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[Recorded by Electronic Apparatus]

Thursday, March 29, 2001

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The Vice-Chair (Mr. Ivan Grose (Oshawa, Lib.)): We have a quorum, so there's no reason we can't start.

For those of you who are new members and don't know me, many people would tell you you're lucky. But when I sit here, I belong to no political party. I'm impartial. All you get is seven minutes, because I can't count to eight. But I hope we have a happy and productive meeting.

Minister, welcome. It's good to see you again—it's been 24 hours.

Hon. Anne McLellan (Minister of Justice and Attorney General of Canada): I know, we're seeing a lot of each other.

The Vice-Chair (Mr. Ivan Grose): We have the minister with us today and Judith Bellis. There are only two of you.

Ms. Anne McLellan: But supported by others.

The Vice-Chair (Mr. Ivan Grose): Yes, background players. Whenever you're ready.

Ms. Anne McLellan: Thank you, Mr. Chair.


Good morning, Mr. Chairman and Committee members. I wasn't expecting to have the pleasure of again appearing before this Committee quite so soon, but as usual, I am very pleased to be here.


As members know, the bill we are discussing this morning is Bill C-12, an act to amend the Judges Act and to amend another act in consequence. This bill would make certain amendments to the Judges Act that will ensure appropriate and fair compensation for the federally appointed judiciary in Canada. It is intended to implement the commitments made by the government in its response to the report of the 1999 Judicial Compensation and Benefits Commission.

As I said in the House on opening second reading debate, this government is of the view that the strength of Canada's judiciary is a key factor in our prosperity and health as a nation. As the guardians of the constitutional right of Canadians to have peace, order, and good government, judges form an important pillar in our democratic society.

You are all no doubt familiar with Professor Peter Russell, a respected constitutional expert on the Canadian judiciary. Professor Russell has observed, following John Locke some two centuries before him,

    If government is to be based on the rational consent of human beings, adjudication by impartial and independent judges must be regarded as an inherent requirement of political society.

It is undisputed that an independent judiciary is essential to the rule of law. Judges must be free from undue influence of any kind from those with money or power. There is a growing recognition that stability, human security, and the rule of law are necessary preconditions to economic growth. And there is a growing appreciation that an independent judiciary with proper resources is the first step down this path.


Canadians are envied around the world for the quality, commitment and independence of our judiciary. For many people, our Canadian courtrooms—presided over by judges who are efficient, impartial and free from government or any other interference—represent a shining ideal that is hoped for, but not realized. Increasingly our court system and our judges are looked to as models of integrity and impartiality by developing democratic nations as they strive to implement fair and effective systems of their own.


We need only open the papers or listen to the international news to be reminded of the importance of a courageous, independent, and impartial judiciary in ensuring the basic elements of a free and civil society. And like so many of the rights and advantages enjoyed by all Canadians, the importance of an independent judiciary cannot be underestimated or taken for granted. Without it our country would be a very different place.

I note with real pride that Canada's experience and expertise has been sought in the development of judicial and court systems in such diverse countries and regions as the former Soviet Union, including the Ukraine and Kosovo, South Africa, and China. In fact, you are no doubt aware that during a recent visit to China the Prime Minister commented on the five-year cooperation project on the training of judges that has been successfully undertaken by our two nations. Canada's contribution towards the training of the Chinese judiciary on issues such as ethics and independence of the judiciary will be integrated into judicial teaching.

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The importance of an independent judiciary was succinctly captured by our Prime Minister when he stated:


    For no matter how well the laws are written, there can be no justice without a fair trial overseen by a competent, independent, impartial and effective judiciary. A judiciary that applies the law equally for all citizens, regardless of gender, social status, religious belief or political opinion.


The Government of Canada is committed to the principle of judicial independence, as it is a fundamental precondition for ensuring the vitality of the rule of law in our democratic system of government. The three constitutionally required elements of judicial independence are security of tenure, independence of administration of matters relating to the judicial function, and financial security.

In his seminal study on judicial independence and accountability, Professor Martin Friedland observed the following:

    ...if a judge's salary is dependent on the whim of the government, the judge will not have the independence we desire in our judiciary. If salaries could be arbitrarily raised or lowered in individual cases, or even collectively, the government would have a strong measure of control over the judiciary.

Mr. Chair, committee members, it is in direct support of the principle of judicial independence that section 100 of the Constitution has conferred on Parliament the important task of establishing financial security of the federally appointed judiciary. It is for parliamentarians to ensure that our judges are compensated fairly and appropriately, in order to maintain the high quality and independence of our benches.

In 1981 Parliament established an independent judicial compensation and benefits commission to assist in its task under section 100 of the Constitution. The Supreme Court of Canada explained the purpose of the independent commission process in the following words: security for the courts as an institution has three components, which all flow from the constitutional imperative that, to the extent possible, the relationship between the judiciary and the other branches of government be depoliticized. ...this imperative demands that the courts both be free and appear to be free from political interference through economic manipulation by the other branches of government, and that they do not become entangled in the politics of remuneration from the public purse.

In 1998 Parliament amended the Judges Act in order to further enhance the commission's independence, objectivity, and overall effectiveness in support of the principle of judicial independence. The new commission process did not replace, but rather built on, the strength of the former commission. Parliament enhanced the independence of the new commission through the nomination process and tenure of its members. In the selection the judiciary and the government each nominated one member of the commission. Those two members then nominated a third member to serve as chair.

