In effect, what we have--and I'm addressing this to the whole committee--are two sets of amendments: mine, which would have the effect of reinstating the commission report, and the Bloc amendments, which would have the effect of linking, and I guess reinstating, it to MPs' salaries.
I'm going to suggest to you, Mr. Chair, that the position the minister took when he was here with regard to the issue of royal prerogative--because obviously my amendments would require a royal prerogative, there's no factual issue over that--was indeterminate as to what they would do, but he also indicated a willingness to consider recommendations from this committee to change the numbers, the dollar figures, if I can put it that way.
I've spoken to the parliamentary secretary, and he's indicated that the government is open to listening to that at report stage and making a determination at that point.
In that light, and not knowing entirely what certain members are going to do and whether they're going to support my position, I think at the very least we should have a discussion about them and an indication.
Then, Mr. Chair, and I think this is true of the Bloc ones, if we get over the procedural problem of whether or not they are in order--and I'm arguing that they should be allowed to go if they pass this committee--there should be no ruling by the chair until we see the outcome. And your ruling should be, if my amendments pass, to allow it to go to report stage and to let the government determine at that point whether they're going to accept the recommendation from the committee or reject it. Obviously, if they're going to reject it, they'll do it on the basis of saying that it is out of order, that royal prerogative is necessary, and that they're not giving the royal prerogative.
Mr. Chair, the other point I want to make, and I would invite some discussion on this if people are feeling uncomfortable about it, is that the amendments are basically all the same.
Point by point--and that's necessary because of the procedural aspect of the bill--we're just putting the numbers back in, what the commission had originally recommended. I believe that's true of the Bloc's amendments as well. In that light, rather than having to have a discussion, a debate, on every single point, let's have the vote apply to all of them after we have the initial discussion. That will save a tremendous amount of time, certainly in terms of the number of votes we would have to have if there was debate on each point. I think that would be applicable to all the amendments, the two sets we have.
I would like to suggest that, and I'm hoping the committee would entertain that we do it that way.
Yes, I'll move NDP-1, Mr. Chair. It is one in a series. They're all consequential. The effect of this amendment would be to start that process of reinstating the report that we have from the commission.
I want to make two points. One is that the position the government has taken in the bill before us is one that is obviously inconsistent with the commission's recommendations. That's obvious on the face of it, but it's also inconsistent, I believe, with the law as to how Parliament is to deal with the commission's recommendations when it appears before it.
I won't go back through the legal arguments. We saw those I think particularly in the brief we got from the Canadian Bar Association, but we certainly got similar indications from the commission itself when it was here.
Mr. Chair, I have to put on the record that the effect, if my amendments don't go through and the government's proposal does, is to seriously undermine, if not destroy, the system we have established as the best way of dealing with judicial compensation in this country for appointments by the federal government to our judiciary. The consequences of that are quite serious. The methodology that was established I think is quite clear. If the government is not going to accept the recommendations of the commission, it has to meet certain criteria. The criteria it has posited, on the face of it, seem to be below the standard that the courts have ruled in a number of other cases. So it hasn't met the criteria. This committee has a responsibility, I believe, to reinstate the commission's recommendations and, hopefully, have that adopted by Parliament.
That's our role here. We can get into all of the arguments over how much judges should be paid. I don't think that's our role. Our role here is to either accept the commissioner's recommendations or understand why, and accept why we're going to reject them. The material that's been put before us by the government does not give us any reasonable basis, based on the facts, for us to reject the commission's report. Therefore, we should accept it.
Thank you, Mr. Chair.
If your ruling is to be based on the matter of relevance, that's one thing, and we'll wait to hear what that is. I think these amendments are quite relevant, and based on the invitation of the Minister of Justice when he was before us, they're quite consistent with his invitation.
But the issue I want to address is a bit more meaty than the cordiality of submissions from the justice minister here. I want to argue that the precise matter we're dealing with of setting remuneration for another branch of government, for the courts, is conspicuously an exception to parliamentary practice, procedure, and constitutional law, as you have already outlined. I don't quarrel with your outline of that law on the issue of royal recommendation.
