Mr. Speaker, over the last few weeks it has occurred to me that the record of debate on this bill is less fulsome than perhaps it should be. There are some issues that I think should be outlined for the record for Canadians and for that other class of citizens we do not see too much in the political arena, the judges. Yes, they are all citizens and generally all active civic participants. They care a great deal about what happens in our communities, in our courts, in our parliaments and in our legislatures.
One of their handicaps as a group is precisely that we in our society legally and in many other ways set judges aside because we want them to be and appear to be impartial. We want them to be wise and experienced and to bring that with them to the bench when they are appointed. But after they get to the bench they are relatively pigeon-holed, set aside, relatively secluded and unable to generally engage in public debate or in community or political discourse which is the source of the problem that originally gave rise to the Supreme Court of Canada decision in the Beauregard case and one other court application.
It was not a decision that changed the course of Canadian history but I believe it could be called a landmark because for the first time the court set down what it believed was the proper constitutional framework for the other parts of government in Canada to deal with the judiciary as an administrative wing.
Canadians all realize our judges are paid from the public purse. Somewhere in the public service in Ottawa and in each of the provincial capitals cheques are cranked out, as they are for all public servants, and judges are paid an amount. However, judges do not have a union or a collective agreement. I think there was some reference earlier today to crown attorneys in the province of Nova Scotia walking a picket line. Judges do not walk picket lines either, at least the last time I looked, and they do not do it for the reasons I outlined earlier, which is that legally and socially our judges are asked to set themselves aside and maintain their impartiality.
That impartiality is a two sided coin. What happened over the last few years were a few occasions of governments, not necessarily legislatures but administrative governments, making changes to the levels of compensation of judges in various provinces. Some of the judges in these provinces took exception to the process that was used. When they did, which they could not do publicly, there was a disagreement over who was in charge.
The judges maintained the position that stated there should be a continuing and ongoing process so that everyone, the judges, the governments and the legislatures, will know what the process is for dealing with matters of compensation, pay and benefits and working conditions of judges.
The Supreme Court of Canada has given guidance to all governments in Canada, including the Government of Canada, and guidance to the parliaments and legislatures in Canada as to what this process should be. I do not see how any Canadian or parliamentarian in the House could object to their being a process that was in place and continued to operate for that purpose.
It was important that the supreme court do that because governments are prone to do from time to time, and we in this House on both sides know about this phenomenon, taking their piece of the power pie and using it the way they feel is best with or without the guidance of legislatures and parliaments, in this case perhaps without the consultation with the judicial constituency.
That process is in place. We have to keep in mind that our judges do not have an outlet, a mechanism, an ombudsman, a method of dealing with the issues that deal with the administration of their pay and benefits. The court has said there must be a process. That process in part involves what previously was a three year commission. Every three years a commission would look at the issues of pay and benefits and report back to the respective government. In this case it is the Government of Canada.
Some provinces did not have this mechanism. Now based on the supreme court decision that process will be required to be in place. We in this House have taken advantage of that decision and have decided to refine or modify the current process. We do have a process for federal judges. The changes are modest. The commission will do its work every four years rather than every three years. There are some fine tuning provisions regarding how the individuals on the commission are selected and how they will be remunerated for the period of time they spend on the issue.
One of the compelling political issues surrounding the existence of a commission and the process has been raised by the member for Crowfoot. He seems to be asking whether parliament must be subservient to whatever is in this commission report, whether parliament must rubber stamp what is in it.
I think it is important to read the supreme court decision which is there for our guidance. It has stated there must be a process and the process should not be interfered with by other forces. When the commission makes its report it should be adopted.
The question is does a government, does a parliament, does a legislature have to adopt comprehensively every element of the report. I do not think that is what the supreme court said. But it certainly did say that if a parliament or a legislature or a government were to proceed in a direction other than that which was provided for in the report, then it must have good reasons that apply to the country as a whole.
I do make reference to the provision of the supreme court decision that says judges cannot shield themselves from the economic circumstances that other Canadians must endure. They have to shoulder their fair share of what the country is or is not into economically. I am quite sure all judges endorse that.
There is a frustration on the part of some parliamentarians and some suggestion perhaps that somehow parliament, because the supreme court says we must proceed this way, has lost control. This is not the case. When this measure is voted on, not all members of parliament will vote in favour of the bill.
I suggest that manifests very clearly that it is not wrong or improper to not follow what the report says. The courts do say, and I support this, that if the report is not to be followed the reasons should be rational, clear and relate to the circumstances that apply to all Canadians.
