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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 31 - Evidence - Morning sitting

OTTAWA, Wednesday, September 23, 1998

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-37, to amend the Judges Act and to make consequential amendments to other Acts, met this day at 3:40 p.m. to give consideration to the bill.

Senator Pierre Claude Nolin (Acting Chairman) in the Chair.


The Acting Chairman: Honourable Senators, this meeting of the Legal and Constitutional Affairs Committee will now come to order. Before I introduce our first witness, I would like to say a few brief words.


The minister will be available until 4:30. Therefore, we will try to limit our questions to accommodate her time constraints. After the minister we will hear from a round table of experts who must leave at 6:30, because most of them are from outside Ottawa. We will then hear from Mr. Svend Robinson and REAL Women of Canada.

As Senator Milne is not here, I will chair the meeting in her absence.

I have a few remarks to make on this bill. I intend to be relatively strict to ensure that we discuss Bill C-37 and nothing else. This bill is intended to amend the Judges Act.


These remarks are for the benefit of our listeners, that is for those who are not physically here. My point in making this brief clarification is to ensure that everyone understands the purpose of this bill.

We are being asked to consider two definitions: "surviving spouse" and "enfant," in the French version. The bill also seeks a rather technical amendment, mainly a change in the designation of the Ontario Court to "Superior Court of Justice."

Among other things, the bill provides for changes to the retirement age of judges, calls for increased compensation for judges, establishes a new judicial compensation commission, provides authority to pay additional appeal court and unified family court judges and makes changes to the judicial annuity scheme and in particular, to the annuity payable to the surviving spouse.

The last commission to look into judicial compensation, the Scott Commission, also raised the issue of the interest payable on contributions that must be refunded when a judge leaves office before he is entitled to an annuity.

Without further ado, I would now like to turn the floor over to the Minister of Justice, who is accompanied by her deputy minister. A question period will follow.

The Honorable Anne McLellan, MP, CP, Minister of Justice and Attorney General of Canada: I am pleased to be here today to speak to you on Bill C-37, An Act to Amend the Judges Act. Let me begin by putting this bill in its proper context.


The judiciary is one of the foundation institutions of our democracy. Indeed, with the adoption of the Charter of Rights and Freedoms, Canadian judges have been asked to assume increasingly demanding constitutional functions, determining issues of fundamental importance to all Canadians.

The government recognizes that, in doing their jobs, judges and their decisions are not always popular. It seems to me that this is inevitable, given that we, the legislators, give them the sometimes-unenviable task of determining some of the most difficult and divisive legal, social, and economic issues of our time. It is, I believe, for this reason that we do not want popular judges. Indeed, it is and always has been of primary importance that judges are independent and free to make those difficult and sometimes unpopular decisions.

It is the principle of judicial independence that provides the foundation for a strong and courageous judiciary, as well as being a cornerstone of our democratic society, a principle clearly reflected in and protected by sections 96 through 100 of the Canadian Constitution.

In 1981, in recognition of the importance of judicial independence and the unique constitutional role of the judiciary, Parliament provided for an independent commission to examine the adequacy of judges' salaries and benefits. In September of last year, the Supreme Court of Canada reiterated the fundamental constitutional role of such commissions, citing the federal model as one example.


In its recent decision, the Supreme Court underscored the importance and necessity of the role played by such independent commissions in ensuring public confidence in the independence and impartiality of the Canadian judiciary.

A key part of that decision is to require a public justification by government for a decision not to implement, or to only partially implement, a recommendation of such a commission.


The most recent triennial commission, headed by David Scott, Q.C., heard from a range of organizations and individuals, including all of the provincial and territorial ministers of justice and attorneys general before putting forward a thoughtful and comprehensive set of recommendations.

This government continues to support the principles that led Parliament to institute the judicial salary commission process some 17 years ago. In light of those principles and of the enhanced constitutional role of independent salary commissions following the Supreme Court of Canada decision, we have given serious consideration to all the recommendations of the Scott commission. It was not unexpected that the issue, which has evoked the greatest interest since the response was released and Bill C-37 was introduced, is the proposed judicial salary increases.

The Scott commission recommended an appropriately phased, upward adjustment of 8.3 per cent on the expiration of the salary freeze on April 1, 1997. We have accepted this recommendation, and Bill C-37 will implement the Scott recommendation by providing a phased-in increase to judicial salaries of 4.1 per cent per year over two years, effective April 1, 1997. The proposal is consistent with the government's view that it would be unreasonable for the judiciary to not share in the necessary economic restraint that was exercised from 1992 until very recently by all Canadians paid by the federal government.

I want to express my strong agreement with a statement made by former Chief Justice Brian Dickson in a seminal 1986 decision on the issue of financial security for judges, that case being R. v. Beauregard. The Chief Justice observed as follows:

Canadian judges are Canadian citizens and must bear their fair share of the financial burden of administering the country.

This view is echoed in the recent P.E.I. reference on judicial independence. I quote from Chief Justice Lamer, who observed:

Nothing would be more damaging to the reputation of the judiciary and the administration of justice than a perception that judges were not shouldering their share of the burden in difficult economic times.

Canadian judges are entitled to receive fair compensation that reflects both the importance of their role and the personal demands of their office.

In deciding what was reasonable, the Scott commission, in my view correctly, recognized that a complex range of factors must be considered in establishing an appropriate level of remuneration, including the need to ensure levels of compensation that attract and keep the most qualified candidates for judicial office.

This view was supported by the Progressive Conservative House leader, Mr. Peter MacKay, when he stated in debate that we need judges who will be competent, judges who come from the practice of law and bring with them that experience. That personal element does not come cheap. We must ensure that we will have individuals who are prepared, in many cases, to make sacrifices by leaving the profession.

Bill C-37 would also implement the Scott commission recommendation for certain pension-related amendments to the Judges Act, including the rule of 80 which will permit retirement when the sum of a judge's age and years of service equals at least 80, and the judge has served on the bench for a minimum of 15 years.

In our view, the proposed rule of 80 responds in an important way to the changing demographic profile of the judiciary. More and more, judges are being appointed at a younger age, and many of these younger judges are women. The current provision, although based on the rule of 80, requires a minimum age of 65. A judge who retires before 65 has no right to a pension at all. Therefore, a judge appointed at the age of 50 can retire with a pension at 65 with 15 years of service, but a judge who was appointed at 40 must serve 25 years to receive any pension at all, a situation that is increasingly considered unfair.

This situation is even more unacceptable when we consider that it has a particular impact on women judges who constitute the majority of those appointed at an early age. The rule of 80 would allow older, long-serving judges to retire when they feel they no longer wish to continue in the role. Permitting this would be good for them and for the court itself as an institution.

The Scott commission has proposed a different retirement option for the judges of the Supreme Court of Canada and recommended eligibility for retirement with a full pension after serving a minimum of 10 years on the court. The government agrees with the commission that the workload and heavy responsibility inherent in membership on that court justifies the proposed retirement provision. However, the government proposes to limit it to those judges who have reached the age of 65 years.

The bill also makes other changes to judges' pensions in the interests of fairness. One of the changes that has received recent media attention is the provision that will allow common-law spouses to receive a survivor's annuity. This provision responds to one of the recommendations of the Scott commission. You may have seen the allegations contained in The Ottawa Citizen article. My response was published yesterday. I wish to table my letter, as well as a translation of it for the committee.


The Acting Chairman: Copies are available for those of you who may not have read the minister's letter.


The new definition of "spouse" in the Judges Act is cohabitation of one year in a conjugal relationship. Contrary to what some have suggested, it is not unique but is consistent with the definition of spouse in all other federal pension and benefit legislation. To address the possible situation of two surviving spouses, one separated spouse and one common-law spouse, we again look to other federal legislation for a consistent approach. The members of Parliament pension plan, which includes senators, and the public service pension plans, including the RCMP and the Canadian Forces' plans, provide for an apportionment of the survivor's pension between a separated spouse and a common-law spouse. The apportionment formula in Bill C-37 is based on total years of cohabitation with a judge, which will favour the person who had the longest spousal relationship with the deceased judge.

Bill C-37 will also give a judge who marries or commences a common-law relationship after retirement the option of receiving an actuarially reduced pension which continues until the judge and the spouse have both died. This is a common feature of other pension plans.

A very important part of Bill C-37 is improvements to the process for determining judicial compensation which will reinforce the independence, objectivity and effectiveness of the process as a means of further enhancing judicial independence. The Supreme Court of Canada, in its decision of last September, set out guidelines for such process improvements.

In order to be independent, commission members must enjoy security of tenure by being appointed for a fixed term and the judiciary must nominate a member. To be objective, a commission must use objective criteria in arriving at its recommendations and, to be effective, governments must deal with the commission's recommendations with due diligence and reasonable dispatch.


That having been said, the Supreme Court expressly allowed that the details of the institutional design should be left to the executive and the legislature and jurisdictions should be free to choose procedures and arrangements which are suitable to their needs and particular circumstances.


In light of these objectives and guidelines, Bill C-37 will provide for the establishment of the Judicial Compensation and Benefits Commission. In our proposed design, the length of time between commissions would be extended from the current three years to four years. The new commission would conduct an inquiry similar to that conducted by previous commissions, including public hearings, and would invite submissions from all those interested in judicial compensation, including the general public.

While this will be a permanent commission in the sense of having a mandate for a fixed period of time, I wish to make it clear -- there was a misunderstanding about this before the House of Commons justice committee -- the members of the commission would be part-time only. As a general rule, members will only be active during the first nine months of each four-year period until their report is delivered. Furthermore, the members will only receive per diem fees for the time they are actually performing commission business.

The commission would have nine months to complete its inquiry and submit its report to the Minister of Justice. To provide flexibility, the time for reporting could be extended on agreement by the minister and the judiciary.

The exception to the general nine-month period of activity is when the minister decides to submit a matter to the commission for its inquiry, as permitted under these proposals. This provision would allow for changes to judicial compensation to be made where necessary between the fixed four-year time frames. This is necessary in light of the new Constitutional requirement, established by the Supreme Court, that future changes to judicial compensation cannot be implemented without prior consideration by a judicial compensation commission. This power to refer matters might also occasionally be used to have more detailed and informed consideration of particularly complex policy issues.

That is all I will say about the commission. If honourable senators have questions, I can outline further safeguards related to independence and such matters.

I would flag one other important part of the bill, and that is the expansion of the unified family court. Again, unless senators have questions, and I would be happy to answer them, I will not spend time this afternoon on that.

As you know, we are working in partnership with those provinces which are interested in the establishment of unified family courts. We will be extending the unified family court experiment in this country in relation to four provinces which have expressed an interest in this round. Those provinces are Ontario, Newfoundland, Nova Scotia and Saskatchewan.

I believe we would all agree that unified family courts are an important step forward in bringing a timely but also, I believe, a compassionate and fair resolution to family disputes that we all know can be so difficult for a variety of reasons. The bill does deal with the expansion of the unified family court.

In conclusion, I urge senators to support passage of these proposals in a timely manner. The Supreme Court of Canada granted a stay of its independence decision, that is the P.E.I. reference decision, in order to allow governments to make the necessary process changes. In doing so, the court has recognized the practical realities involved in making the necessary legislative amendments. It also recognized the potentially disruptive impact on the administration of justice across Canada if the new requirements were to apply immediately. This stay is designed to give Parliament a chance, as in this case, to tailor the law in question in the way that it thinks most appropriate within the Constitutional framework. However, the court is rightfully mindful, as we should be, that, in the public interest, such breaches should not be allowed to continue for any longer than is absolutely necessary.

Honourable senators, I believe that these amendments will serve to strengthen what is already one of the finest, if not the best, judicial system in the world. I believe that the hallmark of a judicial system in which one can take pride, and believe is impartial and fair, is the independence of the men and women who sit on those courts. What we are attempting to do today is further enhance, based on both the Scott commission recommendations and the jurisprudence of the Supreme Court itself, that key component of our courts in this democracy and in any civilized democracy, and that is the independence of the courts.

