Members of the committee, I have the honour of appearing before you today as you begin your consideration of Bill . This important piece of legislation proposes to amend the Judges Act to implement the government's response to the report of the 2003 Judicial Compensation and Benefits Commission.
As committee members are well aware, the establishment of judicial compensation is governed by constitutional principles designed to ensure public confidence in the independence and impartiality of the judiciary. At the federal level, section 100 of the Constitution Act requires that Parliament, and not the executive alone, establish judicial compensation and benefits following full and public consideration and debate.
In addition to the protections of section 100, the Supreme Court of Canada has established a constitutional requirement for an independent, objective, and effective commission that makes non-binding recommendations to government. The government must respond publicly within a reasonable period of time.
As the committee is also well aware, any rejection or modification of a commission recommendation must be publicly justified, based on a standard of rationality. I will say something about this standard in a few moments.
The 2003 Judicial Compensation and Benefits Commission, commonly referred to as the quadrennial commission, delivered its report on May 31, 2004. The former government responded in November 2004 and introduced Bill in May 2005. However, despite the requirement for the government to act expeditiously, Bill C-51 was never taken beyond introduction and first reading. It died on the order paper in November 2005.
Upon assuming office in February 2006, we made it a priority to review the commission recommendations in light of the constitutional principles and statutory criteria that govern the process. We made this a serious priority precisely because this government is fully committed to the important constitutional principles that govern the establishment of judicial compensation. We recognize that the integrity of this entire process is dependent in part on timely passage of implementing legislation.
The government is firmly of the view that we had a responsibility to take the time to consider the report and recommendations in light of the mandate and priorities upon which we had been elected. However, we did undertake our review as quickly as reasonably possible. This government provided its response to the commission report on May 29 of this year, followed almost immediately by the introduction of Bill on May 31. The bill was referred after first reading to this committee on June 20.
Mr. Chair and honourable members, I know that you appreciate the critical importance of completing the final stage of the 2003 quadrennial cycle through the passage of legislation. The credibility, indeed the legitimacy, of this constitutional process requires it, especially since the next quadrennial commission process is due to commence in less than one year. I would therefore like to commend and thank the committee for according this bill priority in order to complete this process in a timely way.
Turning to Bill itself, as you know, the government has accepted virtually all of the commission's recommendations. The key exception relates to the percentage of salary increase. Mr. Chairman, I know that committee members have read the government's response, which fully explains the rationale for the modification of the commission's salary recommendations. I therefore intend to just briefly summarize our thinking on this important issue.
Before doing so, however, I think it's important to speak to the standard of rationality against which any modification of the commission's recommendations by Parliament will be assessed. It is necessary to displace some of the misconceptions that are at play in this area, and in particular suggestions that respect for the constitutional judicial compensation process and for judicial independence, broadly speaking, can only be demonstrated through verbatim implementation of commission recommendations.
To ensure public confidence in the process, I think it is absolutely critical that we have a shared appreciation and understanding of the very balanced guidance that has been provided by the Supreme Court of Canada in the following key cases: the P.E.I. judges' reference case and the Bodner case. In both decisions, the court has quite rightly acknowledged that allocation of public resources belongs to legislatures and to governments. A careful reading of both cases clearly indicates that governments are fully entitled to reject and modify commission recommendations, provided that a public, rational justification is given that demonstrates overall respect for the commission process.
Mr. Chair, I say it here, as we did in the response: the government is confident that we have fully met this requirement. The effectiveness of the commission is not measured by whether all of its recommendations are implemented unchanged; it is measured by whether the commission process, its information gathering and analysis, and its report and recommendations played the central role in informing the ultimate determination of judicial compensation.
The commission's work and analysis have been critical in the government's deliberations. Our response respectfully acknowledges the commission's efforts and explains the government's position in relation to the two modifications to the commission's proposals. Our response also underscores that it will be for this committee to consider the commission report, and ideally, to also hear directly from the commissioners.
I congratulate you for having decided to do that today. It will be for parliamentarians, not the government, to decide which proposal to implement, be it that of the commission, the government, or indeed a third proposal entirely.
In justifying our proposed modification of the salary recommendations, as reflected in Bill , we gave careful consideration to all of the criteria established by the Judges Act, and to two of these in particular: one, the prevailing economic conditions in Canada, including the cost of living and the overall economic and financial position of the federal government; and two, the need to attract outstanding candidates to the judiciary.
