Let me begin by indicating that the CBA recognizes that the role of this committee puts politicians in the unfamiliar position of leaving political considerations at the door. You must, because public confidence in the justice system is at stake. Canadians should not be left with the impression either that judges are beholden to their boss, who decides their salary, or that judges are predisposed against government because of a salary dispute.
Depoliticizing judicial compensation isn't simply an ideal; it is a constitutional requirement. Every person in Canada involved in the justice system must receive a hearing by a judge who is fair and impartial, and as importantly, who is seen to be so. This principle is a cornerstone of our democracy.
Judicial compensation is one of three pillars on which judicial independence is based, the other two being security of tenure and control over court administration. When this committee reviews the bill before it, the CBA believes it should do so with an eye to whether the government has respected the raison d'être for the commissions: preserving judicial independence and depoliticizing the process for determining judicial compensation. In the CBA's view, the government's response to the commission's report—the foundation for the bill—does not do so.
However, there has been an inordinate delay in implementing the commission report. The CBA cautioned against any delay in the last Parliament, when it considered Bill , saying that delay undermines the commission's effectiveness and consequently, judicial independence. Therefore, we recommend that the bill be amended without delay to reflect the commission's recommendations.
If it is not possible to make these amendments in a timely way, then Bill should be passed, to avoid more harm to judicial independence. If the latter course is taken, the CBA urges that the committee take the opportunity to comment on the deficiencies in the government's response. This is particularly important given that the next commission is following shortly, to which the government will also need to respond.
I'd now like to turn to the detail of the government response.
As the members of the committee will be aware, the government has refused to implement the salary recommendations of the commission. The government has expressed two reasons for not doing so. First, it concluded that the commission did not give sufficient consideration to the criterion in subsection 26(1.1) of the Judges Act relating to prevailing economic conditions in Canada. Second, it disagreed with the comparator groups chosen by the 2003 commission. In this aspect of its response, the CBA believes that the government has articulated a legitimate reason for departing from the commission's recommendation and a reasonable factual foundation for its decisions.
The CBA's concerns, therefore, are limited to the first of the two reasons given by the government. The unfortunate fact is that while the government has articulated two reasons for the government's salary recommendation, it has failed to articulate the degree to which each influenced its overall recommendation. The inference from the ordering of the considerations is that the first was dominant. Our concern is that this reason, then, permeates the entire response.
Constitutionally, the government must articulate reasons for departing from the recommendations made by a commission. The constitutional requirement to give reasons is illuminated by three further principles, two of which I want to briefly touch on.
First, the government must give rational reasons for departing from commission recommendations; this has also been described as the need to give legitimate reasons. In the words of the Supreme Court of Canada, reasons must be based on facts and sound reasoning, and bald expressions of rejection and disapproval are inadequate.
Second, reasons given by a government to reject a commission recommendation must have a reasonable factual base.
Thank you, Mr. Chair. My apologies to member of the committee. It's a disability I suffer from, so I'll try to slow down.
Again to quote the Supreme Court, “...a mere assertion that judges’ current salaries are 'adequate', would be insufficient.” Together, these directions require specificity in reasons for rejecting a commission recommendation, and not just specificity in explanation of what is put forward as a substitute.
With respect, the CBA believes that the first part of the government response relating to the provision of the Judges Act is so generalized and so lacking in particulars that it fails to give meaningful effect to the 2003 commission report. The government response suggests a tension between the commission recommendations on the one hand and other social and economic priorities of the government on the other hand. However, it provides only generalized statements that other priorities exist, without supporting in any way the conclusion that implementing the recommendations of the commission would have any bearing on these priorities.
The evidence upon which the government relies to show that its words “economic pressures and [competing] fiscal priorities” were not properly weighed in the commission report is found in only two paragraphs of the government response. Reduced to its core, the government simply says that it has key priorities, which it lists, one of which is not judicial independence; it is committed to fiscal responsibility generally and reducing the national debt by $3 billion each year, and the President of the Treasury Board has been tasked to identify savings of $1 billion to support new and ongoing program expenses.