One of the other underlying themes of this legislation is the process by which we set judges' salaries. I know there is an underlying principle and I hope Canadians accept it. In selecting compensation levels for judges our goal is to pay amounts that will attract the best and the brightest to the judiciary. I accept that it is not our goal to simply attract judges. We must attract the best available people, the best candidates to be judges. It is difficult to make comparisons with other professions such as a surgeon. We want people who would not simply open the owners manual and go through the manual as to how one does a heart operation. We want people who not only know the manual and the specs but who are extremely capable, intellectually capable, well rounded people who understand all the elements that go into judicial decisions and dispute resolutions in our country.
We have to make sure we have the best. To do anything other than that is penny wise and pound foolish. If we pay low amounts for judges we run the risk that we will not get the best. If we do not have the best making judicial decisions this will, more than anything else, undermine the confidence of Canadians in our Canadian judiciary and our justice system. The judges are the focal point of that system. They are the fulcrum on which the whole system turns. If judges are not good at what they do our judicial system will suffer. We do have a good one in Canada. We have one of the best in the world. People come from all over the world to take a look at how we run things in Canada. We want to keep it that way.
I must address the level of increase for judges. The commission did its very best to isolate what it felt was the appropriate compensation level for judges of the calibre and level that we are dealing with in our courts. Historically, going back 10, 20, 30 years, there was a benchmark established. It was a rough benchmark. Some judges thought it was a good idea. Others did not. We did not have Gallup do a poll with the judges to figure these things out. We have to make these judgments in this House. The benchmark was one that set judges' salaries at a level equivalent to the level of the civil service category called DM-3. I think that means deputy minister three. It would be the third level of deputy minister. That is one of the highest levels of the deputy minister compensation package.
Over the last few years the DM-3 level has gone up. Judges' salaries were frozen back in the early 1990s along with almost all other public servants and members of parliament. There was some drift. Now the DM-3 level of compensation has gone up and the compensation level of the judges has stayed.
The Scott Commission has addressed this and in its own way has pointed out the percentage levels by which we should be increasing the judges' salaries to get back to the benchmark.
Because some judges have rejected the concept of judges being in the same category as public servants, I think the Scott Commission report did not pay a lot of attention to that direct linkage and it looked at other reasons to provide the increase.
Let us put on the record what the increase is. It is the equivalent, over a two year period, of roughly 4%, plus 4%, plus 2% relative to the cost of living, plus 2% relative to the cost of living. If this bill is adopted those increases would be the ones that would be applicable to judges' salaries and they would be retroactive to last year and would move up into 1999.
Originally I had a problem with the way the Scott Commission report was worded. It might have been interpreted by some to suggest that what the judges were doing was simply catching up from where they were before the salary freezes were imposed across the federal public service.
On that basis, as a member of parliament, I would have fully rejected the proposal. I am not accepting that judges or anyone else in the federal public service should have what has become known as “catch up”. I did not buy it. Because some of the percentage increases I have just referred to were the equivalent of the remuneration lost during the period of the salary freezes, I was very cautious about the recommendations. But at the justice committee hearings it became clear that what the Scott Commission was trying to do was to place judges back in the ballpark of the DM-3 level where they have been for many years. It was not catch up for the salary lost through the freeze period.
I am more comfortable with that now. The only missing item in the circumstances at play now is that we need a better understanding among parliamentarians of the process that is at play so that the next time a commission report comes up it will not be necessary for parliamentarians to stand and say “How can one court of unelected judges be dictating to Canada's sovereign Parliament what it must legislate?”
That type of suggestion reflects a misunderstanding of the process recommended by the supreme court. I do not quite know how to bring parliamentarians to a better understanding of that. I am sure the supreme court judgement would make boring bedtime reading, but I do commend it to those who have an interest in the issue.
Last but not least, just to put things in perspective a bit, I note that the member for Crowfoot is an active member of the justice committee. His remarks earlier referred to the dollar amounts of the increases and how there were still pockets of poverty and people in Canada in difficult economic circumstances, all of which is true and all of which this House continues to recognize.
He was indicating that a large dollar amount is involved. I just want to say that if the increases are the equivalent of $10,000 or $15,000, the last time I looked at the tax rates there is a consolation prize for the taxpayers because about half of the increases will come back in income tax deductions from the judges' cheques. That is true for all Canadians, not just judges. I suppose the point I am making is, let us not be too distracted by the numbers and let us make the best decision consistent with the supreme court and the needs of our judicial community.