Senator Beaudoin: You made no mention of the division of powers. I wish to clear up one point with you on that subject. Certain newspapers have reported that some people believe that, under section 92(13), there would be an invasion of provincial law pertaining to property and civil rights. Speaking for myself, I see no problem in that regard because, under section 100, Parliament has the right to legislate in relation to pensions, so it is not an invasion of les successions du droit civil, for example. It concerns only pensions, and not the law of succession.

Ms McLellan: I believe you are exactly right, senator.

Senator Beaudoin: I would raise a second point on which a great deal has been reported in the newspapers.

Family law is partly provincial and partly federal, because marriage and divorce are covered in section 91. Parliament may legislate in respect of marriage and divorce and in respect to pensions. Therefore, when the bill refers to the pension of a judge who is divorced or separated, or not divorced, or has a common-law spouse, obviously, that is covered by section 91(25), marriage and divorce.

Ms McLellan: Yes.

Senator Beaudoin: I want to be clear on that right at the beginning.

The Acting Chairman: Is there any objection to that conclusion?

Ms McLellan: Out of respect for my former colleague, since we were both constitutional law professors, I have learned to rarely disagree with the senator's interpretation of the Constitution. His interpretation is quite accurate.

However, there was one point I thought Senator Beaudoin would raise relating to the constitutional jurisdiction to create unified family courts.

Senator Beaudoin: I reserve that for next week.

Ms McLellan: That is fine.

Senator Beaudoin: I hope it is within the Constitution.

Ms McLellan: In fact, it is. The unified family court concept is designed to meet the constitutional imperatives of section 96 of the Constitution.

Senator Beaudoin: Many constitutional points are raised by this bill.

If I understand the principle of the bill correctly, it is to harmonize the law pertaining to the salaries of judges with pensions and salaries in other parts of the public or private service. In other words, no special status is created here for the judges. They would be in line with senators, and other civil servants and others. Is it merely a question of harmonization?

Ms McLellan: Generally, that is accurate. There have been what one could call "omissions" from the Judges Act. It has not kept up with changes in other major federal benefit statutes, be those related to the House of Commons, the Senate, the RCMP, the military or what have you.

We have seen many of these same kinds of changes, although they differ from province to province, as we all know. There have been major changes to benefit plans to keep up with the changing reality of societal and family life. In fact, some of the provisions that you are considering, as proposed by Minister Scott and as proposed in Bill C-37, are to bring the Judges Act in line with most of our other federal benefits legislation.

Senator Beaudoin: This is not a statute that is particular to the judges.

Ms McLellan: No, not at all. As a matter of fact, some would argue they have been disadvantaged for some years because other benefits legislation has moved forward in terms of family structure and other things.

Senator Beaudoin: The last two questions are these: If a judge is divorced, the pension goes to the new wife.


If he is divorced, he can remarry. The annuity will be paid to his new spouse.


Ms Judith Bellis, Senior Counsel, Department of Justice: Is the question: Does the survivor annuity go completely to the new wife upon divorce?

Senator Beaudoin: Yes.

Ms Bellis: The answer is yes. That is not a change in the act. Under the current law, survivor benefits and entitlements cease upon divorce. That is consistent with many pension plans.

Senator Beaudoin: That is logical.

My second question is: If the judge is not divorced but is living with a person other than his or her spouse, who will receive the pension, the person to whom the judge is married or the individual with whom the judge is living?

Ms McLellan: Perhaps Ms Judith Bellis, the director of my judicial affairs unit who works with these provisions all the time will explain to you the principle of apportionment contained in this proposed legislation and why we have adopted that principle of apportionment.

Senator Beaudoin: I want to know when the principle of apportionment comes into play.

Senator Cools: Mr. Chairman, the minister has told us that she can only spend a limited amount of time with us.

Senator Beaudoin: That is my last question.

Senator Cools: Senators should have as much time as they require to ask questions. I would suspect, as is the usual tendency, that the minister's staff will spend more time dealing with our questions. Perhaps the questions we want to pose to the minister's staff can be put after the minister has left so that we can make the best possible use of having the minister here to assist us.

Senator Beaudoin: She may be able to answer the question in one minute.

The Acting Chairman: I would point out that, along with the department officials, the deputy minister is with us today, and he will be available to answer our questions after we have heard from all of the witnesses we propose to call.

Senator Cools: My concerns is related to debating directly with the minister who is with us today. If we have questions that the staff can answer, then they can do that later.

The Acting Chairman: I understand that the deputy minister, Mr. Rosenberg, will be available until six o'clock.

Senator Cools: Precisely. That is what I was saying. We could perhaps have a dialogue with the minister.

Mr. Morris Rosenberg, Deputy Minister and Deputy Attorney General: I cannot be in attendance since I have to fly to Vancouver. However, Ms Bellis will be available, and we are prepared to return to respond to any questions you may have after the witnesses have given their testimony.

The Acting Chairman: You may answer the senator's question.

Ms McLellan: Generally, we believe that the principle of apportionment is a fair one. The principle of apportionment accurately reflects the time that one has lived with the judge. As I understand it, under the CPP legislation, apportionment does not exist, and it is the spouse with whom the judge is living, the common-law spouse, who receives the total benefit. There is no apportionment.

Most legislation is moving in the direction where the beneficiary or recipient is the person with whom you are living at the time of death.

In this case we acknowledge the fact that, while that is fair in some respects, it is potentially unfair. The better approach is the apportionment approach which achieves relative fairness for both the individual who is no longer cohabiting with the judge, and the individual with whom the judge is cohabiting at the time of death.

For example, senator, if you were married for 20 years and you separated from your spouse, and you then entered into a common-law relationship with another individual for five years before death, then the pension, the annuity, would be apportioned on the basis of living 20 years with one individual and living five years with the other. However, under the CPP legislation, the common-law spouse who has been living for only five years with the judge would receive it all. We believe that our system is actually fairer to both spouses who have shared in the life of that individual judge.

Senator Beaudoin: That answers my question.

Senator Bryden: To reverse what you said, if the common-law spouse had been in that relationship for 15 years, but the person had then been married to someone for five years, would the married person get it all?

Ms McLellan: No. I believe it is apportioned based on the definition of "spouse."

Ms Bellis: It is apportioned.

Mr. Rosenberg: The person who had lived with the judge for the longer period would receive the larger share of the benefit.

Senator Bryden: The definition of "surviving spouse" includes a person who cohabited with the judge in a conjugal relationship for at least one year immediately prior to the judge's death. Let us assume that, after a 15-year common-law relationship the decision was made to marry. It is a legal marriage. Would the apportionment still apply in that case?

Ms Bellis: The apportionment would still apply, yes.

Senator Bryden: These are not trick questions. They are things we should understand.

Clause 10 of the bill says:

Notwithstanding section 44, if there are two surviving spouses...

There could very well be three or more surviving spouses. Why are you restricting it to two? According to what was just said, you could have a common-law spouse for 10 years, you could then be married to another person for five years, and you could then have another common-law spouse for five years.

Ms Bellis: The marriage would end the common-law relationship and the new spouse would be the legal spouse.

Senator Lavoie-Roux: How many spouses can you have? If you marry four times, will it be apportioned among four people?

Ms Bellis: No. Perhaps I did not understand your question.

Senator Bryden: If the judge died while in a common-law relationship this would apply. However, if he ends the common-law relationship and married someone else, he would then have a married spouse. You have indicated that by that marriage he would have ended the common-law relationship for the purpose of this act.

Ms Bellis: Right.

Senator Bryden: Legally, how does that happen?

Ms McLellan: I am sorry. Mr. Rosenberg and I were talking about this situation. Could you put the question again, please?

Senator Bryden: It may be that what was stated before was not completely accurate. It was stated that it matters not whether the common-law relationship was at the beginning or at the end of the judge's term before his death. That is, if a judge is married, is divorced, and then enters into a common-law relationship for at least a year before his death, there would be an apportionment.

Mr. Rosenberg: No. There is no apportionment in the event of divorce.

Senator Bryden: You are right. In the case of a separation and an ensuing common-law relationship you indicated that there would be an apportionment. There would be a married spouse and a common-law spouse.

However, if there were a common-law spouse before the first marriage, why would the apportionment not include that common-law spouse?

Senator Beaudoin: It does not.

Ms McLellan: These are the vagaries of the modern family. We will have our officials work on this. It is an important question, and we want to ensure that we provide an accurate answer for you.

Senator Bryden: With regard to the naming of the members of the commission, what happens if the two people who are selected -- one by the judiciary and one by the government -- cannot agree on the third member?

Ms McLellan: As you know, senator, this is not an unusual provision. This exists in some labour law situations and panels of arbitration where interested parties name individuals who then choose an impartial chair. I have every confidence that the government and the judges will be able to agree on an impartial chair. There is nothing in our past to indicate that would not be possible.

Senator Lewis: I suppose they could apply to a judge to decide who the chairman should be.

Senator Cools: And the judges would be happy to decide. It is the best of all worlds.

Senator Bryden: To follow up on that, it is absolutely true that, as you say, Madam Minister, this is done all the time under labour law and collective agreements, but there is always someone to step in if the two parties cannot agree. You are assuming that we are all people of goodwill and that there will never be a disagreement. If that were the case, there would be no contract lawyers.

Ms McLellan: Practically speaking, both sides could withdraw their nominees and nominate two more individuals in an effort to agree on an impartial chair. I think that, practically and pragmatically, this will be worked out. This is an important commission and it might be possible to include some kind of mechanism by which to resolve such a dispute, but that anticipates failure and a stand-off which we have never experienced in the history of these commissions and which we would not want to be seen to be encouraging, implicitly or indirectly.

Senator Bryden: In the 130 years since the implementation of the Constitution, we have never had to have a Supreme Court ruling to reaffirm the independence of our judges.

I have a question about the definition of a "surviving spouse." Clause 1 of the bill states that in relation to a judge it "includes a person of the opposite sex." Does that violate the Charter of Rights and Freedoms or the human rights acts? In many cases that is being struck down.

Ms McLellan: In fact, as you are all very aware, the law in this area is changing quite quickly. My colleague from the House of Commons, Svend Robinson, will be speaking to you and I know he will be making arguments to you in that regard.

It is our view that, at this time, because of the evolutionary approach to the law, both by the courts and by this government, we should proceed with the phrase "of the opposite sex." You may be aware that, under my predecessor, the government began some very important work that acknowledges important and fundamental changes in our society. I am referring to work that speaks to dependency or personal relationships of dependency. In fact, they may be relationships between members of the opposite sex. They might be relationships of a sexual nature between members of the same sex; or they may be relationships that are not sexual at all, but which involve legitimate issues of dependency among family members and so on.

We are in the process of this important policy work. As you can imagine, there are implications in acknowledging the realities of our society today. For example, a child may be looking after a grandparent in a relationship of dependency or, perhaps, more likely, a grandparent may be looking after a grandchild, or whatever the case may be. These raise fundamental questions in the context of benefits such as, for example, who, and on what basis, would you want to provide those benefits to in the case of death or illness of another? That work is being done. It is not complete. We believe that what we have before you here reflects the current state of the law.

Senator Bryden: It strikes me as a little strange that the Supreme Court of Canada which read sexual orientation into the Charter in the first place, as well as into human rights acts, is now taking a position where, ultimately, someone may make a case before the Supreme Court of Canada and ask: Does this definition go against your interpretation of the Charter?

Ms McLellan: In fact, senator, I have to be candid. Our approach is to deal with this on a case-by-case basis at this point. I have made that plain as cases have come forward from courts of appeal and from the Supreme Court. This government is dealing with this issue on a case-by-case basis because entitlement might very well vary depending on the situation in which you find yourself and the legislation with which you are dealing.