Although the government identifies key priorities and refers to other budgetary objectives, there is no explanation of how or why the implementation of the recommendations of the commission would impair or affect the ability of the government to pursue these goals or objectives.
The generality of the government's response is even more evident in the next paragraph of its response. It says, “Canadians expect that any expenditure from the public purse should be reasonable and generally proportional to all of these other economic pressures and fiscal priorities.”
In sum, the government does not believe that the commission's salary recommendation pays adequate heed to this reality. There is no substantive explanation or justification as to how or why the recommendation of the 2003 commission is not, in the words of the government, reasonably and generally proportional to all of these other economic pressures and fiscal priorities. In the absence of further explanation, with respect, the basis for the government's rejection of the commission report is a mere assertion, not a reason.
The CBA accepts that judges are paid from the government purse and that the competing demands on public moneys can mitigate the amount that might otherwise be paid for judicial salaries. The CBA further accepts that a dollar spent on judicial salaries or benefits is a dollar that cannot be spent on another priority, or collected. However, judicial independence is not just a government priority; it is a constitutional imperative. It is for this reason that any decision to deviate from a commission recommendation not only should but must be based on more than a mere assertion.
A reasonable reader of the government response is left with the impression that so far as the response relies on economic conditions and the overall economic and financial position of the country as a reason to disregard the 2003 commission report, the government simply thought the recommendation was too high and a lower salary level was adequate. With all due respect to the government, therefore, the CBA's position is that its response does not meet the constitutional challenge.
Mr. Chairman, members of Parliament, and members of this important Committee, I have already sent you some thoughts, some of which relate to the constitutional background. I may be somewhat behind on this topic, but I could not help appearing before the Committee to say--and this is the first time I've been invited--what I think of the new process for determining judicial compensation, as regards the Constitution.
In the Government of Canada's current response, I see the accomplishment of a constitutional obligation on the part of the Parliament of Canada to assume its constitutional responsibilities. However, I also believe that it has every right to distance itself from the Commission's report, and I would like to explain what I mean by that.
Constitutionally speaking, the Supreme Court has said that priority must be given to the wording of the Constitution, and that wording, as you know appears in section 100 of the Constitution, even though, as the Supreme Court has stated on a number of occasions, there are some underlying constitutional principles that may involve obligations for both governments and Parliaments. However, the Supreme Court said, in the Bodner decision, and repeated in 2005, that these unwritten, underlying constitutional principles are not an invitation to completely disregard what is written in the Constitution. “On the contrary--as stated in paragraph 53--we confirmed that there are compelling reasons to insist upon the primacy of our written Constitution.” Indeed, our written Constitution provides, in section 100 of the Constitution Act, 1867, as you well know, that “the salaries, allowances and pensions of the judges of the superior, district and county courts... shall be fixed and provided by the Parliament of Canada.”
In terms of the historical background of this provision, we know that in 1867, the Fathers of Confederation wanted judicial compensation to be Parliament's responsibility, whereas the administration of justice was deemed to be a provincial responsibility under the Constitution, as you know. Section 100 does not provide for any consultation whatsoever, not even consultation with the provinces. Therefore, if the framers of the Constitution had wanted there to be consultations provided for under the Constitution, they would probably have said so.
As you know, only Parliament and the provincial legislatures can amend the Constitution, and particularly the wording of section 100. There is a process for amending the Constitution, which you are aware of, under sections 38 to 49 of the Constitution Act, 1982. However, I believe that by requiring Parliament to create an independent commission that must be consulted and whose recommendations are binding on Parliament itself, except where Parliament provides grounds for deviating from them, the Supreme Court made a structural amendment to the Constitution, thus usurping--forgive me for saying so--a constitutional power that does not belong to it. I see that as serious, in a constitutional system of government.