The commission is required to conduct an inquiry every four years and to make recommendations as to the adequacy of judicial compensation. Parliament further reinforced the commission's objectivity by establishing criteria that guide the assessment of what constitute adequate judicial salaries, benefits and allowances. These objective criteria include, first—and these are in no particular order of hierarchy—the prevailing economic conditions in Canada, including the cost of living, and the overall economic and financial position of the federal government; the role of financial security of the judiciary in ensuring judicial independence; the need to attract outstanding candidates to the judiciary; and any other objective criteria the commission considers relevant.

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Monsieur le président, the care with which the commission undertook its preparations and deliberations is evident in the quality and thoroughness of its report. While the government may not share all the commission's conclusions, it is clear that the commission has made a great effort to offer reasons that are carefully explained and supported by evidence, to the extent that evidence was available. I hope all members have taken or will take the opportunity to read both the commission report and the government's response to it.

It has been suggested during second reading debate that the revised process somehow undermines or limits Parliament's role in establishing judicial salaries. I therefore feel it is very important to point out that the commission's recommendations are not binding. There has been no change to the fact that it is on Parliament that the Constitution has conferred the exclusive authority and responsibility for establishing judicial compensation.

That said, where Parliament decides to reject or modify the commission's recommendations, it is legally and constitutionally required to explain publicly a reasonable justification for this decision. Given the constitutional mandate of the independent commission, this is a reasonable requirement that will ensure public confidence in it.

The government is committed to ensuring the effectiveness of the judicial compensation and benefits commission process in support of the principle of judicial independence. We are confident that all members will appreciate the particular importance of this first formal response to the new commission process in ensuring public confidence in the legitimacy of this process.

As to the specific provisions, Mr. Chair, the government is proposing implementation of most of the recommendations of the commission, including the salary proposals. In light of all the factors considered by the independent commission, including trends in both the public and private sector, the government is of the view that the salary proposals in Bill C-12 are within the range of what is reasonable and adequate to meet the constitutional principle of financial security.

Certain accountable allowances that have remained unchanged since 1989 will be increased, and some life insurance benefits, equivalent to those of senior public servants, will be provided. The bill does provide for some modest improvements to the judicial pension scheme, including a pro-rated pension after ten years of service.

That said, the government is not prepared to implement all the commission's recommendations. Specifically, we will defer proposals that would increase numbers of supernumerary or part-time judges pending the outcome of consultations with the provinces and the territories. Let me say, Mr. Chair, some two years ago provincial and territorial colleagues and I agreed to undertake a review of the situation involving supernumerary judges. Two of my provincial counterparts co-chair that initiative, and certainly we look forward to a report, either at our next federal-provincial-territorial meeting or at some time in the not too distant future. I think this is an important piece of work that has been taken up by my provincial colleagues, and as I say, it could be very important to us in deciding where we go with supernumerary judges.

In addition, the government has not accepted the commission's recommendation with respect to legal fees. In our view the commission's proposal does not establish reasonable limits to these expenditures. Instead we are proposing a statutory formula designed to provide for a reasonable contribution to the cost of the participation of the judiciary, while at the same time limiting their scope.


Mr. Chairman, in conclusion, Canada is indeed fortunate to have a judiciary renowned internationally for its competence, commitment, independence and impartiality.


The Constitution has entrusted Parliament with a duty to fix judicial salaries, pensions, and allowances at a level sufficient to support judicial independence.

As the Prime Minister noted during his visit to China:

    No one can be above the law. And no one can be forgotten by the law or denied its protection. And to be applied impartially, the rule of law means that there should be a clear separation of the prosecutor from the person who will ultimately pass judgment.

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Safeguarding the principle of judicial independence reflected in this statement is precisely the reason the government has brought forward Bill C-12. I commend it to this committee for its consideration. I look forward to answering your questions and hearing your comments.


Thank you very much, colleagues.


The Vice-Chair (Mr. Ivan Grose): Is Ms. Bellis going to address this?

Ms. Anne McLellan: No. She is here to answer committee members' technical questions in terms of computation and other issues arising....

The Vice-Chair (Mr. Ivan Grose): You don't do technical questions.

Ms. Anne McLellan: I do some, but it's better for me not to spend too much time poring over the exact numbers.

The Vice-Chair (Mr. Ivan Grose): Thank you.

Mr. Toews, you have seven minutes.

Mr. Vic Toews (Provencher, Canadian Alliance): Thank you, Mr. Chairman.

I don't want to spend too much time on this issue, but I do want to set out a few concerns and leave the minister with a few questions.

One observation that can be safely made is we don't seem to have any shortage of applicants for the superior court. Perhaps that's only in some provinces.

While I appreciate how necessary it is for us to ensure that public servants—and I include judges in this category—be given salary increases, those salary increases should be in keeping with the average Canadian wage-earner at work in comparable occupations. We note how the government has awarded large pay increases to senior bureaucrats and others, while front-line police officers and lower-level public servants have received little or nothing.

I note specifically a concern about RCMP. If we're talking about the potential for corruption, I think we really have to look at our RCMP and other police officers and ensure they're fairly compensated. If we have such a concern about the judiciary, certainly we need to bear it in mind to deal fairly with RCMP officers, who had their wages frozen for over five years and then received an increase of a few percentage points recently.

