governed by constitutional principles. These principles are designed to ensure public confidence in the independence and impartiality of the judiciary.

The Supreme Court of Canada in the “Reference re Remunerations of Judges of the Provincial Court, P.E.I.” has established a constitutional requirement for an independent, objective and effective commission whose purpose it is to depoliticize the process of judicial remuneration and thereby preserve judicial independence.

In essence, the judicial compensation commission makes non-binding recommendations to government and within a reasonable period of time the government must respond publicly. Any government which rejects or modifies a recommendation must provide a justification for the departure that meets the standard of rationality. What is this test of rationality?

In Bodner v. Alberta, the court stated that governments may modify or reject commission recommendations provided that the following questions are addressed:

(1) Has the government articulated a legitimate reason for departing from the commission’s recommendations?

(2) Do the government’s reasons rely upon a reasonable factual foundation? and

(3) Viewed globally, has the commission process been respected and have the purposes of the commission — preserving judicial independence and depoliticizing the setting of judicial remuneration — been achieved?

In 1998 the Judges Act was amended to provide for a Judicial Compensation and Benefits Commission. This was set up so that every four years we could look at the adequacy of judicial compensation and benefits.

The express criteria which are to govern not only the commission's consideration, but also that of the government and Parliament who ultimately make the final determination are: a) the prevailing economic conditions in Canada, including the cost of living and the overall economic and financial position of the federal government; b) the role of financial security of the judiciary in ensuring judicial independence; c) the need to attract outstanding candidates to the judiciary; and d) any other objective criteria that the commission considers relevant.

The independent commission is intended to remove decisions concerning the amount of judges' remuneration from the political sphere and to avoid confrontation between governments and our judiciary.

Under the parliamentary procedural rule the government has utilized today, Bill C-17 will go to committee before second reading. Thus there is more latitude. The committee then can study and call witnesses on the bill. It is important to note here that only the government can provide the necessary royal recommendation which would be required to increase any financial aspect of the bill. Amendments increasing financial parts of the bill are thus ineffective without the government action on a royal recommendation and that is important.

The Conservative government in Bill C-17 decreased the amount of compensation from that recommended by the independent commission. The government says that it has taken the overall financial and economic position of the government into account.

Canadians understand that the government, unlike many new governments in the past in this country, was left with a very healthy surplus. We still have a good economy as is the pay of private practice and other lawyers who can be called to the bench. That was utilized as a part of the reasoning.

The judiciary is doing its work for all Canadians. It deserves our support. Compensation for any sector of our population is a difficult area to discuss. Negotiations on judicial remuneration between the judiciary and the executive and legislature are not allowed. That is, judges cannot directly negotiate with the government. For the judiciary to engage in salary negotiations would undermine public confidence in the impartiality and the independence of the judiciary.

The three commissioners did hard work on behalf of all Canadians to set the appropriate rate. They received numerous submissions, including the public, organizations and different levels of government.

This commission advertised in 48 newspapers in Canada, having national, regional and local coverage, inviting written submissions from Canadians. The commissioners held two days of public hearings. They also retained their own consultants to assist in their deliberations. We must thank the commissioners for their very hard work. They covered not only areas of pay but other subjects like the division of the judicial annuity when a judge's conjugal relationship breaks down.

The Canadian public does understand that we need an independent judiciary. The respect with which we accord our judiciary is a key factor in the strength and stability of our nation. Our tradition of judicial independence is not only an important element in this country's democratic framework, it alone provides a model from which others can take hope and from which they can learn. Other countries look at our judiciary and justice system as a model.

An independent judiciary is a fundamental part of the Canadian democracy. Its independence must be respected and we look forward to some progress being made on this file by the government.

Our party feels it is highly inappropriate to attack the independence of the Canadian judiciary. Since the government has come to power, there seems to be a pattern that challenges the judiciary. Judges exercise their discretion and judgment every day across Canada. They take the law provided by this Parliament, hear the facts, and apply the law. Increasingly and rapidly the government is introducing legislation that seeks to limit judicial discretion.

In this Parliament, we have heard members opposite make comments, even regarding the Supreme Court Chief Justice, which ultimately caused a member his post as chair of the standing committee on aboriginal affairs.

Most suprisingly for us on this side of the House was the silence of the Attorney General of Canada, who normally would defend these judges who cannot speak for themselves. In fact, it is becoming common for the minister to make comments in public speeches which do not accord the judiciary the respect it deserves. This is different from the norm in Canada, certainly from the post of the highest law officer in the land.

