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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 30 - Evidence - Morning Session

OTTAWA, Thursday, October 17, 1996

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-42, to amend the Judges Act and to make consequential amendments to another Act, met this day at 10:00 a.m to give consideration to the bill.

Senator Sharon Carstairs (Chair) in the Chair.


The Chair: Today we are considering Bill C-42. This is our second meeting on this bill. We will begin immediately with a witness from Osgoode Hall Law School, Professor H. W. Arthurs.

Mr. H.W. Arthurs, Professor, Osgoode Hall Law School, York University: I am pleased to have been invited to assist the members of the committee this morning in their consideration of Bill C-42.

Specifically, I may be able to help you with the proposed section 56.1, which establishes a procedure whereby judges may receive authorized leave in order to participate in defined international activities.

I have done some research in this area and have specifically attempted to develop information with regard to national judges serving in the international sphere. However, I do not claim to have undertaken an exhaustive canvass of the subject and I have not sought or received access to Department of Justice files. They may well reveal things that I do not know.

There are a number of reasons to facilitate the proposed participation of Canadian judges in the work of international organizations. First, international tribunals and commissions, especially those concerned with human rights violations and similar matters, require the services of senior, legally trained, highly respected and impartial individuals. Judges obviously possess the necessary credentials and, in some cases, only judges may do so. While judges from particular countries, especially the major powers, may be persona non grata in particular circumstances -- those involving the real or perceived interests of their own governments -- Canadian judges tend to be more generally acceptable. Moreover, Canadian judges may be in demand for international service, specifically because they come from a country which is officially bilingual, with a legal culture which is bi-systemic -- civil and common law -- and which has a relatively sophisticated legal system and a Charter of Rights and Freedoms. Our judges, in other words, bring a repertoire of skills and competencies to certain kinds of international functions which other judges do not necessarily possess.

The proposed section 56.1 would assist Canada to make a unique and valued contribution to international affairs and to respond to a need for its participation, particularly in the realm of international justice and human rights concerns.

Second, international norms, structures and processes -- not only in the area of human rights but also in labour standards, air travel, intellectual property, fisheries and criminal justice -- are becoming more and more important in both international and domestic fora. The participation of Canadian judges in the formulation and administration of these international norms is important, first, because this will help to ensure a Canadian dimension to international law in certain key areas; and, second, because Canadian judges with international experience will be able to facilitate Canadian reception of and response to new international legal regimes. Proposed section 56.1, therefore, will improve the interaction between the Canadian and the international legal systems.

Third, existing arrangements under the Judges Act already contemplate what are, in effect, judicial "sabbaticals". The rationale for these arrangements is the need of long-serving judges for experience which offers them intellectual rejuvenation. Service in an international setting would constitute an additional opportunity for Canadian judges to derive the benefits of a stimulating change from their regular responsibilities, and thereby contribute to their long-term intellectual vigour.

I have three strong reasons for supporting clause 56.1 but, at the same time, I must address three concerns which I have about that proposed section. While I imagine that such concerns might be expressed, in my opinion they are not sufficient to detract from the merits of this proposed section.

First, it might conceivably be argued that proposed section 56.1 in some way compromises judicial independence or neutrality. Personally, I do not give much weight to either of these concerns as the basis for rejecting the legislation.

As to judicial independence, the financial arrangements contemplated by the proposed section do not make the judge beholden, or offer her or him any advantage, relative to the Government of Canada or any other potential litigant except, arguably, the particular international organization that offers her or him employment.

Presumably, judges who resume their careers on the bench of a Canadian jurisdiction following international service would disqualify themselves, or be disqualified, from hearing cases involving the particular international organization to which they were seconded, to the same extent and in the same manner as would occur in the event of prior service with an agency of the Canadian government or with a private corporation or law firm.

As to judicial neutrality, mere involvement with controversial matters which might arise in the course of international service clearly does not constitute grounds for disqualification because we have the long history of Canadian judges serving as royal commissioners in a wide range of highly controversial domestic inquires.

Furthermore, there remains the safeguard that there is no absolute right on the part of any judge to seek or accept an international post. Under clause 56.1(2), the Governor in Council may grant a leave for this purpose following consultation with the Minister of Justice and the chair of the Judicial Council. This provides an opportunity for case-by-case consideration and an opportunity for particular requests by international agencies to be deflected or refused if there is a sense that something about them makes participation by a Canadian judge inappropriate.

In principle, service by a Canadian judge with an international body should normally be deemed compatible with his or her subsequent return to service on the bench and does not, per se, constitute a violation of the principles of judicial independence or neutrality.

Second, countries with judicial systems which prize the rule of law have made judges available for international activities. An obvious example is Judge Richard Goldstone of South Africa, the recently retired chief prosecutor of the International Crimes Tribunal in The Hague. There seem to be many other examples, both historical and contemporary.

Earlier in this century, sitting chief justices of England in 1903, the United States in 1910 and Canada in 1929, served on international tribunals or commissions. Clearly, these were not isolated examples. A most distinguished international law scholar asserted in 1944:

Judges of national tribunals have frequently been chosen as members of temporary international tribunals and in some cases previous experience in national courts has been emphasized in provisions for the recruitment of members of both temporary and permanent tribunals.

That is a quote from M.O. Hudson, perhaps the most distinguished international lawyer of his generation.

After World War II, a number of sitting judges from national courts were apparently seconded to serve as judges at the Nuremberg and Tokyo War Crimes Tribunals. In one case, a judge served simultaneously on his national court and the tribunal, returning home to Australia to hear cases during a recess in the Tokyo proceedings.

Furthermore, as is well known, Mr. Justice Jackson of the U.S. Supreme Court served as a prosecutor in the Nuremberg trials and, upon their conclusion, resumed his seat on the U.S. Supreme Court.

The practice continues down to the present time. To take but one example, serving judges are given leave from their national courts to hear cases at the European Court of Human Rights when regular judges on that court are disqualified or otherwise unavailable to sit. This practice testifies to the view held by many modern democratic countries concerning judicial leave, in an area of international legal activity where respect for the rule of law and judicial independence would be scrutinized with particular care.

Finally, with specific reference to Canadian practice, a Canadian judge, Mr. Justice Macdougall, was seconded to sit on the Tokyo War Crimes Tribunal and returned, following the conclusion of his service there, to resume his seat on the Canadian bench or, more particularly, on the Quebec Court of Appeal.

Mr. Justice Wilson, who served continuously on the Ontario Supreme Court from 1945 to 1975, was given leave to serve under a UN mandate as Chief Justice of Cyprus from 1962 to 1964.

International and Canadian practice, therefore, appears to accept that serving judges of national courts may be given leave for international activities without compromising their neutrality or independence. While the details are not known, appropriate financial arrangements appear to have been made concerning their leave and remuneration. At least in the case of the Canadian judges, this seems to have been done without specific legislative authority.

Third, it must be acknowledged that a judge who serves with an international agency will deprive his or her bench of assistance for the duration of the international secondment. This raises an understandable concern that the judge's workload must be assumed by others.

While justified, concerns about the effects of international secondments upon judicial workloads should not be given undue weight because, first, international assignments are likely to be infrequent, not to say very rare; second, comparable assignments, such as service on royal commissions, impose similar burdens on the bench but are, nonetheless, deemed acceptable in light of the important gains from having judges perform this service; and, third, workload concerns can be addressed by the chief justice of the affected court, exercising responsibility for the efficient operation of his or her court, or by discussions between the chief justice and the Minister of Justice, or through collegial processes.

For all these reasons, I feel quite comfortable with clause 56.1 and believe that it deserves to be passed. At the same time, I can imagine some small wording problems that could occur in the future. One that occurred to me -- and a close reading of the legislation has allayed my concerns -- is that clause 56.1 might appear to apply only when a judge is given leave without pay. On further reading, I see that it covers both judges who continue to be paid by the Canadian government and those who are given leave without pay. A relatively experienced reader of legislation did not pick it up the first time around; but that may say more about me than about the draftmanship.

