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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 30 - Evidence - Afternoon 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 1:00 p.m. to give consideration to the bill.

Senator Sharon Carstairs (Chair) in the Chair.


The Chair: Honourable senators, we are continuing our hearings on Bill C-42. Our witness this afternoon is from the University of Calgary, Professor Ted Morton, who is with the Department of Political Science.

We received your brief in written form, professor. Apparently, it is available in English only.

Professor Ted Morton, Department of Political Science, University of Calgary: Madam Chair, I am afraid I submitted my brief too late for the 48 hours it takes to translate. However, I do have copies of the English version.

The Chair: Please proceed.

Mr. Morton: Honourable senators, I heard Senator Cools kidding Senator Beaudoin as I was sitting here about still being a professor -- once a professor, always a professor. I come before you today as a professor. I know that the view of most of the world is that a professor takes too long to get to the point. However, from another vantage point, that may be our vice from the practical world, but it is also a virtue from another perspective. While I hope I will not take too long to get to the point today, I will give you an abbreviated overview of my written comments. I think that the time I spend hived off in the ivory tower, so to speak, gives me a perspective of these issues that, hopefully, will be of some use to this committee and to the Senate.

Thank you for inviting me here to testify on Bill C-42. The proposed amendments to the Judges Act raise several different issues of varying gravity. With respect, I believe that these issues are sufficiently serious to warrant more study, deliberation and thus more time than the government seems disposed to allow.

I will restrict my remarks to four aspects of Bill C-42. The first is clause 5, which amends sections 55 and 56 of the Judges Act. I think this is the principal policy issue in Bill C-42. It would create a new procedure that would allow federally appointed judges to take extended leaves without pay to participate in international activities.

There is, of course, a natural appeal in loaning some of our more outstanding jurists to help in the important work of the United Nations or in helping to establish the institutional underpinnings of the rule of law in newly established democracies. Such a policy, however, is not without risk to the institution of judicial independence within Canada itself.

In Canada, and in other common law countries, there is a long standing tradition of discouraging, if not prohibiting, judges from participating in activities outside the judiciary and the courtroom. When judges leave the courtroom to participate in the broader world of politics, domestic or foreign, they are likely to become embroiled in the inevitable disputes which characterize that realm of endeavour. Peter Russell has observed that while it is difficult to know where to draw the line, "There are reasons for insisting on some limits to the off-the-bench political activities of judges in order to maintain the two essential characteristics of the judicial office: impartiality and independence."

In a similar vein, the Judicial Council of Canada recently pronounced:

Members of the judiciary should avoid taking part in controversial political discussions except only in respect of matters that directly affect the operation of the courts.

Similar caveats and the practices that put them into effect could be endlessly multiplied.

In my written remarks, I identify and try to reply to four different counter-arguments to the problem of the erosion of judicial independence that is possible in this section of Bill C-42. The first argument is that because judges will be sent abroad for these activities, they will go out of the country; therefore, they will not become embroiled in internal, domestic political controversy. For reasons I give in my written remarks, I think this is highly optimistic and naive. For the same reason that Canadian foreign policy raises political controversy within Canada, I think judges' involvement in the carrying out of Canadian foreign policy as envisioned in Bill C-42 potentially runs the same risk.

A second defence of this provision in Bill C-42 is that judges already act outside the strict judicial role when they serve as royal commissioners. Again, for reasons I explain at greater length, I think the example of judges serving as royal commissioners gives all the more reason to limit that exception and to keep it to that exception. Almost everyone who has studied the role of judges in royal commissions agrees that the principal beneficiaries of that practice are not judges and the judiciary but, rather, political actors who want to lend legitimacy to the reports that royal commissions undertake.

A third argument is that Canada should do this because other countries do it. The examples given are Justice Goldstone, who was Justice Arbour's predecessor at the War Crimes Commission in The Hague, and also the famous example of Robert H. Jackson, the U.S. Supreme Court justice who served as prosecutor at the Nuremberg war trials.

I suggest that South Africa is not a relevant country for Canada to compare itself to. Relevant comparisons are other mature democracies with a long-established rule of law and independent judiciaries. The American comparison, of course, is relevant, but I suggest that the Jackson example is actually the exception that proves the rule. With the exception of Earl Warren, there are no examples of Supreme Court justices in the U.S. serving in extrajudicial capacities since World War II. The controversy that Chief Justice Warren has become embroiled in has people questioning the findings of the Warren Commission. This shows the danger of judges stepping off the bench and into the world of politics.

Chief Justice Burger, when he was asked to chair the bicentennial commission, resigned as Chief Justice of the U.S. Supreme Court before taking up those functions.

Foreign comparisons are relevant, but they have not been done systematically. I would like to know -- and I do not know -- what the practice is in either the United Kingdom or in Australia, or for that matter in France, Germany or Italy. I think those would be relevant comparisons, and I am surprised that the Justice Department, to the best of my knowledge, does not mention comparable practice in those countries.

Finally, the last defence against the charge of the erosion of judicial independence is not so much that this is not a threat, but the threat will be minimized because it will be so rare and unusual for any judges to actually be sent abroad. It is not so much a rejoinder to the criticism of allowing judges to participate in extrajudicial matters abroad, but rather saying that it does run some risk, but the risk will be minimized because this will occur so infrequently. This is the message that the Justice Minister gave you in his testimony on October 7.

However, that same day, just moments later, the Justice Minister said that he receives requests for such assistance once a month. Subsequent discussion on the committee indicated that there is a CIDA-coordinated judicial aid project already under way that involves the Commissioner of Federal Judicial Affairs, the Canadian Judicial Council and the Canadian Judicial Institute. In other words, there appears to be, even without the authorization of Bill C-42, considerable involvement of Canadian judges and other jurists in various aspects of Canadian foreign aid already. This undercuts the claim that the new role for judges contemplated in Bill C-42 will be a rare occurrence. In fact, it makes it look almost as if this will be a consolidation of an already existing practice or policy.

To conclude my comments on this section, the changes proposed by clause 5 would constitute a significant departure from past Canadian practice and also raise significant concerns about the preservation of judicial independence and judicial impartiality. Before taking such a step, Parliament should inform itself of the comparable practices of other mature democracies and engage in a fuller discussion of the pros and cons of such a policy.

I list in my written submission a number of specific questions or criticisms that I have. I will not repeat them now. This is found on pages 5 and 6 of my brief. However, if the Senate chooses to proceed with Bill C-42, there are four specific recommendations that I could suggest you might consider. Also, I have added two more that are not contained in the submission before you.

I recommend, first, to amend the act to allow any judge to take only one such leave in a career; second, to narrow the language in clause 5 to restrict judges' so-called "international activities" to strictly "judicial and executive roles" rather than the wide open language that exists now; third, to add a maximum duration of the leave; and, fourth, to put a salary cap on it. It has been brought to my attention by several judges and lawyers within the last 48 hours that there are rumours flying around the country about the salary that Justice Arbour is receiving in The Hague. No one has the slightest idea of what her real salary is. As a result, the rumours get wilder and wilder. A section in the act that would actually place a cap, for example, of one-third, one-half or one-quarter of whatever the judge's current salary is, would solve those sorts of problems.

I should now like to address and bring to your attention the relationship between clause 5 of the bill and the conduct of the Minister of Justice and Justice Arbour. If Bill C-42 raises the larger and more serious policy issues that I have identified, why has the government tried to rush it through Parliament as quickly as possible? It seems to me that the answer is widely known. The government is concerned, as well it should be, with the current status of Justice Arbour and the implications of her status for those responsible at the Department of Justice. The government seems to hope that by passing Bill C-42 as quickly as possible, it can legitimate retroactively what appear to be certain indiscretions on the part of Justice Arbour and possibly others. Here I will try to be as simple as possible. That is to say, is Justice Arbour currently acting within the letter of Canadian law? This is a serious issue for any individual, but it is especially serious for a judge who has sworn to uphold the law.

