JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, May 13, 1998

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[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.): Today we're back with Bill C-37, an act to amend the Judges Act and to make consequential amendments to other acts.

We have with us David W. Scott, Q.C., who was chair of the 1995 Commission on Judges' Salaries and Benefits. Welcome.

Mr. David W. Scott (Chairman of the 1995 Commission on Judges' Salaries and Benefits): Thank you, Madam Chair.

The Chair: Mr. Scott is also a bencher of the Law Society of Upper Canada and knows a lot about practising law, but also about the kinds of sacrifices people make when they go to the bench. So I hope maybe we'll hear a bit of that from him as well.

Do you have a brief to present, David?

Mr. David Scott: No, I do not, Madam Chair. I wrote a letter saying I was happy to come but what we had to say on this subject was in the report. I'm happy to answer questions.

The Chair: Great. We'll go to Mr. Ramsay first for about ten minutes.

I need my timer, because I have to watch this guy very closely. A Ramsay ten minutes is not like ten minutes for the rest of us on the planet.

Are you ready? Synchronize your watches, folks.

Mr. Jack Ramsay (Crowfoot, Ref.): Thank you for that introduction. I appreciate it.

Mr. Scott, thank you for coming today. I have some great concerns about this bill and I hope you can respond to some of them.

Mr. David Scott: I hope so.

Mr. Jack Ramsay: The bill is recommending setting up a commission that will deliberate on the benefits for federal court judges. The recent Supreme Court of Canada's decision that motivated this bill deals with the P.E.I. and Alberta cases. Are you familiar with those cases?

Mr. David Scott: Yes. Probably not as familiar as you.

Mr. Jack Ramsay: Don't doubt yourself.

My concern is that the duty and the responsibility of the commission that will be set up will be to look at pay and benefits and so on for federal court judges, but it seems it cannot recommend a decrease in benefits because if that is done it could be interpreted as an interference in the judicial independence of the courts. Do I understand that correctly?

Mr. David Scott: I read the bill and did not read it as excluding a decrease, but if you're referring to the judgment, my understanding of the judgment is if there were what could be characterized as a discriminatory decrease, that is a decrease for judges only, that would be subject to review by the courts.

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I could be quite wrong, but my understanding of the bill is that the government could recommend a reduction for judges only and then give an explanation in accordance with the bill, but that would be reviewable by the courts. The chief justice, in his judgment, said if it were an across-the-board reduction the review would be fairly short shrift, but if it were confined to judges, the rational basis for it would have to be demonstrated. That's what I got out of the judgment.

Mr. Jack Ramsay: Okay. If a recommendation is made by the commission to the government, what's the procedure if the courts disagree with it? How would it work? If the commission makes a decision that is not pleasing to the judiciary involved, what happens? What's the procedure?

Mr. David Scott: My understanding of the process is the commission would make a recommendation to the government and under the bill the government has the responsibility to respond. It's the response that the courts would review.

Suppose the commission recommends an increase for judges and the government responds and says it is not in favour of an increase and there will be a reduction. Then the Supreme Court of Canada says there can be judicial review of that government response and the courts will determine whether or not the basis for that governmental decision is rational. If it is judicially determined not to be, then presumably the government is back to square one. The intended reduction would be regarded as unconstitutional.

Mr. Jack Ramsay: How would the judicial review of the government's decision be initiated?

Mr. David Scott: That's a very good question, because when I look at the government's reaction to our report that came out with the bill—the explanation for what it accepted or didn't accept—that's the document that would be judicially reviewed. An interested party, presumably a judge or group of judges, would then apply to the courts for a judicial review, and the reasoning in that document would be the subject of judicial assessment. If the court concluded it was not a rational basis for establishing a salary basis, it would be declared unconstitutional and the government would not be free to enact it. That's my understanding of it.

Mr. Jack Ramsay: So it would be the Supreme Court telling the government what to do.

Mr. David Scott: It would be a superior court of a province presumably doing so.

Mr. Jack Ramsay: Ultimately it would be the Supreme Court if it were appealed.

Mr. David Scott: Yes.

Mr. Jack Ramsay: If I understand this bill right and what you're telling the committee, we could face a situation where the decision of the Parliament of Canada, with regard to the remuneration and benefits to federal court judges, can be questioned and overturned. The Parliament of Canada would have to abide by the decision of the courts with regard to the remuneration of federal judges.

Mr. David Scott: Broadly speaking that's right. The proposal for a salary scheme would be declared appropriate and thus constitutional, or inappropriate if it were regarded as lacking rationality and thus a threat to the independence of the judiciary and thus unconstitutional, so the government would have to go back to the drawing board.

Mr. Jack Ramsay: We have a timeline on the bill. We have a date we must meet. What would the consequences be, in your opinion, if that deadline were not met?

Mr. David Scott: Which timeline are you speaking of?

Mr. Jack Ramsay: I mean the timeline for Bill C-37.

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The Chair: Maybe I can answer that. The case involving provincial judges' remuneration had a deadline on it, and the deadline was extended to September 19, or something like that, for the provinces to comply. We have some advice that if we're not in compliance at that point, that would leave the way open for federally appointed judges to sue or strike. I haven't talked directly to the president of the union, but that's what I understand.

Mr. David Scott: To be quite honest, I have not applied my mind to that. I'm not sure how I could help there. I hadn't considered that fact, that the Supreme Court has imposed a time limit to bring the scheme into line; presumably that's the purpose. Presumably that needs to be respected. I'd be very surprised if the judges went on strike, frankly, but that's just a personal observation.

Mr. Jack Ramsay: I'm not concerned about the judges going on strike. I'm concerned about the interpretation that the unwillingness of Parliament in this particular area could constitute interference with the judicial independence of the courts. I'm concerned about that decision in law. I'm very concerned about that.

Mr. David Scott: It's a serious subject. The way I interpret the judgment in the Supreme Court of Canada is that the preservation of the independence of the judiciary, in the view of the Supreme Court, depends on some rational, independent assessment of judges' salaries and benefits, in order to eliminate perceived or actual politicization of the process and negotiation. That's the scheme in the bill, and it is mandated in part by the decision of the court.

In our report, we would have been tougher on the government than the court has been, because if it were up to us, we would have required the government not only to react to the commission's report—that is, with its reasons—but also to table a bill incorporating whatever changes it considered appropriate so that the process would go forward. As I understand Bill C-37, it doesn't include the requirement that the government table a bill; it includes only a requirement that the government respond to the commission's recommendations.