One small problem that I did note with respect to the drafting which I might bring to your attention and, through you, to the Department of Justice, is that the proposed section 56.1(1) speaks to participation in international activities, or international technical assistance programs, or in the work of an international organization of states, or an institution of such organization. That is all pretty inclusive. However, the clause 56.1(6) enables a judge to receive remuneration only from an international organization of states, or an institution of such organization. It is conceivable that this language does not capture all the possibilities that may arise. For example, participation in an ad hoc international or bilateral arbitration tribunal or commission might not fall strictly within the language proposed, although it obviously falls within the general purpose sought to be achieved.

I conclude, therefore, by suggesting to you respectfully that this is appropriate legislation. It enables us to discharge our international obligations and to contribute as a member of the international community while at the same time paying a small price in terms of some inconvenience that might be caused for particular courts for short periods of time. All in all, I come down quite positively on clause 56.1.

I should be happy to respond to any questions at this time.

Senator Jessiman: Have you considered sections 99(1) and 100 of the Constitution Act, 1867?

Mr. Arthurs: You will have to help me, senator.

Senator Jessiman: I will read them to you. Section 99(1) states:

...the Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons.

Section 100 states:

The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts...shall be fixed and provided by the Parliament of Canada.

You say that this is something good for the judges of Canada. If that were the case, then the Constitution should be changed. Is that not necessary before that can happen?

Mr. Arthurs: I do not see how the section providing for judges to be appointed and to hold office for good behaviour subject, as you point out, to constitutionally entrenched procedures for removal, come into play. For some time now we have had judicial leaves without any difficulty. There is certainly nothing in the Constitution to take the easiest case which would prevent a judge from having leave, if that were required because of illness. Since virtually the beginning of our country, we have deemed service on royal commissions to be an appropriate activity for judges. For some years now there have been leaves for judges to renew themselves through what I will call sabbaticals. All these things have been deemed, by practice, to be quite compatible with that particular section.

The remuneration section has a clear purpose, namely, to protect judges against the diminution of their salaries as a method of exercising control over them. I am well aware that there is pending litigation on the extent to which financial restraint legislation can intrude upon a judge's salary. I do not want to express myself on that matter on this occasion; I have not come prepared to do that. However, this is a much easier case than spending restraints. It is a much easier case because there is nothing here which allows anything to be done to the salary of a judge without his or her consent to diminish it. The only circumstance under which a judge might consent to diminution of a salary is when a judge takes leave without pay. Presumably -- that is, on arrangements agreeable to the international agency, the Government of Canada, and so on -- the judge, in forgoing his or her pay, would receive appropriate compensation from the international agency.

I touched upon the risk that that might be thought to intrude on the neutrality of judges. There are ways of dealing with that which I have tried to outline for you.

I hope I have been responsive to your question. However, if I have not, I will try again.

Senator Jessiman: I do not think you have answered it completely.

If we are to change the way judges are removed from the bench, whether on temporary or permanent basis, we must change what the Constitution says.

Senator Cools: It is a temporary removal. Taking a judge away for four, five, or six years is a temporary removal.

Mr. Arthurs: I beg to differ. "Removal" has a constitutional background to it; it means "removal from office." The matter, happily, has not come up for litigation often, to the best of my knowledge, although we were on the verge of an interesting exploration of the Constitutional requirement. However, "removal from office" in British constitutional history has a long and well-established meaning.

Senator Cools: The Constitution does not say "removal from office."

Senator Jessiman: It says "shall be removable."

Senator Nolin: Senator Jessiman referred to section 100 of the Constitution Act. Obviously you have not considered that.

Mr. Arthurs: Not in this connection.

Senator Nolin: It is very important that we look into this. If you wish to read it, I can give you my copy of the Constitution, but I think you should look at the section. It is straightforward. Only Parliament can fix and pay the salary of a judge. That is what it says.

Mr. Arthurs: That is correct.

Senator Nolin: You have studied at length prior appointments to international bodies, and we thank you for that. How were they paid at that time? I am concerned. If your answer is, "I do not know, but I think they were paid by the international body," that would be wrong. It would have been contrary to our Constitution unless you can say to the committee that, in reading this section of the Constitution, you come to the conclusion that a body other than Parliament can fix and pay the salary.

Mr. Arthurs: Let me address several points.

The language provides that the salaries, allowances, and pensions shall be fixed and provided by the Parliament of Canada. The question of whether a judge receiving salary from another agency is a salary within the contemplation of section 100 becomes an important point. These are judicial salaries -- that is, salaries for serving on the superior, district, and county courts. A judge who is not serving on the superior, district and county courts -- and this is my first impression -- might not be receiving a salary within the meaning of that section of the Constitution Act.

If they are, one could certainly say that if this amendment to the Judges Act were enacted, they would be receiving not a salary but an allowance. I am not sure that that is true. Allowances are usually in connection with necessary expenses. However, they would be receiving not a salary but an allowance fixed by the Parliament of Canada.

We then come to the question concerning whether or not it is provided by the Parliament of Canada. That is a legitimate question, but I have not addressed it in my preparation for this session.

First, we must discuss the meaning of "salaries, allowances, and pensions." I take it that your question does not extend to pensions because that is dealt with in a specific provision. Within this provision, we then must decide the meaning of "salaries and allowances."

Senator Nolin: The pension problem was examined by the Supreme Court in the Beauregard case a few years ago. The question was whether a judge should pay for the pension himself or whether only Parliament should pay the pension. The Supreme Court decided that the government pays, and the judge also buys the pension. Therefore, it is not a pension problem; it is a question of who pays and fixes the salaries.

If I understand you correctly, if a judge is judging, he is paid by the government; if he is doing something else, he is not paid by government.

Mr. Arthurs: That is correct.

Senator Nolin: Why do you think the government now wants to change the law if they were able to do it before without changing the law?

Mr. Arthurs: I can only speculate. You would have to ask the authors of the legislation.

I can imagine, first, they had forgotten the precedent to which I have tried to draw your attention; second, they shared your concern that those precedents might have been inappropriate; and, third, that the particular context in which this current appointment of Madam Justice Arbour has been made is a particularly controversial one because of the nature of the tribunal. Any of those might have been reasons, but I am afraid that they did not consult me and I did not consult them; therefore, I cannot tell you what was in their mind.

Senator Nolin: Have you read Former Chief Justice Laskin's open letter in the Burger case?

Mr. Arthurs: Yes, I am familiar with it, but I did not read it in connection with this case.

Senator Nolin: He specifically referred to the independence of the judiciary, and he specifically referred to the fact that if a judge wants to do something other than judge, he should resign. In other words, he cannot be both. Do you remember that part of his comments?

Mr. Arthurs: I certainly do.

Senator Nolin: What is your comment on that? At that time, he was Chief Justice of Canada. I think we can infer from that letter almost a decision from the Chief Justice. I think we should take it seriously.

Mr. Arthurs: Chief Justice Laskin was my teacher, my personal mentor, and someone whom I respect enormously.

Senator Nolin: Good. You can enlighten us on that, then.

Mr. Arthurs: As a preface, one would not consider a letter quite the equivalent of a judgment. A judgment is usually the result of litigants presenting well-considered arguments and the judge having an opportunity to reflect upon those arguments and to pronounce on them, usually quite narrowly, or no more broadly than the case requires.

In this case, I think Chief Justice Laskin was quite wrong. He was wrong, for example, because one of his predecessors as Chief Justice of Canada served in 1929 on a international dispute. He was actually the nominee of the British government. He served on an international tribunal dealing with the seizure of a rum-running vessel breaking the American prohibition regime. Clearly, he did not address himself to that kind of service, as he would have if he had the benefit of fully researched arguments on both sides of the question.