I also want to put on record our concern over the way the Judicial Compensation and Benefits Commission is set up. It consists of one person nominated by the judiciary, one by the Minister of Justice, and a chairman to then be appointed by those two. I'm a little concerned that this structure may not allow for appropriate grassroots input into the process. I would ask the minister to consider this in the future.

The other point is of course the way our judges are appointed, though I don't want to get into this in any great detail. We need to have greater of transparency and openness in this process, especially in respect to the Supreme Court of Canada, which deals with social and legal policy on a daily basis. Concern that the line is being blurred becomes greater every day, that the judiciary is crossing over into the jurisdiction of Parliament. Many parliamentarians share this concern. It's something we have to be alert to.

However, dealing specifically with the salaries, the proposed raise the government has adopted—the 11% raise and the $200,000-plus salary, $250,000 for the Chief Justice of Canada—may be viewed as very generous in certain parts of the country. In other areas, Toronto or Vancouver for example, raises like this may well be in line with private sector salaries. I can't speak to that because I'm not from those areas. Maybe some other committee members will be able to enlighten the committee. In fact uniformity may create inequality, because of the different costs and other matters these judges may face.

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Minister, has there been any further consideration about implementing salary differentials for judges that reflect local circumstances, such as costs? This could be one way of ensuring that we continue to attract high-quality candidates in areas where costs are higher, while not overpaying candidates from other areas where $200,000 is, I would submit, a very generous salary.

I leave that question with the minister. I don't know if she simply wants to answer that question or indeed respond to some of the other concerns I've brought forward.

Ms. Anne McLellan: Thanks very much, Mr. Toews.

First of all, I do take your point, and I do not think we have a shortage of applicants. However, one always wants to ensure that one has in place a climate that attracts the very best people, one in which the most talented and the most experienced feel an appointment to the judiciary is open to them. But I would agree that I do not see a shortage of applicants for appointment to the bench.

You raise an important point when you talk about keeping salary increases in line with comparable occupations. The commission addressed its attention to this important issue. Obviously the judiciary, by its very nature as one of the pillars of our very democratic foundations, one of the three important branches of our democratic state.... Who do we compare them to? There's Mr. MacKay, I know.

For some purposes we have looked at comparing them to deputy ministers, for example. The DM-3 range has at times been discussed as a possible, but only as a possible, comparator. Then one could get into a discussion of whether or not they should be compared to top-flight senior lawyers in big law firms in the private sector, or small law firms in the private sector.

It's a continuing discussion, and it continues because it's not easy to come up with the perfect comparative or comparable occupations for the judiciary, because of the unique role they play in the very essence of our constitutional system of governance.

Now, you mentioned the membership of the commission. This is the first report of the new commission process put in place by amendments to the Judges Act in 1998. There would be absolutely no reason why you or I or whoever holds this office in the years to come.... This committee could revisit the issue of membership.

As you know, Mr. Toews, the P.E.I. reference talked about the independent commission, but I do not believe there's anything in that judgment restricting the appointment of additional commissioners who could bring up the perspectives of a larger community, of societal interests, if you want, as you know we do presently on our judicial selection committees.

This is the first report, but if at some point in the future people say let's take a look at how this commission is operating—does it have all the legitimate points of view represented when it is making these important decisions around the judiciary—I can't bind any future minister or government, but I think that's something people should be open to looking at, because as we know, we learn from experience.

That's why we've enhanced the independence of the commission process most recently. We learned from earlier experience and the P.E.I. reference. This is something we can keep in our back pockets in terms of how we think the commission is doing its job.

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Now, obviously the judicial appointment process opens up a wide range of concerns. I know some of them have been addressed at this committee before.

By the way, where's Mr. MacKay? Peter always accuses me of blaming the previous government for certain decisions. Let me say here that the previous government put in place the judicial selection committee that we have in the provinces and the territories, and I was going to provide kudos to the previous government.

I think that process has worked well. Again, we have enhanced the process over the years, but I think it works well for the applicants. One applies to be a judge. One's application is considered by a committee in a province or territory. Those recommendations are then forwarded to me, as federal Minister of Justice.

As for the judicial appointment process, that's something that could take up all the time of this committee. It's a very contentious issue. People have strong views on it one way or the other.

Let me just commend to the committee, if you want to do some reading on this, the latest edition of the Alberta Law Review, from the University of Alberta. It is devoted entirely to the process of the appointment of judges and critical commentary in and around the appointment of judges.

The Vice-Chair (Mr. Ivan Grose): As you'll notice, Minister, I do not cut ministers off. We're here to hear testimony.

Ms. Anne McLellan: Feel free. Otherwise, I'll go on all day. Don't worry, Ivan, cut me off.

The Vice-Chairman (Mr. Ivan Grose): Your time is gone, obviously. In fact, I don't think you get another turn.

Ms. Dalphond-Guiral.


Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Thank you very much, Mr. Chairman.

I very rarely sit on this Committee, particularly since I am not a member of the Bar. As I see it, I am here to represent ordinary people.