However, I come back to the point that this is a broader issue than same sex and opposite sex. This is really an issue about personal relationships of dependency in our society today. We want to do that work. Indeed, that work may lead to us coming back to both your committee and the Standing Committee on Justice to offer an approach to many federal statutes, including entitlement and benefit statutes, that reflect the outcome of that work.

Senator Bryden: If the only recommendation to come out of this committee were an amendment stating that those four words be removed, would that go to the fundamental principle of the bill?

Ms McLellan: No, sir, it would not.

Senator Bryden: Would it still have to go back to the House of Commons?

Ms McLellan: I do not believe that it would. However, I have outlined the longer-term policy approach that we as a government would like to take to this important issue.

The Acting Chairman: This causes a procedural problem, which is exactly what we will be discussing with Svend Robinson. The Royal Recommendation is based on a specific amount of money in the bill. If we change that clause of the bill, then we would be changing the Royal Recommendation. It must come from the House of Commons. We cannot deal with it.

Senator Bryden: Mr. Chairman, are you saying that this is a monetary matter and, therefore, we cannot remove those words? Do we have that many same-sex couples in our judiciary?

Senator Beaudoin: No, we have very few.

Senator Cools: How do you know?

The Acting Chairman: It is not a matter of numbers. I think the answer of the minister is quite clear.

Senator Cools: I did not understand. What were you saying about the Royal Recommendation? This bill must have a Royal Recommendation.

The Acting Chairman: Yes, it has one.

Senator Moore: Minister, this may be stating the obvious, but in the examples around the table with respect to apportionment between spouses, I suppose your answers would only apply in the event that there is no separation agreement or divorce order between the parties. Is that correct?

Ms McLellan: You are right. We are not talking about divorce here. You are quite right that, in fact, if there has been a relationship, of whatever length, and it has ended in divorce, then that would all be dealt with in the division of property.

Ms Bellis: That is currently the case. Under the current act, divorce ends the survivor annuity entitlement. This is not a change. This has always been the case.

Senator Moore: I wanted to put that on the table. While it may be obvious, I think it needs to be said.

How many provinces now have judicial compensation commissions in place?

Ms McLellan: All of them. However, I believe there are still some ongoing constitutional challenges in provinces including my own, which is Alberta, in relation to whether that which is in place actually reflects the principles set out by the Supreme Court of Canada in the P.E.I. reference. In Alberta, the judges are going back to court even after the provinces respond to the reference.

As I understand it, all provinces now have a commission, or mechanism, that is, dare I say, more or less independent. Obviously, some provincial courts in some provinces may still have questions about whether those provincial commissions are truly independent, based on the principles set out in the reference.

Senator Moore: The thinking is that those provincial commissions would be dealing with the compensation of provincial court judges.

Ms McLellan: Yes.

Senator Joyal: Minister, I should like to follow up on the question asked by Senator Bryden because I think it is important. You stated that this bill is in line with other federal pension-benefit legislation. It has been brought to our attention that, since the bill was introduced in the House of Commons on March 19, 1998, there has been a decision in the Rosenberg case which involves public servants of Canada. It recognizes the same-sex benefits of pensions. Your department has decided not to appeal that decision.

Ms McLellan: That is right.

Senator Joyal: This means that this is now the law of the land. Same sex public servant couples are entitled to pension benefits.

Ms McLellan: That is only in the context of one specific section of the Income Tax Act. We do not believe that Rosenberg even extends to other sections of the Income Tax Act.

Senator Joyal: There is a principle at stake here. The judgment was not an all-encompassing judgment. There was a principle at stake. Nevertheless, the Supreme Court of Canada has recognized the principle.

Ms McLellan: That is exactly right.

Senator Joyal: Moreover, members of the Canadian bar, and there are some learned lawyers among them, have consulted their branches. Their people have been studying the issues. In its written submissions to the standing committee of the other place, the Canadian Bar Association requested that the definition of spouse be along the lines of that set out in the Rosenberg case.

You have said that this bill brings the system in line with the current state of the law. I would humbly put to you that, in relation to the definition of spouse, there is still some work to be done.

There is no doubt that, when we in the Senate study legislation we are trying to avoid litigation following immediately after passage of the bill because of a flaw in the legislation.

Senator Bryden has is a put it very clearly by saying that section 15 of the Charter has already been interpreted by the court. However, there is no doubt that the definition of "spouse" as it appears in that legislation would be open to litigation if, for example, a same-sex spouse of a judge found himself of herself being deprived of the pension benefit.

The bill was introduced in March when the case we have all been referring to had not yet been decided. The bill was given third reading in the House of Commons in June, 1998. The problem we are now facing relates to the question of appropriation. That is a legal question with which we must wrestle. The other issue we must deal with relates to the time frame within which the Parliament of Canada wants to pass this bill. Of course, we cannot presume, if we amend the bill, when the other place will decide to act upon it. It is difficult to vote for a provision of the bill which is not in line with the current state of the law, or if we are not satisfied that this bill, in fact, is not a step backwards in relation to a decision that has already been made by the courts.

Ms McLellan: I must remind senators that, regardless of the change -- and some might say "transformation" -- in the law, the court has always been very careful, when they are considering specific pieces of legislation or fact, to say that their ruling should be taken as not speaking to any other possible extension of same-sex benefits in other situations. In fact, what a court would want to do, quite rightly, is review every situation, as we do when we bring legislation forward, to determine whether or not the extension of benefits, as in this case, or the exclusion of some individuals, constitutes a violation of the Charter of Rights and Freedoms, the Canadian Human Rights Act, or a provincial human rights statute.

I will be very candid: This government's expressed approach to this is that we will deal with every case on a case-by-case basis. The court has said that it will take a similar approach. However, I would remind honourable senators -- and I said this in response to Senator Bryden -- that we are doing policy work that potentially speaks to a fundamental change to whom benefits might be extended within Canadian society, at least within the federal jurisdiction, and that we do not want to restrict ourselves to a discussion simply of same sex or opposite sex, but to consider a more legitimate question in Canadian society which is one of true dependency. When that work is it done, as I have already indicated, we may return to both you and the House of Commons with an omnibus piece of legislation which will deal with the extension of benefits and entitlements of one sort or another on the basis of dependency. That work is well on its way, and my colleagues and I will be talking about it in detail starting next week.

I take your point, unquestionably, that this area of the law -- to whom we extend benefits -- has changed quite dramatically over even the past few months. Having said that, we are in the midst of very important work, and we believe that, after the government has had a chance to determine its ultimate policy in this area, we may or may not be back to you. That is where we are at at this point.

Senator Grafstein: Honourable senators, I am a bit confused. I do not see any reference in here at all to the issue of dependency. As a matter of fact, it is an almost archaic bill in that it refers to payment to a spouse or common-law person based on cohabitation or conjugal relationship. There is no principle of dependency here.

Ms McLellan: That is true.

Senator Grafstein: I was looking for the principle of dependency and I did not find it.

Ms McLellan: Senator Grafstein, you are quite right, this is a fairly traditional construct, when one talks in society about benefits and to whom they are extended. What I was referring to in my responses to both Senator Joyal and Senator Bryden was the work that we are doing right now as a government, which may well move us forward -- and I will put my own bias on the table -- in a very intelligent, responsive way, to look at this as an issue of dependency in our society as opposed to simply sexual relationships of whatever kind.

Senator Grafstein: I agree with that because a single judge living with his mother or his brother has no dependants or a spouse in the legal sense and, as a question of fairness, is not compensated.

Let me deal with another side issue and one small, technical point.

I was very taken by your letter to the editor of The Ottawa Citizen, on the second page. The basis of your statement is that we should be actively looking at this in a fair way to ensure the independence of the judiciary. You go on to say that, unlike other citizens, the long-standing constitutional convention of judicial silence prevents the judiciary from defending itself.

I take it you disagree with the Chief Justice's statement this summer that it is appropriate for judges now to speak out to defend themselves.

Ms McLellan: Let me explain what the Chief Justice said.

Senator Cools: We should also table that. Most of us have read it.

Ms McLellan: I do not mean to be presumptuous to suggest that I could ever explain what he said more clearly than he did. However, as I understand it, he asked the question. He said that, in fact, the tradition has been that judges remain silent, and silent in the face of even the most extreme provocation, and he asked the question of the Canadian Bar Association, which is, as you say, Senator Joyal, the most important governing body of our profession in many respects. He said that if others do not come forward, if the bar does not come forward, if the federal or provincial attorneys general of this country do not come forward when judges are under unreasonable and unfair attack, then perhaps those in the judiciary must start to address the question of whether they should find ways, either directly as individual judges or other ways, to make their views known, and to protect or defend themselves against that kind of attack. That is my interpretation of what the Chief Justice said, not that he was positively saying that judges should and will do this.

Senator Grafstein: Perhaps, Mr. Chairman, we will save that for another day. I am not sure that I would have interpreted his speech in that particular fashion. I parsed it very carefully and I came to a different conclusion. However, we are always here to learn and study. I assumed he meant that he was attacking the political system in this country for not defending judges properly. That is what I thought he said.

The Acting Chairman: If I may interrupt, let us stay within the purview of Bill C-37.

Senator Cools: On a point of order, since the particular speech in question has been raised, perhaps we all could have copies of it and consider it tabled. I would be happy to table it. To the extent that it has been brought before us by the minister, it should be properly before us.

The Acting Chairman: It was not, I understand, brought up by the minister.

Senator Cools: It was.

The Acting Chairman: She was answering a question. I will agree to the circulation of the document.

Senator Cools: That is the proper thing to do, so that we will all have the words before us.

The Acting Chairman: In due time, we will deal with what we shall do with the text. Up to now, jurisprudence from the Supreme Court is signed by all the judges. It does not come from a speech by one judge.

Senator Grafstein: A small technical point in the bill gives me some concern. I am referring to the proposed section 45. It requires a judge to make an election. A judge makes an election. I assume that he cannot make an election in his will, as an example. What happens if the judge does not make an election? Is he out to lunch? Is his spouse or the person with whom he is cohabiting out to lunch? Is that fair?

Ms Bellis: This is an entirely new provision. It does contemplate that it is for the judge in question to decide with her spouse whether they wish to have that stream of income during the pension period, or for them to elect to use this process to do financial planning post her demise. It is essentially facilitating a choice on the part of the judge and his or her spouse.

Senator Grafstein: I know many judges, as do many senators. If they fail to make that election, are they out to lunch? Have they missed the boat?

Ms Bellis: This refers to a post-retirement marriage.

Senator Grafstein: I understand that. Does that seem fair?

Ms Bellis: At this point there is no option to do post-retirement planning.

Senator Grafstein: I understand that. Is it fair to say that, if a judge does not make this election, his surviving spouse will not receive an annuity? If the election is made the spouse would receive something; but, if it is not made, then the spouse will lose.

Ms Bellis: During the course of the post-retirement period, the judge and his or her spouse would have enjoyed the full benefit of that pension payment. For example, assuming the election is to take two-thirds of the pension now and have the provision made for the balance, the one-third, to be paid in the period of widowhood, then that is, essentially, a financial-planning decision. If that is not made, then the spouse, has the benefit of the full pension flow of income during the period of the judge's remaining life. That is the policy choice reflected there, and it is left as a choice.

Senator Grafstein: We will leave that for now and come back to read your answer more carefully. I think there is a gap there. Maybe you could reconsider it as well. If I am wrong, that is fine. I think there is a gap that we might want to address.

Senator Lavoie-Roux: I see from your letter that this way of doing things exists elsewhere in the public service, such as the military. Has it created problems? What happens when a judge divorces his wife to live with a common-law wife?

Ms McLellan: If he divorces his wife, that is a completely difference situation. It would be a situation where a judge is married and she and her husband separate. Then she begins a common-law relationship with another individual, but there is no divorce.

Senator Lavoie-Roux: There is no divorce.

Ms McLellan: That is a different set of circumstances, covered by different provisions.