I have done my best to ascertain the relevant facts on this issue. I list them on page 7 of my remarks. If I have made errors of omission or commission, I will be happy to be corrected.

Based on my understanding of the facts, Justice Arbour left for The Hague on August 1 to undertake her new duties as special advisor to the UN Commission on War Crimes. As of October 1, she officially took up her new responsibilities as chief prosecutor for the commission. Apparently, the government has attempted to authorize Justice Arbour's actions through two orders in council as authorized by the current section 54 of the Judges Act. Does section 54 authorize leaves of this type of activity for which Justice Arbour has already left? Mr. Rock's own testimony before this committee suggests not. On October 3, he told you that:

There is no provision in the Judges Act for a federally appointed judge such as Madam Justice Arbour to be granted a leave of absence without pay to work for an international organization such as the UN, nor does the act permit the salary and expenses of a judge during a period of leave to be paid by an organization or entity other than the Government of Canada,...

In addition, it appears from the sequence of events that Justice Arbour agreed to the appointment before it had been approved by the Justice Minister or other officials, thereby forcing the minister to react to a fait accompli.

Furthermore, it appears that the Justice Minister, rather than recommending to Justice Arbour that she postpone her new activities pending the necessary amendments to the Judges Act, sought to temporarily legitimate her actions by an order in council. The minister admitted that the order in council was insufficient and has since sought to legitimate retroactively Justice Arbour's new employment with general amendments to the Judges Act, thereby forcing the hand of Parliament. That does not seem to show a great deal of respect for Parliament's role in the preservation of judicial independence.

While the House of Commons complied, the Senate refused to be stampeded into acting precipitously and thus postponed legislation until this month.

It may be that I do not have all the facts; it may be that the facts that have been released are misleading. However, if it is a matter of appearance, it could be remedied by the disclosure of additional facts. Before taking further action on Bill C-42, the Senate would do itself a favour by asking the Minister of Justice to answer the questions that I have put forward on page 9 of my submission.

First, what is the date and what are the terms of the orders in council authorizing Justice Arbour's leave? Does this order in council, as renewed on October 1, comply with the requirements of sections 54, 55 and 56 of the current Judges Act? If it does not, why was it authorized?

Second, what has been the role of the Canadian Judicial Council in this matter?

Third, when precisely did Justice Arbour leave Canada to begin her work for the United Nations?

Fourth, since Justice Arbour has left to work for the UN, whenever that was, has she been paid; and, if so, by whom?

Some will say that this is nit-picking. My response is that it is not nit-picking to ask appeal court judges and the Justice Minister to comply with the letter as well as the spirit of the law. If justice ministers and appeal court judges cannot be expected to comply with the rule of law, then who can?

In the House of Commons on September 26, Mr. Rock raised the issue of the rule of law when he spoke of his intention to make a reference of the Quebec referendum issue to the Supreme Court of Canada. Mr. Rock, on September 26 -- that is less than a month ago -- declared that:

...the rule of law, a living principle that is fundamental to our democratic way of life. In substance, it means that everyone in our society, including ministers of government, premiers, the rich, and governed by the same law of the land. We are all bound by the Constitution, by the Criminal Code, by acts of Parliament and the legislatures.

And, by extension, they are bound by the Judges Act.

Mr. Rock has put a great deal of emphasis on Quebec complying with the principle of the rule of law, but it would appear that he has not lived up to that high standard himself in this matter.

The third issue concerns clause 6, which would amend section 59(1) of the Judges Act, sometimes called the "Strayer amendment". This is a somewhat technical issue. The issue is: Does the workload of the Court Martial Appeals Court justify conferring these additional benefits on its Chief Justice? There is evidence before you that suggests it is questionable whether the workload justifies that and the fact that the person who would be the beneficiary of this -- that is, the current Chief Justice of the Court Martial Appeals Court, Mr. Justice Strayer -- was one of the judges who was off on foreign assignment, shall we say, for three months in Hong Kong, which suggests that at least that year the Court Martial Appeals Court was not so busy that they could not spare his absence.

The fourth and final issue deals with clause 3, which would amend section 44(3) of the Judges Act dealing with pensions. Section 44(3) of the Judges Act prohibits a federally appointed judge from collecting more than one pension under the act. Clause 3 of Bill C-42 amends section 44(3) to allow the possibility of a federally appointed judge to collect two pensions.

The purpose of this amendment is to accommodate the situation where two federally appointed judges are married to one another and one dies. The surviving spouse is then entitled to the pension of the deceased.

I also understand that this change is consistent with similar changes in other public pension policies, all the changes with the purpose of accommodating the new reality of the two-income couple. Thus, on a policy level, I have no quarrel with this amendment.

The problem arises with the personal factors involved in the immediate application of the proposed change. It was my understanding that the only judicial couple, so to speak, that presently stands to benefit from the proposed pension change is the Chief Justice of the Supreme Court of Canada, Chief Justice Lamer, and his wife, Justice Danièle Tremblay-Lamer of the Federal Court of Canada. I have subsequently learned that there may be two judges in the Quebec Superior Court who would also benefit from this change.

Without imputing any illicit motive to any of the people involved in these changes, I must observe that the timing of this proposed change could not be worse. The pension change is before the Senate at the very time that Mr. Rock is proceeding to the Supreme Court with a reference on the legality of Quebec's so-called right to secession. While the timing is no doubt coincidental, it invites the charge that the pension benefits that would accrue to the Chief Justice, or more probably to his wife, payments that could be in the millions of dollars, compromise the requirement of the appearance of impartiality. I stress "appearance of impartiality". Sceptics can, and I suggest will, claim that it is unacceptable for a Chief Justice who is about to benefit from Mr. Rock's proposed pension policy change to also sit in judgment on Mr. Rock's Quebec reference, the most politically sensitive constitutional case of this decade. Indeed, this claim could be further buttressed, however unfairly, by resuscitating the issue of Justice Tremblay-Lamer's appointment to the Federal Court in 1993.

I hasten to add that I am not impugning the personal integrity of either the Chief Justice or the Minister of Justice; rather, I am raising the issue of the appearance of judicial impartiality, which is quite different but no less important than the reality of judicial impartiality.

As Peter Russell has observed:

To be effective as adjudicators, judges need to be perceived as politically impartial at least in the sense of not favouring members of the government in cases in which they are directly involved.

That, unfortunately, precisely describes the case to which I have referred.

This distinction between judicial impartiality and the appearance of impartiality has been recognized repeatedly in recent Canadian experience. I quote from the first Charter of Rights case dealing with judicial independence, the recent Bienvenue commission of the Canadian Judicial Council, Professor Friedland's 1995 study on judicial independence and the Marshall inquiry. Even Justice Lamer himself in 1991 emphasized that "the public's perception of impartiality" is what is critical.

The issues before the Senate in Bill C-42 are, of course, totally different from those raised in the Marshall and Bienvenue investigations. The principle, however, that is, the appearance of impartiality, is the same. For the courts and for judges it is not sufficient that they be impartial; they must also be perceived to be impartial.

To clear the air under these circumstances, it seems to me that it would be prudent for the Senate to request reassurance from the Justice Minister that the initiative for these pension changes came from within his department and not from the Supreme Court or from the judicial council. It would also seem appropriate to ask the minister why he and his advisors did not anticipate how their proposed pension reform could undermine the perception of impartiality and why they did not move to pre-empt it by making the pension amendment apply only prospectively, that is, not to judges already appointed.

Finally, to eliminate any appearance of impropriety, the Senate itself might want to consider amending the pension provisions of Bill C-42 to apply prospectively only.

That concludes my remarks, Madam Chair. Thank you. I will try to answer your questions.

Senator Nolin: I would like to give you the opportunity to talk about your credentials. You teach the judicial system, do you not?