As you know, Madam Minister, the Bloc Québécois will be supporting this Bill because it deeply believes that in a country such as Canada, the separation between the judicial branch and politicians must be absolutely crystal clear for all concerned. The people who are ultimately responsible for enforcing the law must be people that ordinary citizens can trust.

The Committee has done very good work. But there is one thing I find surprising. This Committee made certain recommendations. I note in the choices you have made with respect to compensation that the increases provided for here are well below what was suggested. I would like to know what criteria you based your decision on, Ms. McLellan. I realize that $250,000 is a lot of money. But aren't equity and justice worth that much? As parliamentarians, should we not be able to respond to possible criticism? Is it not our responsibility to demonstrate the soundness for our decisions?

Ms. Anne McLellan: Thank you, Ms. Dalphond-Guiral.


As I understand it, your question is in relation to what we suggested as an adequate increase, what judges requested, and then what the commission recommended. Let me be clear that we are accepting the commission's recommendation in relation to salary. This is all public.

We went into the commission process making a recommendation for 5.7%. In fact, we made our case for a 5.7% increase, taking into account all the factors, some of which I've outlined in terms of the criteria found in the legislation. The judiciary counsel argued that they should receive an increase of 26.3%. As you can see, there was a bit of a gap between the counsel for the judiciary and us.

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The commission, after considering all arguments and hearing witnesses and evidence on this point, recommended a salary increase of 11.2%. We have accepted that recommendation. Therefore, we are doing what the commission is recommending. The commission obviously believes it to be fair and appropriate, taking into account all of the circumstances as represented to them.


Ms. Madeleine Dalphond-Guiral: Thank you.


The Vice-Chair (Mr. Ivan Grose): Mr. Blaikie.

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Thank you, Mr. Chairman. I have just a comment and perhaps one question.

I want to echo some of the sentiments already expressed by my colleague from the Alliance Party, Mr. Toews, on the contrast between the fairness and increase in compensation being extended to judges by way of this legislation and the situation that many other people in the justice system find themselves in, whether it be RCMP officers or people throughout the system.

A number of articles have recently.... And I'm not suggesting the minister is directly responsible for any of these things. It's just one of those things we need to think about in terms of the optics of this legislation, not just at the level of perception but also in terms of real comparability. You have a crisis in the justice system in Quebec. It seems that there are articles all the time about prosecutors feeling that they're completely stretched out there. I think that's true in a lot of other provinces as well.

Ms. Anne McLellan: And there are others, Mr. Blaikie, who apparently want to come and work for the federal Minister of Justice.

Mr. Bill Blaikie: There's no shortage of applicants for various jobs, Madam Minister.

In any event, it's not just a question of corruption prevention. You don't pay people well just so they won't be tempted; it's also a question of fairness. A lot of your arguments seem to hinge on the independence of the judiciary, independence from both corruption and government. I think that's all well and good in theory. And I hope it was only theory. I hope there's no evidence that the judiciary was on the verge of being corrupted.

Ms. Anne McLellan: No, I can reassure you there isn't.

Mr. Bill Blaikie: So I just wanted to put that on the record, that I think it's a question of fairness as well as prevention of corruption.

Now, your own remarks included a comment on the fact that the commission's recommendations are not binding, that you've accepted the commission's recommendations but didn't have to. So aren't you still in the same position that you described, the very position that you were saying the bill somehow gets us out of? Judges are still very much dependent on politicians, on Parliament, on the Minister of Justice, or whatever, for how much they're paid. Aren't you still in the very scenario you describe, whereby judges, either individually or collectively, particularly, could find themselves in a position where they could be theoretically punished by government for not living up to certain expectations, or for being critical of government for underfunding of the justice system generally, or whatever the case may be? It seems to me that, without it being binding, much of what you were concerned about is still there.

Ms. Anne McLellan: Well, as I indicated in my comments, while they are not binding upon Parliament, if we choose to reject the recommendations of the commission we have to provide reasons in relation to that. If those reasons—which are made public, for example, in my response, and here to this committee, subject to your questioning and the public's consideration—are not sufficient, or deemed not sufficient, then, for example, an individual judge, or a group of judges, or I suppose others in this system.... It would be interesting to know whether you, as members of the House of Commons, could in fact bring action against the Minister of Justice, or whether the court would give you standing to bring action against the Minister of Justice in relation to what is deemed to be an unreasonable, irrational rejection of the recommendations made by the commission.

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While the recommendations are not binding, it is quite clear that there are safeguards built into this process. Ultimately, if one wanted to pursue this matter diligently because one felt any decision I made was unreasonable in rejecting a commission recommendation, that matter could go all the way to the Supreme Court of Canada itself for deliberation by members of the Supreme Court of Canada. The justices would look at the criteria in the legislation, they would look at what I say in terms of why I rejected the recommendation, and they would decide whether or not I had reasonable grounds to reject. If I did not, then this matter would be returned to me and to the commission.

Mr. Bill Blaikie: Would you use the notwithstanding clause if you had to, or...?

Ms. Anne McLellan: No.

It's quite clear to me that we have a process that is as independent as possible, yet still respectful of the important role of parliamentarians in terms of considering the commission's recommendations and making final, binding decisions in relation thereto.