As well, I must take issue with him more broadly. It is certainly true that judges must exercise great care to avoid interruption of their well-deserved reputation for neutrality and impartiality. However, we see all the time -- contemporaneously with, subsequent to, and prior to Chief Justice Laskin's statement -- judges who express themselves on all manner of issues, not just from the bench but from the rostrum and bar associations, Rotary Clubs, in books, and in a hundred other circumstances. It simply is not true that judges forbear from commentary.

There is a vigorous dispute of which you may be aware. Mr. Justice Sopinka's opponent's name escapes me, but it is another judge at the Cambridge lectures which are sponsored by the Canadian Bar Association. The dispute was on this very point. Each of them was able, with no difficulty at all, to draw upon many examples of judges who expressed themselves on a wide range of controversial matters.

Chief Justice Laskin's response to Mr. Justice Burger's behaviour was not appropriate, although I hasten to add that I do not think Mr. Justice Burger was wise to do what he did.

There is a wide latitude afforded judges in our tradition for expressing themselves on controversial matters. Remember, it was Mr. Justice Burger's expression of views that elicited this comment from Chief Justice Laskin. The record simply does not sustain his conclusion.

Senator Cools: Thank you for being here to share the benefits of your years of work. You have cited some examples of judges who have served for us internationally. Do you remember which judge was involved in the 1929 example? It was not Sir Lyman Duff.

Mr. Arthurs: No, I do not remember. It may have been Chief Justice Fitzpatrick, but I am not sure. I have given the reference in my written submission.

Senator Cools: Thank you. When did section 55 find its way into the Judges Act? Is it not possible that the examples you raised predate section 55 in the Judges Act?

Mr. Arthurs: I am only going by memory here because I have looked at that section in another connection many years ago. My recollection is that it has been there almost from the beginning.

Senator Cools: Section 55 has been there all along?

The Chair: Section 55 goes back to 1905 at least. We have taken it back that far.

Mr. Arthurs: My recollection is that, as far back as I have traced it, it was there. It has been a few years since I did that piece of work.

Senator Cools: You mentioned these examples. If what you say is so, why did Mr. Justice Deschenes feel it necessary to resign when he accepted an international position?

Mr. Arthurs: As I have said regarding Chief Justice Laskin, there is a wide range of views on these matters. I do not know the status of Chief Justice Deschenes at the time, but you will recall that he took on an international project on defining the rule of law. I cannot honestly remember. He may have been supernumerary judge at the time, but he may have taken the precise action which this bill seeks to address.

Senator Nolin: He was not a judge at the time. He decided to resign.

Mr. Arthurs: Thank you.

Senator Cools: You spoke of Mr. Justice Jackson and the Nuremberg trials. What was the position of taken by the Chief Justice of the U.S. Supreme Court when Justice Jackson accepted that position?

Mr. Arthurs: Again, I cannot help you specifically except to say the following. If the Chief Justice had said that Mr. Justice Jackson must resign, that would have been a virtual prohibition on his taking the job. Surely, he must have received consent. I cannot imagine him taking the job in other circumstances.

Senator Cools: For the record, the chief justice at the time was Chief Justice Harlan Stone. He was very critical of Jackson's activity. He died within a very few months of making these statements, and his successor, Chief Justice Frederick Vinson, took the position that none of his judges were to accept such appointments. We must be clear when we advance these precedents which are not really precedents at all.

Mr. Arthurs: I do not know the inside story. Doubtless, you know it better than I. Again, I point out to you that the position of the U.S. Supreme Court did not stand alone. British judges, Canadian judges, Australian judges, and judges of various European democracies have taken these jobs. It is possible that there is a variety of views.

Senator Cools: The next international precedent raised involves Mr. Justice Goldstone. Again, we are dealing with a judge coming from a country where a parliamentary or legislative change was not necessary.

As I have said before in this committee, I have been in touch with the South Africans regarding this subject. They have assured me that their laws and constitutions are quite different from ours on this matter. Can you comment on that? As far as I understand, this is the first case where parliamentary action is required.

Mr. Arthurs: I am not sure where that takes us. You say it is the first case where it is required. If I am right about Mr. Justice Wilson and Mr. Justice Macdougall, who have both been Canadian judges serving in this way -- and, if I am correct in remembering that it was Chief Justice Fitzpatrick -- then no legislation would be necessary. Judges could perform these functions without legislation.

All things being equal, there are two ways to look at this matter. Senator Nolin suggested that this was contrary to the Constitution and, conceivably, contrary to the Judges Act, and that this legislation attempts to avoid a future contravention. I can accept that as a possible interpretation. If it was considered legal previously, then technically this amendment is not needed. However, if there is some doubt over this matter, surely it is better to decide on whether we want our judges doing this sort of thing rather than relying upon, admittedly, a short list of precedents, the details of which are not familiar to either of us.

Senator Cools: The witness has just said something very interesting. He says that we do not need the amendment at all. If we do not need the amendment, why is Bill C-42 before us at all? That is another issue.

Mr. Arthurs: I said that if those earlier precedents are a reflection of what the law is, then we do not need the amendment. If there is some doubt, it would be better to clarify that doubt.

Senator Cools: Perhaps, Madam Chair, we should bring another item to light here. These issues are enormous and the further we go into the history of Canada as regards chief justices, the more likely we are to come upon chief justices who were also members of the Privy Council in England. It begins to get very complicated. Unless we want to open these issues and study them at depth, perhaps it is better not to hint at them.

My final point concerns a leave of absence. How long is a leave of absence? Can someone take a leave of absence for a lifetime, for 5 or 10 years? How long, in your mind, should a leave of absence be? In other words, can Senator Carstairs go away from this job for 10 years? Is that a leave of absence, or are we not really stretching the words, as well as logic and morality?

Mr. Arthurs: As a university president, for example, I have often grappled with professors when they have been elected as members of Parliament. The practice adhered to at most universities is that professors who have been elected to public office will be given leave for a period equal to their initial term. If they wish to serve a second term, then they should resign. Usually, we consider that the experience of service in the House of Commons or in the provincial legislature ultimately redounds to the benefit of the institution, the individual and the political institution. The crucial point I wish to make is that professors who are elected to public office are facilitated up to the point that they signal their departure from education and have decided to enter politics as a career.

Senator Cools: How long is a leave of absence?

The Chair: Mr. Arthurs said four or five years, which is the normal length of time for a member of Parliament.

Senator Beaudoin: There is no such thing as partial removal. Under section 99, either a judge is removed or he is not removed and that is the end of it. When the fathers of Confederation enacted sections 96, 99 and 100, it was impossible to know what the situation would be a century later.

Judges have become royal commissioners in the past, which is fine, providing they receive their salaries and they act with the permission of the chief justice, and so on. It is the same principle for a sabbatical. If, for one reason or another, a judge, with the permission provided for in the Judges Act, obtained a sabbatical for a valid reason, he continues to be paid under the Judges Act.

When we are concerned with judges taking sabbaticals in order to participate in international organizations or international tribunals or imperial tribunals, the question is somewhat different. The precedents of Goldstone and Mr. Justice Jackson were quoted. There is at least one precedent in Canada, namely, Sir Lyman Duff, who sat at the Privy Council of the British Empire for a certain time. If Sir Lyman Duff was a Supreme Court judge at that time, he was paid by Canada. Those precedents may bring some light on the solution of this problem, but they are very isolated and very different.

You said that there was a case in 1929. Could you elaborate on this? Which Judge Wilson are you talking about? Is it Madam Justice Bertha Wilson?

Mr. Arthurs: No. It was Mr. Justice John Wilson's case, who was a judge of the Ontario Supreme Court. From 1961 to 1963, he was seconded to serve as Chief Justice of Cyprus. This was at the time the United Nations intervened to bring an end to the conflict between the Greek and Turkish communities of Cyprus. There was an attempt to establish a quasi-federal state. The terms of that arrangement were that there would be on each Supreme Court bench equal numbers of Greek and Cypriot judges with a presiding foreign judge. I believe Mr. Justice Wilson was succeeded by a German judge. I do not know whether the arrangement continues. That was certainly under a United Nations mandate, for obvious reasons.