Senator Lavoie-Roux: Could he have yet another common-law wife so that three would be splitting the pension?

Mr. Rosenberg: That is similar to Senator Bryden's question. We will check this very carefully, but from what I understand now, once a common-law relationship is ended -- by marriage, for example -- that is it. It is like the analogy of divorce in common law. That former common-law spouse would not be entitled to anything.

Ms Bellis: She would no longer be considered a common-law spouse.

Mr. Rosenberg: You are always only dealing with two. If you are married and divorced, divorces of the former spouse will be dealt with through the settlement in relation to the divorce. You are always only dealing with two. It is not three or four.

Senator Lavoie-Roux: My question was with respect to other parts of the public service. Has this raised any problems?

Ms McLellan: Not to my knowledge. We will check that for you. When we developed this legislation and when we looked at these provisions, it was not brought to our attention that there were any problems in applying these provisions in other areas. DND or the RCMP are very large institutions. They have had much more experience with these kinds of provisions than judges will ever have. We are dealing with a relatively small number of people and relationships. However, we will check to see whether they have had any problems with the application of similar provisions.

Senator Lavoie-Roux: I am older than some of my colleagues, but I was really surprised by this. Marriage is one thing. I think others from my generation would also be surprised that this comes from the government. I suppose the judicial commission recommended this.

Ms McLellan: It was one of the recommendations from the Scott commission.

Senator Lavoie-Roux: I know of a judge who is married and is not very happy in that marriage, and I am sure there are others. However, should we change our whole approach on account of a few judges who are not happy?

Ms McLellan: Let me say this very clearly. This proposed legislation is not in response to any individual judge or relationship. There are over 1,000 judges in this country, and I want to assure everyone in this room that I do not know about their personal relationships. I do not care to know about their personal relationships unless they lead to a complaint to the judicial council, at which time, if there is a recommendation for removal, it will come to me. Otherwise, that is their business, and it does not interfere with the work they do.

Keep in mind that someone could be married to a judge for 20 years and then leave her husband for someone else. That 20 year-relationship would not be recognized in any way in terms of a survivor's benefit. What we are doing is acknowledging the fact through the principle of apportionment that there have been two relationships. We would apportion the survivor's benefit between the two individuals on the basis of the length of the relationship. I think that is fundamentally fair, unlike what we have seen in legislation such as the CPP. You may have been married to someone for 20 years. Under the CPP, if he leaves, not divorcing you, has a common-law relationship and dies, that person may have been with him one year and one day, and she gets everything. Under our provision, that would not happen.

Senator Cools: Perhaps the minister could clarify that. I think we should make if clear that the quantum, the amount of money involved in judicial pensions, far exceeds anything paid through the CPP.

Ms McLellan: It is the principle, not the amount.

Senator Lavoie-Roux: You said that there are 1,000 judges.

Ms McLellan: That was an estimate.

Senator Lavoie-Roux: They will receive an increase of about 8 per cent, is that right?

Ms McLellan: Yes; phased in over two years.

Senator Lavoie-Roux: How much money does this involve? There was quite a bit of criticism in the other place about the cost of this increase. Judges are not social-welfare recipients. This increase will place some of them in the range of $200,000. I should like to know the whole global sum.

Ms McLellan: Do you want the annual increase as a result of the salary recommendation -- that is, the global increase, year by year?

Senator Lavoie-Roux: Yes. What will it cost the government?

Ms Bellis: I do not have the global number, but I have the salary increase here.

Senator Lavoie-Roux: We have those numbers.

Ms Bellis: We could do the calculation on the current number of puisne judges, but it would not be absolutely accurate.

The Acting Chairman: The précis that was provided to committee members includes a table that contains some calculations.

Senator Lavoie-Roux: I want to know the global cost, though.

Ms McLellan: When we took the matter to the Treasury Board, the dollar amount was in the millions, but not many.

Ms Bellis: It is $20.5 million over the next two fiscal years.

Ms McLellan: When we see what a judge makes presently -- that is, $149,000 or $152,000 -- we all must resist the temptation to say that it seems like a lot of money. However, it does seem like a lot of money to all of us -- that is, to me as a cabinet minister; to you as senators; and to a lot of Canadians.

Senator Lavoie-Roux: I was not thinking of myself.

Ms McLellan: I refer you to the comment made by Mr. Peter MacKay in committee, namely, that the judiciary is one of the foundations of our democracy. We want to attract the best people. We do not want to punish people for serving their country as members of the judiciary. We want to attract people who are highly qualified and who are at the top of their field. I can assure you that everyone I appoint to the bench takes a significant cut in pay to serve his or her country.

Senator Bryden: They all must be from downtown Toronto. For most of the people who are appointed in New Brunswick, it is the best money they have ever made in their entire legal career.

Ms McLellan: That may be the case in some small centres, but we want to attract the best qualified people to the judiciary. Therefore, we want to ensure that they are compensated fairly for the work they do -- not only in terms of past experience and credentials, but also in terms of the responsibility that we impose upon them.

I take very seriously my role as Attorney General in relation to the judiciary. I make no apologies for wishing to pay members of the federal courts in this country a reasonable, fair wage for the work that they do. These are not numbers that I came up with; they are numbers that the Scott commission, an independent body, came up with after hearing from all interested parties, including members of the public, the CBA and others, taking into account the economy, wage freezes and a whole range of factors. An independent body determined that, based on what these men and women do and the experiences they bring to the job, these proposed, phased-in increases were fair. I do not quibble with the work that David Scott and his commission did.

Senator Cools: I did not hear anyone here say that judges should not be well paid. I have voted on many bills to set judges' salaries. At the time, I always thought I was paying judges very well. The concern is that some may be suggesting that they are not being paid well.

Recently, I poured over some data on this subject matter. All the data that I have read tells me that a judicial appointment represents a significant salary increase for the appointee. No one here resents that; we just want to acknowledge that they are well paid. I have that data and I would be happy to place it before the committee, if you wish me to do so.

You have said that clauses 1, 9, 10 and 11 would parallel or match the situation that members of Parliament face regarding their retirement allowances. If you turn to clause 11 of the bill, which is found on page 8, that is a new version of section 6.1 of the Judges Act.

Could the minister tell us where, in the Members of Parliament Retirement Allowances Act, an equivalent clause is found?

Ms McLellan: I was not speaking about that provision. I was speaking about our debate and discussions surrounding the concept of "surviving spouse" as it applies to apportionment. This is a different provision. You are speaking about section 46.1 of the Judges Act?

Senator Cools: Yes, clause 11, page 8 of Bill C-37. While you are looking at that, could you also look at clause 9 of Bill C-37, which amends subsection 44.4 of the Judges Act? There is a provision for the Judges Act to supersede a separation agreement and to prevent a spouse from going to court to allow her or him to change their mind.

My point is quite narrow in this particular instance. We are told, again and again, that this bill is only bringing the Judges Act into consonance with the Members of Parliament Act. However, this is totally different.

Could you wrap your mind around those two clauses and tell us how those two provisions compare to the Members of Parliament's Retiring Allowances Act?

Ms McLellan: We will do that work for you, but that was not what I was referring to, and I think people understand that.

Concerning section 46.1, do you want to talk about the policy reason for the lump sum payment when a judge dies while holding office?

Senator Cools: I do not want to talk about the policy consideration.

Ms McLellan: The policy considerations are not unusual. They in fact exist in other legislative schemes, in terms of why, upon death, that one-sixth payment is paid to the cohabiting spouse.

Senator Cools: You say, Madam Minister, you were not speaking to policy, you were speaking to the issue of apportionment. On the issue of apportionment then, why is not section 46.1, the lump sum payment, apportioned as well?

Ms McLellan: That of course requires a policy discussion, which you just asked me not to go into. In fact, it was decided that if there were two surviving spouses, based on the definitions in the Judges' Act, the spouse who was cohabiting at the time of the death would be the beneficiary of the one-sixth payment. The purpose of said payment is to cover things such as funeral expenses, to deal with the immediate expenses surrounding death. In fact, in almost all cases of unexpected death, it is the cohabiting spouse who bears the burden, and I use only one example, of funeral expenses. That is why that payment is being made. It is acknowledgement of the fact that there will be unexpected and immediate expenses, including those surrounding the funeral, that the cohabiting spouse, in most circumstances, would be expected to bear. That is why it is not divided. In fact, if a person were separated from his or her spouse and has not lived with the person for 10 years, it would be highly unlikely that that person would bear any unexpected expenses surrounding the death of that individual, such as a funeral.

Senator Cools: I have another question.

The Acting Chairman: I wish to make sure that your question can be answered by the deputy minister. I have another senator who wishes to ask a question and the minister is leaving in two minutes.

Senator Cools: Perhaps then we could arrange for the minister to come back another time. There is nothing wrong at all with the minister's officials answering questions about the legislation, but I think many of our questions are policy questions. My next question is a policy question.

My question builds on Senator Bryden's and even Senator Joyal's question. If we look at clause 1 of the bill, we find a definition of "spouse" -- and I will not repeat the definition. However, following on the discussion that preceded the question of same sex, what I understand you to say is that despite the fact that the courts have ruled in same-sex cases the way they have, despite the very judges themselves who are making those judgments, you will stay with this definition of opposite sex.We all know very well that it will not be too long before this will be challenged in court. Since the judges have already changed it, they will just change it to mean opposite sex.

Could a cynic not say that this is an instance where the public policy issue involved here is being left to the courts to determine?

Ms McLellan: No. In fact, I believe I have outlined both in relation to Senator Joyal and Senator Bryden that we are in the midst of very important policy work that speaks to perhaps a reconfiguration or transformation of the way we think of our entire entitlement provisions, not only in legislation but within our society on the basis of dependency. In fact, that policy work, the key policy work, is being done by this government and we are well ahead of the courts in that regard because they have not really talked about dependency directly in their judgments. They have concentrated on same sex, opposite sex. I am not criticizing them for that, but we as a government believe that there may well be a more important change happening in society, as I have already described, that deals with relationships of dependency. We are doing that policy work and no court is forcing us to do that work. We just think it is important, based on what we see happening in society.

Senator Sparrow: You stated that you knew nothing about any relationships, had no personal knowledge of any judges requiring this provision or who would take advantage or use the system. How did the request come to you, then, and to the department? If there is correspondence from individual judges or individual proponents of the provisions, could those be tabled with the committee?

Ms McLellan: In fact, the Scott commission made the recommendation that you have before you. Mr. Scott, in his inquiry, offers this as one of his recommendations. I know this is an important point for you, so let me just read to you in terms of this particular issue surrounding the apportionment of annuities between surviving spouses. It says that the Canadian Judicial Council and the Canadian Judges Conference made a joint public submission to the Scott commission in December 1995 and that this was the first and the only time that the judiciary provided its views on the entitlements of common-law spouses.

The first time I was aware of any discussion surrounding this issue was when I read the Scott commission recommendations.

Senator Sparrow: Could we have copies of any correspondence that came to the department in relation to this?

Ms McLellan: Is there any correspondence?

Ms Bellis: I am not aware of any correspondence.

Ms McLellan: We will certainly look through our files. In fact, keep in mind that the recommendation came from the Scott commission, which is an independent body. The commission held public hearings, to which the CBA and the Canadian Judicial Council and the Canadian Judges Conference all made submissions in public.

The Acting Chairman: If I may, what we have as public is the report of the commission. It is not up to the minister, nor us to ask the minister; it is up to the commission. One can seek that information from the commission, but not from the witness we have before us.

Senator Sparrow: The question related to anything that the department has from the commission.

The Acting Chairman: I thought the answer was no on that.

Senator Grafstein: You criticize the Chief Justice of Canada for silence. I do not think it is appropriate for this committee to obtain information based on legislation from the judge to their political representative, the Attorney General of Canada, and that we should have that as a public document. That to my mind is not appropriate.

The Acting Chairman: We ruled that out.