Many people form impressions of individual cases from media reports without hearing all the facts. They often never hear of the appeals of decisions that occur when one side wishes to challenge the outcome. That appeal court story is often not written.

The system of justice in our country has excellent checks and balances that have been developed over years. We should never confuse our motives for one thing to attack another unrelated situation.

Today we debate a bill that will have impact on those in the judiciary. This has been long awaited. I trust that in our discussion we will remember that judicial independence is important to our society. In the context of financial security, courts must not only be free, but also appear to be free from political interference through economic manipulation.

Thus we end where I started, referring to the role of the judicial compensation commissions, a role interposed between the judiciary and the other branches of government. We now wait to see how the government responds to this challenge. We will be here later tonight when the bill, I understand, will go to committee before second reading.

With that in mind, I listened to the hon. Parliamentary Secretary to the Minister of Justice. He knows very well, as I have explained it to him in the past, my concerns about the need for a royal recommendation with respect to amendments in committee. I hope that he can make that clear over the course of our debate in the future. We will be respectful in this process.

[Business of Supply, June 19th, 2006]

If the hon. member does not want the answer to the question, I will sit down.

[Business of Supply, June 19th, 2006]

Mr. Speaker, the member obviously did not listen to my speech. I was at the 2004 meeting. I was a participant when I was parliamentary secretary for justice. Many people were at that meeting. The leadership from all the various areas across Canada was thrilled to get involved.

The hon. member did not listen to the facts. I told him about the bilateral agreements that were signed last spring in May 2005. They were bilateral accords with all of the group and there were plans there. The money came and was set aside.

[Business of Supply, June 19th, 2006]

Mr. Speaker, many members in the House on opposite benches came to see me as the parliamentary secretary for INAC. That member did not when he had a problem. This is the first I have heard of that and I was there. I talked to some of his colleagues about other things, so he made that choice, not me.

The other thing I would say is that this is a debate about Kelowna. The Conservatives have a clenched fist when they have the money in the budget and it was booked in the fiscal update to fully finance the Kelowna accord.

There was a choice made by the current Prime Minister, his Minister of Finance and the cabinet because it should have been a full agreement inside the whole Conservative cabinet on what they funded in the budget. What they did not fund, knowing full well that the money and resources were there, was what was agreed to, not just by the federal Liberal government that led the exercise over the last 18 months but by all the governments of the provinces and territories of all political stripes and all the first nations.

We had everybody agreeing. The discordant voice and the clenched fist with not enough money comes from this government, the one the member belongs to.

[Business of Supply, June 19th, 2006]

Mr. Speaker, I will be sharing my time with the member for Churchill.

Last November in Kelowna, the leadership and representatives of the federal, provincial and territorial governments, the Métis, Inuit and first nations, both on and off reserve, met to strengthen relationships among themselves and to work in a more effective and collaborative working partnership with mutual respect toward beneficial outcomes.

The first ministers and national aboriginal leaders were launching a 10 year dedicated effort to closing the gap in quality of life that now exists between aboriginal people and other Canadians. The Kelowna meeting grew from a September 2004 special meeting of first ministers and aboriginal leaders. This meeting was dedicated to address the very serious conditions that contribute to poverty among aboriginal people and to ensure that they can more fully benefit from and contribute to Canada's prosperity in the years ahead.

Between the two meetings, all the participants worked extremely hard over a series of thematic meetings and working groups to focus in the areas which were felt fundamental to the overall purpose of closing the gap. All participants worked in good faith. Part of the process of working together was building the relationships as a foundation for success.

The aboriginal people of Canada were represented by the leadership from the Assembly of First Nations, the Inuit Tapiriit Kanatami, the Métis National Council, the Congress of Aboriginal Peoples and the Native Women's Association of Canada. These organizations submitted working papers on the subject themes throughout the process.

They put their most talented people forward to work on concrete plans and ideas in the areas of education, health, housing, including drinking water, and economic development. As we worked on these themes, we also integrated the need for better and newer relationships. Many gatherings were held over 18 months across Canada.

We knew where the problems were. They had been studied, documented and studied some more. This was the journey for solutions, solutions attained by a collaborative, consultative and cooperative effort by all. It was never easy and probably very difficult for some. Trust had been violated before, but the former Liberal government was committed to turn the corner to strive together.

The provinces and territories of all different political stripes came on board knowing this was important and necessary in every corner of Canada. The Government of Canada, representing the people of Canada, gave its word that we would work to achieve the goals of Kelowna.