Mr. Jack Ramsay: I think the suggestion that failing to increase the benefits of federal court judges in this case by the federal government constitutes an interference in the judicial independence of the courts is a very grave consideration, in that it is the courts that appear to have supremacy over the Parliament of Canada on this issue.

Mr. David Scott: First of all, I did not understand this bill or this process was triggered by a failure to increase the benefits. Whether the benefits are increased or not or whether they are appropriate and to a degree what this commission's recommendations are and whether the government's response is rational, whatever the commission recommends, the government is free to respond negatively, provided the response is rational.

If the commission recommended that only judges get an increase, and no other person supported by the public purse got an increase, and the government reacted by saying they did not think that was fair or reasonable, I'm confident the courts would respect that conclusion.

So that would be the first point. I did not understand that the intent here was that there had to be an increase. There has to be a rational plan.

Mr. Jack Ramsay: Yes, I don't imagine the judges will complain if there's an increase, unless it's not sufficiently large. But it is the power in law that's granting our courts supremacy over the Parliament of Canada on this particular issue. If that power is not recognized, then it can be interpreted as an interference with the judicial independence of our courts. That's the point I'm struggling with.

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Mr. David Scott: The reason—and we've heard this repeatedly in debate over this by everyone in the House—is that is the constitutional scheme. The constitutional scheme contemplates that the courts ultimately, in certain defined areas in the Constitution, are the arbiters. That doesn't mean the courts are the arbiters of what the judges will be paid, but it does mean the courts are the arbiters of whether or not the payment proposal undermines the independence of the judiciary.

Mr. Jack Ramsay: I think my time is up.

The Chair: Yes, I'll come back to you.

Mr. Jack Ramsay: All right. Thank you.

The Chair: Do you have a question? Go ahead.

Mr. Claude Bachand (Saint-Jean, BQ): May I speak, even though I'm not a lawyer?

The Chair: Sure you can; put some sense into this.

Mr. Claude Bachand: Do you speak French, Mr. Scott?

Mr. David Scott: I don't, I regret to say.

Mr. Claude Bachand: Okay, put on the translation device, please.

[Translation]

Before coming here, I looked at your report. I read with the greatest interest page 17 where you recommend that from April 1, 1997, the government proposes to adjust salary increases for judges. A comment you make higher up on the same page seems to be the reason for this recommendation. You say that the judges' salaries have decreased by about 8% because of the loss of the industrial aggregate index formula. The legislative summary prepared by the Research Branch indicates that Bill C-37 is providing for increases of 4.1% in 1997 and 4.1% in 1998. What are the reasons for your Commission to recommend such an increase? How did you arrive at a rate of 8% or 8.2%? Is it really only indexing? As far as I know, the indexing rate in Canada for 1997 and 1998 was much lower than 4%. How can you justify this increase which the Bloc Québécois finds quite substantial?

[English]

Mr. David Scott: I'm not with you at page 17. Maybe we have different versions.

Mr. Claude Bachand: It's page 17 in French.

The Chair: It's page 15 in English.

Mr. David Scott: I'm sorry.

The 8% that is outlined in this section of the report is the total of the two years' loss of the so-called industrial aggregate index formula. As we tried to develop in our report, our view was that it is very important from the point of view of the commissioners who wrote this report that there be a constant relationship between remuneration of judges and remuneration of the senior members of the bar from whose ranks the judiciary are drawn, so that there will be, in effect, capacity to attract the judiciary from this group.

That is where we posited in our analysis this notion of in effect a relationship of trust, as it were, between the state and the judiciary, where members of the bar who are the high end in earnings and make the sacrifice of going to the bench will at least remain in a relationship with their colleagues when they join the judiciary. So the 8%, as it appears as a footnote at the bottom of page 15, is the total of the lost industrial aggregate indexing for the years 1993 to 1996.

[Translation]

Mr. Claude Bachand: Okay. In your assessment, you don't seem to be taking into account the fact that the financial situation of many provinces is not very healthy. I could mention Québec for one, where transfer payments have been reduced by $1.4 billion last year. Did you consider this fact or did you limit yourself to that one factor you mentioned a moment ago?

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[English]

Mr. David Scott: What we took into account was what we assessed and ultimately determined what we thought was necessary in order to maintain a relationship between how the judiciary is remunerated and how the members of the bar, from whose numbers the judiciary are drawn, are remunerated. We did not take into account the situation in any province, territory, or other jurisdiction in terms of capacity to pay.

[Translation]

Mr. Claude Bachand: Going back to the legislative summary prepared by the Research Branch that I have, it says here that on April 1, 1998, there will be an increase of 2.08% derived from the industrial aggregate index on April 1, 1998. I wonder whether this 2.08% will be added to the 4.1% increase provided for 1998—which brings it to a total of 6.18%—or whether it is already included in this rate. If it is a supplement, there will be an increase of 4.1% on April 1, 1997 and another increase of 6.18% on April 1, 1998. Am I right?

[English]

Mr. David Scott: The recommendation we made relates to the situation as at the date of our report, which is September 1996. As I recall, the industrial aggregate index formula was reinstated in March 1997—that is, the freeze went off in March 1997—so anything that is achieved by that exercise would be in addition to the range we recommended. So you're right. I'm not sure if you're right on the precise numbers because I haven't done the arithmetic, but you're right that we are talking about what we recommended for a salary increase as at September 1996. It was not intended to take into account the re-introduction of the aggregate index thereafter.

Mr. Claude Bachand: Thank you.

The Chair: Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Madam Chair, and thank you, Mr. Scott, for coming.

The first question I would like to ask you ties very much into what you've just told us about the quality of judges we're looking for and the importance of having individuals come from the bar who in essence, although it may be hard to believe for some Canadians, basically take a pay cut when they leave their practice to join the bar. I guess my question, to be blunt, is, are there good lawyers out there who are refusing to leave their practice for the sole reason that the salary doesn't compare?

Mr. David Scott: Absolutely. I would say today there is a greater range in income levels—a range in income levels—between practising lawyers than there ever has been before. There are a lot of people who are struggling and then there are a lot of very successful lawyers at the other end of the scale. But as long as I've practised there have been all kinds of great candidates who were not prepared to make the sacrifice, and there's just no question that it's an enormous economic sacrifice.