Senator Beaudoin: He was paid by the Canadian authorities?

Mr. Arthurs: I do not know the terms of payment, I am sorry.

Senator Beaudoin: What do you know about Justice Macdougall?

Mr. Arthurs: Again, I do not know who paid him, but he was seconded to serve on the Tokyo War Crimes Tribunal in 1945.

Senator Beaudoin: Therefore, section 99 does not apply because we are not talking about the removal of a judge.

Mr. Arthurs: No. I do not think so.

Senator Beaudoin: We are then dealing with section 100. The Constitution is rather clear-cut on this. The salaries, allocation and pensions are fixed by the Parliament of Canada; in other words, the Constitution says that it is regulated by the legislative branch of the Canadian state.

When judges are seconded by international organizations, or tribunals, or authority, are the salaries paid by the Parliament of Canada? Obviously not. What is the logic behind that? Have we accepted that the Parliament of Canada may say in the Judges Act, "In such a case, there is no doubt that you are a judge, but you are not paid by the government of Canada, you are paid by an outside authority." Is that the logic of it?

Mr. Arthurs: You are not paid a salary or allowance within the meaning of the Judges Act or within the meaning of the Constitution Act.

Senator Beaudoin: That is right.

Mr. Arthurs: That is to say, salaries and allowances that are associated with the discharge of your duties as a member of a superior, district or county court. You may be paid some other sum from some other source.

First, I do not regard the question of payment as the key question here. For me, the key question is availability for service. Second, if, in the view of Parliament, on your advice or otherwise, a provision for the payment of the seconded judge by an international agency is not appropriate -- that is, if that is the single problem that this committee identifies as requiring further thought -- then it would not be inappropriate for the government to continue to pay the judge and for the government to ask the international agency for reimbursement. The salary would then continue to be the salary paid by the Parliament of Canada and no problem would arise. The international agency could simply make a block payment to the government of Canada, which would not go to the judge, and the judge would continue to receive only the judicial salary.

Senator Beaudoin: I raised that point to know a little more about the logic involved in this.

Mr. Arthurs: I am sure you would agree that it would be helpful to know what happened with Mr. Justice Macdougall, Chief Justice Fitzpatrick and the other cases. I am sure there are others; I only had a limited amount of time to pursue this matter.

Senator Beaudoin: At the time of Confederation, Canadian judges were not sitting in London. The Hague was also quite different.

Obviously, we are living in new times. We are adding a dimension to the Judges Act. I am only entering the debate because the debate is very important and interesting, and I want to know exactly where that logic is leading the country. This will be a precedent. I do not say it is a bad precedent, but it will be a precedent. That is why I raised that point.

Senator Milne: Professor, I will probably have you repeat what you have said, particularly in view of the questions raised by senators opposite. Are you opposed to this bill on constitutional grounds?

Mr. Arthurs: No, I certainly am not.

Senator Milne: Do you think the provisions in this bill are reasonable?

Mr. Arthurs: Yes, I do.

Senator Milne: What other sources of legal talent could an international organization such as the UN draw upon to fill these kind of positions if they did not draw upon judges from various countries?

Mr. Arthurs: Law professors.

Senator Milne: Is this the kind of case where the Senate should exercise its rarely used power to kill a bill?

Mr. Arthurs: I think it would be extraordinarily embarrassing for Canada if that were to happen, unless some other arrangement could be made to permit a highly qualified person to continue a job on which he has embarked.

Senator Doyle: You raised the possibility yourself of a broad compensation deal which could be substituted for proposed section 56.1. That would seem to have a lot going for it. Approximately once every year or two we get into a squabble about whether or not someone, or some agency, or some government is trying to intrude on the independence of judges by tampering with their compensation. In this way, there could be no tampering. There should be no speculating about what judges receive and whether they accepted an assignment because there was a juicy expense account or whether anything was at stake other than their recognition of the importance of their availability. I find it difficult not to want you to expand on how such a clause might be written. It might be a useful contribution. Had it been in force, it might have cleared up the problem for Judge Arbour before people undertook to tell her -- and someone must have -- to go ahead and accept a job even before the right to do so had been clarified. We do not want that any more than, I am sure, Judge Arbour wants it. Could you expand on that?

Mr. Arthurs: You put your finger on it. Once one agrees that in principle it would be desirable if we could fall into line with other countries and make our judges available -- and, lots of other countries with proud traditions of judicial independence have found a way to do it -- then we are left with the practical problem of how we do it, given the concerns expressed by Senator Nolin and others, consistent with our constitutional provisions and other provisions of the Judges Act.

I have not studied this amendment carefully enough to say there could not possibly be a reasonable doubt about its constitutionality, although my first impression is that there is not a problem. But if there is a serious reasonable doubt, then this committee could provide useful help to everyone by providing a solution.

Although there may be other resolutions, I take it you and I are on the same wave length in terms of saying one way that it could be resolved is to continue to pay the judge his or her salary and have the government reimbursed. Talking only in practical terms, I can see some small wrinkles in that which might prove problematic, if I could move that discussion down the line a little bit. For example, I could imagine that disparities among judges sitting on a given international tribunal, each of whom is receiving the judicial salary of their home country, might create invidious comparisons amongst the judges on that tribunal. There is something to be said for having all people occupying comparable positions in an international agency being paid comparably. I can see that as a problem.

I can see, depending on what happens to judicial salaries here and cost of living in some other place, that it might or might not turn out to be very difficult for a seconded Canadian judge to live in a particular city without receiving a salary adequate to do that, which salary might be entirely appropriate and adequate in Canada but might not be in Zurich or some other place. Those are problems. I do not think those are necessarily insuperable. The allowance problem might be a way of dealing with those things, but your instinct is sound here, namely, that we have a practical problem which might require some sort of practical solution.

The Chair: Senator Doyle, may I ask a supplementary to your question? We have talked a great deal of the independence of the judiciary from Canada's perspective, but must we not also consider the independence of the international organization? My understanding, for example, is that the United Nations will not allow any other country to pay the salaries of these members of tribunals.

Senator Nolin: They, too, have a section 100 of their Constitution.

The Chair: It would be the United Nations itself that would have to pay the salary in order to protect their independence.

Senator Nolin: We, too, want our judges to be independent. That is why we have that section in our Constitution. Who will win? The Canadian people.

The Chair: Will you please comment on that?

Mr. Arthurs: I will give you an honest statement of my own position, which others may find controversial.

The principle of judicial independence comes to us because of a concern that government should not be able to intervene in the process to tilt the scales to produce favourable outcomes in litigation. That is the purpose of judicial independence as that doctrine has come down to us over several hundred years.

During that time, a number of situations have arisen which make it clear that this is not a self-defining principle. It must be defined in an historical context. As the clearest example of this, let me give you the position of Lord Chancellor in the United Kingdom, the very home of judicial independence and the place from which we get our principles. The Lord Chancellor is an active political member of the British cabinet, presides over the House of Lords, speaks to the newspapers, campaigns, and does all of the other things you would expect politicians to do. Yet he is the senior official of the judiciary and, simultaneously, is responsible for many organs of the administration of justice in addition to judges. This occurs in the home of judicial independence. What is going on?

This morning I picked up my weekly Guardian that is delivered to me in the mail. My Guardian recounts a public debate between the Chief Justice of England and a Conservative cabinet minister over pending legislation. These principles take on a meaning in an historical context. But we are all absolutely adamant that the government should not be able to tilt the outcome of a given case. To treat judges as if they were automotized, as if they were machines into which we plug law and out comes a decision without them being part of a larger society is an extraordinarily naive view of the judicial process. Judges are people with opinions, histories and affiliations. We can only try to insulate that critical moment in the decision-making process from what we know to be there.