Let me say that you raise an important point in terms of corruption. We are incredibly blessed in this country. Because of institutional safeguards like financial security and the independent commission that we have in place, our judiciary is viewed as probably the finest in the world. That is why our judiciary is called upon to train other judges and to work with other judges around the world. In fact, the Chief Justice of the Supreme Court of Canada was telling me that the requests are such that it's now very hard for Canada's judiciary to keep up with the requests from developed and third world nations.

If you look around the world at the lack of independence for the judiciary, we see it practically every week in the pages of our papers. I will not name specific examples, but I'm sure we can all think of any number we have read recently about how the lack of commitment to the rule of law and the lack of commitment to the independence of the judiciary has led to chief justices stepping down and to judges being intimidated. In fact, what is so important is that we are a beacon to the rest of the world in terms of how we respect the rule of law, and how, as a fundamental part of that respect for the rule of law, the independence of the judiciary forms a keystone of that commitment to the rule of law.

I am very proud of what we have done in this country. I believe the independence of the judiciary is fully protected, and I believe the independent commission process that we have put in place further enhances what is already a world-renowned, enviable reputation—not only of the quality of our judges, but our commitment to their independence and their right, on behalf of all Canadians, to be free from political interference.

The Vice-Chair (Mr. Ivan Grose): Thank you, Minister.

Mr. Myers.

Mr. Lynn Myers (Waterloo—Wellington, Lib.): Thank you very much, Mr. Chairman.

Madam Minister, I'm actually very heartened to hear you make those last comments, because I think they're ones we should genuinely think about, the first point, of course, being the impartiality and the independence of our judiciary, and the second being that no matter where you travel in the world, Canada's judicial system is considered second to none.

I thought, too, that in your preamble, in taking time to review that...and you referenced people such as John Locke, but there are others, as you know, such as John Stuart Mill, Jeremy Bentham, and some of the philosophes, such as Jean-Jacques Rousseau and others.

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We have a marvellous tradition when it comes to the judiciary, and it took a great deal of work and hard effort to get to the point we're at. I think we need to understand that. But what distresses me is the fact that some of our critics, I believe, want to turn our system a little more toward the American system, where there is more political interference. For example, I think of cases adjudicated in superior court and/or the Supreme Court. It's interesting to see the critics who cherry-pick their way through those decisions. For the ones they like, they say, oh, isn't that good, the court works. For the ones they don't like, they say, well, well, shouldn't Parliament have its last say on this? They want to invoke the notwithstanding clause, for example.

I see this as a dangerous trend. Instead of going down that path, where we become more Americanized and where we become less independent when it comes the judiciary, I think we should in fact be doing the reverse. We should be celebrating our success and celebrating the very independence that's the underpinning of this justice system.

I wanted to put that on the table, and I wanted to note that those critics who I believe don't fully understand the judicial system, who don't understand the nuances, and who always tend to see things in black and white should reflect upon that and think more along the lines of what a great judicial system we have.

Having said that, I'll put my question to you. With the government's commission, we've had all kinds of comparisons made with the private sector, for example, and I wondered how you thought we should go about getting the kind of information base that is required to give us a true comparison. For example, when you talk about salaries in the private sector and in the public sector, can we develop a system where that comparison is truly made in a way that reflects the kind of balance that should be in place? I've read that a number of commissions have said over the years that it's difficult to develop that kind of information, that it's tough.

Ms. Anne McLellan: It is tough.

Mr. Lynn Myers: So I wanted you to respond to those questions. Do we have the kind of information base that's required? Did we have it this time? If not, why did we have to proceed without having it fully in place? I think I know the answer to that, but I'd be interested in your response. And finally, talk a little bit about the difficulty in developing this kind of information needed to make the comparison between private sector and judicial.

Ms. Anne McLellan: I think you've rightly pointed out that it is not an easy task. In fact, the commission flagged that in their report. They talked about the fact that they would hope there would be better information made available to them in the future, and that information can be made available on a basis agreed upon, if possible, by representatives of the judiciary and ourselves. Or we can put in our own work in this regard, representatives from the judiciary can put in their work in this regard, and a commission can take a look at it and then do their own research if they so choose.

It is a complex task, as we've already identified. In fact, even getting a handle on private sector salaries and things.... Mr. Toews has raised the fact that private sector salaries vary, in some respects, from a big law firm in downtown Toronto that may be a multinational law firm, as opposed to the average salary in a smaller firm in a smaller community perhaps.

We have to get better information around all that. The commission asked that we do work, and we've begun that work. My provincial and territorial colleagues are also very interested in this work, of course, because they are confronted with the same problems with their provincial commissions that are setting salaries for provincial court judges. Therefore, it's to the benefit of all to do this work and to come up with information.

It's not only about comparisons within the federal public service, like what the right comparison is to which occupational classification, if any, or to private sector lawyers, and if so, who and where. It's not only that, it's also about quality-of-life issues. For example, how does one look at and quantify issues in and around quality of life when you're developing a compensation package? We all know we make choices in our careers. We may choose to forgo a certain salary for certain other of what we describe as quality-of-life factors.

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The quadrennial commission identified that they would want additional information in relation to many of those things. When one looks at quality of life, workload for example, how does that compare to a DM-3 or a private sector lawyer in a big city law firm? Hours of work, vacation, leave benefits, all those kinds of things have to be rigorously looked at in determining a total compensation package.