Senator Grafstein: I respect my honourable colleague opposite, but you cannot have it both ways. You cannot criticize the judiciary for remaining silent and not have their privacy protected by the Attorney General of Canada. I do not want to see that information, quite frankly.

The Acting Chairman: We will not get that information.

Ms McLellan: We will follow up on some of the questions. I apologize, Senator Bryden, that we were not able to answer with crystal clarity your first question surrounding that complex fact situation of numerous spouses.

Senator Bryden: That is probably just my being mischievous.

Ms McLellan: Being mischievous is allowed. We will come up with an answer for you because I think it is an important point. Everyone should have the benefit of clarity and the best opinion and advice that we are able to provide as you consider this important piece of legislation. We will do that. My officials will return, after you have heard from other witnesses, to spend as much time with you as you would like.

The Acting Chairman: We will now hear from a panel of three experts. They are, from the University of Ottawa, Professor Ed Ratushny, Faculty of Law; from the University of Toronto, Professor Jacob Ziegel, Faculty of Law; and from the University of Calgary, Professor Frederick L. Morton, Department of Political Science.

I will ask the three experts to come forward and make a brief exposé. It is important to leave as long as possible for a discussion between the senators and the witnesses.

I wish to reiterate what I said earlier this afternoon: We are studying Bill C-37 to amend the Judges Act, not more, definitely not less.

Professor Ratushny, you have the microphone.

Professor Ed Ratushny, Faculty of Law, University of Ottawa: Honourable senators, I appreciate your kind invitation to be here today. My invitation specifically asked me to comment on the relationship between Parliament and the judiciary. I am very pleased to do so. My task has been made rather easy because of a recent disposition by the Canadian Judicial Council that reflects very much my own thinking on this issue of the relationship between Parliament and the judiciary.

I wish to refer to a case with which I am sure you are all familiar. It involved a judge in the Federal Court of Canada making a comment in court. I might add that Mr. Jack Ramsay, who is a member of Parliament, made a complaint to the council in this case, which was the reason the council dealt with this matter.

The comments of the judge were that he was concerned as a citizen that, with immunity, a minister of the Crown can get up in the House of Commons and say that he is going to fire this guy and everyone is up and cheering. The judge indicated that he was thinking of people around a guillotine and did not know whether he had a right to intervene. He said that it left a bad taste in his mouth.

Quite a few members of Parliament were legitimately disturbed about this. Mr. Ramsay put in a complaint. The chair of the judicial conduct committee of the Canadian Judicial Council referred this to a panel consisting of three chief justices: Chief Justice McMurtry, of Ontario, Chief Justice Daigle, of New Brunswick, and Associate Chief Justice Mercier, of Manitoba.

The panel had no trouble in concluding that these comments on the part of the judge were totally inappropriate. Let me read from the letter from Chief Justice McMurtry to the judge on behalf of the panel. This letter was made available publicly by the Canadian Judicial Council. This is what Chief Justice McMurtry said to the judge:

The Panel has concluded that your comments in this matter fall outside of the sphere of proper judicial expression. Although the incident in Parliament was described in the material which was filed, your comments were extraneous to the issues before you. They were gratuitous and insulting to Parliament. You expressed a personal concern "as a citizen" but you were not in the role of a citizen. You were acting as a judge and, in the Panel's view, improperly used the unique status of judicial office as a platform for engaging in controversial political debate.

Judges must interpret the laws which Parliament creates. Indeed, judges must now also assess the validity of those laws against the values which Parliament has assigned to the Canadian Charter of Rights and Freedoms. However, it is not the role of judges to comment in disparaging terms on the policy and wisdom of Parliament. In this matter, you went beyond even criticizing law or policy and made disparaging comments about the conduct of actual Parliamentary proceedings.

The language is quite strong. A fundamental principle of our democracy and of judicial independence is that judges should be able to speak freely. Part of the reason for all the protections -- the guarantees of independence of judges, security of tenure, remuneration, and certain guarantees in terms of the administration of justice -- is based on the proposition that a judge should be able to speak his or her mind, without fear of prejudice or hope of some sort of gain because of what they might say.

However, the panel, while acknowledging that, said that there are limits, that there comes a point where judges go beyond what is proper judicial function and, in those circumstances, they deserve to have their remarks commented upon in a disapproving way, as this panel did.

The panels noted that this was the first time, in their recollection, that there was a complaint to the council about judicial criticism of Parliament. The panel therefore decided in its response, which was made available to the public, to make some general observations about the relationship between these two institutions, which are fundamental to our Canadian democracy. Of course, that is why I say that this made my task easy, because that is specifically what I was asked to comment on.

Chief Justice McMurtry pointed out that constitutional principle and precedent stress the necessity of mutual respect and non-interference. There is a constitutional convention, he said, of non-interference in the judicial process by members of the executive and legislative branches of government, as well as a constitutional convention of non-interference in the political process by members of the judiciary.

Chief Justice McMurtry quoted citation 493(1) of the 6th Edition of Beauchesne's, which is as follows:

All references to judges and courts of justice of the nature of personal attack and censure have always been considered unparliamentary, and the Speaker has always treated them as breaches of order.

He also quoted from Lord Russell in the British Parliament in 1843, when he said:

Independence of judges is so sacred that nothing but the most imperious necessity should induce the House to adopt a course that might weaken their standing or endanger their authority.

A clear principle that emerges from the debates of the British Parliament, particularly in cases involving the removal of judges, is that it is incumbent on Parliament to protect the independence of the judiciary. However, the other side of the coin is that -- and I quote:

...if judicial independence is to be maintained, the judiciary must also strive to enhance public confidence in Parliament as an institution.

Chief Justice McMurtry concluded -- and appropriately, I might add -- that:

In other words, a symbiotic relationship of mutual respect and support must prevail.

I agree wholeheartedly with this conclusion. I have difficulty understanding why the judge in this particular case would have so gratuitously and disparagingly insulted Parliament; however, I must say that I am also personally disappointed every time I see members of Parliament taking cheap shots at the courts and the judiciary. I can see no useful purpose to be served in such gratuitous attacks. It seems to me that, in the public eye, such attacks simply demean all public institutions.

In my view, it would be better for the people of Canada and it would better serve all of our institutions and democracy in Canada if all our institutions would express mutual respect and support for each other rather than succumbing to the temptation to engage in institution-bashing.

I will close my remarks there and be available for discussion.

Professor Jacob Ziegel, Faculty of Law, University of Toronto: Honourable senators, I appreciate the opportunity to appear before you this afternoon to discuss with you various aspects of the administration of justice. The clerk of the committee did not indicate on which aspects of either Bill C-37 or of the general administration of justice by the courts she wanted me to speak. I decided therefore that I would focus on that section of Bill C-37 which was of particular interest to me. As I think you will see, it does bear on what Professor Ratushny just said, although I take a somewhat different perception.

Proposed section 26 of Bill C-37 establishes a judicial compensation and benefits commission and replaces their triennial commission used up to now under the Judges Act to deal with judges' compensation and related matters. Proposed section 26 is presumably intended to implement the Supreme Court of Canada's important judgments in the Provincial Court Judges case rendered late last year.

I have explained elsewhere in detail some important concerns I have with the Supreme Court's judgment. My most important concern is that the judgment constitutionalizes the establishment and roles of judicial compensation commissions at the federal and provincial levels. I have long supported the use of judicial compensation committees or commissions as a political and administrative solution to the fact that judges, unlike other public servants, cannot go on strike if they are dissatisfied with the terms of their employment.

However, the administrative approach we have adopted up to now under the Judges Act is a far cry from the solution imposed by the Supreme Court which brings in its train as many difficulties as it is intended to resolve.

Apart from the novelty of the Supreme Court's holding -- and I explain the novelty in a footnote -- it appears to me to be open to the following objections. The first is the requirement adopted in Chief Justice Lamer's judgment that any change in the remuneration of judges and other benefits must be submitted to the compensation commission. This will enormously complicate and bureaucratize the relationship between the executive and the legislative and executive branches of government. It will also, as Mr. Justice La Forest pointed out in his dissenting judgment in the Supreme Court, practically turn the judicial compensation commission into a fourth arm of government.

A second concern I have is that the Supreme Court's judgment authorizes -- indeed invites -- a court to review a government's or legislature's reasons for rejecting the recommendations of a judicial compensation commission if the reviewing court is not satisfied with the rejector's reasons. This is an open invitation to litigation and will, as the events since the Supreme Court's judgment prove, almost guarantee that every significant government decision not to follow the recommendations in full will be challenged in court -- a court, be it noted, that cannot itself be deemed to being wholly indifferent to the issues before it.

The Supreme Court was anxious to put to rest the state of litigation that had led to the appeals before the court. I fear that the court's judgment may have the opposite effect.

My third concern is that the Supreme Court's judgment will weaken one of the most fundamental principles of British parliamentary democracy, that is, Parliament's control of the public purse. Paradoxically, it may also weaken the principle of judicial independence as public perception grows that the Supreme Court's judgment is being used by judges to extract better salary and pension conditions for themselves than are enjoyed by other senior public servants and most other heavily taxed Canadians.

I would also draw attention to another aspect of the controversy surrounding the compensation and status of provincially appointed judges that is not referred to in Chief Justice Lamer's judgment, and that is the extreme unhappiness of many provincial court judges, especially those sitting in provincial criminal courts, about the wide disparity between their salaries and pension entitlements and those of federally appointed judges despite the fact that 90 per cent or more of all cases under the federal Criminal Code are tried in the provincial courts. I do not have an easy answer to this conundrum, but it does seem to me to warrant serious attention by the federal and provincial ministers of justice.

Mr. Chairman, I said at the beginning that I thought there was some connection between my opening statement and the remarks of Professor Ratushny. The relationship is this: I deplore personal attacks on judges as both irrelevant and gratuitous, but we do need in this country much more open and regular discussion of important judgments of the Supreme Court of Canada.

As my remarks indicate, I have serious reservations about the impacts and implications of the Supreme Court's judgment in the provincial court judges' case in terms of the relationship between the courts and Parliament, which is responsible for determining judges' salaries and compensation. Much to my regret, I see very little public discussion in the media or elsewhere on this important judgment. I have seen and heard very little reaction at the federal or provincial level. It seems to me that this is a serious lacuna, not only in this area but also in other areas where the Supreme Court has spoken.

I think it is vital for both the health and the integrity of public institutions in our country that there be a continuing dialogue between the different branches of government. This will have the effect of ensuring at least that each party knows what the other is thinking and that there is a proper balancing of contentious and difficult populace issues, to ensure that we obtain the best mix possible.

Professor Frederick L. Morton, Department of Political Science, University of Calgary: Thank you, Mr. Chairman, for inviting me here today to speak to Bill C-37. I think you will see that my concerns are very similar to those of Professor Ziegel's. Bill C-37 touches on many important aspects of the Canadian judiciary, but time does not permit comments on all of these. Thus, my remarks will be restricted to the proposal to create the new and permanent judicial compensation and benefits commission in the Supreme Court's 1997 ruling in the provincial judges' reference, which appears to be the basis for the creation of this new commission.

By way of summary, I suggest that Justice Lamer's majority argument in this case is flawed, and that the proposal to create a permanent commission, as opposed to the triennial commission that now exists, is a mistake. Both the judgment and the proposed commission will have the effect of contributing to the further growth of the new judicial bureaucracy. This trend is eroding Parliament's just authority and responsibility for the fixing of judicial salaries and is weakening the federal principles upon which Canada is based. In short, I believe the creation of this commission is both unnecessary and unwise.

The Supreme Court's judgment in the 1997 provincial judges' reference appears to be the basis for the creation of the new commission. In this judgment, Justice Lamer, writing for the majority, ruled that the Charter of Rights prohibits provincial governments from altering the compensation of provincially appointed judges unless they have first responded to the recommendations of an "independent judicial compensation commission." The Chief Justice went on to declare that there is a constitutional duty on the part of provincial governments to create such a commission.