Mr. Morton: That is correct.

Senator Nolin: For how long have you been doing that?

Mr. Morton: In Canada, since 1981.

Senator Nolin: You have written much on this subject.As a matter of fact, I read your book last night, which is why I went to sleep at three a.m. I commend the book to honourable senators. It is very enlightening.

Mr. Morton: You should ask your library to buy the second edition. I could use the royalties.

Senator Nolin: One proposed amendment to which you have not alluded is 56.1(1) which refers more to a leave of absence with pay authorized by the Government of Canada for international activities. You raised the question of the perception of an independent and impartial tribunal.

I am concerned. A supernumerary judge, for example, could be on leave to perform international activities, be paid an allowance by the government and have expenses reimbursed, without more explanation in the bill, and come back and act as a judge. Someone accused of murder, for example, may question whether such a judge is independent.

I am concerned about that. Can you comment?

Mr. Morton: My concern is less with the perception of impartiality and more with the use of judicial resources. I know some witnesses have pointed out already that, to varying degrees, in both the civil and criminal courts in Canada there are significant backlogs. If we statutorily approve the program of sending active judges abroad, how will that affect the workload of the existing judiciary?

It seems to me a rather simple matter to conclude that it will create further backlogs through loss of personnel, unless of course you create additional judgeships, which I notice was also included in Bill C-42. However, if you are creating additional judgeships not for the purpose of the administration of justice within Canada but because judges are going abroad, then you begin to mix the function of the Judges Act and the function of the judiciary with non-judicial matters, if not to the detriment of the administration of justice within Canada, then at least to the higher cost.

I thought you were going to say something about the approval process. As I understand, there are some changes for these types of leaves which would shift the approval process possibly to the Commissioner of Federal Affairs, that is, to someone in the executive, rather than requiring any sort of parliamentary approval. I suppose in theory that could raise questions of compromising judicial independence. In practice, I tend not to think so.

Senator Nolin: With regard to who is authorizing the leave, if you read only section 56.1(1) with regard to leave with pay, it is the Government of Canada. However, you must also read the proposed clauses 54(1)(a) and (b).

If it is less than six months, then authorization comes with the approval of the chief justice of that court. If it is more than six months, it is the Governor in Council, as indicated in 56.1(2).

We could hear from another witness as to supernumerary judges being judges but half the time, or about them having free time. However, I think a supernumerary judge is asked to sit only 10 weeks a year, which is half the normal workload. Therefore, such a judge has free time. They can ask for leave with pay to do international activities.

From reading your book and hearing your comments, a judge is appointed to judge. The way the Judges Act is written, that is what they should do, and almost only that. The exceptions have been stressed. My first question is: Are we opening a Pandora's box?

Mr. Morton: No one can read the future. However, to go back to what I said earlier, if sitting judges go on assignment abroad under these changes, where are they most likely to go? They are most likely to go to areas where there has been ethnic, racial or ideological conflicts. Where is Justice Arbour right now? What are the areas in which she is working? The former Yugoslavia and Rwanda.

To take just the issue of Yugoslavia, there are significant citizen, immigrant and refugee populations from the ethnic groups involved in that conflict in Canada, particularly in Toronto, which is where Justice Arbour and the Ontario Court of Appeal sits. If she becomes involved in prosecuting within the context of her work at The Hague, then she may be perceived by certain ethnic groups -- Muslims and Christians, for example -- as being somehow antagonistic to their interest in the former Yugoslavia. That will carry back very quickly into the Toronto community. Potentially, that could compromise her when she returns, and she would have a reputation, at least among those communities.

The other example to which I alluded just parenthetically in my paper is this. Let us imagine sending a Canadian judge to the West Bank to sort out land claims there. If you think the land claims in Yugoslavia are complex and controversial, the land claims on the West Bank make Yugoslavia look like kindergarten. Would that not be a perfect place for a good Canadian judge to go to make a contribution? In one sense, it would be; however, the judge who does that will incur, almost inevitably, if not one set of critics in Canada, then probably two, particularly if he or she were impartial.

That is the kind of indirect but significant potential for the erosion of judicial independence that we run into by sending judges abroad and getting them involved in foreign controversy. If that is what you are asking, then the answer is yes.

Senator Nolin: If we read the proposed section 56.1(1), we see an enumeration of four types of landing spots, while 56.1(2) envisages only two. The latter refers to participating in international activities, something which is rather broad, or international technical assistance programs, or in the work of an international organization of states, or an institution of such an organization. The proposed 56.1(2) has only the latter two and not the first two.

I am concerned with the first one. It is too large. International activities includes everything outside the country. If I go to Paris for a month, then I am engaged in international activities.

Mr. Morton: I think I agree with you. One of the recommendations that I made was that the exceptions to judicial activity that are contained in the current Judges Act, namely, if a judge leaves he or she must undertake activities of a judicial or executive nature, should be included in any new leave policy for international service as well. I think that would answer, at least partially, your concerns, senator.

Senator Pearson: I was interested in your comments, professor, about impartiality. This is an important issue of principle in our discussion. In your text, you seem to refer to impartiality primarily as sort of a political issue, that is, impartiality is not seen as being partial to one party or another or, in the cases overseas, as being partial to one part of the population as opposed to another. I presume there are certain distinctions to be made between impartiality and independence. I feel that needs to be clear.

Our first witness this morning, Professor Arthurs, made a very significant comment when he said that judges are human beings with opinions. My experience has been that, over the years, many of us have questioned the impartiality of judges, especially, for example, the fact that there are so many male judges. To me, one of the strengths of trial by jury is that it is a way of balancing what might be a possible bias on behalf of the judge. I am not so much concerned about perceived impartiality, because I feel that we need to be sure that we have the other pieces in place, the checks and balances, that the judge in one role is balanced in some way by what comes before him or her.

My understanding of the kinds of appointments that have been made is that none of those appointed would have been asked to go abroad to adjudicate a land claim. They usually go to provide technical assistance, which I feel is important. You were talking about a CIDA-funded project, as opposed to a CIDA-coordinated, to give technical assistance to the improvement of the judicial system in Ukraine. I would not like to see that excluded as an opportunity.

How would you respond to the question of what we really mean by "impartial"? Is it ever possible to be impartial, while recognizing that no one is impartial?

Mr. Morton: Obviously, no one has the famous tabula rasa, that is, a blank slate of the mind. We all come to the table with our own experiences, what we have read, our judgments and so forth.

What is meant by "judicial impartiality" is the willingness and ability of a judge, given his or her predispositions, formation, training and so forth, to come to the case before the court with as open a mind as possible. That is quite different from the perception of impartiality. Perceptions of impartiality may be quite unfair and inaccurate. Senators are not exactly politicians in the sense that they run for office. However, you have all been around politics. You know that in politics perception is reality. In terms of the courts' interaction with society, the perception of impartiality is just as important to the proper functioning of the courts.

Senator Pearson: That depends upon whose perception it is.

Mr. Morton: I am talking about the perception of the general public or groups within the public. Let us consider, for example, groups within the public who perceive a judge who has been prosecuting war crimes in Bosnia, or trying to settle land claims in the West Bank, as anti-Muslim.

Senator Pearson: They are not prosecuting war crimes in Bosnia. They are doing it in the Hague. There are some major differences.

Senator Beaudoin: The war crimes occurred in Bosnia.

Senator Pearson: Yes, but they are being prosecuted in The Hague.

Mr. Morton: The technical assistance programs, such as the one in Ukraine which has been used as an example more than once before this committee, is, I would concede, readily of quite a different nature. The risks of judges coming back with the potential taint of perceived impartiality are much less in those projects.