The basis of my position is absolutely not the invitation of the Minister of Justice, but a provision of our Constitution. If I'm not mistaken, section 100 of the Constitution Act states very clearly, explicitly, and without condition that Parliament shall set the remuneration and other amenities of the courts. It says very clearly, and I repeat, “without condition”.
Other established practices in Parliament, and the mother of Parliament's requirement that there be royal recommendation from a government or the Crown, exist outside of what is provided for in section 100. I say to you and this committee--and I may end up saying it to the House and the Speaker--that if our Constitution says that Parliament shall set, and I'm using those words advisedly, then no person and no government can put an obstacle in the way of that constitutional provision. No attorney general or government may steal that authority given by the Constitution, nor may it obstruct that authority given by the Constitution.
If this House decides that remuneration will be x plus y, then that shall be the remuneration of the courts. No government--and here I'm talking about a cabinet and government--has the constitutional power or ability to interfere with that, impair it, obstruct it, or prevent Parliament from fulfilling its constitutional responsibility and obligation.
So when the Minister of Justice was here and invited us to do something on this, whether he knew it or not, he was simply articulating what the Constitution not only empowers us to do but obliges Parliament to do. By saying that the twenty or so members of the cabinet have the ability to obstruct our House and the Senate by purporting to refuse to extend the royal recommendation, they are operating contrary to the Constitution that governs us. I am saying right here and now that section 100 is a higher law than any parliamentary convention, cabinet order or recommendation, statutory instrument, or law. It's bigger than all of us because it says it right there in black and white.
I want to make the point really clear that legally, politically, mechanically, technically, intrinsically, and morally, your ruling that this may be out of order simply has to be wrong. I could say the reason why we're in this situation. We're really at the pointy edge of the sword here, and were it not for all of the lovely conventions and all the polite judges down the street and all across Canada...we have ourselves an issue.
We do have ourselves an issue. The judges might or might not be unhappy with what's going on here. But I do want to say that the Supreme Court of Canada, on matters litigious that were brought to the court by judges...and I can say that they had every right and obligation in the world to attempt to construct a mechanism that would set judicial salaries in an appropriate and fair way. When they did that, I suppose they found they were not in a position to consult with either the cabinet or the Parliament, House or Senate.
As a result, in the absence of what I think should have been an appropriate consultation at the time, in constructing the mechanism of these reports, the absence of consultation has led to this difficult circumstance where the court has essentially laid down what the law is. And that's its function--or maybe it isn't; some around here will argue that it isn't its function to lay down the law, especially when it's their own compensation.
But as a result of that absence in collaboration at the time, we have a mechanism that is running into trouble. It ran into so much trouble and was so problematic that, having linked the salaries of the Prime Minister and members of Parliament to the judicial salaries, we had to delink a couple of years later. We had to delink because it looked so bad. Yet this is the mechanism the judges have chosen.
I say all this respectfully in the hope that.... Well, one, I think this may come up in the House on the main issue of whether or not this is in order and whether or not Parliament has the absolute constitutional authority and right to set these matters without obstruction from the cabinet. I hope my remarks will also signal to the courts and to government that maybe this has to be reworked a little bit. This is just one battle, with potentially a few more. If we end up with another court case on this--if we do--will there or will there not be a collaboration in settling on a new or revised mechanism?
I'll stop there, Mr. Chairman. I'm essentially challenging the chair in your decision here and whether this stuff is in order or not. But I won't move that, because I realize this issue is probably better dealt with on the floor of the House.
Mr. Chairman, we are very hopeful about this amendment, which we obviously hope will the support of all of our NDP, government and Liberal colleagues, for the sake of coherence. This goes to the very heart of democratic legitimacy.
As you know, the Bloc Québécois has always maintained that increases in MPs' salaries must be tied to increases in judges' salaries. We've always been extremely concerned that if the bill was adopted, we would find ourselves in the dubious situation where the Prime Minister, who has been democratically elected to office, could be receiving a lower salary than the Chief Justice of the Supreme Court.
I seem to recall the Prime Minister expressing concern about that possibility when he was the spokesperson for a coalition monitoring the actions of elected officials.