Please note that this ruling addresses only provincial court judges, not superior court judges appointed pursuant to section 96 of the Constitution. Significantly, there is nothing in the judgment that addresses the situation of section 96 court judges, the subject of this bill. This is because, as Justice La Forest in dissent points out, the independence of superior courts is already explicitly provided for in the provisions of sections 96 to 100 of the Constitution Act and the various conventions of judicial independence that these provisions both reflect and reinforce.

Indeed, since these explicit safeguards of judicial independence do not apply to section 92 court judges, Chief Justice Lamer was forced to rely upon what he called the implications of the preamble to the Constitution Act, 1867 as the basis for his order that provincial governments must create and consult judicial compensation commissions.

We are thus confronted with this paradox: The Supreme Court ruling that allegedly requires the creation of a new federal compensation commission dealt only with provincially appointed judges. Yet, in the absence of any explicit guarantees for judicial independence for provincially appointed judges, the Supreme Court was forced to base its decision on what the Chief Justice described as "elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867."

I would suggest respectfully that honourable senators give close attention to Justices La Forest's response to the Chief Justice's argument. Justice La Forest first characterizes the Chief Justice's reliance on the implications of the preamble as "a dubious theory of implicit constitutional structure." He then condemns it even more strongly as "subverting the democratic foundation of judicial review."

Shortly thereafter, Justices La Forest describes the majority's order to create new judicial commissions as contrary to "precedent, reason, and common sense."

I suggest -- and I would be curious to hear from my colleagues here -- that this is the harshest criticism yet issued by one Supreme Court Justice of the others' arguments. With respect, I also suggest that when this happens Parliament should pay close attention, especially when, as in this case, new legislation is proposed that is based on the very arguments that are under attack. Since the basis for the creation of a judicial compensation commission cannot be found in the preamble of the Constitution Act, 1867, Justice La Forest points out that the only other source is section 11(d) of the Charter of Rights. Section 11(d) deals with persons charged with an offence and the right to a trial before an independent and impartial tribunal. Those are emphasized in Justice La Forest's argument.

Justice La Forest's emphasis is intended to draw attention to the facts that, one, these Charter provisions apply only to criminal trials; and, two, in his own words, "the guarantee of judicial independence in section 11(d) redounds to the benefit of the judged, not the judges."

The majority's judgment simply ignores these distinctions. It transforms what is supposed to be a benefit for those accused of crimes into a benefit for judges. It then indiscriminately applies this new benefit to civil as well as criminal trials.

While Justice La Forest recognizes that "salary commissions may be desirable as a matter of legislative policy, they are not mandated by section 11(d) of the Charter," he emphasizes, properly in my opinion, that the courts' function of judicial review is more circumscribed than proposing desirable policy changes. If this were not the case, the judicial function would cease to be any different than the legislative function. In the absence of any credible textual foundation for the majority's ruling, Justice La Forest bluntly characterizes it as "tantamount to enacting a new constitutional provision" and ordering the creation of "what in some respects is a virtual fourth branch of government to police the interaction between the political branches and the judiciary."

Justice La Forest's criticisms, harsh as they are, are still couched in the polite language that becomes exchanges between fellow judges. For our purposes, however, the purposes of crafting public policy, it is important to speak more plainly. In plain English, Justice La Forest is accusing the majority of simply making up constitutional meaning and ordering legislators to do what the judges think is desirable as a matter of public policy. This is the difference between constitutional supremacy -- what Justice La Forest fully supports -- and judicial supremacy, which the justice strongly opposes. I might add that I agree with that distinction as well.

Once this distinction is recognized, I would add, with respect, that senators should not become accomplices in the undermining of Parliament's equal role in the development of Canada's Constitution. Elected and, yes, even appointed lawmakers should not abdicate their responsibility for constitutional development to the courts. Just this past April, the Supreme Court, in its Vriend decision, emphasized repeatedly that constitutional development is not a judicial monopoly but, rather, rests on a dialogue -- and the word "dialogue" was used repeatedly in that judgment -- between courts and legislatures.

Judges are not infallible. When judges make a mistake or a dubious interpretation -- and "dubious" is the word used by Justice La Forest -- of the Constitution, legislatures have not just the right but the duty to correct it. In the case at hand, "precedent, reason and common sense," to borrow from Justice La Forest, all weigh against Chief Justice Lamer's majority view that section 11(d) imposes a constitutional obligation on governments to create judicial commissions at either level of government.

The creation of such commissions should be considered on their merits -- that is, will they contribute to better government, including better judicial independence -- and not because of any alleged constitutional necessity.

The second part of my paper addresses the merits of the policy. I think it reflects many of Professor Ziegel's comments. I will send it on to your clerk.

Senator Beaudoin: Like you, Mr. Morton, I am impressed by the argument of Mr. Justice La Forest, and more so because of the fact that the Minister of Justice a few minutes ago said something about family courts. The problem that we have with the unification of family courts in this country is precisely section 96. I should like to know your reaction to that. The court is more and more generous in the interpretation of section 96 because it is problematic to have provincial courts and federal courts and the overlapping jurisdiction. Justice La Forest even went so far as to say that our system is unified to a certain extent.

What is your reaction to that? My impression is that the minister is probably right when she talks about some amendments to the family court system. Do you think that we may do that under the present constitutional law as interpreted?

Mr. Morton: I must plead relative ignorance regarding the jurisdictional overlap on family court issues. As I read Justice La Forest's dissent, he is concerned that what is said by the majority with respect to section 92 courts, and perhaps by implication, section 96 courts, could also be extended to administrative tribunals as well, which exercise quasi-judicial functions. Again, if that came just from me, I could be accused of crying wolf, but since I seem to find that in Justice La Forest's comments, and since it seems that other aspects of judicial independence have been extended to administrative tribunals, it concerns me that the remedial, new institutional order of independent commissions that have been extended now to section 92 courts could, on the basis of this decision, result in our seeing cases arguing for similar types of independent reviews of other administrative tribunals.

I think this might have been Professor Ziegel's point: We can anticipate more litigation and even more bureaucratization of the process. Perhaps someone more familiar with the family court issue than I am could answer your question.

Mr. Ratushny: No one would debate Senator Beaudoin on jurisdiction.

Senator Beaudoin: I think it is a good thing to unify family courts in this country. I have a problem with section 96, of course. I just want to have your first reaction to that.

Mr. Ziegel: I would say a couple of things. First of all, when I referred in my opening statement to my concerns that the Supreme Court's judgment in that case could result in more litigation, I was not thinking about the possibility of the judgment being extended to quasi-judicial tribunals. I was referring to what indeed has happened, which is that even where a judicial compensation committee has been established and has issued its report, where a government has refused to abide or implement the full terms of the recommendations, judges have challenged it in court because that is precisely what Chief Justice Lamer's judgment invited them to do. Although the overriding purpose of the Supreme Court's judgment was to try to put to rest the series of cases that had arisen before the court's judgment, in my view the court's judgment had the reverse effect because they have openly invited the judges to litigate if they are unhappy with the executive's disposition of the recommendations of a judicial compensation commission.

With respect to section 96, I am not an expert on that, although I am familiar with some of the case law. It has, of course, a different history. Its purpose was to emphasize the fact that the appointment of senior court judges was the prerogative of the federal government, not the provinces. As Senator Beaudoin rightly pointed out, in practice, the courts have used it as an instrument for restricting the provinces from conferring broader jurisdiction on provincial courts and tribunals. What I find interesting is that with section 96, the courts have been, on the whole, very protective of their jurisdictions, whereas in other areas, they have moved in the opposite direction.

This, of course, demonstrates what many constitutional observers have pointed out: that when you are dealing with constitutional adjudication, you are dealing overridingly with issues of policy. A fortiori this is true when you are dealing with Charter issues. The Charter is an open-ended instrument; it invites policymaking all the time. Judges have no monopoly on wisdom in this area. This is why it is so profoundly important that all of us become involved in this debate as to what the Charter means, how it should be interpreted, whether we think the courts have gone too far or not far enough, and what are the respective roles of Parliament, the executive and the judiciary in dealing both with the Charter and with the Constitution.

Mr. Ratushny: Perhaps I can respond briefly. In terms of the unified family court, I agree with Senator Beaudoin that it is a good idea. I think there have been some cooperative steps by the federal and provincial governments to try to achieve that. It occurs to me that the Zuber report for the Ontario government might have addressed that issue, and the constitutional issue in particular. I would have to refresh my memory, but it seems to me there may be something there you may want to check out.

Senator Beaudoin: Do you agree with the idea?

Mr. Ratushny: Yes, absolutely.

Senator Beaudoin: That is what I think, too.

Mr. Ratushny: I did not mention the decision of the Supreme Court of Canada regarding provincial court judges. We must apply some context and perspective to this decision. In dealing with provincial court judges, we have to remember that some of the provincial court judges' salaries were set directly by the executive, by cabinet, not by legislatures, and that direct control of salaries by the executive over the judiciary is a much more direct threat than exists, I would say, where you have parliamentary debate and Parliament setting those salaries. The way I look at it is that, in part, there was a vacuum and perhaps the majority wanted to protect the provincial court judges from getting drawn into a debate and having to fight, themselves, for their own salaries, having to make their case and deal directly with the government, which is unseemly and makes them look like a trade union. The whole idea of the commission was to try to find some solution that would prevent the executive from directly setting judicial salaries. While Professor Morton's comments are certainly valid in terms of suggesting that there really was not a sound constitutional foundation for elevating the commissions in that sense, and that there is no really clear hook on which to hang this, I think there may have been a bit of a vacuum, that this was seen as perhaps a seemly way of allowing these salaries to be set.

This is not completely unparalleled. Another analogy in relation to the judiciary arises in relation to removal of judges from office.

Our Constitution says that judges hold office during good behaviour but that they may be removed on address of both Houses of Parliament. However, where there is misbehaviour by a judge, no one would dream today of going directly into Parliament with a motion saying the judge should be removed. There has been established an approach whereby a type of judicial inquiry is held before that occurs. In the Landreville case, a royal commission, set up under the Inquiries Act, was established in order to ensure that the facts in the case were assessed in an impartial way prior to a recommendation for removal. Following that, the Canadian Judicial Council was established to provide a more comprehensive complaints process and also to provide for recommendations to the Minister of Justice that there should be removal before you get to Parliament.

The idea of an impartial commission as a preliminary step before Parliament or the government does its job is helpful in providing a firm basis on which Parliament or the government can take further steps.

I do not think the decision required the government to accept the recommendation of a commission. What the decision tries to avoid is establishing a commission, or abolishing it part way through its work, or refusing to consider its recommendations at all. If there is reasonable consideration of the recommendations, that is all that is required by this decision.

In relation to administrative tribunals, I do not think the issue arises in the same way. When you are talking about provincial courts, you are talking about criminal jurisdiction; you are talking about being able to send someone to jail. The Charter protection for an impartial tribunal applies to criminal offences, or under section 7, fundamental justice, where security of the person is involved. There may be occasional, rare examples of administrative tribunals being involved in that kind of adjudication, but I think they are quite rare.

Senator Grafstein: Thank you for this discussion. You have raised many fundamental philosophical issues that have not been fully debated either in Parliament or in the public forum, except perhaps in legal circles.

It is curious that we do not have clear in our minds what the word "independence" means. I am not attributing these comments to you, but in your references you talk about there being so many possible symbiotic relationships. Someone else talked about a dialogue. Well, both of those terms are not appropriate to the word "independence," quite frankly. You do not have a symbiotic relationship if you are independent.

The United States has a system -- that is not ours -- of separation, checks and balances. We have a British tradition of independence. In my reading, it is not quite independent, because in the British tradition the Chief Justice was, in effect, a cabinet appointee, even though a system of Chinese walls separated the executive from the decisions.