I would also point out that it is not at all clear -- and again this is in my written paper -- that we are really talking about accomplished jurists here. There are different types of jurists -- sitting judges, retired judges, law professors and, perhaps, even professors of political science -- who have studied the courts, the mechanisms of the judicial process and judicial independence who would be potential candidates for this type of work. Judges are not the only pool of talent from which to draw.

Senator Beaudoin: We have not yet dealt with the problem of the legal drafting of this bill. I glean from those around this table that some have reservations not against the bill but against its actual drafting.

On judicial independence, we have such cases as Vallenti, Beauregard and Généreux. Judicial independence means that the executive should not intervene in the field of judicial function.

This morning, Professor Harry Arthurs referred to the Lord Chancellor who has at the same time executive, legislative and judicial functions. That is how it happened in the history of England. More and more now, tribunals and the courts of law are saying that not only should justice be done, it should be seen to be done. A judge should be independent, impartial, et cetera.

What are we doing now? We are adding to the Judges Act a new dimension in terms of international activities. In the past, Royal Commissions were headed by judges. We have adopted sabbatical leaves for judges. We are now being asked to accept the involvement of judges in international relations or international organizations. Perhaps that is a good thing.

However, is the legal drafting of Bill C-42 accurate enough? You are suggesting, I understand, some amendments to the legal drafting of the bill. I hear objections not so much to the idea behind the bill but to the imprecision of this bill as drafted.

Do you suggest an amendment to get rid of the idea behind the bill, or do you suggest amendments in order for it to be more precise? We must remember who has the final word on the Judges Act. In the field of interpretation, it is the judges themselves.

As parliamentarians, we should be wise enough to do our job and to define a statute which is clear-cut. The idea behind the bill is quite acceptable. However, is the legal drafting good enough? I would like to know more about it.

Mr. Morton: I must be honest. I have only thought about this as a policy issue for the judiciary for the past eight days. I have not read enough in this regard. In particular, I have not been able to gather enough comparative information on how similar issues are handled in the UK, Australia or any European democracy. Even my knowledge of American practice is limited pretty much to the Supreme Court. There is a policy against other federally appointed judges doing this, but I am not sure it is actually prohibited. Again, I am not sure.

I am not definitively against the policy. I see an up side to it, but I am concerned about its down side. In the best of all possible worlds, a more deliberate study of comparable practice would be desirable. If there is not enough time, then I would say that some of my concerns could be addressed by tightening the language in the drafting, as you point out, senator.

There are a number of specific changes which I mentioned at the end of my remarks, being one leave per career, capping the time limit, putting on a salary cap and limiting the experience of the international activity to functions of a judicial or executive nature. If I understand you, those are what you mean by drafting issues. All of those would go a distance in meeting my initial concerns about threats to judicial independence.

Senator Beaudoin: My second and last question is about section 100 of the Constitution. My impression is that section gives the Parliament of Canada a legislative discretion over salary, treatment and pension. Is that how you read section 100?

The last word is that it is left to the Parliament of Canada of which we are one part. There is a certain discretion there.

Mr. Morton: Yes, judicial independence exists as much as a matter of convention as a matter of law. You can point to a number of statutes, say, in the United Kingdom, that involve judicial independence, but they are not constitutionally entrenched. Certainly, Canada has a tradition of judicial independence. However, the actual words "judicial independence" do not appear in a specific document in Canada until 1982.

Senator Beaudoin: They appear in the Charter of Rights and Freedoms.

Mr. Morton: Yes, they appear in section 11 of the Charter of Rights and, even there, somewhat indirectly. There, the reference is to a right to a trial by jury before an independent and impartial tribunal.

It seems that we agree about the significance of the role of Parliament in the protection, nurturing and evolution of judicial independence. Section 100 of the Constitution Act, 1867 is an example of Parliament's role in this tradition.

Senator Beaudoin: In other words, are you saying it is our duty as parliamentarians is to ensure the fair use of the discretion of the Senate and the House of Commons with respect to the Judges Act? The Judges Act, in my opinion, is a very important statute in the field of legislation. Since it is directly related to the third branch of the state, it is of paramount importance.

Mr. Morton: It is not a normal statute, I agree.

Senator Beaudoin: It is what we call in law an organic statute, at least, if not a quasi-constitutional statute. In that sense, the discretion which is given to the Parliament of Canada must be very respectful of our conventions. I agree with you that everything is not found in the written part of the Constitution. We also have our conventions which are very important.

Senator Cools: It is clear to me that you have taken the time and trouble within the last eight days to read the legislation and all the proceedings. I thank you for that.

I cannot make a motion before this committee, since I am not a member, but Mr. Morton very sensitively summarized his remarks. Perhaps a member of the committee could make a motion to append his total remarks to the committee proceedings.

May I continue?

The Chair: Excuse me, Senator Cools?

Senator Cools: I was speaking. I was waiting for you to finish.

The Chair: I was trying to get advice as to what is the practice that we go through. Obviously, all testimony becomes part and parcel of the committee.

Senator Jessiman: He did not read it in, he skipped whole paragraphs. I guess I could read them in, if that were necessary, but I would like to think we have all read it. I would like it put on the record as part of what we have received here today.

The Chair: Attaching all the evidence to the proceedings is a potentially costly precedent.

Senator Cools: I am not referring to all our witness, but just this one.

The Chair: Yes. However, the precedent would then be there; it has never been there before.

Senator Cools: I have sat in a lot of these committees.

The Chair: Senator Cools, could I finish my remarks, please?

Senator Cools: Certainly, Madam Chair.

The Chair: Of course, we would then set a precedent for this committee that could lead us to, in fact, accept all written briefs and append them to our proceedings. The printing cost of doing that would be very high.

Internal Economy has suggested in the past to not do this; however, this committee is the master/mistress of its own fate and if we choose to do so, we can. I suggest that we bear in mind that it is a costly aspect. I also suggest that we leave this matter in abeyance and put it to a vote later this afternoon.

Senator Cools: I was reinforcing the point that had Mr. Morton known the procedure, he would have read every single word of his brief so that they would appear in the proceedings of this committee.

Was there a motion, Madam Chairman?

The Chair: We will deal with such a motion later this afternoon.

Senator Cools: I would be prepared to wait a few minutes in order to deal with it now.

The Chair: Senator Cools, I have ruled that we will deal with it later this afternoon. If you are challenging the ruling of the Chair...

Senator Cools: I was not challenging the ruling of the Chair.

The Chair: Then continue with your questions, please.

Senator Cools: However, you challenge a lot.

My questions are twofold. Senator Beaudoin was speaking about the special nature of the Judges Act. A proper understanding of the Judges Act would almost entail reading 130 years of Canadian parliamentary debates.

Returning to drafting and scripting, the Judges Act contains two sections. One deals with the composition and existence of the judicial council, which John Turner created when he was Minister of Justice. Another part concerns the creation of the position of the commissioner of judicial affairs.

My question for you is as follows: The Judges Act intended no foreign policy role for the judges of Canada. Bill C-42 seeks to introduce a foreign affairs/foreign policy role for judges. I have not been able to ascertain the reasoning or the logic the Department of Justice followed in developing this initiative. It seems to me that is was more a leap of faith; it is a leap in policy making.

Have you given any thought to what is basically an introduction of a foreign policy/foreign affairs role and an international activities role, by moving in on those two parts of the Judges Act which is the judicial council and the commissioner of judicial affairs?

Mr. Morton: That is precisely why I suggested that this represents a major policy innovation. The Judges Act as it exists now, and the authority for both the judicial council and the commissioner for judicial affairs, contain no reference to international or foreign activities whatsoever.

It is a major innovation. Again, I have not had time to do the type of comparative research I would like to be able to bring to you, but it represents a departure from practice in comparable English-speaking common law democracies. As I said at the beginning of my remarks, and at the end of my remarks, I am somewhat surprised, if not even dismayed, that the government seems to be acting with such haste in trying to get these amendments through.