What we tried to communicate in our report was that our independent judiciary is as attractive as any in the world, and it's very important that we have a system that ensures that we continue to attract these people. For example, in the Ontario Court of Appeal, in the years that I've practised, we have always had lawyers at the high end in terms of achievement and skill and reputation who have been willing to make the sacrifice. That's why we say if you let the salary of judges drift away from the relationship of the practising bar, you will not attract those people any more. To a trial lawyer, as I am, the idea that we would have a judiciary that is made up of—what shall I say—average lawyers is inconceivable and would simply not be effective.

Mr. Peter MacKay: I guess the reality is—and not to put too fine a point on it—in all professions we've seen this range develop. I guess the one that comes to mind quickly—I'm a sports fan, but I think of the outrageous salaries that some athletes are receiving. In relation to the importance of the task that a judge performs, or a doctor, or a scientist who is in research, it's relative when you talk about a salary of $170,000 plus. The importance of those day-to-day decisions the judges are making is so crucial to the legal system.

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Mr. David Scott: Absolutely. And if you ask lawyers who are in the courts all the time, the worst imaginable situation is the appointment of judges who are really not up to the task. The objective here is to ensure that we get the very best. And our position as commissioners was that you cannot be sure you're going to get the very best unless you maintain this economic relationship.

Mr. Peter MacKay: I hesitate to even suggest it, but was it contemplated that there be some form of tax-free allowance or something of the nature that members of Parliament receive? Was that ever discussed?

Mr. David Scott: No, not by us. And nobody made any submissions to us to that effect.

Mr. Peter MacKay: Further to that then, can you tell the committee what some of the other benefits are in this benefit package? I know there is talk of a travel allowance, there's talk of insurance, but what are some of the specifics in a nutshell?

Mr. David Scott: The only direct economic benefit is the proposed increase in basic salary. The rule of 80, which is developed in the report, is basically a retirement feature. And then there are provisions with respect to interest on judges' pension contributions that are returned when they retire early, and spousal survivor benefits. But the basic cost of this to government is the increase in salary.

Mr. Peter MacKay: So the benefits with respect to insurance and travel are negligible.

Mr. David Scott: For example, we received submissions about a number of benefits the judges would like to have and we did not recommend them. For example, they would have preferred to be on an equal footing with senior deputy ministers on the subject of insurance in the insurance package, and we determined that this would cost the state money. We recommended that such an attempt to equalize the insurance coverage be introduced but over an unstated period of time so as to soften the burden.

There were a number of things like this, which the judges would have preferred to have, that we did not recommend. So our principal recommendations were what we regarded as a reasonable salary increase to maintain this relationship, and the introduction of the rule of 80, which has a lot to do with ensuring that the judiciary represent a contemporary profile for the public.

Mr. Peter MacKay: Thank you.

How do you respond to the complaint...? I'll show my bias here: I'm from the Maritimes. In the unified family court I know they were very satisfied to get a number of new appointments there, but it would appear that in the province of Ontario some, including the attorney general, have suggested that there are still not enough judges being appointed, and this legislation doesn't go far enough in the appointment of more unified family court judges.

Mr. David Scott: If you're talking about slots for the appointment of judges, we did not address that. We're talking about the level of pay making the office attractive. For example, in the last five years there was an increase in people applying to become judges, although I would say it's tailed off. But the question is are the right people applying? So the objective here is to have a salary scale that will at least make the sacrifice manageable for the right people.

Mr. Peter MacKay: Okay. Thank you very much.

The Chair: How many people do you think applied in Metro Toronto last year?

Mr. David Scott: I'd be guessing. I've been off the screening committee for about two years, but when I was on it at one point I think there were, in the district we were in, which was northern Ontario and eastern Ontario, probably about 40 names. I think at one point there were probably in the province 200 or 300 names. But on that committee you could see who was applying, and whether they were the very best.

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The Chair: It intrigued me that last year in Toronto only 41 people applied.

Mr. David Scott: There you are.

The Chair: That's not very high.

Mr. David Scott: The highest level of application, I would say, was probably about three or four years ago. It's very simple. We were in a recession, and lawyers, like everybody else, were struggling, and a lot of lawyers decided they would seek a judicial appointment. If you sit on the screening committee, you see that influx, and then as the economy levels off, it tails off.

The Chair: It's interesting, though.

Mr. Peter MacKay: Perhaps lawyers should have to a file a financial statement with their application, as you do when you go to family court.

The Chair: Some of my Liberal colleagues want to ask some questions too, but....

I've lost my train of thought. I'll come back to it when I remember what it was.

Mr. Jack Ramsay: That often happens with average lawyers.

The Chair: Average lawyers lose their train of thought? I was never average, Mr. Ramsay, but I won't tell you whether I was above or below. How's that?

Mr. Jack Ramsay: I withdraw that comment, and I seek your forgiveness.

The Chair: I'll get you for that.

Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you.

Mr. Scott, I thought my colleagues opposite would have been a little bit more scrutinizing in their questioning. I think I'll try to be.

Mr. Jack Ramsay: Give us time.

Mr. Derek Lee: Mr. Ramsay, yes, you were reasonably....

I'm going to tackle this question from two or three perspectives. I'll probably run out of time, but I would hope to come back at it.

I respect your work on the commission. The tack I'm going to take on my questioning should not be perceived in any way, of course, as being personal to you. You are simply the person who—

Mr. David Scott: I'm one of the average lawyers, as Mr. Ramsay said.

Mr. Derek Lee: Well, you have one average lawyer here.

The Chair: Then I'd say the bar's in pretty good shape, Mr. Scott.

Mr. Derek Lee: I want to hit on two or three points. First, to go back to the monetary element of the recommended increases for the judges, to nail down the numbers, as I read them, the recommended increases over 1997 and 1998 are 2% and change plus 4.1% plus 2.08% plus 4.1%.

Mr. David Scott: I believe that's right.

Mr. Derek Lee: I add up all of those numbers from over a two-year period and I get an accumulated percentage of about 13%.

Mr. David Scott: Right.

Mr. Derek Lee: That's a pretty hefty increase when you're earning $150,000 or $200,000 a year. That's a lot of toast.

Is it your understanding that the DM level within the public service had a similar type of increase over that period?

Mr. David Scott: I have no idea. I asked a colleague about what's happened in the minister's office. I have no idea about salaries for deputy ministers.

Mr. Derek Lee: The DM-3 level was one of the reference points.

Mr. David Scott: My experience with this subject ended when we delivered our report. I know what the situation was before September 1996. I don't have any first-hand knowledge about what's happened since.