Having said all of that, I find myself in great sympathy with Mr. Justice La Forest's comments. In effect, we are allowing the independence principle, as best I recall it from my law school days, to be eroded. It is all based, if I am not incorrect, on a notion that, because Parliament has been negligent or has delayed treating judicial salaries, we have to take out of Parliament's hands its strong responsibilities to deal with this question. It troubles me that we are allowing, because of the Charter, this erosion of judicial independence and the independence and superiority of Parliament.

You have all made reference to the fact that we give judges a menu that allows them to munch on the political gourmet that we spread out before them.

With respect to the PEI decision, if this were put through a stringer, one would come to the conclusion -- and I say this lightly -- that this is in effect abrogating to the Supreme Court the responsibilities of Parliament.

Having said that, what is the practical dilemma faced by the Minister of Justice?

The Acting Chairman: That is the question in front of us. We can discuss the decision of the Supreme Court, but we must focus on Bill C-37.

Senator Beaudoin: We have.

Senator Cools: With all due respect, Senator Grafstein has the floor.

Senator Grafstein: I was coming to that, Mr. Chairman. I apologize for being loquacious, but this is a difficult issue. It is a question of definition.

What should be the appropriate model? Let me suggest one or two and see if they are more appropriate.

This committee deals with constitutional and legal affairs, but historically we have not really dealt with judicial matters, except episodically. There is really no political oversight in terms of political decisions made by the judiciary.

The Chief Justice now, quite interestingly, criticizes the fact that judges are being attacked. However, one can really separate the attacks from the proper criticism of political decisions taken by judges.

My question is this: Would not it be more appropriate for the Attorney General to come to Parliament and recommend that a special parliamentary committee be established every four years, on a consensual basis, to deal with these matters, as opposed to abrogating the public purse to an administrative body where the federal government has a say but Parliament does not? There must be a better model to deal with the question of being unfair to judges, as opposed to interfering with our political power, as I think the PEI decision does. What would be the best model? What would be a better model?

The Acting Chairman: If I understand the question, you are asking the witness if there is an alternative to clause 6 of Bill C-37.

Senator Grafstein: Or do they agree with my assumptions? If they do, is there an alternative?

The Acting Chairman: We are having a great debate. It is interesting, but we need to look at Bill C-37. We have the decision of the Supreme Court. We are stuck with it, even if we do not like it.

Senator Cools: No, we are not stuck with it.

The Acting Chairman: Excuse me. We can discuss this.

Our duty is to legislate, and that is what we have in front of us. Give us your insight, please.

Mr. Ziegel: I think Senator Grafstein has slightly misconstrued the substance and the effect of the Supreme Court's judgment. The Supreme Court has not ruled out the parliamentary role in setting the salaries of federally appointed judges. However, it has done two things which are innovative. First, it has said that in every case, whether dealing with federally or provincially appointed judges, there must be something in the nature of a judicial compensation commission. Hence, it is not sufficient that you have a parliamentary committee because it would not satisfy the requirements of the judgment.

Second, the Supreme Court has said that every aspect of judicial compensation and benefits must first be referred to this committee. Although you have clear parliamentary legislation federally and provincially that states, "Because of fiscal constraints, we are hereby declaring a freeze on the salaries of all federal and provincial employees," that would not satisfy the Supreme Court's judgment requirements. I find that radical. It concerns me greatly because one of the key issues in the cases for the Supreme Court was the effectiveness of precisely such a piece of legislation.

Professor Ratushny refers to the dangers of allowing the executive to set the salary. That was not the key issue for the Supreme Court. It was the key issue in the Alberta case but it was not the issue in the other case. In the other case, the court was concerned with the legitimacy of legislation freezing salaries to periods of financial constraints. The Supreme Court judgment has struck it down and has said that, in every case, the government must first go to this judicial compensation commission, even if it is legislation of a universal character applicable to all federal and provincial employees.

Third -- and this is partly responsive to Senator Grafstein's observations -- while the Supreme Court appears to allow the executive or the Parliament to have the final say with respect to the disposition of the recommendations, it does not. It says that if the government of the day refuses, for whatever reason, to agree to implement all the recommendations of the judicial compensation committee, that refusal is subject to judicial review. The question is not whether the reasons given by the government are persuasive but, rather, as the Chief Justice put it, whether it accords with basic rationality -- whatever that means.

When I alluded in my opening statement to the crop of litigation, I was referring to cases that have arisen since the beginning of the year in which provincial court judges have challenged the reactions of a government to the recommendations of a judicial compensation committee on precisely the type of grounds that the Chief Justice alluded to in his judgment. This troubles me greatly -- partly because it enhances the prospects and opportunities of litigation and partly because it allows judges to be judges in their own cause. Even a federally appointed judge sitting on an appeal involving provincially appointed judges must always, at the back of his or her mind, say, "There but for the grace of God go I." Federally appointed judges, like their provincial counterparts, are naturally interested in and concerned about the status of their compensation and other benefits.

Mr. Morton: In the west -- and I am sure in Ontario and in Quebec as well -- there is an expression, "You do not fix it if it is not broken." While there is plenty of evidence of judicial dissatisfaction with the levels of judges` salaries in Canada, in all the evidence that I have looked at -- and I think I have looked at most of the evidence pertaining to Bill C-37 -- I have not seen one bit of evidence pertaining to any specific allegation of judicial independence being compromised by any judicial compensation scheme in any province. There is lots of evidence of judges being unhappy with what they are paid and how it is done, but I have not seen a single example where a judge said he or she felt pressured to decide certain cases one way rather than another because of unhappiness.

At the federal level, you have a system now of the triennial judicial council that is struck. It meets once every three years for six months. It does its investigation and gives its report. I do not know why you need to go beyond that and establish a permanent commission with people being paid salaries for four years when they only work nine months out of every one of those four years. They will have staff and they can be asked by the Attorney General to look into other matters pertaining to benefits and pensions. That is what I meant by the creation of new bureaucracy. In terms of a specific solution, I have yet to see a positive case made against the status quo at the federal level.

I cannot resist a comment regarding Senator Gratstein's remarks about us having an English system, not an American system. In the 25 years I have studied the courts and the Constitution in Canada, we have traversed across the spectrum away from the English tradition that informed us for the first 100 years. In my professional opinion, the Supreme Court of Canada is now the most powerful appeal court in the English-speaking democracies -- that is, in the common law world -- and also the second most powerful political institution in our country, second only to cabinet. The change in its role is breathtaking. It is involved, on a regular basis, on matters of partisan controversy, as everyone at this table knows. I do not think it is surprising that there is controversy about it.

I do not think the Chief Justice's recent remarks, complaining about judge bashing or court bashing, are unexpected when the court has undertaken this new role. There are defenders of the court's charter decisions. All of the professors here would probably agree that all you have to do is read the law reviews across the country. The Charter and the Supreme Court are overwhelmingly popular in the law schools. If there were a forum such as your committee that discussed certain decisions on a regular basis, you could get many defenders of the Supreme Court to come in, but you would also get some critics who would be happy to come here and discuss some of the issues that are not being discussed adequately on a public affairs level. You might be able to elevate the debate somewhat and create the dialogue.

I am not a great fan of the Vriend decision but the court's repeated use of the terms "joint responsibility" and "dialogue for Canada's ongoing constitutional development" impressed me. I think a committee like this could contribute to that.

The Acting Chairman: Before we continue, I remind Mr. Morton that the minister referred to the fees to be paid to commissioners. Clause 26.1(9), on page 5 of the bill, states:

The members of the Commission and persons carrying out duties under subsection (4) shall be paid

(a) the fees fixed by...

The effect is that they are not employees; it is a daily fee. The French version expresses it far better. It reads, "indemnité quotidienne." It is important that we keep in mind what the minister has said about it. I do not understand that those commissioners will be public employees or public nominees for four years.

Mr. Morton: It says that they may hold a second term.

Senator Nolin: Yes, and from time to time they will be asked by the Governor in Council to examine and to perform the duties that the proposed legislation outlines. I made that point because it is an important one.

Senator Cools: The powers here are pretty total. The minister told us that she only plans to use them on occasion but the powers are here for them to be used all the time. The legislation is concerned about powers, not intentions.

Senator Grafstein: I am interested in the alternate models. I have heard some, but if anyone else wants to comment, it might be interesting.

Mr. Ratushny: The acting chairman said that it is probably a per diem payment which is based on the number of days they actually work and that time would usually occur prior to the report.

I should like to respond to Senator Grafstein's point. I do not see this as Parliament abandoning its role here.

Dr. Ziegel pointed out that Parliament continues to play its role and parliamentary committees do continue to play their roles. I do not know why you would not want the help of the commission. Would it not be helpful to have this comprehensive study and ongoing monitoring and provision of information that will help to establish appropriate salaries and justify them on some sort of rationale basis? It seems to me that this is an additional element that will help Parliament do its work.

Senator Grafstein: I just look at proposed section 26 in response to that. While it appears to be recommendatory, it really is almost absolute in the sense that it says the commission shall make a report, the minister shall respond to recommendations. This summer we have seen a legitimate debate over the administrative decision dealing with the pay equity issue. Politically the government is in a horrendous position. If that decision is taken almost as writ, although it is just in effect a recommendatory decision, I believe that politically for a government to refuse to in effect accept the recommendations of such a commission would put it in an unbelievably difficult position. This is not advisory. I would have no problem if this were advisory. I would have no problem if in fact the cut of it is advisory, but substantively, if I could say, it is mandatory.

Mr. Ziegel: I hope you are wrong.

Senator Grafstein: I hope I am wrong, too.

Mr. Ziegel: The precedents do not support you, because British Columbia already had a system similar to the one recommended in the Supreme Court's judgment. It had a judicial compensation commission and two years ago the commission recommended a very substantial increase in the salaries of provincial court judges so as to bring them closer to the salaries paid to the federally appointed judges. The B.C. government refused to implement the recommendations on the advice of another committee because they felt that this would totally distort the salary structure for senior employees in the public service. The decision was challenged in court. The Chief Justice of B.C. upheld the decision of the British Columbia government and said that it fell comfortably within the scope of the legislation establishing the commission. It was then taken to the B.C. Court of Appeal, which rendered its judgment earlier this year. The B.C. Court of Appeal was in dreadful difficulty because they had obviously read their constitutional history and kept referring to the deference that the courts must pay to the legislature and the executive in fiscal matters. They felt, astonishingly, that their only quarrel was with the fact that the B.C. government apparently had failed to respond to what was really a very minor aspect of the judicial compensation commission's recommendations. The Court of Appeal felt that the whole matter should be referred back to the B.C. government for further consideration, which I find quite extraordinary. This explains why I personally am very much concerned. I do not question the total good faith of the Supreme Court, but in my respectful view they have not thought through the implications of their decision and the fact that not only was it distorting the important relationship between Parliament, the executive and the judiciary with respect to question of judicial compensation, but also the formula they have established is calculated to increase rather than reduce the amount of litigation. I would be very disturbed to think that Senator Grafstein is right in thinking that hereafter the legislature will be so intimidated by the threat of litigation that they will endorse the recommendations of the committees regardless of whether they felt they were consistent with the overall fiscal policy of the government of the day.

Senator Cools: This is extremely excellent testimony, especially since so much of it supports my speech last night. I feel very vindicated.

I should like to urge upon the chairman, indeed the committee as a whole, continued discussion, particularly on the issues that these three witnesses have raised. I would also like to urge upon the committee the consideration of the issues raised by Senator Grafstein, which perhaps the Senate as a whole should be considering -- the creation of a committee of the Senate, it being the upper chamber, to look at these sorts of issues. Perhaps as the dialogue on this committee continues, such a recommendation might emerge from our committee. We are not at the report stage yet, but I am just outlining some thoughts as they came to me based on the testimony that was put to us before today.