As I said, I think the government is concerned about the status of Justice Arbour because her status is not clear. If the Judges Act were amended according to Bill C-42, that would appear to put things right again, something which would make many people feel better. However, in the process of putting things right, I think Senator Cools has a point that a major change in the Judges Act and in the Canadian judicial tradition will be legislated and implemented. It is obvious from some of the peripheral evidence that people in the federal office of the Commissioner of Federal Judicial Affairs and the Canadian Judicial Council already have great interest, if not already existing activities, in international affairs. This bill would tend to legitimize that and open the door further. Perhaps that is the way the House of Commons and the Senate of Canada think we should go; however, it does not seem to me that those broader issues have been given a very wide airing yet, certainly not in the House of Commons, if you have read the debate, or the lack thereof, when Bill C-42 passed that place.

Senator Cools: This very complex matter is just hidden in two or three words in the bill. As you said in your presentation, it is complicated by the fact that the players who will be making the decisions about these judges have already created an interest. I will come back to that.

The second point deals with something you mentioned briefly and this committee has not spent sufficient time on it either. That is the issue of the funding by CIDA. This represents an interesting constitutional departure. I am not speaking in terms of the Constitution as a document, but in terms of parliamentary usage. If judges will be receiving benefits from another department of government, basically CIDA, what we are doing for the first time is bringing judges' activities within the purview of, for example, committees like the National Finance Committee. Traditionally, Parliament keeps some distance from questioning the financial affairs of judges.

This is compromising judicial independence enormously. If this bill passes, from then on I will not hesitate when we look at the Estimates to find out which judge was where and when and how he spent that money. I will have no hesitation to ask for breakdowns of those amounts. What we have done is removed protections that were given to judges previously, and we are exposing judges to questioning about every little entry in the Estimates. I can promise you faithfully that I will help to do that.

I can get very little information on this CIDA funding. Everyone is very tight-lipped about it. It involves millions of dollars. Have you given any thought to the ramifications for judicial independence of having a civil servant in charge of huge amounts of money and then supervising judges in the administration or use of those funds? This bill is giving the Commissioner of Judicial Affairs, who is a civil servant, enormous power over the activities of judges. It is a serious thing. Parliaments for 200 years have contrived to avoid such a situation, and this bill, in one fell swoop, is doing just that. Have you given any thought to the consequences to the relationship between the bureaucracy and judges, the executive and the judges, and the consequences for judicial independence?

We keep referring to judges, but the benefits here are being handed out not to the average individual man or woman on the bench but to chief judges. Basically what we have is the enhancement of almost an assembly of chief judges. I know the question is a bit convoluted. However, I think you will try your best to answer.

Mr. Morton: It seems to me this would be another manifestation, a concrete example, of the general principle that the more judges involve themselves in extrajudicial matters, the more those in the executive, legislative and administrative branches will become involved in the work of the judges. One of the things that is in the book that some of you were thumbing through is Chief Justice Laskin's comment in the so-called Berger affair in 1981-82. He talks there about reciprocity, and how the guarantee of preventing political interference in judicial matters must be reciprocated by the self-restraint of judges not to involve themselves in political matters.

If you study things from more of an institutional or political science perspective, as I do, then you would put it differently: Wherever there is power or privilege, influence will be brought to bear; and the more that there is power and privilege exercised by judges, the more there will be attempts to control the exercise of that power or the receipt of those privileges. You can see this in the case of the U.S. Supreme Court. The extreme politicization of the appointment process in the United States is a consequence of the very political character of exercise of judicial review by the U.S. Supreme Court.

To come back to your specific examples of what are basically financial administration matters that judges would become involved in through CIDA, under what appears to be a new foreign policy role, of course that role will raise new types of interactions which inevitably will bring scrutiny on judges by, for example, legislators who are looking at budgets and budget estimates. It will also bring them in contact with administrators who, perhaps, will be able to influence the budgets that judges would supervise as part of these technical projects. That is all new. Those would be some of the risks of going down this path.

Senator Milne: Professor Morton, I would like to talk about some of the broader issues that you just mentioned to Senator Cools and try to get away from what seems to me, to a certain extent, the personalities that you brought up in your presentation.

Do you feel that the Canadian judiciary should have absolutely no foreign policy role?

Mr. Morton: I have not said that today, senator. I would allow the possibility for it to have some foreign policy role, but it would be much more narrowly channeled and defined than in the language that I see currently. At least I think I would. I have thought about this for eight days, as I said. If you remember what I said at the beginning, professors take so long to get to the point, but it is our vice and our virtue. I would very much like to know what the comparable practice is in Australia and the U.K. If I were to find that those countries allow no such involvement, or if they do allow such involvement that it is a very narrow and carefully defined exception, then I would be swayed by that evidence. I am not saying I am opposed in principle to any foreign policy involvement by Canadian judges; I am saying that I am leery of it.

If I were sitting in your chair instead of this one, I would certainly oppose it as a matter of policy as it is set out in Bill C-42. Again, to come back to Senator Beaudoin's point, it is possible that with a bit more research and more careful drafting, I could be persuaded to support it. I would not rule that out.

Senator Milne: To follow that through, then, professor, and perhaps to repeat myself from this morning, upon what other sources of legal talent would international organizations such as the UN draw, if they could not draw on a group that I feel is in fairly good repute, that is, the Canadian judiciary?

Mr. Morton: I think there are larger pools of talent, and equal talent, in the law schools, the professional faculties, even in the poor old political science departments.

Senator Milne: Do you mean to act as a judge?

Senator Cools: She is not acting as a judge.

Mr. Morton: Not to act as judges, but to serve in these various technical assistance programs, which presumably would be the broader, more common type of foreign assignment. There are professors who specialize in contract and property. This is not what you asked; but I think we could be of much greater help in many of the countries in eastern Europe and in other developing areas by lending them professors of property, contract and tort rather than human rights specialists.

Senator Milne: I strongly suspect that we do and that they do not have to go through this procedure.

Since you disagree with the bill, do you feel that this is a case, then, with respect to which the Senate should exercise its rarely used power to kill a bill?

Mr. Morton: If I were a senator, I think I would use that power to delay the bill, yes.

Senator Nolin: You have referred to the late Chief Justice Laskin's statement or letter on the final touch with respect to the Berger affair. He is referring to two events that he opposed publicly. First, the government of the day was planning to appoint a judge as deputy minister. Publicly, he said that a judge cannot be a judge and a deputy minister at the same time. Second -- and this is an important point -- in Ontario, they were trying to appoint a federally appointed judge as chairman of the provincial Workmens' Compensation Board, a quasi-judicial board. He was opposed to that.

In your professional and expert view, what is the reason for that? Justice Laskin is a contemporary for us.

Mr. Morton: I think it is the principle with respect to the quotation I read from Peter Russell at the beginning of my prepared statement that if judges mix themselves in the work of legislative, administrative or executive branches of government they, inevitably, will become embroiled in the controversies of those various areas. The minute that happens, they are in a catch-22 situation. If they are criticized and say nothing, then the criticism sticks; if they reply to the criticism, then they immediately become perceived as partisan and get embroiled in the political controversy of the day. I think that was the dilemma the late Chief Justice Laskin had in mind.

Senator Nolin: Senator Cools just mentioned a very good point. If a judge becomes the servant of a good cause and is paid by a federal government agency, then that judge can become the subject of scrutiny. Do you see a problem with that?

Mr. Morton: There is a risk. It is a risk that should be thought through more carefully before Canada takes this leap. I am repeating myself now, but I think the haste with which this bill has been pushed through belies the seriousness and significance of the policy issues that you and others have raised.

Senator Cools: To follow up on the last point you made, since Confederation, for 130 years, we have endeavoured to ensure that judges are not treated like civil servants. In point of fact, this bill will make them more like civil servants. In terms of our Canadian heritage and Canadian experience and also the Whitehall-Westminster experience, it has always been that the office of a judge is not available to leaves of absence in a certain way. If one traces the historical development of these leaves of absence, one see the reasons the Governor General of Canada was involved in the drafting of the BNA Act in 1867.