For example, I know the industrial aggregate index has been reintroduced with the lifting of the freeze, but I don't know, for example, what the inflation rates are.

Mr. Derek Lee: Okay. Having established this 13%, roughly 8% of it is what I would term “catch-up” on the industrial aggregate. Is it fair for me to assume that? Because I can see a clear reference here.

Mr. David Scott: We didn't call it that, and we deliberately didn't call it that, but somebody might call it that.

Mr. Derek Lee: Is it fair for me to conclude that when the four years of missed industrial aggregate increase are quantified, as on page 15 of your report, they add up to about 8%?

Mr. David Scott: That's right.

Mr. Derek Lee: I see no other source for the 8%, so I'm concluding that the source of the 8% is the missed indexing.

Mr. David Scott: Correct.

Mr. Derek Lee: Then I want to call the 8% “catch-up”. It's catch-up for the judges.

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Mr. David Scott: Right. I guess, Mr. Lee, all I would say is that any salary increase after a freeze is catch-up. We had a formula that has a catch-up character to it, but if you have a freeze and then people get a pay increase, there's an element of catch-up in it, because, as the Supreme Court of Canada said in the P.E.I. case, a freeze is a salary reduction.

Mr. Derek Lee: I think all public servants had a salary reduction over the period of the freeze. In my own case, as a member of Parliament...our salaries around here were frozen for approximately five years. When the freeze ended, the industrial aggregate kicked in again at 1% or 2%, or whatever it was. There was no catch-up.

Your task force came to the conclusion that judges should have catch-up, presumably with reference to some other criterion, because it certainly wasn't catch-up to the public service, or members of parliament, or the DM-3, because that hasn't come out here yet.

Mr. David Scott: We attempted to outline in our report.... When the freeze went on, the judges fell away in relationship with the members of the practising bar, from whose numbers they are sought to be attracted. What we're trying to do is maintain that relationship between the judiciary and the practising bar.

Mr. Derek Lee: I suggest you have attempted to insulate the judges and the bar from what's happening in the economy.

I was just looking at today's Toronto Star, May 13—and I'd be happy to table this. The headline says “When it comes to pay, judges just rule the day”. It says that judges are the highest paid category in Canada.

Mr. David Scott: I haven't seen the article, although interestingly—

Mr. Derek Lee: That's before the increase.

Mr. David Scott: —Steven Bindman, whom I met on the street a moment ago, said “Have you read the article? You'd better be ready for it.” Anyway, I haven't read it.

Mr. Derek Lee: It's simply statistical data, and at $126,000 average, the 1,700 or so judges in Canada make an average of $126,000 a year. The next highest was specialist physicians at $123,000 a year. Everybody else follows the judges. Lawyers themselves, as a category, are at $81,000.

Sir, you may wish to react.

Mr. David Scott: Well, there are a lot of lawyers making $20,000 who would say “Where does this $81,000 come from?” But there wouldn't be many judges who would quarrel with whatever that number is, and of course the reason is they're pouring into the statistical sampling the same salary numbers. If a judge's salary is $155,000 and they're all paid the same, they will end up with a higher average salary than an occupation that has a range to it. There are lawyers, I have no doubt, in large tier one law firms in Toronto who are making frightening sums of money—$700,000 or $800,000.

Mr. Derek Lee: This statistic is derived from the end of 1995. Near the end, it's the end of the freeze. So during the period of the freeze of five years, judges managed to float up and overtake—overtake—the specialist physicians and the doctors. They never did before. The judges, even with the freeze, didn't fall behind in terms of society generally; they moved out in front. Now we're looking at a 13% increase just because there should be catch-up.

I'm going to refer you to paragraph 196 of the judgment of the chief justice that has triggered the current procedure. When I read the words you'll recognize them immediately. It says:

Finally, I want to emphasize that the guarantee of a minimum acceptable level of judicial remuneration is not a device to shield the courts from the effects of deficit reduction. 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.

And so on.

Judges, under your report, have simply shirked their shouldering of the hard economic times, because your report says there is full, unmitigated catch-up.

Mr. David Scott: Well, I've responded to your catch-up.... This is not catch-up as you envisage it that we included in our report. You'll accept our report or you won't, but we're talking about something entirely different.

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As far as the statistics are concerned, I still maintain that if you have a sampling of 10, all of whom make $155,000, and you compare it with another where there's a variation, you will get that kind of statistic.

On the last point, the reason for our recommendation was essentially to ensure that the right candidates would accept a judicial appointment. In other words, the objective of setting these salaries—and it's referred to in the judgment.... If you look at the judgment, I might just refer you, for example, to pages 53 and 106. At the bottom of page 53, where the chief justice is speaking of financial security, he says in the very last two lines that one of the objectives is to recruit to the bench “lawyers of great ability and first-class reputation”.

Our commission was moved by the fact that unless you maintain some expected relationship between those lawyers and this judiciary as far as income is concerned—just a relationship—you will not attract those people. And that's what happened. With the freeze, the judges fell away, and these lawyers of great ability and reputation were not similarly affected. So we're saying we're trying to re-establish the relationship. That's the exercise, right or wrong.

Mr. Derek Lee: Okay. The highest-paid lawyers in Canada are mostly on Bay Street. Are they the best lawyers in Canada?

Mr. David Scott: Among the best lawyers in Canada, yes, no question.

Mr. Derek Lee: What about the main street in Moncton or Halifax or Vancouver? Don't we have really good lawyers there?

Mr. David Scott: Some of the best trial lawyers are lawyers in smaller communities who make a lot less than Bay Street lawyers, but they make, in many cases, a lot more than judges do.

I just recently had a trial in northern Ontario against an outstanding lawyer. Sometimes people assume that unless you're in Toronto, you're not in the same league. He would not be making what the senior members of the bar in Toronto would be making, but he'd be making more than a judge would. A lot of other lawyers in his community wouldn't be making the same as a judge would, but the best lawyers in the smaller communities, I'm confident, are making more than judges—not all of them, but many of them. And it's the best lawyers we're trying to attract to the judiciary.

Mr. Derek Lee: I don't have a problem with that, and I don't have a problem with high salaries.

You've mentioned that we may or may not accept this report. As we read the judgment, we're not sure we have a choice, and I don't know whether that's the right way to run a ship of state either. But you didn't write the judgment; you just wrote the report. We can, if we wish, accept or reject the reasoning in the judgment, but is it your view that we have an option here?