Mr. Ratushny raised a few issues -- and I understand the other two witnesses -- which cause me a few problems. He basically refers to these commissions -- and just let me make it quite clear, I was quite happy with the old triennial system. As the maxim goes, if it ain't broke, don't fix it. The proposals that Dr. Ratushny make essentially are that Parliament should be getting the assistance of these commissions and, as he talked about the removal process in the judicial council, that Parliament should be happy to be receiving the assistance of these commissions. My understanding of the history of the judicial council and of these commissions is that these commissions are intended to assist the ministers. In other words, they are intended to assist the ministers, not Parliament. They are not supposed to encroach on Parliament.

You cited the Landreville case. Sad to say, Judge Rand's report in the Landreville case was not his finest hour and it was not his finest piece of work. It is quite an old piece of work.

My understanding is that the whole process is intended to assist a minister so that a minister will not face a vote of non-confidence on the question of a removal of a judge and that the council was based on an old concept that a Minister of Justice or the Lord Chancellor or whoever could appoint another judge to examine the matter. The intention of the process that eventually went to the judicial council was that it was never intended to limit any individual member of Parliament's ability to move a motion at any given moment. That was my understanding of that. Think about that for a moment. That is one question.

Second, another consideration of the cause for removal by Parliament -- and it relates again to the question of the judicial council -- is that the cabinet has always had the power to remove judges. The cabinet still has powers to remove. The reason that "but may be removed" is in the Constitution Act is to give that judge a recourse to Parliament. That is my understanding.

The major point that I am making is that these creations, both the judicial council and these commissions, assist ministers of the Crown; but Parliament maintains its own sovereign powers because if it is not the case then the justification, as the Judges' Act was amended 25 years and 20 years ago, to induce those elements was false.

The Acting Chairman: Senator Cools, I think that question is very important but not now, not here.

Mr. Ratushny: I did not respond very quickly.

Senator Cools: I would be happy to move on, but Senator Grafstein has raised an extremely brilliant point. It is so rare that in Parliament we are discussing Parliament's own powers in respect of judges. It is very rare that Parliament has any discussion or debate in respect of its powers regarding judges. So I have been welcoming this moment with some relish. Perhaps the Chairman does not want it, but to my mind the evening is young.

Mr. Ratushny: According to section 99 of the Constitution Act, a judge may be removed on addresses of both Houses of Parliament. There is nothing to prevent a motion for removal being introduced by a member of Parliament. I agree with you on that. It is not necessary that you go through the other stages.

However, it would be extraordinarily unusual to try to do that today without having a preliminary investigation as to what actually occurred. It would be viewed as foolhardy to do it, but I think the power still exists because it is in the Constitution. That is the first point.

Senator Beaudoin: It is Parliament, not cabinet.

Senator Cools: That is my point. He has just agreed with me that it is Parliament's investigation, not cabinet's.

Mr. Ratushny: You mentioned Landreville and it not being Rand's finest hour. I agree with you. That is the reason the council was set up -- because the process was so flawed. That is the whole purpose of establishing a judicial council process. It is true that the council does make the recommendation to the Minister of Justice who would then make the motion to Parliament. You suggest that cabinet can remove a judge directly. I am afraid I have no authority for that.

The Acting Chairman: That is exactly why I have interjected. Bill C-37 does not contemplate that at all. It is a very interesting subject, but I said at the beginning of the afternoon that we would concentrate on Bill C-37.

Senator Cools: Fine. He raised it. Could I ask my question then? Incidentally, Bill C-37 is amending the Judges Act.

The Acting Chairman: It does not mean that we can discuss the entire Judges Act. We have to restrict our comments and questions to what we have in front of us. We have not been mandated by the Senate to study the Judges Act. Our committee has Bill C-37 in front of it. That is why I am making that comment.

Senator Cools: Thank you.

Last night, in my remarks, I tried to address the issues of Parliament's sovereignty and Parliament's financing of government actions. I made the point that the judges were deemed to be a very special group of people in need of the protection of Parliament. For those reasons, the Parliament of Canada and, pre-1867, the Parliaments at least of the united provinces of Canada, Upper Canada and Lower Canada, adopted the system of what we call, in parliamentary parlance, statutory charge versus the annual estimates.

Are you familiar with the process of the financial processes of Parliament?

Mr. Ratushny: I am more or less familiar.

Senator Cools: I made the point that the statutory charge clause in the Judges Act, section 53, was originally intended to draw down on the Consolidated Revenue Fund to pay for the salaries of judges. I also made the point that, previous to the creation in 1906 of the Judges Act, quite often individual judges or clusters of judges had their salaries decided by individual statute. Many acts would come before Parliament.

In 1906, we decided to settle the question. A particular clause in the Judges Act legislated that the salaries of the judges shall be drawn against the Consolidated Revenue Fund. That particular clause in today's Judges Act reads quite differently from how it was first created in 1906. It has been expanded to include many other salaries other than those of judges, and so section 53.1 of the act now reads as it does.

I wonder if Dr. Ratushny has any comments on the persistent and continuous swelling of section 53.1 of the act to accommodate many other salaries and many other payments other than what were originally intended by Parliament. Parliament's traditional manner of funding bureaucracies and staffs and all these other issues is the annual Estimates and I have before me a former chairman of the National Finance Committee of the Senate.

Does Dr. Ratushny have any comment?

Mr. Ratushny: When I said "more or less," that is the "less" part. I am sorry I cannot help you. I do not know those developments.

The Acting Chairman: I am sure we can put that question to other witnesses.

Senator Lewis: Bill C-37 has been referred to us for our study and our report. We can presumably suggest amendments, or we can approve the bill as is.

On one hand, we have the Scott report and we have the minister who says that the bill was drafted following those suggestions. Then we have the judgment, which is now the law, of the Chief Justice and the Supreme Court of Canada. In that judgment, certain criteria were laid down.

What is your opinion as far as the bill is concerned? Does the bill, as drafted, meet the principles set down in those criteria? In other words, does it comply with the criteria and are we stuck with that?

Mr. Ziegel: I guess where angels fear to tread, I will try to offer an off-hand response. I have looked quickly at the provisions of proposed section 26(1), which deals with the composition of the review commission. I have also looked at the language of proposed section 26, which deals with the disposition of the commission's recommendations.

As far as the composition is concerned, it seems to me that it clearly satisfies the court's judgment. The court indicates that the commission had to be independent, effective and objective. The commission will be independent to the extent that they will reflect the two parties in interest. The two other commissioners will select an independent chair. The commission is entitled to establish its own criteria with respect to its mandate and how they will satisfy that mandate. As far as objectivity is concerned, there are no restrictions on the types of recommendations that they can make. Therefore, I am satisfied that the courts' criteria will be satisfied.

With respect to the disposition, as I indicated, the court did not go very far, although they said a number of things. They said, first, that once the commission has reported, the government cannot simply ignore its recommendations, which has happened in the past. It must respond; and it must respond in a reasonable period of time. Clause 26 provides precisely for this. It requires the government to refer the committee's report within a period of 10 days, I believe, if government is sitting. It requires the government to refer the report to a committee of the house. A committee of the house can conduct its own inquiries. It also requires the government to give a firm response to the recommendations within, I think it is six months. My recollection is that the Supreme Court said the government's response must be made within a reasonable period of time. I suppose it is debatable whether six months is too long or not long enough. Given the fact that it is the Government of Canada and the fact that the government has lots of other responsibilities, I am willing to assume, without expressing a final opinion, that the court will not find that six months is too long. The critical feature, as I indicated, is not so much the length of time but what happens if the federal government decides that the commission's recommendations are so generous, so rich, that they will upset the balance between judges' salaries and the salaries paid to other senior officials of the federal government.

Senators should know that other jurisdictions, such as the United Kingdom and Australia, have also established bodies to consider the salaries of judges. However, those committees or commissions also deal with the salaries of senior officials, such as deputy ministers, so as not to create invidious distinctions between the salaries paid to one level of senior officials and those paid to others. We already have litigation wherein the governments contend that the recommendations of the commission are simply too rich; that they are out of touch with the realities of political life. It is argued that the commission is only focusing on what they deem to be fair for judges, that they do not have the responsibilities of government to maintain equity between the various levels of senior officials. Indeed, I would argue that that may be the case between the salaries paid to senior officials and those paid to junior employees of federal and provincial governments. In a sense, this is where I see the future debate taking place.

I sincerely hope that the Supreme Court will send a strong message to lower court judges, saying, "You have misconstrued our judgment. We did not invite reopening and second-guessing the decisions of government." As long as those decisions are not plainly capricious or arbitrary, they are to be respected because it is those governments that are responsible for public expenditure and the administration of the public purse. I hope that answers your questions.

Mr. Ratushny: I think I understood Professor Morton, as well as Senator Cools, to say that they had no problem with the triennial commission and the manner in which it was done in the past. I hold no great brief for a permanent commission. I imagine that it is expected to provide some continuity. There may be viewed some marginal improvement. I do not see it as being crucial, but I do see a commission being crucial. I think we have to put this in historical context. I have not researched this, but my recollection is that the commissions were first established at a time when a raise in judicial salaries was solely in the hands of Parliament. There was a period of considerable inflation and times when public service salaries were rising and other salaries were rising, but no one was too concerned about judges' salaries. The Minister of Justice tried to get the caucus interested, perhaps. However, the fact is that if you are looking at a member of Parliament, what great motivation is there for a member of Parliament to take the initiative to push the cause of raising judges' salaries? What political motivation is there to do that? It just does not exist. In fairness, you have to have a commission for that purpose.

I recollect that, in the past, judges have always pointed to the salaries of senior public servants in making their case to these triennial commissions. The judges said, "This is where we were before in relation to them and look how much they have moved ahead by way of annual increments. In fairness, we should keep that historical relationship. That is where we should be."

Without some sort of commission, there will be a great disinclination on the part of members of Parliament to be too concerned about raising judicial salaries.

Senator Lewis: I sense that you have some dissatisfaction with the bill. I am wondering if can you help us by making suggestions as to how it could be amended.

Mr. Morton: First, I second everything Professor Zeigel has said.

Second, I should like to ask my two colleagues, in case I am wrong here, is there anything in the majority judgment in the provincial judges reference that specifically addresses section 96 superior court judges?

Mr. Ratushny: No.

Mr. Ziegel: There is, by inference.

Mr. Morton: My point is the following: The Minister of Justice, who was just here, responded to a question concerning sexual orientation and different sections of the Income Tax Act. She said very specifically that their policy is to proceed on a step-by-step, case-by-case basis. If they apply that standard to the instant case and instant legislation, there is no need to do anything. As you said, Parliament is not stuck with it in any definitive sense on the Justice Minister's own logic that this applied exclusively to provincial court judges and not to superior court judges. By her own logic, there is nothing compelling to proceed with a new commission in response to the Supreme Court's decision.

As Justice La Forest said, given the dubious character of some of the reasoning, I think it would send a healthy message to the Supreme Court, as part of the dialogue that the court has invited, that there is some serious disagreement on this in these chambers of Parliament with the court's reasoning.

Mr. Ziegel: I think this is important. In my view, Professor Morton has misread clause 26. That provision does not grant tenure in perpetuity to the members of the commission. As I read it, in the initial round, it only gives them a four-year term of appointment, which is quite common for these types of commissions. As to why the legislation is structured the way it is, I think it is in response to the Supreme Court's judgment that all issues involving judicial compensation and benefit must first come before the commission. I assume the drafters anticipated that, during the period of appointment of these commissioners, a variety of issues, which previously might have been settled outside the commission, would have to be brought before them.

Personally, I have no difficulties. I want to make this clear. I am not troubled at all by the fact that you have a new commission. It does not matter to me terribly what you call it, whether you call it permanent or non-permanent. As I say, I am concerned with an entirely different range of issues that I attempted to discuss, both in my statements and in my subsequent oral replies.

The Acting Chairman: We wish to thank our witnesses for their help. We will probably take you at your word and invite you to appear before us again sooner rather than later.

The committee adjourned.

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