The Court, of course, described the importance of these unwritten constitutional principles, but does amending Parliament's sovereign power or the formal wording of the Constitution truly amount to filling the gaps in the Constitution, as the Supreme Court suggests? Because the Supreme Court says that these unwritten constitutional principles can in fact help to fill in the gaps in the Constitution. Yet the sovereignty of Parliament, and thus of its elected representatives, over public finances, which include taxation--no taxation without representation--and government expenditures, is absolutely fundamental, and has been the most deeply rooted principle in our constitutional tradition from King John's Magna Carta to the present.
At the same time, setting the compensation of the entire public sector is a highly political issue, as the Supreme Court has stated. It is difficult to depoliticize this decision, for which government and Parliament are responsible. The Parliament and the government must be accountable to the electorate.
So, what are these independent commissions that the Supreme Court has invented, and imposed on us, in the name of the democratic principle? The democratic principle is enshrined. It is one of the four fundamental principles in the Constitution, as the Supreme Court reminded us in the Reference re Secession of Quebec in 1998.
Are these commissions democratic in nature? What is their democratic legitimacy? Of course, you may say I am a rather late critic of the system, but the fact is that this does give food for thought and, indeed, prompts me to agree with the position taken by the government, which is distancing itself from the content of the report.
Among government and parliamentary responsibilities can be included not only those actually identified, and which the McLellan Commission considered, but also much broader responsibilities. The government has to appreciate not only economic conditions in Canada, but also the country's overall financial situation, the share of financial resources that should go to the various government programs and, I would add, the extremely important role of Parliament in redistributing wealth, within the meaning of section 36 of the Constitution Act 1982, with respect to the spending power. A significant portion of the federal budget must be used for provincial transfers to support essential public services, and that is a concern which the so-called independent commission is not required to consider. Yet these are government and parliamentary responsibilities and, in that respect, I believe that Parliament has a right to distance itself from the content of these commissions' reports.
This commission, as the Supreme Court reiterated in 2005, performs an advisory function. But an advisory function is not a decision-making function, as you know full well. Indeed, the Supreme Court ruled, in a 1992 decision, that a recommendation is merely a recommendation, not a decision, and that it does not strip the holder of decision-making power of the power. Furthermore, section 100 entrenches the decision-making power of Parliament, which is a unilateral power.
On that point, it is interesting--and I will just briefly touch on this--to compare section 100 with section 99. Section 99 concerns the process for removing or terminating judges, and 30 years ago, the Judges Act was amended to establish the Canadian Judicial Council and a disciplinary and ethics process, whereby quasi-judicial committees of inquiry of the Council may recommend that a judge be removed or terminated. The constitutionality of this mechanism was raised before one of those committees, the committee involved in the Gratton affair in 1994, and subsequently Justice Barry Strayer had to study the matter in Federal Court. It was considered that this process did not alter the Parliament of Canada's unilateral power to remove judges. In that respect, one may wonder on the basis of what logic, if Parliament does retain its sovereign power to write an “Address of the Senate and House of Commons“ to remove a judge, it would be bound by the report of an independent commission with respect to pay increases for judges?
In one case, we're dealing with financial security, one of the essential ingredients of constitutional independence and, in the other case, we're talking about security of tenure, which is as important a component, if not more so, of that financial independence.
Now, I would like to say a few words about what has been written over the last five or six years in rulings of both the Superior Court or the Court of Appeal, and in reports at both the provincial and federal levels. I have done a considerable amount of reading on the subject, which has prompted me to give this quite a bit of thought and conclude that the process that has been put in place is cumbersome, complex, and cannot easily meet the objectives that those who designed it had in mind.
Consider the fact that in Quebec, the 2001 report is still under consideration by the Superior Court, the Court of Appeal, etc. According to a 2004 report, there may yet be legal challenges. And then the process will begin all over again, with the Federal Court, the Supreme Court, and so on, in order to apply criteria that are not that simple. As for the test of simple rationality, I will spare you the explanation, because I have read things written by eminent justices of courts of appeal and superior courts that introduce all sorts of qualifications in that area.