Mr. David Scott: My appreciation is that you do not have an option in so far as the establishment of some independent screen is concerned. The court has said there has to be some independent commission standing between the judiciary on the one hand and Parliament on the other. We recommended that, and after we recommended it, the court found it would be unconstitutional to proceed without it. So that, I agree, is something the options have closed on.

Mr. Derek Lee: Okay. The salary increases we're looking at here pertain to federally appointed judges, and that, as I understand it, is the highest-paid grouping of judges in the country.

Mr. David Scott: Right.

Mr. Derek Lee: Is it possible that the court judgment here, which dealt primarily with Provincial Court judges as a starting issue, was skewed somewhat by the circumstances, which were kind of difficult for those Provincial Court judges, and that, had they had a really good look exclusively at the circumstances of the federal court judges, who are paid better and on time, etc., etc., they mightn't have weighed in so heavily to preordain and prescribe a procedure for all judges, the lower-paid ones and the higher-paid ones?

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Mr. David Scott: I don't think so, Mr. Lee, because I think this problem has been around for a long time. It hasn't changed. The Supreme Court was not dealing with quantum, they were dealing essentially with the process. There were a lot of people very surprised at the court's attitude about levels of salary, reductions of salary, and freezes. The Supreme Court said basically in that judgment that an overall reduction of salary applicable to all persons paid out of the public purse subject to some presumably mystical limit is defensible.

Now there were a lot of people who were very surprised that the Supreme Court would say that, particularly, no doubt, the judges in the lower courts who didn't conclude that.

Mr. Derek Lee: Your commission recognizes that a freeze is an effective reduction.

Mr. David Scott: Right.

Mr. Derek Lee: But why in that circumstance, the worst recession we've had since the Depression, wouldn't you and your colleagues have recognized the potential for a freeze or reduction for judges? Because at the end of the day, your report doesn't even come close to it. In fact it says “catch up”. You say this freeze was a reduction, and you reject a reduction because it throws some other things out of kilter. You said there would no reduction for the judges. You were giving us a catch-up.

Mr. David Scott: We said—

Mr. Derek Lee: The court said it was independent, it was right, and we had to take it.

Mr. David Scott: As for that latter statement, I'm not sure I follow you. But first of all, what did we say? We said the judges have not had a salary increase for five years. That's what we said. So we gave them an increase, or we recommended an increase. The reasons for recommending the increase are in the report, and I stand behind them.

As far as the process that the Supreme Court recommended, I don't see it, frankly, as having any relationship to the question of whether or not an increase is justified here. To me, those are two separate subjects. The court has done something that is frankly not that surprising. It said that if you're going to maintain an independent judiciary, you have to eliminate the negotiation between the judiciary and the state. You have to distance them, and you have to have some way of ensuring an independent assessment of what's recommended in terms of increases by Parliament.

Mr. Derek Lee: Thank you.

The Chair: Mr. Telegdi.

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): Thank you, Madam Chair.

Let me say that I have met many noble lawyers who are ready to make that supreme sacrifice and offer themselves to be judges. I must say I met some very good lawyers from my community who are ready to do that.

I'm not a lawyer.

Mr. David Scott: That's an advantage today, I believe.

Mr. Andrew Telegdi: The majority of people in the room are lawyers. Actually, I believe only Mr. Ramsay and I are not lawyers.

I have trouble with the premise that you seem to equate the need to be able to compete with the best on Bay Street. Obviously, if we're talking about $800,000, $700,000, $1,000,000, or whatever the best on Bay Street might command, then we're not going to compete with that anyway.

Let me come at this from a little bit of a different angle. I have seen people who are now federal judges who started out as crown attorneys working for the Province of Ontario, went to the provincial bench, and went on to the federal bench. Let me suggest to you that the ones I have seen go through that process are very well respected and do very well. And it goes totally against the argument that they have to compete with salaries on Bay Street, because that's not the place they came from, and every time they went through the process, they went through substantial increases.

• 1630

I have another question. What if somebody is a very good lawyer, is very much dedicated to environmental law and chooses that as their area of expertise? He or she is attracted to that not because of the dollars but because of the issues there are to fight for. To me, it seems that individual could be very good, could be going to the bench. Other people you could have are those who are in law education, be it family law where they could be very good practitioners and will never ever command the type of salary you might command if you're one of the best on Bay Street, yet in their field they could be very good, they could be some of the top lawyers.

I wonder if we looked at some of those.... I'm having trouble focusing on the salaries paid to the top folks on Bay Street as being the kinds of salaries we must compensate for versus the calling that some people feel they have in other branches of the law, in their advocacy, which doesn't correlate to the salaries—again—on Bay Street. I'm really having difficulty with that. I agree with my colleague, who mentioned that 8% is a catch-up—it certainly looks that way—and 5% is a raise.

It just doesn't seem very real to me. I would be hoping that judges, who are part of the community, could undertake some of the sacrifices undertaken by people working for the community, and I think you could make that argument for people in the public sector. We have some very good people in the public sector who do that. And I don't see this infringing on their rights in terms of their judicial duties.

Mr. David Scott: Maybe I could start to respond to some of those points by saying the system doesn't work if you have “some” very good judges. If you're the person who's being tried or whose rights are being assessed and you draw a judge who isn't one of those very good judges, you won't find the system effective.

So the system, in my opinion, has to be striving constantly to attract the best. You could have a system made up of people who worked in the crown attorney's office and became judges. And you're quite right—there are some judges who were crown attorneys and are fine judges, but you can't have a court made up of people whose careers were developed in the crown's office nor can you have one made up of people who are environmental experts.

You could develop a bench made up of good people or nice people, but if you need the system you want people who are the best. So when we talk about Bay Street, I'm not talking about Bay Street as though Bay Street is where you go to find the best. I'm talking about wherever you have to go. When you are appointing the judiciary, the objective is to attract the best, not just the good or the nice or the decent, but the best.

And if you're going to attract the best, one of the impediments you will encounter is an economic problem, a problem of incentives for joining the bench, of making the sacrifice. That is an empirical fact. And I can say as a practising lawyer—and forget this commission, you can talk to anyone who's in the courts constantly—that one of the greatest difficulties is that the system is still not always attracting the best, so I recoil at the idea that we might soften the criteria here in order to achieve some economic relief.

If I gave the impression that you have to go to Bay Street to find the best, I regret that. I did not intend to do so. I intended to say that we want the best, wherever they come from.