I quote the member for LaSalle—Émard in the House just a few weeks ago. He stated:

The Kelowna accord is a comprehensive 10 year plan to achieve a clear set of goals and targets. We provided $5.1 billion for the first five years. Let me be very clear. The funds were fully provided for in the fiscal framework. The government has the money. It is a fiscal framework, incidentally, which has, since that time, produced a surplus substantially larger than was originally projected. We made it clear that for the second five years of the program, enhanced resources based on the success obtained would be provided.

The work of the Kelowna accord was televised nationally. It was no secret. Canadians were aware that there were needs to be filled, agreements to live up to. We keep hearing about the government's five priorities. A government should serve the needs of its people, not the needs of its own political partisan agenda.

There is a real need in education, health, housing and economic development. Eighteen months of work developed the plan. Ongoing work would provide the necessary detail. Kelowna did happen. It was real and it will not go away.

Canadians know that the new Conservative government, with budget surpluses sufficient to fully fund the Kelowna initiative, chose not to do so. Instead of a $5.1 billion Kelowna accord, it offered $450 million over two years for education, women, children and families, water and housing, some of which was provided by prior Liberal budgets.

Whatever way the government tries to sell its message, the delivery rings hollow. It is not what was agreed to and developed together. Unilaterally, it has cut off not just the money but the working relationships developed in good faith throughout this process.

In the prior government there was a cabinet committee on aboriginal affairs. As a privy councillor and parliamentary secretary for Indian and Northern Affairs Canada, I attended and participated regularly. The former Prime Minister had an aboriginal affairs secretariat. That has been discontinued.

We did the Canada aboriginal people round table process in the spring of 2005 and these resulted in accords between the federal government and the Assembly of First Nations, the Inuit Tapiriit Kanatami, the Métis National Council, the Congress of Aboriginal Peoples and the Native Women's Association of Canada. These bilaterals enhanced the involvement of the distinctive people and their specific issues.

The Kelowna accord broke the money down into five areas: $1.8 billion for educational initiatives, $1.6 billion for housing and infrastructure, $1.3 billion for health, $200 million for economic opportunities, and $170 million for relationship and accountability initiatives.

The Kelowna accord funding built on previous investments by the Liberal government in areas of urgent need for aboriginals including the $2.2 billion compensation for the direct benefit of former students toward a fair and lasting resolution of the legacy of Indian residential schools. I could go on listing other moneys that were there, but this is about Kelowna.

For the current government to say it is moving when it absolutely knows that it is underfunding is even more shameful than if it had never had the knowledge. This was a transformative agreement.

Canadians now understand the needs in our diverse aboriginal communities. These needs are often complicated by ongoing treaty or specific claims negotiations that are longstanding, but nothing happens if there is little political will or nominal political will, or even if a minister wants to make headway and the Prime Minister has little interest and his finance minister has a clenched fist.

I read the transcript of the remarks made by the current Minister of Indian and Northern Affairs when he was campaigning for his party at an Assembly of First Nations meeting. The same minister now defends his government's abandonment of the procurement strategy for aboriginal businesses by allowing non-native companies to bid on contracts that would have been designed for aboriginal ownership. His relationships with the aboriginal peoples, he should serve, are now becoming strained.

Over the last number of years of this Parliament I have been fortunate to work with many first nations, Inuit and Métis leaders. The sophisticated legislation that was first nation-led and the self-government agreements completed during the time of our government was work that anyone in Canada would be proud of, and, in fact, was lauded around the world.

Kelowna's objectives really would have most benefited the younger generations, a demographic that is the inverse of the rest of Canada. While birth rates plummet in non-native populations in our country, they are skyrocketing in most of the aboriginal societies.

These young citizens could and should be educated, and be healthy contributors to the workforce in their future. They certainly should get a productive life chance. Kelowna worked toward that goal.

We also had to deal first with the residential school legacy for their parents and grandparents. Thankfully, this was accomplished. Thankfully, the current government could not change that resolution, a court ordered agreement developed by all the parties after very intense negotiations.

From my viewpoint, which I hope is more knowledgeable than the day I stepped into the House because of my parliamentary experience on committee and in the department and through working with stakeholders, the Conservative government does not want to consider the reality of doing the right thing. The Conservatives often work with misperceptions and fears instead of facts. What is lost, what is being lost, in reality is their opportunity.

There is an opportunity to keep the word of the Government of Canada, to keep the faith with our aboriginal partners and the work undertaken together. We are all Canadians, but some of us were here first. They are our first nations, our Métis and our Inuit. There is diversity within us but we are all deserving.

If the Conservatives would embrace an equitable concept of government, they might have budgeted more for real needs in the society we could have. Why would one not want to improve the educational outcomes of all aboriginal learners to build a more prosperous and self-reliant future for all aboriginal people, whether first nation, Inuit or Métis?