Respectfully, the question that we should be asking about this device of secondment is whether or not it will interfere with the judge when the moment of decision arrives. That is the critical issue. Everything else -- and I return to my exchanges with Senator Doyle -- is a practical problem of how to facilitate what in principle does not interfere with judicial independence, helps the cause of international justice, invigorates our judiciary and puts them in touch with trends in international law. All those things are positive. We should try to facilitate it in some way which comes does not bite at the critical moment when judges must make up their minds about individual cases.

Senator Jessiman: All the Canadian precedents that you gave us related to judges who ceased to act as judges in their jurisdictions and acted instead on inquiries. They were always acting, in a tribunal sense, as judges. They were not judges in the jurisdiction in which they were appointed, but they were either the head of a inquiry or whatever, and they acted as judges. Is that not correct?

Senator Cools: They are still acting as judges.

Mr. Arthurs: If I am not mistaken, with respect to the example of Chief Justice Fitzpatrick -- and I have given the citation to your counsel -- he was not sitting judicially but was sitting as a commissioner to resolve a dispute caused by the American seizure of a foreign --

Senator Jessiman: But he was not taking sides, one against the other; he was trying to solve a problem.

Mr. Arthurs: It was an attempt to resolve a dispute. It was not an adjudication.

Senator Jessiman: With this act and this particular appointment, we have a prosecutor who is acting on one side. I do not necessarily think -- although Goldstone from South Africa was before her -- that a judge is necessarily a good prosecutor. Many prosecutors in the country could perhaps do a better job than a judge might do.

Mr. Arthurs: In all legal systems outside of the anglo-Canadian or the English-based systems, judges and prosecutors are members of the same profession. They move back and forth from one to the other.

Senator Cools: Really?

Mr. Arthurs: Ours is the anomaly in the world array of legal systems. For example, the prosecutors in Italy who brought down a number of corrupt politicians and industrialists are referred to as "judge" because they are on a career track from prosecutor to judge, and they move back and forth. Our system is the anomaly. One must accept that there are democratic states, modern states and constitutional states devoted to the rule of law which do not happen to organize their judiciary and their prosecutorial functions in the same way that we do.

Senator Cools: That is fine.

Senator Lewis: I have a question concerning section 100 of the Constitution Act dealing with the fixing and payment of salaries. That section authorizes Parliament to fix salaries and to pay them. It does not state whether the salaries will be for one year or for a period or under certain circumstances. I assume, then, that the Constitution leaves it to Parliament to deal with that matter.

Consequently, it would be competent for Parliament to say that the judges of a certain court shall be paid at a certain rate or a certain amount, except when they are on leave of absence without pay. Parliament would then pay whatever that is.

Mr. Arthurs: Yes, I would accept that proposition. The more difficult proposition, which I have not thought through, is not only that Parliament shall fix the salaries but that Parliament shall pay the salaries. Those are the concluding words.

Senator Lewis: Yes, whichever salaries you have had fixed.

Mr. Arthurs: The only way out of that dilemma is to say that "salary" in section 100 means salary paid in connection with service on the courts mentioned in section 100 and not otherwise.

Senator Lewis: Yes, that extends it. That is what I thought.

Senator Nolin: Are you implying that the Fathers of Confederation thought that a judge could do something else and be paid by someone else?

Mr. Arthurs: I can actually enlighten you on that point quite extensively.

Approximately 30 years ago, I was secretary to a committee established by the Attorney General of Ontario dealing with judges who served as labour arbitrators and who were remunerated by the parties in equal amounts over and above their judicial salaries. The practice was ultimately stopped. However, I spoke to the Deputy Minister of Justice of the Government of Canada and asked him the very question you have just asked me. He said that he did not have a problem as far as the Judges Act is concerned. What was a problem was that judges who were being paid extra money to act as labour arbitrators were not attending to their judicial duties, which were falling back on their colleagues.

Senator Nolin: My point relates more to section 100. Did they envisage the possibility of a judge being paid by Parliament but doing something else at the same time? I do not think so.

Mr. Arthurs: There are two separate situations presented. First, when you are serving as a judge and receiving a judicial salary, can you be paid for doing something else at the same time? My view on the matter is no. The Deputy Minister of Justice at the time did not have a problem with that.

Senator Nolin: You should have appeared in front of us. Obviously, we would have had problem. In the past, we have seen deputy ministers have problems.

The Chair: Thank you very much, professor, for your presentation this morning.

Our next witness is Professor Patrick Malcomson from the Department of Political Science at St-Thomas University in Fredricton, New Brunswick.

Please proceed.

Professor Patrick Malcomson, Department of Political Science, St-Thomas University: Thank you very much. I feel honoured to be asked to appear before you.

My research has been in the area of the political theory of the rule of law. I am a political science professor, so if you ask me about legal precedents, I will probably appear as a miserable witness indeed.

I wish to speak from the perspective of a political scientist and the politics of this bill, specifically about the principles involved and the way in which those principles fit together.

I agree with much of what Professor Arthurs said. One part of his presentation was very valuable, namely, when he started to back up a bit and say that we must get away from just the fixed rules and look at the principles behind this. That helps us to interpret the application of the rules. I do not think that a strict application of the rules is necessarily a good thing.

Let me begin by pointing out that the principle of judicial independence is not an absolute principle and not an end in and of itself. Branches of government are designed to be independent of each other for a particular purpose. The higher order principle in this case is the rule of law, and judicial independence is valuable insofar as it promotes the rule of law. Otherwise, there would be no need to have government officials who wield substantial power and are paid by the public purse to be independent of the normal political and governmental controls that define our type of regime.

The rule of law means that we are to be ruled by law rather than subject to the arbitrary rule of human beings, which is to say that we are to be ruled by human beings acting under the authority of known standing laws. Therefore, we are to be free from arbitrary authority and the whim and malice that comes with wide discretionary authority. In order for the law to rule, the law must be applied impartially. No one can be above the law, particularly government officials. Government officials must be open to prosecution. Judges must therefore be insulated from the executive and legislative powers of government so that they can try cases in an impartial manner.

Judicial independence then allows judges to act without fear or favour. In other words, judicial independence is valuable insofar as it establishes protection and promotes impartiality; and impartiality is a requirement of the rule of law. There is a kind of three-tiered system here.

In establishing the workable boundaries of judicial independence, we need to look back to the purpose it is supposed to serve. It is necessary for establishing and maintaining impartial adjudication, at least insofar as impartiality is humanly possible. The elements of judicial independence seem to be appointments, tenure, remuneration, evaluation and discipline, restraint on extrajudicial activities -- and, I will return to this point later -- institutional independence, the professionalism of the legal profession itself and its own self-discipline, and constitutional conventions regarding political interference by elected officials.

In the Valenti case, the Supreme Court establishes three essential conditions: tenure, financial security and institutional independence. Those are the three criteria for judicial independence.

From my point of view, the main point at issue, and the one to which I will restrict my remarks, touches on the question of the limitations placed on judges regarding their participation in extrajudicial duties and functions. We all know that judges routinely do that. They chair commissions of inquiry, write legal text, teach law professors, act as arbitrators, give public speeches, attend ceremonial functions, and so on. Professor Arthurs is quite right in saying that it is naive to think that judges operate in some sort of vacuum.

At the same time, there is also a principle that judges should be devoted solely to their judicial duties. Section 55 of the Judges Act states:

No judge shall, either directly or indirectly, for himself or others, engage in any occupation or business other than his judicial duties, but every judge shall devote himself exclusively to those judicial duties.

This is a good example of how you do not want to take this as a simple rule because the legislation then goes on to have exceptions. Section 56 supplies the exceptions to section 55. The point is this: On what principle do you allow exceptions to that rule? Obviously, the rule is not absolute. Therefore, how is it decided what constitutes an allowable exception to the rule?