Therefore, I would simply say that this is a complex task. It is one the commission has flagged, and it's one we take very seriously, as I know my provincial and territorial colleagues do. And we are committed to doing much more work in this area before the next quadrennial commission.

The Vice-Chair (Mr. Ivan Grose): Thank you.

Mr. Cadman.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair.

I'd like to come back, Madam Minister, to an issue Mr. Toews raised—I think you answered it partially in your last response—and that's the whole idea of regional differences. Anybody from the lower mainland of British Columbia knows what the cost of living is like out there, compared to other parts of the country. So I wondered if that had been taken into consideration.

Ms. Anne McLellan: That is something we have not looked at. We're dealing with the federally appointed judges, and we have not entered into any consideration of differentials, nor has any of the commissions that have looked at judicial compensation and benefits.

Obviously, you raise an interesting point. My first impression on this would be that I am dealing with a unified federal judiciary, and they do the same job whether they sit in Halifax or Hamilton or the lower mainland of Vancouver. But I take your point that this may be only one consideration in deciding appropriate compensation levels.

We all know from other areas of the public service and elsewhere that it can be very difficult to determine appropriate differential salaries, and where it's been tried, it has almost always led to controversy, and even in some cases legal challenge. Having said that, I think the issue is one on which any commission would be in a position to do research and offer recommendations. My guess is that you would not find the representatives of the judiciary themselves putting in play the notion of differential salaries. As I say, we have not considered it, but certainly any commission could take that issue up, and any Canadian could write to the commission asking it to put that issue in play.

Mr. Lynn Myers: Would it apply to members of Parliament?

Ms. Anne McLellan: I don't know about that. Here we're just talking about the judiciary. There is no question, if you open the door to differential salary discussions, with it comes a host of very difficult problems. Has it been done in some cases? Not for judges, but has it been done both in the private sector and the public sector? In some limited cases, yes, it has, but it does raise a host of vexing issues. A commission would obviously be the best place to consider them.

The Vice-Chair (Mr. Ivan Grose): I'm sorry, I forgot to advise you. We're into three-minute rounds now, but I'm inclined to be generous. Please go ahead.

Mr. Chuck Cadman: I had just one quick one left before I was interrupted.

The 35th Parliament addressed the Judges Act twice. The 36th were at it once in Bill C-37, and now we're at it once in this. Are we going to see it again in this Parliament? Is this going to be something that keeps coming back?

Ms. Anne McLellan: By its very name, the quadrennial commission is now a four-year process. It will report at the end of each four-year period. During that four-year cycle, if there is some particularly difficult or pressing issue that requires some work on their behalf, they could consider that, quite clearly. I don't anticipate that at this point, although there are some issues ongoing that need serious consideration. So we have a commission that will issue a report every four years concerning judicial compensation benefits and so forth.

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One might anticipate—not to prejudge what any one of those commissions might do—that there would be some recommendations in relation to increased compensation at the end of each four-year cycle, and they would have to be dealt with in the context of the Judges Act. So yes, this will not be the last time parliamentarians see the Judges Act.

Mr. Chuck Cadman: I hope we won't see it again in this Parliament.

Ms. Anne McLellan: I can't promise that, because I don't know how long this Parliament will last.

Mr. Chuck Cadman: Let's hope—

Ms. Anne McLellan: Five years is the constitutional mandate, so I can't say that I or someone else will not be back with another four-year report. It is possible, given the calendar of Parliament.

The Vice-Chair (Ivan Grose): Ms. Allard, please.


Ms. Carole-Marie Allard (Laval East, Lib.): I'm looking at proposed clause 43.1 of the Bill. Have you changed the age of retirement for judges in this new Bill? I'm asking the question because proposed clause 43.1 says:

    [...] to a judge who has attained the age of fifty-five years, who has continued in judicial office for at least ten years and who elects early retirement [...]


We have a document that talks about the modified rule of 80. I want to know if you rejected the idea of the rule of 80.

Ms. Anne McLellan: The rule of 80 applies for general retirement at full pension. The rule of 80 is age plus years of service. It is a rule used by a lot of public services, private sector companies, universities, and others. When I worked at the University of Alberta, the rule of 80 applied. With years of service plus age adding up to 80 you would qualify for a full pension.

Proposed section 43.1 speaks to early retirement, where you don't get the full pension, you get a pro-rated pension. What we're doing here is saying that if you have a minimum age of 55 and you've served for a minimum number of years on the federal bench, ten years, you can then take early retirement, as one can at the university, the public service provincially, or in many private sector positions today—obviously you get a pro-rated pension, not the full pension.

Ms. Carole-Marie Allard: Is this rule of 80 included in the law right now?

Ms. Anne McLellan: Yes. That was one of the other Judges Act amendments that Mr. Cadman just referred to, one of the earlier manifestations.

Ms. Carole-Marie Allard: You have the full law, so that's why I wanted to understand.

Ms. Anne McLellan: Right. Here we're dealing with the question of early retirement and making it possible on a pro-rated basis.

The Chair: Ms. Allard.

Ms. Carole-Marie Allard: I thought you were adding a provision for Supreme Court judges to participate for a period no greater than six months in proposed section 41.1.

Ms. Anne McLellan: This is after retirement.

Ms. Carole-Marie Allard: Yes, I know.