We did commit to progress. There was accountability. Kelowna was a series of plans for a brighter future, and we need to implement the plans. Regions were to be further engaged. The implementation would be focused on developing practical approaches through existing tripartite or bilateral processes and creating new ones where required.

All Canadians must appreciate and respect the distinctions among first nations, Inuit and Métis. Inclusive means male and female, young and old, on and off-reserve, rural and urban, inland and coastal. Their experiences are different in Canada and they have different goals and outcomes. We hear their distinctive voices through the round table process. Kelowna was an outcome for the government and there is still time to listen to the united voices and their message.

In closing, Canada is a just society. For many of our aboriginal people, Kelowna would have made it more so for them. I implore the minister and the Conservative government to choose the better path of Kelowna. No one has been looking for something new or different. We need what was agreed to and what was negotiated through hard work, compromise and good faith. The Conservative government must live up to Canada's commitment.

[Business of Supply, June 19th, 2006]

Mr. Speaker, as there are distinct cultures within the different groups of aboriginal people, could the member tell the House what specific work and progress has been made on the Métis file since his government came to power?

[Criminal Code, June 7th, 2006]

Mr. Speaker, I also work with the hon. member on the justice committee and respect him and his work. I look forward to working with him in the future. I understand from his speech that it was because of his leader's position that he is now talking about four year mandatory minimums in regard to this very restrictive and ideologically driven piece of legislation. Four years is what the previous Liberal government chose as its time limit as the mandatory minimum, this being a floor.

However, this bill has seven year mandatory minimums and even 10 year mandatory minimums. I would like the member to comment briefly on what happens in the sentencing principles of our Criminal Code with the proportionality situation that is the major sentencing principle.

I also would like him to briefly discuss something he did not cover in his speech, which is the different use in this legislation between long guns and restricted or prohibited firearms, which generally are short guns although there are some automatic weapons that are long guns. In these terms, I am referring to shotguns and rifles that are not sawed off. Has he noticed any discrepancies in this piece of legislation that he would be concerned about?

[Criminal Code, June 6th, 2006]

Mr. Speaker, I want it to be very clear for my hon. friend across the way that people in my party are concerned about doing the right thing and working with the police and with the communities. There is no ownership of being concerned about our communities. The reality is that everyone here wants to do the right thing.

I am telling the member quite frankly that if this bill were rational in its layout, if it had not been hurried, if it had been strategic and had done things that we could have supported, I would have given the bill my personal support. I would have encouraged others to do so as well.

There is one thing that I think is very flawed. I understand what the government is trying to do. There are some centres around the country that have increased gang and gun violence, but when a government puts forward a piece of legislation, that legislation has to fit Nunavut, Saskatchewan, eastern Canada and rural British Columbia just as easily. Ramifications are just as important. Through the aiding and abetting sections in the Criminal Code, the reality in this legislation is that there are different sanctions, different mandatory minimums for the restricted firearm and for the long gun.

For instance, for anyone who does not understand this and is not delving into the Criminal Code, which is most Canadians quite understandably, a first time offender could commit a robbery with a handgun and get more of a mandatory minimum than a repeat gun offender who committed the same type of robbery with a rifle or a shotgun, a long gun. The first time offender would get one year more. That is what this bill does.

Could the member explain the justification behind that? People commit the same crime with different weapons and there are different results. The triggers are much more complex and important.

[Criminal Code, June 6th, 2006]

Mr. Speaker, as I know the member does his work thoroughly and very well, has he come across any American study which he felt was suitable to support the position of the bill as it is currently written? Does he or anyone he is aware of know of any Canadian research that would support the legislation?

[Criminal Code, June 6th, 2006]

Yes, Mr. Speaker, there are mandatory minimums already in law. Our government and previous governments before us put those mandatory minimums in there.

The point that my colleague from the party opposite made is a very important one. The reality is that the Conservatives have, with the organization of this bill, made mandatory minimums for long guns lower than the mandatory minimums for restricted weapons. That is a concern for many people.

I also want to ask this member a factual question. In his comments yesterday, the Minister of Justice directed us to Steven Levitt's studies in the Journal of Law and Economics, 1999, and the Journal of Economic Perspectives, 2004, which show that there is a direct link between mandatory minimum penalties and a decline in crime rates and criminal behaviour.

The minister did not mention any other studies. I want to ask the parliamentary secretary if these are the two studies the government is principally relying upon. I do not know if there are any more that he would like to direct us to, but are these the two studies being relied upon, as mentioned by the Minister of Justice in this House yesterday to all members?