If a judge can now take a leave of absence to go off for many years to do whatever, do you think that the Parliament of Canada could enact legislation to allow a Member of Parliament to be excused from office? Let us say, for example, that the Prime Minister of Canada or Senator Beaudoin wanted to go off to be a prosecutor for a war crimes tribunal. In other words, if we open the door to Parliament passing legislation -- which basically nullifies the Constitution -- to allow absence exemption from office, why does it stop with judges?

When I discussed this matter with The Commissioner of Federal Judicial Affairs, Mr. Andy Watt, he said why cannot a Member of Parliament or minister get a leave of absence to go off as well? The concept of abandoning office was thought to be grounds for removal years ago because that is a condition of office.

Have you given any thought to the potential for or the consequences of the expansion of what is happening in Bill C-42? Now we can begin to give leaves of absence from all manner of offices. When the kitchen gets hot, a cabinet minister can dip out and come back in three years.

Mr. Morton: At the risk of sounding overly academic, this is what is known as the slippery-slope dilemma -- if you take one step, then you slide all the way down. Of course, every alcoholic takes his first drink, but many of us drink and we are not alcoholics. These are impossible things to predict.

I think the more central point of your remark, senator, is that the idea of an elected legislator taking a leave of absence contradicts the very concept of a representative. Does the concept of a judge taking a leave of absence betray the concept of the role of a judge? I think an argument could be made that it does.

Senator Cools: That is my point. If we know how sections 99 and 100 of the Constitution Act were developed, and if we know how they developed, say, through Burke's act, also known as the Colonial Leaves of Absence Act, what is happening now is exactly what they were intending to prevent. A person could not basically decide they had something better, finer, more interesting and more lucrative to do and just disappear to do it for a few years.

I think you have answered my questions at this time.

The Chair: Thank you, Professor Morton, for being with us this afternoon.

Honourable senators, a number of questions were asked by Professor Morton in his presentation. If it is agreeable with you, I will call Mr. Sandell from the Department of Justice to give us any information he can on the specific answers to the questions that Mr. Morton posed. Perhaps Mr. Sandell could join us at the table.

Mr. Sandell, as you know, a number of questions were asked by Professor Morton. I will put those questions to you specifically in the hope that you can give us some answers. Other senators may have questions for you as well.

I believe you have a copy of Professor Morton's presentation. On page 9, he asks these questions:

What is the date and what are the terms of the order-in-council authorizing Justice Arbour's leave? Does this order-in-council (as renewed on Oct. 1) comply with the requirements of ss. 54, 55 and 56 of the current Judges Act?

Mr. Harold Sandell, Legal Counsel, Judicial Affairs Unit, Department of Justice: I have that information, Madam Chair. I have copies of the actual orders in council with me.

I would like to emphasize, in view of what has been said to this point, that there is absolutely nothing whatsoever retroactive in this bill. It is entirely prospective. The term "retroactive" was used a couple of times. I want to make that point very clear. I do not have the actual orders here, but I have the drafts. I know the details thereof.

Madam Justice Arbour was given a leave of absence in June or July -- I believe it was July -- to take a leave of absence under section 54 of the Judges Act to serve as the special advisor to the Secretary General of the United Nations for the period August 1, 1996 to September 30, 1996. On September 30, under an entirely new order in council -- again under section 54 of the Judges Act -- she was given a leave of absence to serve as chief prosecutor of the International Tribunals for Yugoslavia and Rwanda for the period October 1, 1996 to October 30, 1996, which includes the period that we are now in. Her current status is that of being on leave of absence with pay -- and, I emphasize that -- under the current provisions of the Judges Act for the period October 1, 1996 to October 30, 1996. That is her present status. She is receiving pay and allowances pursuant to the Judges Act through the Office of the Commissioner for Federal Judicial Affairs. She is receiving nothing whatsoever from the United Nations as we speak.

The Chair: Can you answer the second question, namely, what has the role of the Canadian Judicial Council been in this matter?

Mr. Sandell: The role of the Canadian Judicial Council has been as was mentioned in the testimony a couple of weeks ago by Mr. Andy Watt.

When the Department of Justice became apprised of the fact that Madam Justice Arbour had been appointed by unanimous resolution of the United Nations Security Council, the Minister of Justice wrote to the chairman of the Canadian Judicial Council, Chief Justice Lamer, asking if the necessary amendment that would be required in the Judges Act should be sui generis to Madam Justice Arbour herself or be a general amendment to the act. The response of the Canadian Judicial Council was that it should be a general amendment to the act and not a sui generis provision.

The Chair: You have told us that she has been paid by the Government of Canada under the Judges Act and that she left August 1 to take up her duties as special advisor.

Mr. Sandell: I wish to add one more point in view of what has been said on the record regarding the amendment to section 44(3)(a) of the Judges Act. That amendment is contained in clause 3 of Bill C-42.

The initiative to amend section 44(3)(a) was made by myself without any initiative at all on the part of any judge sitting on the bench in any court in Canada. In fact, I had written a hypothetical memo prior to the appointment of Madam Justice Tremblay-Lamer in 1993 wherein I stated that, as a hypothetical situation, the wording of section 44(3)(a), which was implemented in 1955, would preclude the surviving spouse of a judge who is retired from receiving a survivor's pension. I put that on the file before there was ever a married couple sitting on any bench in Canada. As soon as we were faced with the reality of a married couple sitting as judges, I immediately began the process for consulting with respect to obtaining a legal opinion concerning whether, as a matter of law and as a matter of policy, we should amend section 44(3)(a) of the Judges Act. This is something of which I have knowledge because I was personally involved.

The initiative was entirely that of the Department of Justice. That point should be put on the record in very clear terms.

Senator Nolin: Have you done comparative studies with other jurisdictions, as suggested by Professor Morton?

Mr. Sandell: He suggested Australia and Britain. No, we have not done that. The time element did not permit us to do that. We felt that the Judges Act required clarification of this area of judicial or non-judicial activity. If in the past -- and, the examples were cited by Professor Arthurs -- Canadian judges had served in an international capacity, because we did not have the necessary information at hand, then it was not clear on what basis they undertook those duties. That information may be contained in the archives, but those activities occurred before the existence of the Office of the Commissioner for Federal Judicial Affairs and the Canadian Judicial Council itself.

If the three precedents, that is, those involving Justices Wilson, Fitzpatrick and Macdougall, mentioned by Professor Arthurs were paid their Canadian judicial salaries, then so be it. If they were not, we felt that the Judges Act did not or should not permit that type of activity to occur without pay without an amendment.

The purpose of the proposed section 56.1 in particular is to clarify the circumstances in which a judge can, first, participate in international activities, international and technical assistance which, I emphasize, is not leave without pay. As you pointed out yourself, technical assistance and international technical assistance and international activities are not eligible for leave without pay. They can only be done either with leave or without leave. There is no requirement that it be done with leave with pay altogether. Leave without pay, under the proposed section 56.1(2) is limited to work for an international organization or an institution of an international organization. It must be for a period of at least six months and it must have Governor in Council approval after consultation with the Canadian Judicial Council.

This is a fairly significant hurdle for a judge to meet after requesting leave without pay under 56.1(2). It will not happen willy-nilly. That is clear and evident.

Senator Nolin: With regard to judges' pay, did you read section 100 of the Constitution before writing the proposed section 56.1(6)?

Mr. Sandell: Yes.

Senator Nolin: What is your reading of it?