Ms. Anne McLellan: “A judge of the Supreme Court of Canada...may, with the approval of the Chief Justice of Canada, continue to participate in judgments in which he or she participated...for a period not greater than six months after the date of the retirement.” In fact, they were doing this before. What we do here is indicate and clarify the salary situation in relation to that judge.

There was, as I understand it, Madam Bellis, always.... And this exists, I think, in most courts. A judge will have sat on a case, as you are well aware, and he or she may indicate his or her retirement, but one does not want to have to try that case or hear that appeal again on the ground that you've lost one of your bench. There is this hangover period of up to six months so a judge can continue to participate in the judgments he or she sat on. What we're doing here is cleaning up the salary situation in relation to the six-month period.

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Do you want to say anything more about that, Judith?

Ms. Carole-Marie Allard: I had a situation like that where there was a very poor choice. He was on the bench for five years and he retired. I don't know if the provision exists in the present law where he could continue after his retirement for the superior court judge.

Ms. Judith Bellis (Senior General Counsel, Judicial Affairs Unit, Department of Justice): Yes, most superior courts in Canada have that provision for exactly this reason.

Ms. Carole-Marie Allard: I remember, I think he....

A voice: Wasn't he a provincial judge?

Ms. Carole-Marie Allard: Yes. He did not continue, and anyway it created big problems.

Ms. Anne McLellan: Now it's in there. Actually, we're dealing here with the Supreme Court of Canada, which is created by a federal statute. You would look in your provincial Judges Act to determine whether a similar provision exists for superior court judges. That is an issue of the administration of the courts and therefore within provincial jurisdiction. You'd look at your provincial Judges Act and see if they have that kind of provision.

Ms. Judith Bellis: I would just clarify one point. Most judicature acts, indeed I believe all of them, provide for the continued jurisdiction of the judge during that six-month period. This is unique, in that it ensures that during the continued writing period the Supreme Court of Canada judge receives the equivalent of the full salary and not just the pension.

The reason for the difference relates to the small size of the Supreme Court and the fact that the workload of the court and the size of those panels makes it obviously much more likely those justices will participate in hearings right up to the date of their retirement. Most judges of the superior court either opt for a supernumerary status, and therefore can ramp down, or the chief justice can anticipate and not assign closer to the date, so they can wrap up their judgments before the retirement date.

This is much less likely with the Supreme Court of Canada. Many of the judges were in fact essentially working full-time at the court for that six-month period on basically their pensions, which were seen to be unpaid in the circumstances of that court.

The Vice-Chair (Mr. Ivan Grose): Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): Minister, on several occasions you've made reference to our provincial and territorial governments. Do you have any insight into the process these governments follow in the consideration of increases to judicial compensation?

Ms. Anne McLellan: Actually, the provinces go through a very similar process. Of course, the reference on which we are basing our independent quadrennial commission came out of a challenge from Prince Edward Island. There was a challenge to the process that the Prince Edward Island government had put in place for determining things like financial compensation and benefits for their judges.

A number of provinces have had ongoing issues in and around whether or not the processes by which they set compensation and benefits are truly independent, and then how one applies the principles set out in the P.E.I. reference. My own province of Alberta has been one where this issue has been hotly debated for a long period of time in terms of commissions, providing recommendations to the provincial attorney general, and then decisions being made that were further challenged by provincial court judges, etc.

There's a lot of history over the past five to ten years in this area. Most of the history has been generated by challenges to provincial commissions and the decisions of provincial attorneys general—not by federal attorneys general or the process we have in place. I think that's fair. However, if you look at some of the salaries, in fact the provinces have been hard at work increasing judicial salaries for their provincial court judges.

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Provincial court judges in Ontario make $172,000 a year. This doesn't include things like cost of living, which would not be reflected in these numbers. This is the base salary, as I understand it. Quebec gets $137,000. Alberta went to $170,000, as of April 1, 2000. Newfoundland is at $112,000, New Brunswick is at $141,000, and British Columbia is at $144,000.

There were increases anywhere from a high of 16.3% in Quebec in 1998, to 14.67% in Ontario, 11.8% in Alberta, 9.8% in Newfoundland, and 12.2% in New Brunswick, as of 2000.

In fact the process is very similar. Provincial attorneys general and provincial legislators deal with the same challenges. I think one sees an acknowledgement at both levels of government that the independence of the judiciary is an important principle. We must have independent commissions in place. That is true at the federal and provincial levels.

Mr. John Maloney: Another question on another line: Are there advantages or disadvantages to maintaining the classification of a supernumerary judge?

Ms. Anne McLellan: That's a really interesting question.

Two years ago, at provincial-territorial-federal justice ministers meetings, a number of my provincial colleagues put the whole question of supernumerary judges on the table. I said we should take a look at this. This is a very important issue. We all looked at each other and realized we didn't really know a whole lot about the actual situation out there. We all know some of the concerns. My provincial colleagues have what appear to be legitimate concerns about the numbers of supernumerary judges. It creates issues for them in terms of the administration of justice, even little things like offices and administrative issues.

Mr. Toews says “not little”, and in fact those are issues. I think I accept those concerns on the part of the provinces and the territories.

Therefore, as Mr. Myers has suggested in terms of comparable salaries, we need to do more research. We have to figure out exactly what's happening out there with supernumeraries. What do they do? How much do they do? What are the kinds of stresses and strains the classification may put on the administration of justice in the provinces? Let's take a look at that.