With respect to the first of these, we concluded that the commission did not pay sufficient heed to the need to balance judicial compensation proposals within the overall context of economic pressures, fiscal priorities, and competing demands on the public purse. In essence, the government ascribed a different weight than the commission to the importance of this criterion.
In terms of attracting outstanding candidates, we took issue with the weight that the commission placed on certain comparator fact groups against which the adequacy of judicial salaries should be assessed. The government recognizes that the task of establishing appropriate comparators for judges has been a perennial challenge for past commissions as well as parliamentarians, given the unique nature of judicial office. We acknowledge that the commission carefully and thoroughly considered a range of comparative information, including senior public servants, Governor in Council appointments, and private practice lawyers' incomes.
Our key concern was the fact that the commission appeared to accord disproportionate weight to incomes earned by self-employed lawyers, and in particular to those practitioners in Canada's eight largest urban centres. In addition, there was an apparent lack of emphasis given to the value of the judicial annuity.
As the response elaborates, the government believes the commission's salary recommendation of 10.8% overshoots the mark in defining the level of salary increase necessary to ensure outstanding candidates for the judiciary. The government is proposing a modified judicial salary proposal for puisne judges of $232,300, or 7.25%, effective April 1, 2004, with statutory indexing to continue April 1 in each of the following years, with proportionate adjustments for chief justices and justices of the Supreme Court of Canada.
The one other proposed modification relates to the commission's recommendation that the judiciary be entitled to increase the level of reimbursement for costs incurred through the judges' participation before the commission. It recommended increases from 50% to 66% for legal fees and from 50% to 100% for disbursement costs.
As a matter of information, I note that disbursement costs in relation to the commission include not just photocopying and courier services, but in particular the cost of substantial contracts for the retention of expert compensation consultants and related matters. In our view, reimbursement at 100% of disbursement costs would provide little or no financial incentive for the judiciary to incur costs prudently. Accordingly, would increase the current level of reimbursement for both legal fees and disbursement from the current 50% to 66%.
Mr. Chairman, Bill C-17 also implements a number of other compensation amendments, relating to eligibility for retirement and supernumerary office, and other minor changes to allowances.
also includes a long overdue proposal aimed at leveling the playing field for partners of judges in the difficult circumstances of relationship breakdown, by facilitating the equitable sharing of the judicial annuity. The judicial annuity is currently the only federal pension that is not subject to such a division, despite the fact that the judicial annuity represents a very significant family asset. The proposed annuity amendments essentially mirror the provisions of the federal Pension Benefits Division Act. Like the Pension Benefits Division Act, these provisions uphold overarching principles of good pension division policy, allowing couples to achieve a clean break, with certainty and portability.
These provisions are also consistent with both the objectives of probative retirement planning and the constitutional requirement of financial security, as part of the guarantees of judicial independence. While on its face it is extremely complicated, the policy objective of this mechanism is very simple: to address a long outstanding equity issue in support of families undergoing the breakdown of the spousal relationship.
Honourable members, I will wrap up here and hand over to you for your deliberations and decision. I invite you and all parliamentarians to carefully discharge your important responsibilities, in light of the governing constitutional and statutory principles. In doing so, you will help ensure that Canada continues to have a judiciary whose independence, impartiality, commitment, and overall excellence not only inspires the confidence of the Canadian public, but is envied around the world.
Thank you very much, Mr. Chair, for your attention.
I would be pleased to answer any questions that you or committee members may have.
Mr. Chair, the member is quite right that the initial decision—the P.E.I. judges' reference case—was much more restrictive than the second case that came out, which is the Bodner decision, and which I also referred to. We as lawyers sometimes get caught up here in Parliament and don't watch what is happening actually in the courts. I was myself familiar with the P.E.I. case, and when the department briefed me on the Bodner decision, it gave an entirely different light to the entire situation.
It is wrong—indeed, I would suggest, misleading—that modification of a commission recommendation undermines the commission process as established by the Supreme Court of Canada. In Bodner v. Alberta the court clearly acknowledged that decisions about allocations of public resources belong to the legislatures and to government.
Governments are entitled to reject or modify commission recommendations provided—and again I want to go to the principles, because they are very important principles and broaden the P.E.I. reference case—firstly, they have articulated a legitimate reason for doing so; secondly, the government's reasons rely upon a reasonable factual foundation; thirdly, it can be shown that, viewed globally and with deference to the government's opinion, the commission process has been respected and the purposes of the commission, namely preserving judicial independence and depoliticizing the setting of judicial remuneration, have been achieved.