Mr. Sandell: We take the view that section 100 gives Parliament the discretion, particularly in view of the fact that the request for leave without pay would be that of the judge, to exempt a judge, upon request and with the approval of the Governor in Council and the Canadian Judicial Council, from the salary assigned to the office of judge because the judge would not be performing judicial duties for that period. Section 100, the fixed and provided provision, is there for the protection of the judge. In fact, in this case under the proposed 56.1(2), it would be the judge who requests leave without pay.

The discretion is there. Parliament has the duty -- it is not merely an authority but, indeed, a duty -- to fix and to provide salaries for the office of judge. If a judge is requesting leave of absence from that office, then the judge can also request, under the terms provided in 56.1(2), that he or she be exempt from the salary attached to the office. It would be in very extraordinary circumstances that this would be done.

Senator Nolin: Why was the government not more specific in defining international activities without referring to judicial functions?

Mr. Sandell: I guess we were trying to clarify what is already taking place. Judges have in the past, as you know, participated in so-called international activities under the current provisions of the Judges Act. We thought this was the opportunity to clarify that type of activity. That is the purpose of 56.1(1).

Senator Beaudoin: Can you cite cases?

Mr. Sandell: The example was raised a few weeks ago of Mr. Justice Strayer in 1989. If he or any other judges were to participate in such an activity now, it would be under 56.1(1). It was undertaken in 1989 pursuant to sections 54 and 57. We preferred to have it done pursuant to a specific statutory reference to international activities.

Senator Beaudoin: That is one case.

Mr. Sandell: That is right. There have been, from time to time, judges who, for periods of a couple of weeks, at the request of the National Judicial Institute, which is the continuing education school for both federally and provincially appointed judges based here in Ottawa, have travelled abroad to developing countries. South Africa, Uganda and Cameroon come to mind. This is done to assist the judiciary of those countries in developing training policies and training activities for judges. In other words, it is judges helping judges.

If that were to occur following the passage of this bill, it would be pursuant to 56.1(1) and would not necessarily require leave of absence. It would always be with pay. I emphasize that the judge would always be in receipt of his or her judicial salary. It may or may not require a leave of absence. If it were for a week or two, it probably would not. Judges often do this type of activity on their vacation, for example, out of a sense of moral obligation. It would be a great pity if that tremendous resource which Canada has in its judiciary could not be used for this type of relatively rare and short-term activity to help developing countries.

The Chair: Senator Beaudoin, I can name for you a few of the justices who have done that. Justice Guy Richard of the New Brunswick Court of Queen's Bench went to Cameroon. Justice Pierre Beliveau of the Quebec Superior Court and Justice Guy Savoie of the New Brunswick Court of Queen's Bench went to Haiti. Justice Douglas Lissaman went to Uganda. Those cases all occurred between 1992 and 1996.

Mr. Sandell: They were doing that in the absence of 56.1(1). If they were to do it following the passage of the bill, it would be precisely pursuant to that provision. We felt that the fact that this type of activity can be undertaken should be fully disclosed by putting it in legislation.

Senator Nolin: It can already be undertaken.

Mr. Sandell: Yes, it can.

Senator Beaudoin: I do not see any difficulty with members of the Canadian judiciary going to other countries to advise on how the judicial system works in Canada. I think that is a very good thing. That is not a problem at all. If it is something outside judicial duties, I agree that it should be in legislation.

Mr. Sandell: Even if it is within a judicial or quasi-judicial activity, the proposed section 56.1(1) does not require that it be extrajudicial.

Senator Nolin: It permits it.

Mr. Sandell: It could be extrajudicial, although it does not necessarily have to be. I suspect that the vast majority of circumstances, such as the one Senator Carstairs mentioned, would be drawing on the qua judge's knowledge. In the case of Madame Justice Arbour, which is of course under 56.1(2), it is her knowledge acquired as a lawyer, as a professor, as a judge -- her all-encompassing knowledge -- which is being put to use by the United Nations for this very important international role. It may be extrajudicial, but it is certainly not extralegal.

Senator Cools: I assume that as the department was preparing this legislation it would have garnered various legal opinions. Would you share some of those opinions with us? For example, on the Arbour amendment, what legal opinions were given and by whom?

Mr. Sandell: We generated our own opinions. Clearly, there is no statutory authority for leave without pay. That is evident. It became evident, as soon as we found out the prerequisites of the UN position, that we would have to amend the Judges Act. We began the process as soon as we could following that. It is fair to say that the need for an amendment to serve without pay is self-evident.

That was the opinion, if I could call it that, which was the driving factor behind 56.1(2).

As far as the amendment to 54.1(a) and (b) is concerned, that is, giving the chief justice the authority to grant leaves with pay of six months or less, that was a recommendation of both the 1992 commission on judges' salaries and benefits, the Crawford commission, and the 1995 commission on judges' salaries and benefits which the minister just tabled last week, the Scott commission. Both recommended that chief justices be given authority to grant leaves with pay for up to six months.

Senator Cools: I was hoping that the witness could share with us the particular legal opinions that were advanced to the minister when these decisions were made. In any event, I will go on to my next question. I may do better with it.

You said a few moments ago that the initiative for clause 3, the pension amendment, was yours.

Mr. Sandell: It was made by the Department of Justice.

Senator Cools: Was this not the minister's initiative?

Mr. Sandell: It was our recommendation to the minister in the form of a memorandum to cabinet to amend the Judges Act.

Senator Cools: You said you personally.

Mr. Sandell: I was trying to emphasize the fact that the initiative for this amendment took place within the Department of Justice and not from any external source or any judicial source.

Senator Cools: I see. You said you made notes in the file. What year was that?

Mr. Sandell: That would be following a discussion I had with an actuary from the office of the Superintendent of Financial Institutions following one of the triennial commission reports. I cannot remember if it was the 1989 commission or the 1992 commission. I served as executive secretary of three triennial commissions, and I cannot recall which committee it was. However, I remember discussing it on a purely hypothetical basis at that time because there were not spouses on the bench at that time.

Senator Cools: That is what I am trying to determine. What is "at that time"? To what year are you referring?

Mr. Sandell: I cannot remember. I know it was definitely before the appointment of Madam Justice Tremblay-Lamer.

Senator Cools: Was it at least before 1987?

Mr. Sandell: That is not when she was appointed. She was appointed in 1993, I believe. It was a hypothetical issue at that point. The purpose of 44.3(a) is to prevent a single surviving spouse from receiving survivor's annuities upon the death of more than one spouse who was a judge. Back in 1955 it was not anticipated that there would be couples on the bench. We recognized as a hypothetical before there were couples on the bench that should couples be appointed, we would have to amend that provision, or else the whole thrust of the rest of the act, which includes entitlement to a survivor's pension, would be defeated through the unintended over-broad wording of 44.3(a).

Senator Cools: If you have had this recommendation and this draft amendment for a very long time, perhaps you could share with us why you have chosen to advance it at this particular time and why you have chosen to advance it within Bill C-42.

Mr. Sandell: Because it became available. We have not had a judges' bill before Parliament in years. The last one was Bill C-50.

Senator Nolin: That is not quite right.

Mr. Sandell: You are referring to Bill C-2, Senator Nolin.

Senator Nolin: That is when we first met.

Mr. Sandell: I apologize. You are right, senator, that was Bill C-2, which was a one-section bill to extend triennial commissions from six months to twelve. Apart from that bill, which had a very specific purpose, the last bill that had been tabled was Bill C-50. It was tabled by the Honourable Kim Campbell when she was Minister of Justice, and it did not proceed past first reading. Bill C-50 was tabled in December of 1991. In fact, the legislation was ready long before that but it was not tabled until December 1991. Therefore, it was too early for an amendment to 44.3(a), and we have not had an opportunity since.

Apart from Bill C-2, that minor bill regarding the extension from six months to twelve with respect to triennial commission reports, this is the first opportunity we have had to amend the Judges Act since Bill C-50 was tabled in 1991.