The clear principle that establishes the limitations on judges serving in extrajudicial capacities is whether such service will call the administration of justice and the rule of law into question or doubt. Therefore, judges should not be involved in matters which might be controversial in the minds of a large number of people in their community where there may be some perception that they would thus be biased for or against a particular issue or group of persons. Would their participation in any particular activity be such as to damage or, perhaps, even possibly be perceived as damaging the independence of the judiciary and/or the impartiality of the judiciary? That is the question you would have to pose.

It is on this basis, then, that judges should not be allowed to participate in activities that could possibly be subject to future litigation in their own courts or, perhaps, in the court system in which they operate. Nor should they be allowed to appear as advocates in their own court or any related court where the possibility of reciprocal favouritism exists. Nor should judges be able to use their positions as judges as the jumping off point for career advancement, although this is a difficult problem because there is career advancement up through the ranks of the judiciary. However, the appearance of careerism in the judiciary would certainly call into question judicial impartiality.

This said, we must also recognize two essential facts. We have used and will continue to use judges in a variety of extrajudicial activities. Therefore, we need to be able to determine the legitimate boundaries for allowing such use. More important, judicial independence is not an absolute good in and of itself. We would not want an absolutely independent judiciary. We must balance independence and accountability. The proper balance of these two attributes leads to impartiality.

You could end up with a very partial judiciary if it were totally independent. A number of legal scholars have written about the proclivity of the judiciary to advance and promote its own powers.

Judicial independence must be weighed against the value of using judges in extrajudicial activities and in the genuine need for some form of accountability of the judicial branch of government.

My argument is that the principle used to establish the balance between these three competing values -- that is, the good that comes from extrajudicial activity, the need for accountability and the need for judicial independence -- is impartial adjudication. That is to say, what promotes impartial adjudication and what detracts from impartial adjudication.

Impartiality is required for the rule of law. It is a self-evident aspect of justice. It is a political prerequisite for public faith in the rule of law, something which is a very important point.

The question, then, properly posed, seems to me to be this: Would a particular type of extrajudicial activity be likely to cause one to doubt that their right to a fair and public hearing before an independent and impartial tribunal would be violated? The test would have to be applied to the judiciary generally and not a particular judge for the reasons set out by Professor Arthurs.

The legislation recognizes that we must balance judicial independence with accountability. It also recognizes that a political good is served by allowing judges to perform extrajudicial functions. While clause 55 seems like an absolute statement, clauses 56 and 57 deal with the exception and the question of remuneration.

My specific observation about the legislation is that it would allow a Canadian judge to become the paid employee of another organization or quasi-governmental body. The problem, as it has already come out, is that the requirements of the rule of law for that international organization require that the judge not be in the pay of a particular government. The requirements of the rule of law for us, however, require that the judge be on our pay. Perhaps there is some way to facilitate that with the wording of the bill, as has been discussed.

The question that arises is the possible appearance of careerism. Clearly, there may be higher status involved; but there is higher status involved in being promoted up through the ranks of the court itself.

Should the legislation, then, restrict the salary so that if it is paid by someone else, it can be no more than what they already receive?

The idea behind protecting judges' salaries is that you cannot lower their salaries in order to exert pressure on them. But at the same time, you do not want some foreign organization paying them $200,000 or $300,000 more than we do, because that would create the impression of careerism and partiality. The question of who pays the salary may be a secondary question in relation to the amount of the salary. You may want to say that they can be paid by the foreign organization but they cannot receive more money than they do now. The question of the living allowance may have to cover, for example, the expenses of living in The Hague as opposed to Fredericton, or something like that.

I return to subclause 56.1(6), which says nothing about the amount of remuneration. The principle in cases where you take a judge off the bench and appoint them to a commission is that they receive the same salary. It is not a question of which department of the government pays. You are concerned about the judge not being able to gain any advantage or appear to gain any advantage out of changing positions. You may want to look at the question of the amount of remuneration as opposed to who pays it.

Second, the change in procedure for granting leaves up to six months within the judiciary under the approval of the chief justice and, for more than six months, with the approval of the Governor in Council, seems to be in keeping with the ideal of judicial independence in that it allows the judiciary a certain amount of administrative mastery of its own affairs.

Third, would the participation of Canadian judges in extrajudicial matters of the kind described in proposed section 56.1 call their judicial independence and impartiality into question? That is the key issue. The political goal is to maintain public confidence in the impartiality of the judiciary. This is difficult to answer in the specific case for which this legislation is designed to deal. It does not seem to me that it would call impartiality into question. It is hard to see how this is a controversial issue for Canadians, where they would see their judge acting in such a way as to state an opinion that somehow would bring into doubt the impartiality of the judiciary in general.

As you have already discussed, there are numerous precedents for this. At the same time, I wish to express my concern about this area of the legislation. Clause 56.1 is vague. It states "participate", and subclause (1) states, "in international activities". What could that mean?

Senator Nolin: Anything outside Canada.

Mr. Malcomson: Yes; or, for example, driving motor boats after whales. The second category is "international technical assistance programs, the work of international organizations of states, or an institution of such an organization."

I can understand why you draw the legislation up this broadly. You cannot list every possibility and it would be hard to say in advance that this one is good and this one is not. The activities must be broadly defined, and you can see what the legislation aims at.

The question is: How does one deal with this? Here, again, I would turn your attention to a different aspect of the proposed legislation. You may want to ensure there is public debate and discussion over such an appointment. One possibility would be to require the authorization of Parliament as opposed to require the authorization of the Governor in Council. A public debate over a possibly controversial appointment would then take place and the political question of whether or not this would call judicial impartiality into question would be discussed -- that is, the merits of the case would be discussed.

Finally -- and, I am somewhat hesitant about this point, but it did come up in the earlier discussion -- one particularly absolute principle of the idea of the rule of law is that no one is above the law. This includes judges. I raise this as a general point because, at the very least, this legislation creates the appearance that it is all right for a judge to engage in extra judicial activity not presently authorized by legislation and that, somehow, this legislation will legalize and make acceptable, in an ex post facto manner, what has already taken place. The idea of this being defended as a purely technical matter seems to be very problematic. That does not strike me as a technicality when it comes to the actions of a judge, because judges observe technicalities and rule on technicalities constantly. I say that hesitantly, because I do not know the particular legal status of the present leave.

Senator Cools: We cannot find out properly, either.

Mr. Malcomson: That may be a question for Department of Justice officials.

Senator Nolin: We put it to them already.

The Chair: Thank you very much, Professor Malcolmson.

Senator Pearson: Thank you very much Professor Malcomson. I appreciate your approach from the political science point of view and the issues of principles. You make me think of what kinds of principles are involved in this issue. I think some of them have not yet been fully explored.

For me, the issue is that we are in a changing world. The Fathers of Confederation certainly never would have envisaged the kind of world -- and, I am not talking about Canada but about the world -- that we are living in now and the need for various countries, which have always been in the forefront of human rights, to be able to adapt their systems to allow for our active participation in working for human rights issues.

For some time, I have been following the possible evolution of an international court of criminal justice. These are some of the kinds of things that are moving into the future. Canada should prepare itself so that we are able to lend our assistance to these evolving institutions. I agree very much that the rule of law is the primary concern and that it is the higher order principle about independence of the judiciary. Some of your points are very well taken and very well explained.

This is a philosophical question. I feel strongly that the opportunity for Justice Arbour to work for the International War Crimes Tribunal on Bosnia and Rwanda is extremely important for us, particularly because she is a woman. This may not be a principle that you are interested in, but we are. A report is coming out in November in the United Nations. I take exception to the fact that you call it a foreign organization. We are members of the United Nations, so "foreign" is not the right word.