What exactly is simple rationality when, with respect to the factual basis for the government's position, it is said that the government is providing rationale for its position? When you read these reports, it is clear that there can be respectful differences of opinion as to the choice of certain criteria or comparators. Some things seem to rely almost on a kind of mythology. Over the years, a certain number of concepts have been passed on. And I have to smile at times, for example, when I hear people suddenly make much--or otherwise--of the comparison between justices of superior courts and deputy ministers.
There are nine DM-3s in Canada and two DM-4s. There is no doubt that most of these DM-3s with legal training could easily become judges. There are some in the Supreme Court: the former associate deputy minister, and so on. But does it work in the reverse? I know a great many justices of the Superior Court and nothing on earth would ever prompt me to appoint them deputy minister of a major federal department. And many of them, when they see that they are supposed to have exceptional skills--or that, at least, is what it says in the reports--acknowledge that they are good judges, have a thorough knowledge of the law, are capable of moving litigation forward, and are human beings able to listen to what others have to say and write decisions, but they do not believe they have exceptional skills. And yet, this is what you see in the reports: in other words, judges must be exceptional, just as exceptional as our nine deputy ministers or our 11 deputy ministers who, naturally, have responsibilities of a completely different nature--and the reports actually state this--from those of a justice of the Superior Court. A deputy minister's responsibility is enormous: government programs, accountability, managing a large staff, and so on. I think that is one example of the myths that very often tend to be passed along.
In order to compare, we use standards of comparison applicable to lawyers in private practice working for large firms in large cities. As can be seen in the Commission's report, the compensation received by lawyers in the public sector is not considered. Let's compare that, for example--and this may be a bad example, because it's not particularly convincing--with the salary received by law professors.
An hon. member: It's not bad either.
Prof. Patrice Garant: True, it's not bad, but there is a considerable difference, when you see what some private practice lawyers at the top of the wage scale are earning. Furthermore, there is no requirement to perform only that job, meaning that you can engage in other activities, conduct research, and so on; but in order to earn $230,000 or $220,000 a year, I suppose a law professor would have to work seven days a week, 370 days a year. These are comparators about which people may have differing opinions, and when a government, for good reasons that have been considered by its officials, decides that it disagrees with these reports, well, I have to say that it doesn't shock me at all. And when a government that takes over from another one does not share the opinion of the previous government, I would say that it is perfectly normal.
So, I guess I could add a great many other things. But in terms of the quality of the justices serving on our superior courts, particularly at the trial level, the fact is there are many excellent judges there that do not come from the big law firms in Montreal or Quebec City; rather, they come from legal aid offices, the public service, and so on. So, I believe the net must be cast much wider than did the McLellan Commission.
Mr. Chairman, thank you for your patience. I will be available to answer your questions later.
Thank you, Mr. Chairman.
I want to begin by welcoming the witnesses from the Canadian Bar Association. As the Minister of Justice, I was very much the beneficiary of your counsel, including on the matter that is before us today.
I also want to wish a very warm welcome to Professor Garant, whom I met, in my capacity as Minister, at the Laval University Faculty of Law.
I appreciate that the fundamental constitutional principle that has underpinned the presentation of the Canadian Bar Association is that of the independence of the judiciary as the cornerstone of our democratic process, as being, in effect, the lifeblood of constitutionalism, a principle that has had a certain increased importance with the advent of the charter. Financial security is a basic component of that independence. Indeed, as your brief points out, an important and related principle is not only that the judiciary must be independent, but it must be seen to be independent, which is the raison d'être for the establishment of the independent commission. In effect, this independent commission--and here I reply as well to Professor Garant's statements--was established to protect this constitutional principle, to protect our constitutional democracy, because with the advent of the Charter of Rights and Freedoms we have moved from being a parliamentary democracy to being a constitutional democracy, where the principle of the independence of the judiciary has, as I say, an enhanced importance.