If we no longer have any respect for the position we hold, then I think there's a problem in terms of democratic legitimacy.
MPs received a salary increase of 2.4% in 2006. If this amendment is adopted, then members of the judiciary would receive the exact same salary increase.
Quite apart from that, this doesn't mean that we disapprove of the idea of setting up an independent commission. We're looking for options. We understand full well that Parliament cannot set salary conditions and standards for judges. However, I can't understand how one can discount the argument that in a democratic system, it's impossible for the judiciary, however qualified members may be...
We adhere to three rules. Judges must be well paid, because they must give their full attention to their duties. Judges are appointed during good behaviour and are above all political interference. Just because we disagree with a ruling handed down, we cannot remove that judge from office. Finally, judges must, quite obviously, be totally independent, and as such, parliamentarians do not have any contact with them.
Let me reiterate very clearly that the system worked very well between 1999 and 2003. Unfortunately, for the purposes of historical accuracy, I must also point out that in 2003, further to a recommendation by an independent commission that salaries be increased, the Liberals... I don't like to bad mouth the Liberals in the government's presence, because I know they disapprove of that, but Paul Martin was the first to break this rule. He stated that from a political standpoint, the increase proposed by the third Judicial Benefits and Salaries Commission would not be well received by the public.
Therefore, if we don't believe in the work we do...I'm prepared to publicly defend the salary that I earn. When I go to bed at night, I sleep well knowing that I gave my all and represented my constituents well.
Again, what possible explanation can there be for the fact that the Prime Minister, someone who represents 35 million people, has a minority mandate and, if it were up to us, would continue to lead a minority government, could ultimately end up with a salary that is lower than that of the Chief Justice of the Supreme Court?
The Liberals were the ones who got away from this practice which was well established from 1999 to 2003. MPs' salaries were set by legislation and were adjusted based on the salaries paid to judges. MPs earned 75% of the salary of Supreme Court justices. The Prime Minister was paid the same salary as the Chief Justice of the Supreme Court. For political reasons, the Liberals did away with this practice.
Therefore, we believe this proposal is justified. Apart from salary considerations, we support the bill. We have no objections to judges in the Far North being appointed chief justices; we do not oppose the credit-splitting provisions or the proposed changes for judges in Canada's North. Rather, we welcome a certain number of technical provisions. However, with respect to salaries, we feel the bill runs counter to democratic legitimacy.
I hope that all of my colleagues will agree with the proposed amendment. This is an opportunity for the Liberals--and I say this with no animosity whatsoever--to correct the historical mistake made by Paul Martin. Our amendment seeks to restore some balance and some respect for our institutions.
Again, respect for the job of MP is a key element of the Bloc's amendment. I am confident that it will receive the government's endorsement as it would surely help to make this a better piece of legislation.
Mr. Chairman, I know that some demagogues--and I have to believe that none is seated here at this table--might be tempted to say that Bloc Québécois members are merely interested in a salary increase, when in reality, nothing could be further from the truth. The Bloc caucus is quite capable of rising above such matters and of not attaching a lot of importance to worldly possessions. To prove my point, I can tell you that former members of the clergy will soon be joining our ranks. We advocate the principle of democratic legitimacy. In a democracy, true legitimacy rests with parliamentarians and the institution of Parliament.
I want to make myself very clear. I appreciate that a judge's job is an important one. Nine individuals in Canada have a responsibility to see that the law evolves. Supreme Court justices have a duty to champion important values.
And that's why--and I'm certain Mr. Comartin will agree with me--the Law Commission of Canada has a role to play. It provides advice, summarizes a number of debates involving values and helps Parliament to gauge public opinion.
Certain people within government--and they will remain nameless--have regularly criticized what they perceive to be judicial activism. For example, when a provision was added to the Canadian Human Rights Act prohibiting discrimination on the grounds of sexual orientation, some people blamed judicial activism.