• 1635

The other day I heard of a candidate who someone was trying to attract for the Ontario Court of Appeal. This person was the best, and if this person was appointed to the Ontario Court of Appeal the people of Ontario would be extraordinarily well served. So that's what's driving this thinking, attracting the best. It's not that there aren't some among the best who are former crown attorneys and some who are academics. But you can't make up a judiciary of pre-selected classes of people whose economic expectations are not as high.

So I guess that's my response to the idea. You could very easily say that: just look at the people who are applying. There are a whole lot of people who are applying. Many of them are applying because they like the idea of having a pension. Someone who's applying because he or she would like to have a pension is not someone we should be focusing on in selecting judges.

So I guess it's a question of how you assess who are the best and what the attracting features are. We say in our report that economics is one of them.

Mr. Andrew Telegdi: If we were to go along with the argument in that fashion, at what point would we have to set the salary to attract the best, if you were to say go out and capture the best for the judiciary?

Mr. David Scott: What we had is a system in which there was a salary struck, which, in accordance with the industrial aggregate index enshrined in the act, took into account the cost of living and moved with the cost of living. And against that salary, over x years, whatever it was, 10 or 15 years, there was a constant relationship between the judicial salary and the levels of income of the best in society. All we're saying is that is now out of whack. If you ask me about some years ago whether that relationship was appropriate or not, I would say yes. I would say it's not appropriate now and that's why we recommend a salary increase.

You'll never convince me that a salary increase after five years of no increases is inappropriate for the judges just because they're judges. I don't know what the numbers are for deputy ministers, but my sense of it is there are some fairly big numbers there. So really what we're talking about here is a relationship. The judge accepts this appointment, the statute has in it this industrial aggregate index formula and that is his mechanism for ensuring that he will at least have this. He doesn't have it and therefore we recommend a salary increase to give it to him.

Mr. Andrew Telegdi: Thank you.

The Chair: I'm going to go back to Mr. Ramsay for a few minutes and then I know Mr. DeVillers has a question, and I remembered what mine was.

Mr. Jack Ramsay: If the pay for judges reaches a court challenge—in other words, the commission makes a recommendation, the government turns it down and some judge feels that this is unfair and takes it to court, because it involves all federal judges—do you not see a conflict of interest where the court will be deciding on an issue in which it has a direct vested interest?

Mr. David Scott: Yes, there is a conflict of interest. I acted in the Beauregard case, and it was great until I got to the Supreme Court of Canada, where I lost.

The Chair: Don't you hate that?

Mr. David Scott: The conflict of interest was acknowledged throughout, and there's a doctrine called the doctrine of necessity, which essentially covers it. If there is a legal issue involving the rights of the judiciary, under the system someone has to decide it, and under our Constitution it's the judiciary. So the doctrine of necessity clicks in and says essentially the judiciary must decide this and it's then culturally up to the credibility factors to determine whether society accepts it or not. We have vested in the judiciary these constitutional tasks, and this is one of them.

• 1640

Mr. Jack Ramsay: The society would have no say whatever in this realm.

Mr. David Scott: Well, if there was a challenge to a salary proposal by government, presumably the adversaries would be government on the one hand and whoever was challenging it on the other—presumably either an interest group supporting the judiciary, or judges, the judicial conference—and there would be a judge and judges deciding it.

And true, in that alignment you're right, Mr. Ramsay. In that alignment there is an obvious conflict. The judges who are deciding this will coincidentally be determining their own salary fate.

The Chair: Just as we do in Parliament.

Mr. David Scott: Well, of course.

Mr. Jack Ramsay: Yes, but society has a very definite input as far as our salaries are concerned in terms of elections every four or five years, and we're very sensitive to that. That's why the salaries of MPs have been frozen, and I think it's for longer than five years. We're very sensitive to that, because we are accountable to society at large. To whom are the judges accountable in this decision-making process?

Mr. David Scott: Ultimately the judges are accountable to their own intellectual integrity and the public confidence in the system.

I think if anybody read that decision of the chief justice, they would be impressed. I was impressed. I was surprised at what I would describe as the principles he introduced as given. He in effect said in that judgment that an across-the-board reduction was prima facie rational if it applied to everybody out of the public purse. That is a position the judiciary has never taken. The judiciary has, prior to that, taken the position that you can't coincidentally reduce the salary of judges.

The Supreme Court I think took a very responsible position on that. They not only said you can have this independent commission; they said further that the independent commission is going to have to face these facts. The test is rationality, not the normal section 1 test. Further, the court said that certain salary schemes will be prima facie rational—I think is the way the chief justice put it—such as an across-the-board reduction or freeze.

So you're right, Mr. Ramsay. Ultimately there is no other way to do it. Otherwise the judiciary is ranged against its paymaster, which has traditionally been regarded as undermining its independence.

Mr. Jack Ramsay: But the judiciary has a very powerful lever now, and that is simply that they can declare that the decision of Parliament in this case constitutes an interference into their judicial independence.

There is one other area I'd like to cover. I appreciate very much your opinion on these matters, because I think we're breaking new ground here. Certainly for me we are. My concern has to do with interference in the judicial independence of a judge.

You made reference to the insurance question. If I as a federal court judge see that this is something the commission is putting forward in consideration of my insurance benefit or any other benefit, and I see that the Parliament of Canada has rejected that, and I feel within my own mind that that constitutes interference within my judicial independence, then I can take it to court. If I win, fine. If I lose, I'm still left with that feeling that my judicial independence has been interfered with by the very nature of the decision that motivated this bill.

Where do I stand as a federal court judge with the clear feeling that my judicial independence has been interfered with, regardless of the decision of the court?

• 1645

Mr. David Scott: I confess, I don't quite follow the question. I apologize for that. It's my fault.

Mr. Jack Ramsay: Well, let me try to clarify it. I am a federal court judge.

Mr. David Scott: All right.

Mr. Jack Ramsay: The commission has made a recommendation to the Parliament of Canada for some benefit that I am convinced is fair and just, and the Parliament of Canada turns that down. I have an alternative to sue and take it to court, being absolutely convinced that I'm deserving of this. Even after the court I appeal to rejects my application, I still feel the court is wrong. I've gone to the highest court and I still feel they're wrong, and I still feel, as a court, that this constitutes interference; the decision has constituted an interference into my judicial independence. What do I do?