Senator Cools: I will put my next three questions one after the other so the witness may answer them all in one, because I see he answers as slowly as I ask my questions.

Who chairs the National Judicial Institute?

Mr. Sandell: The president of the institute is a provincial court judge from Alberta, Delores Hanson.

Senator Cools: Is there not a chairman?

Mr. Sandell: Yes, the chairman of the board of governors of the NJI is the Chief Justice of Canada, ex officio. I believe there are three or four federally appointed judges and three provincially appointed judges on the board.

Senator Cools: What was the role of the Department of Foreign Affairs in the appointment of Madam Justice Arbour, and what is the salary that the UN is offering Mrs. Arbour?

Mr. Sandell: I am afraid I do not know the answer to either of those questions, senator. I cannot speak for another department, I am afraid. I believe Mr. Axworthy would have been consulted following the UN resolution. Beyond that, I am afraid I just do not know.

Senator Cools: I am hearing you say that you have no information and that it is another department, which brings me back to my point that we should really hear from someone in that department. I am hearing you say that the Department of Foreign Affairs had no knowledge of Madam Arbour's appointment until it heard, as we all did, of the UN resolution.

Mr. Sandell: I did not say that. I do not know.

Senator Cools: Tell me what you actually said.

Mr. Sandell: What I said is I do not know. I presume Mr. Axworthy was consulted at some point. I do not know when and by what process.

Senator Cools: It is a big mystery to me, and I would like to know. I would have thought that the normal procedure that would be followed in Canada is that the UN would approach the Government of Canada to make a nomination, but none of that seems to have happened in this case.

Mr. Sandell: I do not know.

Senator Cools: Obviously, the question belongs to another department.

Mr. Sandell: I can neither confirm nor deny that.

Senator Cools: If the question belongs to another department, why was Bill C-42 a bill to release Madam Justice Arbour, not being advanced by the Minister of Foreign Affairs?

Mr. Sandell: It is an amendment to the Judges Act.

Senator Cools: I am saying you could have done it another way.

Mr. Sandell: What way?

Senator Cools: The Minister of Foreign Affairs could have brought one piece of legislation.

Senator Beaudoin: In this case?

The Chair: The Judges Act comes within the purview and responsibility of the Minister of Justice, Senator Cools, and an amendment to the Judges Act would therefore have to have been introduced by the Minister of Justice.

Senator Cools: I will reveal to you in my speech next week other ways that it could have been done.

Where could I determine what salary the UN has offered Madam Justice Arbour? As a Member of Parliament who is supposed to safeguard the business of fixing and providing salaries of judges, where and how can I find out that information?

Mr. Sandell: A start, perhaps, would be the Commissioner for Federal Judicial Affairs, assuming that he knows, and I am not sure that he does. I do not know.

Senator Cools: I have asked him.

Senator Jessiman: You say you do not know what this judge is receiving by way of salary. Do you know if she will receive more than she would otherwise receive from the Government of Canada?

Mr. Sandell: I truly do not know, senator.

Senator Jessiman: Did you hear Professor Morton today?

Mr. Sandell: Yes.

Senator Jessiman: You heard his concern then about careerism among judges and the salaries that they will be given. There is no limit in the act as to what may be paid by an international organization of states or an institution of such an organization. Was there any consideration given to limiting the amount paid, as is done with other judges when they go elsewhere, to a compensation roughly equal to what they would receive in Canada?

Mr. Sandell: In fact, they receive their judicial salary. There is no provision in the act for a judge to receive anything but his or her judicial salary.

Senator Jessiman: That is under the Judges Act, but under the proposed section 56.1(6) of this bill, a judge may receive remuneration for that period from an international organization of states or an institution of such an organization. Therefore, the judges may be paid not by Canada but, as in this case, by the United Nations. Did you consider a cap?

Mr. Sandell: No, we did not.

Senator Jessiman: Having heard Professor Morton, do you think you should have considered a cap?

Mr. Sandell: I do not think it is necessary. We can leave it to the good judgment of the judge involved.

Senator Cools: To decline it?

Mr. Sandell: He or she can opt to receive, if feasible, his or her judicial salary. That is not the case with Madam Justice Arbour. It is not feasible for the UN's own requirements.

We did not consider a cap. Quite frankly, the concept of careerism for a judge with the credentials and success to date of -- to use a present example -- Madam Justice Arbour, strikes me as bizarre. I do not think Madam Justice Arbour requires ticket-punching at the UN, as it were, in order to "enhance" her career. Judges do not have careers as such. They are appointed to the bench. They may or may not move to another court.

Senator Cools: I want to piggyback on Senator Jessiman's question. I thank you, Mr. Sandell, for trying to answer. You are wonderful.

It is well reported in the media that Madam Justice Arbour's next stop is the Supreme Court of Canada.

Mr. Sandell: I cannot speak to speculation of that nature.

Senator Cools: I got that information from your department.

Mr. Sandell: It was certainly not from me, senator.

The Chair: Thank you, Mr. Sandell.

Honourable senators, I took in abeyance a motion by Senator Jessiman that, on the request of Senator Cools, Professor Morton's brief be appended to today's committee proceedings. The clerk advises me that this is an unusual precedent and, in her view and in the view of Internal Economy, not a desired one. However, it is up to this committee. The motion is before us.

All those in favour of the motion?

Senator Nolin: I am in favour.

Senator Beaudoin: I am in favour.

The Chair: All those opposed?

The motion is defeated.

Honourable senators, are we prepared to move to clause-by-clause study of the bill?

Senator Lewis: If it is in order, I move that we report the bill without amendment.

The Chair: It has been moved by the Honourable Senator Lewis that the bill be reported without amendment.

Senator Nolin: I know the motion has been moved already. However, I would like to talk with my caucus. I have an amendment to propose but, before tabling the amendment, I want to talk with my own caucus.

The Chair: I am prepared to call a meeting for 9:30 tomorrow morning.

Senator Nolin: My caucus is not in town. The Senate will reconvene next Monday. We will have a caucus meeting on Wednesday morning.

The Chair: As you know, Senator Nolin, the reason why we called this particular committee meeting today was to facilitate the passage of this bill before the deadline of October 30.

Senator Doyle: I thought the meeting was called today to facilitate witnesses.

The Chair: No, that was not the reason. I called the meeting today because we wanted to proceed with this bill as quickly as possible.

Senator Nolin: We do not hear witnesses just for the pleasure of hearing them. It is also to learn from their knowledge and, perhaps, to help us in suggesting amendments to the proposed bill. I cannot do that now in five minutes. I want to read the blues before tabling an amendment so that I am sure it is the proper one. Are we going to restrict such a large bill, a bill which gives to the Government of Canada the possibility to do whatever it wants with judges in Canada? Do we want to restrict that? I think so. With what words? I do not know. I wish to look at the text. I will also need the support of my caucus on that.

Senator Stanbury: I recognize certain strategies. I have great respect for Senator Nolin, but I am quite sure he was able to assess the evidence that he has heard. The reason we are here today, as I understood it, is to get on with this bill. We have the problem of an October 30 deadline again. We managed to deal with the matter during an earlier extension. That extension is coming to a close.

Why not move ahead with this? We have a motion before us. The attitude of caucuses is important, but this has run through a period of time which has given lots of opportunity for discussion in caucus.

Senator Nolin: We had discussions but not on the comments of the expert witnesses whom we heard today. I did not know until this morning the opinion of Mr. Arthurs. I knew he was supporting the bill, but not his reasons. He had not looked into all aspects, such as section 100 of the Constitution. He had no clue about that section. For me, this morning's session was very informative.

Senator Stanbury: I appreciate that. I am expressing my understanding. I have not heard anything to change that understanding.

The Chair: There is a motion on the floor. It is moved by the Honourable Senator Lewis that Bill C-42 be reported to the Senate without amendment.

Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

The Chair: The motion is carried.

The committee adjourned.