I have to say, Mr. Chairman, that I was extremely surprised. As you know, I do have some experience. I may not have reached the same venerable age as you, but I do have many years of experience as a member of the House, having first been elected in 1993. I was extremely surprised when the Prime Minister rose in the House to say that the Court Challenges Program was being abolished because it served no purpose, since his government had no intention of ever introducing legislation that was unconstitutional. That's not an argument. There's a direct connection with judges' salaries. When the Supreme Court considers a question, it doesn't just look at whether legislation is constitutional or not. It also looks at how rights must evolve. In some cases, rights were not recognized. I'm thinking here about aboriginal and women's rights, and about sentencing.
I'd like to switch gears briefly, Mr. Chairman, before I wrap up. Consider for a moment the importance of the 2000 ruling in Regina vs. Proulx. I don't know if some of you have had an opportunity to read this decision. In 1995, former Minister Allan Rock had tabled Bill C-41 on sentencing. The proposed legislation had led to some confusion at the appeal court level over interpretation. The constitutionality of the bill was not being called into question and no one was claiming that Bill C-41 sponsored by the Minister was unconstitutional. However, questions were being raised about the scope of the bill. In Regina v. Proulx, the Supreme Court clarified the meaning of the four criteria set out in section 742 of the Criminal Code. As you may recall, these four criteria are as follows: the offence must not be punishable by a minimum term of imprisonment, the offender must not represent a danger to the public, the term of imprisonment imposed must be less than two years, and the sentence must be consistent with section 718 of the Criminal Code, a provision that my colleague Marc Lemay greatly appreciates. So, the Supreme Court may be asked at times to clarify the meaning of the law and in the process, help the law to evolve.
I'll never forget being in the House when the ruling in Egan v. Canada was handed down. The case involved two homosexuals who, as all of us here can appreciate, had lived together for more than 40 years. Mr. Chairman, if I were to ask the members seated here at this table how many of them had been with their spouse for 40 years, I'm fairly certain that the numbers would be quite low.
I've heard that you have a rather robust nature, Mr. Petit.
So, faced with a case involving over 40 years of co-habitation, the Supreme Court of Canada was not willing to rule on the marriage issue. However, it called upon lawmakers to add grounds for discrimination under section 15 of the Charter which concerns equality rights.
In passing, I would also like to say how very important the Court Challenges Program is for equality rights. Just think of how rights have evolved, Mr. Chairman, not only minority language rights, aboriginal rights and rights for homosexuals. Imagine where they would be without the Court Challenges Program.
Basically, I think it shows a lack of respect and consideration for human rights to decide to abolish in one fell swoop the Court Challenges Program. Let me repeat, the Supreme Court does not only rule on constitutionality issues.
Therefore, elected officials embody democratic legitimacy. As I said before, Mr. Chairman, it would truly be one of the great paradoxes of our time as parliamentarians if the bill were adopted. The Chief Justice of the Supreme Court--and the parliamentary secretary can correct me if I'm wrong--will be earning $298,500 a year, whereas the Prime Minister will be earning $295,400. Obviously, I'm not arguing that either person will be earning the minimum wage or experiencing financial hardship, but how are we supposed to explain this to our constituents...?
There is a connection to my amendment, Mr. CHairman.
You can't say that it's irrelevant. I'm talking about salaries, and that's precisely the focus of my amendment. Let me explain why there is a connection between the two. Please don't brush me off.
I'm trying to say that if the people seated at this table espouse certain principles, they will have no choice but to vote in favour of this amendment. I can't imagine that government members, or my NDP friends with whom I've waged so many battles, will oppose it. I recall the heated debates over same-sex marriage, sentencing and hate crimes, not to mention all of the social programs, as well as the addition of social condition as an illegal grounds for discrimination under the Canadian Human Rights Act. We still haven't managed to have that included in the legislation.
As parliamentarians, we have a responsibility. When we run for office, we know that we have some democratic legitimacy, something that judges do not have. Of course they do wield a certain amount of authority and the public does hold them in some esteem. Their mission is to help the law evolve. However, they do not have the same democratic legitimacy as we do.
The temptation is great, Mr. Chairman, to bring up the Gomery Report, which as you know, prompted us to clean up our institutions. I will refrain from doing so, in order not to be ruled out of order. Moreover, I wouldn't want to dredge up any bad memories for the Liberals. However, the fact remains that democratic legitimacy...