I saw the work of the independent commission to protect our constitutional democracy in that principle, rather than to be seen, Professor Garant, as usurping it, to depoliticize the process of setting judicial salaries and benefits, and to ensure that judicial salaries and benefits would be determined by an evidence-based inquiry conducted by a commission that was independent from both the government and the judiciary, but giving Parliament an important role to give effect to this principle.
The parliamentary role, as I understand it--and here I relate to Professor Garant's presentation as well as to yours--takes place as follows. The Constitution does not require that the commission's report be binding, but the government must give a rational or legitimate set of reasons to depart from the commission's findings, and those reasons must have a factual and evidentiary basis, all part of the protection of the independence of the judiciary. Therefore, when a standing committee of Parliament, such as ours, reviews the government response to a commission report, it's our responsibility--and this is why there is an important parliamentary role distinct from the parliamentary role being usurped--to ensure that the reasons given by the government, as the Canadian Bar Association put it, are not incomplete, generalized, or lacking in particulars.
Here I come to the essential point. It is your view, as I appreciate it and as you expressed it today in terms of the Canadian Bar Association, a view which I share, that the government response is so generalized, so lacking in particulars, that it fails to give a meaningful effect to the 2003 commission report. The alleged reasons given by the government do not demonstrate how or why the implementation of the recommendations of the commission would somehow, as you put it, impair or affect the ability of the government to pursue its economic and social priorities as set forth in its budget of 2006, which could not have been before the commission in 2003.
To sum up, there's no justifiable explanation to reject the commission's findings. My question to the members of the CBA here today is this. Is it fair to say that, between what I call the constitutional imperative of protecting the independence of the judiciary, as against the lack of a demonstrably based justification for rejecting the commission's decisions, this standing committee should support the recommendation of that independent commission?
Either one could answer.
Thank you, Mr. Chair, and thank you to all of the witnesses for taking the time to meet with us today.
I want to ask a couple of questions, but first I want to say that I think some of the response, particularly from the opposition, has been a little alarmist on this issue. I agree on a number of fronts with some of the witnesses we've heard and I agree with the Canadian Bar Association submission that we should act quickly. I think our government did act very quickly. Shortly after we were elected, we brought in this bill. We studied the committee's findings. As a matter of fact, this bill contains all the committee's recommendations, except there was one exception, and that is on the salary. Some have suggested that somehow this whole process undermines judicial independence, and I think that's a little alarmist. I know that's not the intention at all.
Professor Garant, I found your testimony to be interesting on some of the constitutional underpinnings, the fact that even today, ultimately, we as parliamentarians, as government, are responsible for the public purse.
So the facts are that the government acted quickly and brought in this bill. The only deviation from what the committee recommended is this. The committee recommended that judges receive a 10.8% increase retroactive to 2004, and we studied that, gave fair weight to that, but also felt that there were some shortfalls in their analysis and decided on a 7.25% increase.
So I just want to caution that in no way do I see, nor does the government see, this as impacting on the independence of the judiciary. There have been some rather alarmist comments made that somehow this could shake the foundation and judges would somehow be more susceptible to bribes, and I think that's pretty far-fetched. Whether we go with (a) or with (b), I don't think judges in this country will be any more or less susceptible to any wrongdoing. To suggest that shows a real lack of faith in the judiciary.
I almost get the sense from the opposition that somehow there's no way the commission--an independent commission, where one member is nominated from the government, one member from the judiciary, and then one selected by the other two--could ever do anything out of line with what the public expectations and the government responsibility is. I'm wondering what we would responsibly say if the commission had recommended a 30% increase in salaries.
We all have a sense, I think, of what's reasonable and what's not reasonable. I know if you talk to lawyers, and I know you do, I would suggest that most lawyers in the Canadian Bar Association, regardless of which of these increases is ultimately chosen at the end of the day, or something in between, would love to have a judicial appointment. To me, it's almost an insult to some lawyers and to those who get that very important appointment that somehow the salary would play that huge an impact anyway. So many people would take on that responsibility for half of what judges currently make. To think that 10.8% is some sort of magical number...because honestly, the sense I get from the opposition is that there's no way any other number could possibly do, that all of a sudden 10.8% is infallible.