Mr. David Scott: Well, that's exactly what happened in the Beauregard case. Mr. Justice Beauregard was a judge in the Quebec Court of Appeal. They introduced the compulsory contribution to pensions, so he went to court. Not only was his interest at issue but the interest of others was at issue, and he won. It was determined that it was unconstitutional to impose this because it amounted to a reduction in his salary, a reduction in the salary of a sitting judge. It was unconstitutional, and the Court of Appeal upheld that. It got to the Supreme Court of Canada and the Supreme Court of Canada said no. The Supreme Court of Canada said this is a measure—that is, contributory pension schemes—that is in keeping with what's in vogue in all aspects of society, so you're wrong, Mr. Justice Beauregard.

No doubt he didn't agree with that, even when the court spoke, but I'm sure it didn't affect his independence one bit. He was like a litigant. He went there and attempted to persuade his brothers as to whether or not he was right or wrong, and he failed. If he had succeeded—actually, Chief Justice Lamer points that out. You can make the argument of a challenge to independence by favouring the judiciary or by denying something to the judiciary.

Mr. Jack Ramsay: So the loss of a presumed benefit, then, does not constitute interference into the judicial independence of the court.

Mr. David Scott: Well, the court is saying it is certainly less likely to if there is some intervening process that can give it the credibility necessary to eliminate any suggestion that it is the state attempting to interfere in a discriminatory way with the judiciary, the third branch of government.

Mr. Jack Ramsay: But do you not believe, Mr. Scott, that the decision of the Supreme Court of Canada on the P.E.I. case has now created a mentality within our federal court judges that the rejection of a pay raise or a benefit or perhaps an unfair decision, whether it's to reduce the pay or deny a commission's recommendation, is now creating a fertile mentality that is going to leave many individuals in the federal court judge position with the feeling that regardless of the decision, their independence has been interfered with, because that is what the courts have said? It can constitute interference with their judicial independence.

As a defence counsel, if someone comes to me and says, Judge Ramsay, I see where the Parliament of Canada has refused you this benefit. This is, I submit, an interference with your judicial independence; therefore, I would ask you to dismiss the case before you—perhaps even before it goes before a tribunal.

Perhaps the decision of Parliament is not contested, but a defence counsel comes before me and makes that argument, and I say, well, yes, it sounds like a pretty good argument.

• 1650

Mr. David Scott: If that came before you under the Supreme Court scheme, the judge would say to you, look, if there was any concern about this, we had recourse to the courts under the decision in the P.E.I. case.

Mr. Jack Ramsay: But with respect, I as a judge believe that. I believe we were due that raise or due that insurance of benefit.

Mr. David Scott: Yes, and the reason that the court has introduced this buffer is to ensure that there's some check on arbitrary manoeuvres that might undermine the independence of the judge, and the judiciary will have to accept it. I mean, it's for the benefit of the public and the judiciary. The judiciary will know that they have a right to determine whether this is arbitrary or not, and the public will know exactly the same thing, that if it's not challenged and the reasons are rational, then it is not arbitrary.

I look at the judgments in the Supreme Court of Canada and say all it has done is to formalize and make effectual the system that everybody expected would be in place for the triennial commission. The triennial commission was going to make the recommendations. The government was going to consider them. They were going to act on them. They did none of the above for five commissions.

Mr. Jack Ramsay: I think it goes further than that, though.

The Chair: Jack, I want to get Paul's question in before we go, not to mention my own 82 questions.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Madam Chair.

Mr. Scott, I have a couple of points maybe you could help me with. One is the reference being made to the chief justice's comments about across-the-board reduction or freeze, as appropriate, because it's a general application. If, as this bill is drafted, and following your commission's recommendation, there is the 4% and 4%, which has been described as being akin to catch-up, although you seem reluctant to categorize it as that, could the reverse not be argued if all of the public service does not receive some form of catch-up? Could the reverse to the chief justice's comments not be applied as an argument for catch-up being applied to the entire public service?

Mr. David Scott: In other words, that this was a discriminatory favouring of the judiciary.

Mr. Paul DeVillers: Yes, in that if it's appropriate to have the reduction or the freeze if it applies generally, then the reverse could be argued to be true.

Mr. David Scott: I suppose you could argue that arbitrariness can go both ways. What you're saying, really, is that you can have an arbitrary favouring of the judiciary, and the question under the judgment would be if it is rational. Then there's the reverse, whether it would be rational if it was an arbitrary discrimination against the judiciary.

We're recommending the judiciary get a salary increase. That's what we're doing.

Mr. Paul DeVillers: Right. That's where the characterization of it as catch-up comes in.

Mr. David Scott: We're using a formula that is identified as a form of catch-up. If we had not used that formula and had recommended an 8% increase, where would we be?

Mr. Paul DeVillers: Each other sector would come and bargain for their increases.

Mr. David Scott: Right.

Mr. Paul DeVillers: It's that potential characterization of the catch-up that worries me in terms of the precedential value of it for other negotiations.

Mr. David Scott: Maybe we should have just called it an 8% increase, and then we wouldn't be facing these concerns.

Mr. Paul DeVillers: My second point concerns a response to a question from the chair. It was a comment on the number of applications from people applying to the bench. Your explanation, if I understood it, was that two or three years ago a lot more lawyers were applying because the economy was slower and incomes were lower. Was that what you said?

Mr. David Scott: I would say the practice of law has changed dramatically in the last ten years. It is no longer, in certain areas and at certain levels, as attractive as it once. So some people have applied for this.

Mr. Paul DeVillers: That's where you make the distinction from the best applying to those from the higher salary. You don't see that downturn generally in average lawyers' income being a concern.

Mr. David Scott: Not if you want the best. If you ask me to find you ten people in Ontario who want to be judges, no problem, but if you ask me to find ten who represent the ten best, that's an entirely different question.

Mr. Paul DeVillers: So those best lawyers likely didn't suffer the decrease in salary that some of the others did.

Mr. David Scott: Definitely. I mean, no doubt in some cases their incomes may have been reduced in the recession, but vis-à-vis what the judges are getting, not significantly.

Mr. Paul DeVillers: Okay.

Thank you, Madam Chair.

• 1655

The Chair: Mr. Scott, I'm going to pick your brain a little off the topic, but I have you here.

I know you have served on committees that review judges' applications. I agree with you that we need to have the best on the bench. I do not agree with some of my colleagues who think a parliamentary committee could ferret out and find the best of the applicants. I don't think we have those skills here. I'm interested in getting the best bench we can, so I like the idea of a committee of the community that has specific skills to take a look at judicial appointments.