Those are the three principles that expand the original P.E.I. reference case. It's only normal that the court would further refine a very unique decision, when it came out in the P.E.I. reference case. The court has done that in Bodner, and I thought in a very admirable and exemplary way, as we have come to expect from our Supreme Court of Canada.
Thank you, Mr. Chairman.
Minister, ladies, good afternoon.
The Bloc Québécois is somewhat uncomfortable with this bill. Apart from the technical side of the matter, it is very difficult for parliamentarians to determine, when it comes to knowledge and impartiality, if the judge is worth 10.8%, 7.25% or 9.4%. That said, we would have liked to have two major parameters respected. The first is the constitutional principle which you yourself raised, in other words, an independent commission which would base its analysis on a number of criteria.
There is also one principle you failed to mention. It has been an integral part of the process from 1999 since quite recently, and it consisted in linking judges' salaries with those of members. The Bloc Québécois is quite uneasy with the idea that, if the bill were to be adopted, the Supreme Court Chief Justice would be earning $254,500, $258,000 or $254,400. We live in a society that respects the rule of law, but also democratic legitimacy. So, based on that last factor, we should not end up with a situation where the Chief Justice could be earning more than the Prime Minister, notwithstanding the work of the individual holding the position and performing the duties of Prime Minister. The Liberals are the ones who decided to stop linking up judges' and members' salaries despite the commission's recommendations.
Would you not agree that it is dangerous not to link up the Prime Minister's and the Chief Justice's salaries? Would you agree that they should be linked and determined by an independent commission?
We come here today not to extol our report, but to lament the process that has been followed or, properly, not followed. I think it's appropriate to recall the sorry history of why the legislation creating this commission developed. It's outlined in the Drouin report, the report of the first quadrennial commission. At page 2—and I will just say what that says. The Drouin report, as you are aware, came from the first commission called under the changes to the Judges Act following the P.E.I. case in the Supreme Court of Canada. What Drouin reviewed was this.
||Before 1981, judges’ salaries and benefits were reviewed by advisory committees, a process which was generally unsatisfactory to the Judiciary. Judges felt that the process merely amounted to petitioning the government to fulfill its constitutional obligations.
||In 1982, section 26 was introduced to the Judges Act, establishing the “Triennial Commission”. The intention was to create a body which would be independent of the Judiciary and Parliament, and which would present the Minister of Justice with objective and fair recommendations. The goal was to depoliticize the process, thus maintaining judicial independence.
||There were five Triennial Commissions. Despite extensive inquiries and research by each of them, many of their recommendations on judicial salaries and benefits, between 1987 and 1993, generally were unimplemented or ignored. The Government of Canada...froze judges’ salaries and suspended indexation in the mid-1990s. The last adjustment to judges’ salaries was made in November 1998 pursuant to recommendations made by the Triennial Commission chaired by David Scott....
||In its 1996 report, the Scott Commission described the problem with the triennial commission process by stating:
|| In spite of the thorough recommendation by successive Commissions, Parliament has failed, in a proactive sense, to fix judicial salaries and benefits for many years.
||Furthermore, successive reports have failed to generate any meaningful response from Government. The whole subject of judicial salaries and benefits has, in spite of best intentions, been politicized.
As a consequence of that, the reference went to the Supreme Court of Canada—the P.E.I. reference—and the legislation pursuant to which Drouin acted and we acted was created. The clearest possible object of that legislation is to do away with the sorry history of judicial recommendations with respect to judicial compensation and to depoliticize the process. Our grave concern is that the process established, along with the resulting legislation that created this commission, is being perverted into a politicization of the exercise called for by the act.
Consider that we must act within two confined timeframes. The report that we produced must be tabled in Parliament within ten days. The minister must report or shall report within six months. These things surely say the process is to be regarded as requiring prompt action.
Here we are for the first time, two and a half years after we filed this report, to assist parliamentarians to address their constitutional obligations. We have discharged ours. Our concern is that neither the spirit nor the letter of the Judges Act, pursuant to which this commission was created, has been observed thus far by Parliament with respect to the report we filed.