For example, compared to incomes in the 75th percentile across all provincial centres, urban and rural, we felt there was too much of an emphasis placed on urban. And I can tell you--and you all know this already--there is no lack of highly qualified and qualified individuals who would love to have a judicial appointment and to be a member of our judiciary.
But could you comment a bit on when it would be reasonable? Under what scenario would the test be met? To the Canadian Bar Association, I note that you do feel that the government has met the test as set out by the Supreme Court in some respects, so under what scenario do you think that would be completely met?
I want to thank you, Professor Garant, Ms. Thomson and Mr. Leurer for being here today.
My first question is for Mr. Garant. You quoted several sections of the Constitution and, naturally, the Constitution makes reference to the Parliament of Canada, of which we are a part.
But you raised a doubt in my mind because the Commission that has been created could whittle away the powers of Parliament. And one of the privileges of members of Parliament is not to have their powers whittled away under any circumstances, and that is a privilege that the House of Commons, through its Speaker, is required to protect. The very reason why we have law clerks at the House of Commons is to ensure that the laws we pass do not remove any of those privileges.
But when I hear you speak, I really get the feeling that there is an attempt here to remove my right to decide, as a member of Parliament, for a number of reasons that do not require justification, to grant or reject a specific amount of compensation. My only master is the electorate.
But in this case, there is an attempt to impose another master, which is the Commission. And yet, if I understood your approach to this, I have no need to justify myself with such a commission. Naturally, it was created, but I do not need... If I have to justify what I do, that means I have lost certain rights at the House of Commons. It also means that at some point, the Commission will have too much power and could dictate to me, as a member of Parliament, how much money I should allocate. And when I go to the electorate, I will be defeated because of a commission that isn't even elected. I have a problem with that.
It's true that it may be a little late to be saying that now, but we have a bill before us. As Mr. Bagnell was saying, they cannot increase what we have put on the table, because otherwise it will not be passed by the House. So, I would like to ask you, because I was really non-plussed by what you said, whether you believe that this Commission seems to want to take powers away from me, as a member of Parliament.
Thank you very much, Mr. Chair.
Thank you to all the witnesses for appearing today. This is a treat for me. It's the first time I've been to the justice committee.
First of all, I think all members of Parliament would agree, and my colleague Mr. Jean would agree, that judges in this country do fantastic work. The vast majority of judges are very capable. They do very difficult work and they work very hard.
I'll tell you a little bit about my perspective and what I bring to this committee. My wife Denise is a lawyer in Regina. She has been at the bar for 10 years now. She'll make an annual salary of probably $50,000, maybe a bit more, in a good year. So as I sit down here and look at some of these figures, I think it's very reasonable, actually, that the government, instead of accepting a recommendation of a 10.8% increase, reduce it to 7.25%.
Judges make just shy of $220,000 per year, and I just cannot imagine, I just can't dream that many Canadians will cry in their beer--nor would a lot of judges, frankly, to my mind--if judges don't get a $33,000 a year pay increase. There are issues of fiscal prudence that governments have to wrestle with, and I think the government has made a very reasonable proposal to give an increase of 7.25% instead of 10.8%.
I do have a question I'd like to put to whoever chooses to answer it. Mr. Garant, I'll start with you.
When the commission looked at the question of salaries, it looked at private practitioners from Canada's largest urban centres as the appropriate comparative groups--the largest urban centres. I'm a guy from Regina, Saskatchewan. The result is that the commission gave too much weight to the income of self-employed high-paid lawyers in private practice and not enough consideration to the income levels of lawyers from across all provincial centres, urban and rural.
I'd like to ask you, since one of the stated criteria for determining judicial compensation is, “the prevailing economic conditions in Canada”, meaning all of Canada, do you really consider the income of most highly paid urban lawyers in our largest centres to be in line with the prevailing economic conditions in Canada?