The Graça Machel Report, which is coming down on the condition of children in zones of conflict, is a very powerful report. It calls for increased response to the fact that children are not just victims accidentally, but have become the actual targets of war. One of the opportunities in this tribunal will be to address some of those issues. Justice Arbour is the kind of person who will be able to help move those kinds of issues along.

When you are looking at the principles of how Canada acts in the world, I agree that it must be done always under the rule of law, because that would otherwise jeopardize our way, but I would be interested in some of your comments about how you see the rule of law in the Canadian context as opposed to the rule of law in the international context.

Mr. Malcomson: It seems to me that, with the recent example of the turbot war, and so on, we do not exactly agree with international law. We often then stand on the principle of sovereignty and are talking about the rule of our own law as opposed to international law. That is a very difficult subject. Clearly, as you say, the situation is evolving, and we will run into ever-greater problems of the rule of one law over the rule of the other law and the requirements for both of those.

I do not know how you resolve that. Many political scientists are doing scholarship in this area, and the whole area of sovereignty is now being called into question. The basic point is the notion or idea of sovereignty and what it means for us to be a sovereign state and yet be bound by international law.

Senator Nolin: Thank you, Mr. Malcolmson, for your remarks.

I wish to be very clear that I do not oppose modernizing the rule of the judiciary. However, I also want to be clear that, when so doing, we should respect our past and function in a way which will respect our rule of law. If our Constitution needs to be clarified, let us do it. If the law needs to be clarified, let us do it. But let us do it in a fashion that will achieve exactly that, not by using language that is so broad that a judge can do whatever he wants when he is outside Canada with the blessing of his chief justice or the Government of Canada.

I have not a single problem with Justice Arbour, and I think we should have more situations like that. But how can we do so while ensuring that we are respectful of our past and the rule of law of Canada? I am not sure now that we are doing that. We are doing it in an expeditious fashion, calling it a technical law. It is not a technical bill. It involves principles, and we should look at that at length. If we need to look at it in more detail, we should do so. We must do it properly.

The government should have introduced a private, special bill which dealt only with Madam Justice Arbour.

You have alluded to proposed section 56.1(1). The previous witness was a bit puzzled by the fact that 56.1(6) only covered pay by two of the four options, but I think there is a reason for that. In paragraph 1, they are envisaging the judge performing international activities and still being paid as a judge. I would like to hear your comments on that.

Let us limit our discussion now to extrajudicial activities. I think we all agree if it is judicial duties included in international activities. However, what happens to extra non-judicial matters included in international activities being paid by a government? Where is the independence of that judge when he comes back?

Mr. Malcomson: Does it not always depend on the nature of the activity?

Senator Nolin: Of course.

Mr. Malcomson: Fundamentally, it is a political decision as to whether or not you believe that that activity would somehow cause people to begin to doubt the impartiality of the judiciary.

Senator Nolin: That is my main question. That is section 11(d) of the Charter.

Mr. Malcomson: As I suggested, rather than try to narrowly define the acceptable activities in the legislation, you need to look more at the approval mechanism and the question of whether it is the Governor General in Council that approves this or whether it should not be Parliament. In a parliamentary debate, you will get a discussion on this point. Ultimately, it cannot be settled by law. It can only be a political decision as to whether the people who hold public office will allow a judge to do something and whether, in their wisdom, they think that will call the rule of law and the impartiality of the judiciary into question subsequently.

Senator Nolin: Hopefully, we will come to that conclusion, but not in an expeditious fashion. Thank you very much.

Senator Milne: Professor Malcomson, it seems to me that your point here today has been about the rule of law. The one specific thing you have said is that decisions of this nature should be taken out of the hands of the Governor in Council and put into the hands of Parliament. Does that not in itself immediately impair the judicial insulation from the political process from the appearance of impartiality? That proposal might very quickly lead us down into more of an Americanization of our judiciary, and I am quite concerned about that particular, specific proposal.

Mr. Malcomson: In any matter of public policy, you make the law so that the balance is tilted on the side that you want. So that good or evil can come from either way that you do it. You could have the Governor General in Council do this. The problem with that is that the Governor General in Council could then make appointments and, as we get into this and there are more and more international appointments, they are just rubber-stamped through that office and there is no public debate. The question arises whether, down the road, this will not cause people to then come to doubt the impartiality of the judiciary after you have a good number of judges doing this because you have never had any debate on whether that particular activity would somehow then call into question their ability to be an impartial adjudicator five years from now. That might be the greater danger rather than the kind of debate concerning what would happen if you had a parliamentary debate over the question of whether this particular judge should do this. The question would be: How will doing this impair her ability to act as a judge when she returns to the bench?

Senator Milne: Do you feel it will?

Mr. Malcomson: No.

Senator Cools: I thank Mr. Malcolmson for what I thought was a very insightful and thoughtful presentation.

Following on from Senator Milne's question, I should like to remind the committee that the reason these issues were put into Parliament's hands many generations ago was exactly to avoid the mischief that can flow from having them in the hands of the executive. Therefore, when people are currently advocating to give them all to the executive, perhaps that is a change that we will make in today's community, but it is a change which would require much public policy discussion.

I thank you for raising the need for public debate on this issue, because a characteristic of this bill is that is has been pushed to be passed without debate.

Last June, attempts were made to pass this bill without even sending it to committee. It has taken strenuous work to gain even this little bit of public discussion. I encourage the chair to have more public discussion.

Yes, rules, laws and constitutions may be changed. We are all flexible. However, let us make such changes within the rule of law and with the proper amount of public discussion and participation. This piece of legislation fundamentally alters public policy and should not pass here disguised as a technical, housekeeping amendment. I thank you for making that point.

I move to the issue of careerism and the perception that these sorts of activities possibly might impair a judge's ability. Are you aware of any opinions which have been expressed in international journals about Madam Justice Arbour's appointment?

Mr. Malcomson: No.

Senator Cools: For the interest of the committee, I should like to draw attention to one particular international publication, Ms. magazine. That magazine carried a damning and worrisome article which suggested that Madam Justice Arbour orchestrated her way to the appointment and, if necessary, tampered with judgments. I quote the journalist so that these words are not attributed to me:

... Arbour was asked to head up the government investigation.

This is regarding the riot at the Prison For Women in 1994. The article goes on to state:

By the time her 311-page report was released in April 1996, Arbour had already been appointed to head up the war crimes tribunals. It was impossible not to see her findings as a dress rehearsal for the judge's new role as an international advocate...

It is serious when a judge's findings, decisions or rulings are shrouded by suspicion and conjecture. This article also questions a few other Arbour judgments, including her acquittal of Imre Finta --

... a gendarme captain in Nazi-occupied Hungary who was accused of shipping 8,617 Jews to death camps and who fled to Canada.

Critics said that Madam Justice Arbour's 1992 ruling, based on a strict interpretation of Canadian penal statutes, shows a profound lack of understanding of the Nuremberg principles.

It goes on and on.

One of the unfortunate effects of the atmosphere of privacy and secrecy and the lack of proper public discussion regarding Bill C-42 is that every decision Justice Arbour has made may now be placed under some sort of scrutiny to see whether it was made with an eye to careerism or for promotion.

Can the witness comment on those issues although he has not seen the article? For the record, it is Ms. magazine, July-August 1996 issue.

The Chair: If you could give that reference to our committee clerk, we will distribute it to all the senators. It might be of value.

Professor Malcomson, obviously you do not have it. Perhaps you could comment on a general basis?

Mr. Malcomson: It would be appropriate for me to say that the legislation should be designed so that the appearance of careerism is avoided. That is the real key.

I have no reason to suspect that Justice Arbour is guilty of careerism and I would not say that. However, any judge could be open to this kind of attack. That would be extremely unfortunate and it would cause questions to be raised about judicial impartiality in Canada.