For example, it's inappropriate, in my submission, to focus on a 2006 budget to consider a report that we had to file in May 2004. It's reasonable to expect a certain degree of prescience, but that may be too much. It's inappropriate, in my submission, to focus on this table or that table in the report, to say that an error was made or that there's too much emphasis here or too much emphasis there.
This exercise is somewhat an exercise of arbitrariness. You have to shrink the arbitrariness by gathering all the facts you can so that your decision becomes as informed as possible. But at the end, there's no way we or any other subsequent commission could file a report saying that 3/8 of 42,000, times 12, divided by 16, produces the adequate proper salary for judges. It can't be done. It has to be an exercise in judgment.
So it wasn't presented on the basis that it would be unassailable. Of course it's assailable. You have to work with all these numbers and do the best you can to come up with your best exercise in judgment, and it isn't bulletproof. But it's clear that it's done with the expectation that it will not be viewed through 2006 lenses, which is apparently the case.
I want to cite an observation that the government's second response makes, and with which I wholeheartedly agree. It is at paragraph 1 on page 5 of the second response of the government to the report:
||It is...clear that the Commission undertook a detailed assessment and analysis of data and information available with respect to the relevant comparators for establishing the overall adequacy of judicial compensation. This has been a perennial challenge with which all previous federal judicial compensation commissions have grappled. As successive commissions and governments have discovered, it is as much an art as a science. There is no readily available mathematical formula to apply and a high degree of well-informed judgment is ultimately involved.
I assure you that's what we endeavoured to do. We looked at all the material that was put before us, and we considered it carefully. We debated the issues that it presented; we compromised our respective views; and all our conclusions were reached unanimously. We believe that what we came up with was in the public interest and was consistent with the legislation and the governing priority of judicial independence and securing for this country a pool of potential appointees to the federal judiciary, of outstanding candidates for those important roles.
To be absolutely clear, it couldn't matter less to us whether or not Parliament endorses our recommendations or not. It's the process that we're concerned about. But I want to be clear that we have no proprietary interest in the result of this. Mr. Cherniak and I are too old and Ms. Chambers is overqualified.
Our only concern is that we didn't labour pursuing what we thought was a public duty—and hence poorly paid, I might say—only to have produced a report that falls prey to politicization, such as has happened in the sorry past, when one government said too little, another government said too much, and a third government said, “Well let's just not deal with judges. They're not that important anyway.”
Our job is legislatively mandated and we believe we acted within the confines of our jurisdiction. Your job is constitutionally mandated and has yet to be performed. We hope it is exercised consistent with the honourable minister's assurance that appears on page 11, but which I won't repeat to you now because he said it when he was here giving evidence.
It's for this committee and it's for parliamentarians to decide what the appropriate compensation for judges is. Our sincere hope is that this exercise is promptly done, and is done consistent with the principles of which everyone is aware.
If there are going to be any questions, Mr. Chairman, we may not be unanimous. Frequently, we haven't been. So I would invite any questions, but I would also ask Ms. Chambers and Mr. Cherniak to supplement or contradict anything I might say.
Thank you, Mr. Chair. I'll try to be brief.
My name is David Gourdeau, and I am the Commissioner for Federal Judicial Affairs. I'm accompanied today by Mr. Wayne Osborne, the director of our finance division.
I will be brief in my presentation, as the role our office plays in the process related to the Judicial Compensation and Benefits Commission and the ensuing drafting of the legislation is limited. To start with, let me provide you with a short overview of our office for those who may not be familiar with it.
The Office of the Commissioner for Federal Judicial Affairs was created under the Judges Act in 1978, to safeguard the independence of the judiciary and to put federally appointed judges at arm's length from the Department of Justice. At the present time there are 1,045 federally appointed judges who are active. Our services also extend to retired judges, of which there are now 400, as well as the judges' survivors, of which there are 350.
Our mandate extends to promoting better administration of justice and providing support for the federal judiciary. This support or these services stem from the Judges Act. Therefore, any amendment to the act will have an impact on our operations.
One of the main roles and responsibilities of the commissioner is to act on behalf of the Minister of Justice on matters related to the administration of Part I of the Judges Act, which deals with the terms of appointment, age limit and salaries applicable to federally-appointed judges. These are matters dealt with by our finance and human resources divisions. The office also has an appointments secretariat which administers 16 advisory committees responsible for evaluating candidates for federal judicial appointments.