But parts of this process make me very uncomfortable. Number one, I would not want to apply. I don't want to be a judge anyway, but if I did want to be a judge I would not be all that comfortable applying knowing that people were going to pick through my life and pick through my file, and I would never know whether David Scott thought I was an appropriate candidate for the bench or not. I find that process to be so patently unfair. A person can apply, be rejected, and not know whether they were rejected or not, and there's no right of appeal.

Second, since the Minister of Justice and the Prime Minister will ultimately take the heat if a judge screws up, I don't like the idea that, as has been the practice, the committee can't be second-guessed by the minister, frankly. I'm very uncomfortable with that because it denies the right to appeal.

Third, part of that same problem is if a minister can't say “I will never come back to your committee and I will never say you've rejected Shaughnessy Cohen for a position on the interior court general division. I don't accept that. I want you to look at her application again. I think she's a good person for the job.” I'm wondering whether the minister isn't open to a judicial review of her decision. In this case, she has fettered her discretion by saying “I will only accept people the committee has approved and I've therefore limited my ministerial discretion”.

These are just things I'm struggling with.

Mr. David Scott: Those are very interesting questions.

If you go back 20 years, when judges were appointed—

The Chair: I can go back 20 years.

Mr. David Scott: If we all go back 20 years, the system bears no relationship to what it is today. You didn't apply. Nobody knew who was who. People were appointed because they were friends of the party in power. It was as plain as the nose on your face.

Then you come forward to today, taking your points. This process is private because it would be a debacle if it were public. The fact of the matter is, the objective is to have a full, frank, and open exchange of ideas from people who are consulted in confidence. It's not as if only one or two are consulted. A whole lot of people are consulted, it shuffles down, and you get very consistent readings. That's in public. You will not get the information.

The Chair: But you and I know.... I shouldn't point. I assume you know what I know, and that is that these committees leak like sieves and people who want to be judges frequently come to people like me or my colleagues and say “Hey, I made it through the committee. I was recommended and I would like your help in getting the minister's attention or getting myself appointed.”

Mr. David Scott: That system is intended, but that won't happen.

The Chair: But it does.

Mr. David Scott: If you tell me it does happen, obviously there must be people on the committee who shouldn't be on the committee who are disclosing this information.

When I was on the committee there was an enormous sensitivity about that. I had lots of friends who asked me whether they got through. The answer was “This is in confidence. You will never know unless you're appointed.”

The Chair: But how can we choose judges in a system? I don't know the answer to this, and I'm willing to be convinced. I don't want you to think I'm not. I have a problem with the integrity of this system when it's set up to be confidential and it isn't. I'm getting information quite freely that in this system, as it's set up, I shouldn't be getting. I have a problem with that.

Mr. David Scott: That's because the wrong people are on the—

The Chair: Okay.

• 1700

The second thing I have a problem with, a serious problem I just can't deal with, is when a good person or a bad person or a mediocre person applies and they're turned down or they're not recommended. How do we deal with it? How can you not tell someone that they're not considered to be qualified for the job?

Mr. David Scott: I think you have to face the fact they might not have been. In the three years or so that I was on the committee, I suppose we went through maybe 80 names, and I know there were people there who Minister So-and-so would have loved to have seen appointed and they didn't get through.

The Chair: I don't have a problem with—

Mr. David Scott: There was a whole lot of railing about the fact they didn't get through, and the integrity of the system was they did not get through.

The Chair: I have no problem with them not getting through. My problem is with them not having the right of knowing. Let us say, for instance, that there is someone on the committee who hasn't declared a conflict, who doesn't perceive that he has a conflict in considering that person.

Mr. David Scott: If you tell them, then you have judicial review, and then the whole thing is different.

In other words, if you're going to tell people they didn't get through, then there'll be a judicial review application, and then the whole process will be subject to the supervision of the courts and it will get completely bogged down. This is a practical system.

If you want my honest opinion, it has one shortcoming, which I'm sure you wouldn't agree with at all. That is, under the screen system, the question the committee is asked to answer for the minister's office is whether the person is recommended, highly recommended, or not recommended. If you wanted to have a best-case situation, you would say the minister will only select from the highly recommended pile, because if you sat there, as I did, and went through these 80 candidates, there are bound to be some in the recommended that aren't the very best. Even though you think they are, they may turn out not to be. But if you just went to the highly recommended pile, the odds are you'd be getting the best. That would really hamper the minister's discretion.

The Chair: So give me a quick opinion on the last part of my question, which was does the minister fetter her discretion by saying she will only choose from among those people who come through the screening process?

Mr. David Scott: No, I don't think so, because I think she's basically part of the whole system. She—or he, as the case may be—has agreed to this, and they're basically saying you give me the names and I will operate only from that list.

Let me say this one thing as a practitioner to this community. In the last four or five years we've had in this community probably five or six new judges. Compare their apolitical character with what we had 25 years ago, and it would blow you away. In spite of the fact that there is a government in power today, if there's one who has any formal connection with the Liberal Party, I'd be surprised. What happens is the minister has a stack of them there.

I know there are a whole lot of people who get appointed who were never involved in politics. It's not perfect, because we're not selecting only from the highly qualified list, but it's incredibly different from what it used to be.

The Chair: But if I apply—and I'm not going to and I'm not interested in doing so—

Mr. David Scott: Never say never.

The Chair: Well, I'm saying never. If I apply and I'm turned down by that committee, why don't I have a right to know?

Mr. David Scott: It's to make the system practical. If you have a right to know—it's the old green apples thing—you will be in court asserting that you didn't have a right to be heard, and now you're going to have a panel that you're allowed to go there and cross-examine. Nobody will give any opinions. The whole thing will grind to a halt. It's confidentiality.

Not everybody can be a judge. I might like to be a judge and don't get through. So you have to do something else, like practise law.

The Chair: Or run for office.

Okay, that was way off topic, but thanks for helping me with that.

Mr. Peter MacKay: I think you should apply, really.

The Chair: Do you? Listen, do you want to ask Mr. MacKay what an assistant crown attorney makes in Pictou County, Nova Scotia?

Mr. Peter MacKay: It's less than $40,000.

The Chair: I must say of Pictou County, I don't know that I'd want to appoint anybody to the bench from there.

Mr. Peter MacKay: We have great judges from there. You did appoint someone from there.

The Chair: I know.

There are regional differences too, which we haven't talked about. But anyway, thanks a lot, Mr. Scott. This was great. It was fun too.

Mr. David Scott: Thank you very much. I enjoyed it.

The Chair: The meeting is adjourned.