Senator Cools: That is precisely my point. In the absence of the proper public debate on these issues, and in the absence of issues advancing through proper procedures, we all lend ourselves to such a development. I will submit to you that any and every judge who finds themselves in a similar position will now be subject to this sort of criticism, suspicion and, at best, cynicism. It is, indeed, a very serious matter.

I found this article very disturbing when I read it. I was sort of saying, "How could anyone write this sort of thing? This is not right. This is not proper."

However, you know the old maxim: Once a judge steps down from the lofty heights of the bench, then "unlofty" things begin to happen.

You raise a very important issue of the ex post facto legalization of a particular act. I cannot find out how much Madam Arbour is making nor exactly how long she will be gone. I have not been able to find out where or how the bill itself originated. I am told that Madam Arbour procured all of this on her own.

We are talking about the rule of law. We are being asked to justify all of these actions because, obviously, a judge is exempt from the law. We are being told, somehow or other, that it is okay for a judge to break the law because it is prestigious for Canada. I must conclude, of course, that this is a prestigious breaking of the law.

Please comment on the ex post facto legalizing of those actions.

Mr. Malcomson: Ex post facto legislation is prohibited by the U.S. Constitution. It clearly is a violation of the rule of law. The cases where it is used are usually extremely unusual. There may be some way in which obeying a particular rule could lead to an injustice, so you did not and somehow you legalized it after the fact.

The principle of the rule of law is that you know the consequences of your actions in advance so that you can judge accordingly. That is why law cannot be changed ex post facto -- so that I am not guilty of a crime which is not a crime today but could be a crime tomorrow and though I acted according to the law as it was then.

I do not know whether Justice Arbour is in violation of the law right now. Who knows? It seems there are two points. First, does existing legislation somehow covers what has already happened? There might be a legal argument to be made that way. We were talking about precedents this morning and how they have been covered in the past. There seems to be some uncertainty about that.

Second, I do not know what sort of leave or continuing series of leaves she may have been granted thus far. That seems to be an issue.

I would suggest that is the kind of thing that raises a very serious question in the public mind. Certainly a lawyer appearing before a judge who had somehow been tainted with the idea that they had once not stuck exactly to the law, would be very interested in arguments that flowed from that kind of question, especially in appealing cases decided by that judge.

Senator Cools: To expand on what is being said here, there is an additional philosophical and moral question raised: Exactly what are the conditions, rules and laws which will guide the procurement of judges for highly paid job opportunities.

A problem arises if you merely focus on one side of the question. You are not doing justice to the whole picture. There is good to be accomplished for Canada in the participation of our judges in all these things.

It becomes a question of balancing these competing goods.

Canada's international duties are of paramount importance. The question is, why would judges participating in these international duties be beyond the law?

The subject amendments in Bill C-42 circumvent the law as it applies to judges because, for some mysterious reason which is not dealt with, this group of individuals appears to have its fingers on the pulse of the legislative apparatus of Parliament.

Ms. magazine has published articles which pose this kind of conjecture. To my knowledge, this is the first time in the history of Canada that judges' motivations are being questioned. I find that very disturbing.

The Chair: I have several questions that I want to ask you, Professor Malcomson. First, however, I wish to point out that Ms. magazine is an American magazine and we know, in fact, the judicial system in the United States is elected up to the position of Supreme Court in the United States.

Senator Beaudoin: Federal Court, too?

The Chair: Yes. Therefore, a state judge or a provincial judge might be subject to a somewhat different journalistic style in the United States because careerism may take on a different meaning.

My first question to you is with respect to careerism. It would appear to me that we have in the past allowed our judges to do a number of additional judicial duties, royal commissions, adjudications. Would you see those duties as something that could be subject to an attack on the basis of careerism? I will give you an example. Justice Macdonald headed the RCMP inquiry which went on for an extremely long period of time. If his participation was an upward career move, it did not seem to do him much good, because it took him another 10 years before he was appointed to the Alberta Court of Appeal. I suspect that had more to do with the Conservatives coming to power and he had been a Liberal appointment.

Do you think that careerism is really a problem among our judiciary?

Mr. Malcomson: No. I think the perception of careerism would be the problem. You are right, being appointed to a commission could be a downward career move, depending on who you offend. However, I think that the perception is that you appoint a person to head up a commission and they become very prestigious and well known in the public mind and then they can be promoted up through the ranks of the judiciary.

If you value the benefit of having judges serve on commissions and inquiries, and so on, then careerism is one of the things with which you must deal. The only thing you can do is protect the judges. The point I was trying to make is that I do not think you want there to be any monetary taint.

The Chair: That is my next question.

Mr. Malcomson: Status is one thing and money is another. One wants to avoid, as best one practically can, the appearance that one is accepting secondments for the advancement of one's career.

The Chair: With regard to section 100, you said salaries should remain the same. Perhaps you choose to compensate under allowances. But allowances are also protected under section 100 of the Canada Act. Therefore, if there is a judge who is to be seconded to Geneva, which happens to the eighth most expensive city in the world to live in, in order for them to live there, you will have to give them living allowances. If you object to their salary being increased because it is protected under section 100, you must also object to allowances being increased under the same section. This means that no Canadian judges could ever be appointed to anything outside Canada. Among the developed and rule-of-law nations, Canada has one of the lowest costs of living in the world. In the study that I just read, for example, Geneva is eighth; Toronto is 107th. Therefore, do we not run into the same difficulty.

Senator Nolin: If a judge is asked to judge outside his ordinary place of residence and there is some cost incurred by him because of that, he is allowed to be reimbursed for that. That is the kind of problem that we already have.

The Chair: That is not really my point. If careerism is considered to be a problem and, therefore, you do not want to pay this judge a great deal more because that may be perceived as building on this careerism, do we not run into that problem?

Mr. Malcomson: I should think that the distinction between salaries and allowances would be quite an important distinction to make and it is a technical or practical question as opposed to a philosophical one. The principle is that you do not want judge to be able to increase his or her salary by moving from being a Canadian judge into an international forum. You do not want them to be able to increase their salaries in any big way. You would not want them to lose their salary or not punish them for doing this or provide economic disincentives. The appropriate mechanism would be to ensure that the allowances were sufficient to compensate them. There is an important distinction between salary and allowance. The legislation does seem to cover that.

Senator Beaudoin: A certain discretion is given to the Parliament of Canada by section 100 in respect of the pay, salary and allowances. The only thing that the Constitution refers to is that pay allowances and disbursements are as stated in the Act of the Parliament of Canada. Consequently, discretion is vested in the Parliament of Canada.

Mr. Malcomson: The bottom line is that judges' salaries cannot be arbitrarily lowered to exert political pressure on a judge. You also want to avoid the appearance of careerism by saying that their salaries are greatly inflated, which does not seem all that likely but is possible. It is a question of principle. Parliament is capable of dealing in a discretionary fashion and they bear the principle in mind.

Senator Beaudoin: Parliamentarians must be very delicate when arguing careerism. The question of careerism is everywhere. I do not think we may push that argument too far.

Senator Doyle: I am not sure whether my question has been answered, but returning to the business of salaries and allowances, they require technical establishments or programs to deal with them. We do not have this argument going on with the External Affairs Department which must deal with this question with its own staff often. There are ways of handling this situation. There is a problem when people may not want to go to a very expensive venue unless they are assured of a certain standard of living.

I think that is within the capability of government. I am not so sure that the judges who are left behind and who have an increasing case load to handle because of the long absences of people going off to take these jobs overseas might not want some compensation for their extra work. I would put that into the category of technical management. What do you say?

Mr. Malcomson: Considering the fact that the judiciary is overburdened as it is, surely there must be some allowance for the extra work, but I think that is taken care of in the normal course of events.

Senator Doyle: That means that a citizen whose case is due to come before the Supreme Court has been delayed for one or two years while his business goes down the drain. There are problems all around it.

The Chair: Thank you, Professor Malcomson, for coming here today. I hope we will see you again before this committee.

The committee adjourned.