For the last appointment to the Supreme Court of Canada our office was also given additional administrative mandates. The federal courts report division of our office is responsible for selecting and publishing Federal Court of Appeal and Federal Court decisions in both official languages. We also have an intranet site called JUDICOM, which provides judges with e-mail, a secure, restricted access conversation system and a virtual library. For judges wishing to better their skills in either English or French, we have a language training program.
We also play a role in the coordination of initiatives related to the Canadian judiciary's role in international cooperation. Finally, we support the work of the Judicial Compensation and Benefits Commission, and this is our reason for being here today. While the Commission is made up of three members—one nominated by the judiciary, another by the government, and a third nominated by the first two members—the Commission requires a secretariat to provide administrative services. For this Commission, the head of the secretariat, the executive director, is Ms. Jeanne Ruest.
What our office essentially does for the commission is support the operation of its secretariat. This includes the provision of office space, furniture, computer equipment—both hardware and software—access to our internal e-mail/communications network, accounting, purchasing, contracting, telecommunications, and website maintenance.
We also distribute copies of the final report to all members of the judiciary and any other interested parties. As well, our office will provide responses to questions for statistical information on the judiciary, as well as responses to questions on administrative practices and support provided to the judiciary.
After completion of the commission's work, we maintain the office space, equipment, files, etc., in a separate, secure area. We monitor and respond to questions asked and forward requests for information from the commission to either the chairperson or the executive director of the commission.
If the Minister of Justice requests that the commission undertake other duties, we will again support the members of the commission through the provision of administrative support, as mentioned above.
Once a bill is drafted by the Department of Justice following the report of the Commission, we will take the necessary measures within our office to ensure that we can administer and comply with the provisions of the new bill once it becomes law. Indeed, we have staff preparing now to be able to respond to amendments to the Judges Act.
To conclude, I had indicated at the beginning of my presentation that I would be brief yet I hope that I have been able to provide valuable information on our general role and more specific role in terms of the Judicial Compensation and Benefits Commission. If there are any questions, we would obviously be pleased to answer them. Thank you, Mr. Chairman.
Thank you, Mr. Chairman. I will answer the minister, who is not here. I imagine that his parliamentary secretary will report all this to him.
I certainly have no intention of becoming a judge. Indeed, with the number of bills the government will be tabling, the courts will be so clogged that I will have a lot of work in a few years as a lawyer, especially as a criminal defence lawyer.
The following comment is addressed to the members of the Commission. Allow me to congratulate you on the work that you have done. I am sure that is very arduous and complicated. Being familiar with a similar system in Quebec, I can say that establishing judges salaries must have been a huge task. I find it regrettable that the government rejected your conclusion out of hand. I would like to ask you a question that, even if it is rather general in nature, defines the debate rather well.
The court described as follows the three step analysis intended to assess the rationale for the government's refusal. First of all, we must determine if its decision to reject the Commission's recommendations was made on legitimate grounds, that is to say, comprehensive and concrete. Then, it must be made clear that the reasons given had a reasonable factual basis. Finally, given the overall perspective marked by restraint, it must be determined wether or not the review mechanism was respected.
Do you believe that the government, in rejecting your report, has complied with these three steps? Or do you rather believe that it was acting for purely political reasons, that is that it did not wish to increase judges' salaries? Good luck!
One thing that concerned us at this table is that to increase the numbers, to put this provision back to the original report--as I know some of us would like to do--we need a royal recommendation. Without the royal recommendation of this government, we don't have the authority to spend more money. That puts us in a very difficult position. I just put that on the table so people understand that we can take it down under the rules, but we cannot increase without the government allowing us to do so. We will see how this plays out.
I know my colleague, the former Minister of Justice, wanted to be here, but he's now at another place doing this.
I want to say, at least from my party, and I think from all the opposition parties, with the respect we hold for the judiciary, this attack that seems to be coming from the current government is not only disrespectful, but it is harmful to the whole system of justice in this country. This is a hard-working system of justice. It's led by judicial officers who have been chosen for their talents, as you well know. The fact that we are put in this position today by the current government, I think is wrong. I believe we have sufficient case law on point telling us that.
The Minister of Justice stood in the House, when I responded to it the first time, saying to plead less money in the area, when we had the best surplus ever. To plead that we could get people for cheaper was just a spurious argument. I feel somewhat ashamed to be in this situation at the current time.
I hope that in the future we are able to have people of your calibre doing this work, because it's important for all of us.
If anybody would care to make a comment, I certainly would give my time to them.