That's why I'm so pleased two of my provincial counterparts have taken up the co-chairmanship of a committee that will report back on the whole status of supernumerary judges.

Mr. John Maloney: Thank you.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Maloney.

Mr. Owen, please.

Mr. Stephen Owen (Vancouver Quadra, Lib.): Thank you.

Minister, I have an observation first. If the government was considering differentials across the country in superior court for superior court judges, we have built in a provincial and territorial process to look at in fact the very same things that go into the countrywide consideration of the federal commission. Of course, provinces are applying their local circumstances. You actually have a framework you could relate to.

My questions are twofold. In terms of the potential differences in the workload of superior courts across the country that may relate to the practices of any particular provincial superior court, while associating myself with the excellent remarks of Mr. Myers with respect to the high regard and deserved high regard in which Canadian judiciary is held, it seems to me there is a great variety potentially in workload—certainly in judicial administration, as opposed to the administration of justice and the judicial administration of superior courts in different parts of the country.

I'm wondering how good a handle we have, or the Government of Canada has, on differences in workload that may relate to a judicial complement or other judicial administrative practices across the country.

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Ms. Anne McLellan: Of course the administration of the courts is another of those pillars of independence, right? The Supreme Court has talked about this at great length in at least one, if not more, cases. So it is with hesitance that I talk about the administration of the courts, the actual day-to-day decision-making of the chief justice and his or her associate chief justices and fellow judges. One needs to be careful in terms of those discussions, because it is an important part of the independence of the judiciary.

Obviously provincial attorneys general have a great interest in the administration of the courts. They are responsible constitutionally for the administration of those courts. We appoint the judges; they are responsible for the administration of them, always within the context of the principle of judicial independence that relates to the administration of the courts.

So I would think the point is a good one. I know when the Canadian Judicial Council meets, chief justices and associate chief justices, they are very interested in these issues. They know from their provincial and territorial colleagues, or from provincial and territorial attorneys general, that there is a desire to have the most efficient courts possible. There is a desire to ensure that courts use technology to cut costs and to deliver most effective justice, and this is coming onstream. I think there is an attempt among the judges themselves to achieve a higher degree of uniformity, or rather, I should say, best practices in terms of how you run a court and how you use technology to make that court run better.

I think the pressure—maybe pressure is the wrong word in this context—or the concern of provincial and territorial attorneys general will continue to exist in terms of ensuring that courts are administered efficiently and effectively on behalf of all Canadians. Dare I say that I think chief justices are very committed to doing that.

It is one of those areas in which, as you know, it's hard to get data and comparability between courts. The evidence is largely anecdotal. You could look at how many hours judges sit, how much case management is being done, how many cases are actually being settled through case management and other mediation, or whatever, before getting to trial time. There's a whole range of things that one could look at in this context. Chief justices do this work within their own courts. I think it's important information. We all have the right to expect efficiently run courts.

Mr. Stephen Owen: I would just observe that the interest of the federal government, of course, without interfering with the independence of the judiciary in these types of comparisons, is in responding to requests from provinces and provincial superior courts for increased complement. Of course, it makes it very difficult for the federal government to make that decision, which it must make.

Ms. Anne McLellan: Indeed, that is an issue I have flagged as being of major concern in terms of any decisions around the increase of complement. I honestly believe there must be objective data to justify in any province a request for an increase of complement. Therefore, as far as I'm concerned, it is incumbent that if a chief justice, working with the provincial attorney general...because that's where the request goes, and then the attorney general will come and talk to me.

I have told my provincial and territorial colleagues, and I believe they agree, that if they want an increase of complement, they have to have objective data to justify that, because there are lots of other things happening. For example, hybridization of criminal offences has taken a lot of criminal trial work out of the superior courts and has put it in the provincial courts. What does that mean in terms of workload for superior court judges, and what does that do to complement in provincial superior courts?

These are legitimate questions, questions that no one can shy away from. They are not questions that interfere with the independence of the judiciary, and I have made it plain that complement issues are key and that there must be an objective basis coming from the attorney general of the province to justify an increase in complement.

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The Vice-Chair (Mr. Ivan Grose): Thank you, Minister. It doesn't look like there are any further questions, so I would like to thank you.


Ms. Anne McLellan: Thank you very much. It was a pleasure.


It's a pleasure.

The Vice-Chair (Mr. Ivan Grose): Thank you for your rather complete answers. We don't often have time for that.

I did have one small problem with a possible of conflict of interest, flogging a book for a particular university, but I—

Ms. Anne McLellan: It's not a book, it's a law review. Do you know what? I will make it available to all members of the committee, because it's an interesting—

Mr. Chuck Cadman: Ivan will read it.

Ms. Anne McLellan: I know Ivan will read it. It's an interesting piece of work, and we should all be supporting all our good scholars across the country in the various universities and law schools of Canada.

Therefore, I will undertake to make sure that each member of the committee does get a copy of the journal, because it provides some really interesting historical and present-day commentary on the judicial appointment process. I'd be pleased to do that.

The Vice-Chair (Mr. Ivan Grose): Thank you.


Ms. Anne McLellan: Thank you very much.


The Vice-Chair (Mr. Ivan Grose): The meeting is adjourned.

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